V. Srinivasana vs Kishore Dev Mukherjee And Anr.
1986 Latest Caselaw 299 Del

JUDGMENT

Jagdish Chandra, J.

(1) This is a criminal revision filed by the petitioner V. Srinivasan and is directed against the order dated 8.7.1986 passed by Shri S.P. Singh Choudbary, Addl. Sessions Judge, New Delhi.

(2) Vide order dated 14th February, 1986 passed by Shri Bharat Bhushan, Addl. Chief Metropolitan Magistrate, New Delhi, process was issued against the accused Kishore Dev Mukherjee respondent No. 1 and V.K. Jain respondent No. 2 u/ss 21 and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985, on the complaint filed by Shri V. Srinivasan, Superintendent, Directorate of Revenue Intelligence, New Delhi.

(3) Against the said order of summoning, a revision petition was filed by V.K. Jain alone which was accepted by Shri S.P. Singh Choudhary, Addl. Sessions Judge, New Delhi, on the short ground that section 202(2) of the Code of Criminal Procedure 1973 (in short Cr P.C.) necessarily mandated the learned Addl. Chief Metropolitan Magistrate to first examine the complainant and all the witnesses before issuing process against the accused persons. The revision petition was accepted only on this question of law.

(4) The impugned Judgment of the learned Addl. Sessions Judge suffers from a basic illegality and does not stand the test of law. The position at law is that the learned A.C.M.M. was not bound to examine complainant or his witnesses before issuing process to the accused persons. It was, in fact in the discretion of the learned A.C.M.M. to have issued the process to the accused persons direct without examining the complainant and his witnesses which be did in the present case. He could have also thought it fit to postpone the issuance of process against the accused, and either inquire into the case himself or by such other person he thought fit, for the purpose of deciding whether or not there was sufficient ground for proceeding against the accused. This is what is provided in section 202(1) Cr. P.C. Under sub-section (2) of section 202 of the Cr. P.C. he could have taken evidence of the witnesses on oath during inquiry if be had chosen to inquire into the case himself instead of issuing the process immediately to the accused. To this there is a proviso added according to which if the Magistrate finds that the offence complained of is friable exclusively by the Court of Sessions, he shall call upon the complaint to produce all his witnesses and examine them on oath and it is this provision of law which on the face of it is mandatory and it is on this provision of law that the entire judgment of the learned Addl. Sessions Judge rests. Bat the fact of the matter is that this stags which finds mention in sub-section (2) of section 202 of the Cr. P.C. was not reached inasmuch as that stage could reach only if the Magistrate bad thought it fit to inquire into the case himself and that be could have decided if he had decided initially not to issue the process to the accused persons immediately without any further inquiry into the matter and bad thought it fit to postpone the issuance of process against the accused persons. As in the case in hand the learned A.C.M.M. had decided to issue the process immediately against the accused persons aod not to postpone the issuance of the same the question of holding any inquiry by the Magistrate himself in this case did not arise and consequantly, sub-section (2) of section 202 of the Cr. P.C. was not attracted. The postponement of the issuance of the process has been made by section 202(1) Cr. P.C. to rest in the discretion of the Magistrate and if he does not exercise the discretion of postponing the issuance of the process against the accused persons, the rest of this section does not come into play and the learned A.C.M.M. was competent to issue the process against the accused persons immediately without entering into any inquiry, on the receipt of the complaint of an offence. The learned Addl. Sessions Judge has completely failed to appreciate this point of law and has misdirected himself in relying upon the proviso to sub-section (2) of section 202 Cr. P.C.

(5) The proviso to section 200 provides that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if the complaint has been made by a public servant acting or purporting to act in the discharge of his official duties. The complaint in the case in band was made by a public servant acting in the discharge of his official duties. So, under this provision of law also it was not necessary for the learned A.C.M.M. to examine the complaint and the witnesses.

(6) It would be desirable to set out the aforesaid relevant provisions of law to appreciate the point in question. "SEC. 200. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint ; or (b).................."

Section 202(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit. postpone the issue of process against the accused, and cither enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) where it appears to the Magistrate that the offence complained of is friable exclusively by the Court of Sessions ; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath : Provided that if it appears to the Magistrate that the offence complained of is friable exclusively by the Court of Sessions, he shall call upon the complainant to produce all the witnesses and examine them on oath. (3) X x x "

(7) The perusal of the aforesaid provisions of law would fully bear out the correct postition of law vis-a-vis the case in hand as also the falsity of the arguments and the various authorities cited by the learned counsel for the respondent and relied upon by the learned Addl. Sessions Judge. These authorities are applicable only when the matter falls under sub-section (2) of section 202 Cr. P.C. and that can follow only when the Magistrate chooses to postpone the issuance of process against the accused persons and decides to hold inquiry into the offence himself and that too when in his opinion the offence is one friable exclusively by a Court of Sessions. That stage was never reached in the case in hand which stood determined by the learned A.C.M.M. regarding the matter of the issuance of the process to the accused persons only on the basis of the complaint filed before him.

(8) In this view of the matter the revision petition succeeds and the impugned order dated 8th July, 1986 of Shri S.P. Singh Choudbary, Addl. Sessions Judge, Delhi is set aside.

(9) It is pointed out by the learned counsel for respondents and also conceded by the learned counsel for the petitioner that certain other points were also urged by the counsel for respondent No. 2. V.K. Jain who alone had filed the revision petition before the learned Addl. Sessions Judge but these points were not dealt with by the learned Addl Sessions Judge who chose to accept the revision petition on the aforesaid fundamental point raised under section 202 Cr. P.C. Under these circumstances, the case is now remanded to the learned Addl. Sessions Judge to bear arguments on the remaining points in the revision petition which had been filed before him and then decide the same according to law. The records of both the courts below be sent back. Parties are directed to appear before the learned Addl Sessions Judge on 25th August, 1986. This disposes of this criminal revision. Criminal Revision allowed Department for the purpose of supplying the authentic information to the detenue was justified. The contention of the appellant is rejected.

(10) Lastly, it is complained on behalf of the appellant that the confirming authority had not considered at all the deposition of the defense witness, Mr. M.L. Khanna, the father of the detenue. It appears that the Advisory Committee has in its report referred to the evidence of the said M.L. Khanna. The report of the Advisory Committee was considered by the confirming authority. In the circumstances, it cannot be said that the confirming authority had not applied his mind to the evidence of the defense witness as contended on behalf of the appellant. It is, however, submitted by the learned Counsel for the appellant that the relevant portion of the evidence of the defense witness has not been mentioned in the report of the Advisory Committee, and, accordingly, the confirming authority had no occasion to consider the same. We do not think that it is incumbent upon the Advisory Board to refer in detail the evidence of the defense witness in its report. It will not be unreasonable to presume that all the records including the deposition of the said M.L. Khanna were before the confirming authority. It will be a mere surmise to hold that the confirming authority had not applied his mind to the deposition of the defense witness, even though such deposition has been referred to in the report of the Advisory Committee. The contention, in our opinion, is without any substance and is rejected. No other point has been urged on behalf of the appellant.

(11) Before we part with this case, we may record that although the constitutional validity of section 9 of the Cofeposa Act has been challenged. Mr. Jethmalani has not pressed the same before us.

(12) For the reasons aforesaid, the appeal is dismissed and the rule nisi is discharged. There will, however, be no order as to costs.