Once the Magistrate issues process under section 204 of the Code of Criminal Procedure and treats the case as a summons case, there is no question of going back and holding an enquiry under section 202(2) proviso. The Magistrate must proceed with the trial and record evidence of witnesses produced by the prosecution.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 202(2) PROVISO - SECTION 204 - SECTION 323 - SUMMONS CASE - COMMITTAL TO COURT OF SESSIONS - PROCEDURE - SUMMARY
Fact of the Case:

The applicants, Customs Officers, were accused of assaulting a respondent who filed a complaint against them under sections 323 and 506 read with 34 of the Indian Penal Code. The Magistrate issued process under sections 323 and 506 read with 34 of the Indian Penal Code. Later, the complainant applied to the Magistrate to hold an enquiry under section 202(2) proviso of the Code of Criminal Procedure, contending that the complaint disclosed an offence triable exclusively by the Court of Sessions. The Magistrate granted the application and directed the complainant to examine himself and his witnesses. The applicants challenged this order.
Finding of the Court:

The Court held that once the Magistrate issues process under section 204 of the Code of Criminal Procedure and treats the case as a summons case, there is no question of going back and holding an enquiry under section 202(2) proviso. The Magistrate must proceed with the trial and record evidence of witnesses produced by the prosecution. If, during the pendency of the trial, the Magistrate finds that the case involves an offence exclusively triable by the Court of Sessions, he can commit the case to the Court of Sessions under section 323 of the Code of Criminal Procedure.
Issues: Whether the Magistrate can go back and hold an enquiry under section 202(2) proviso of the Code of Criminal Procedure after issuing process under section 204 and treating the case as a summons case.
Ratio Decidendi: The Court held that the enquiry contemplated under section 202(2) proviso comes into play only when the Magistrate postpones the issue of process and holds an inquiry. Once the Magistrate issues process and treats the case as a summons case, he must proceed with the trial and record evidence of witnesses produced by the prosecution. If, during the pendency of the trial, the Magistrate finds that the case involves an offence exclusively triable by the Court of Sessions, he can commit the case to the Court of Sessions under section 323 of the Code of Criminal Procedure.
Final Decision: The Court allowed the applicants' petition and quashed the Magistrate's order directing an enquiry under section 202(2) proviso of the Code of Criminal Procedure. The Magistrate was directed to proceed with the case by recording evidence on behalf of the prosecution as provided under section 202(1) of the Code of Criminal Procedure.

JUDGMENT - H. SURESH, J.:---Applicant Nos. 1 and 2 are Preventive Officers of Customs and applicant No. 3 is the Superintendant of Customs. They detected a case of carriage of Mandrax tablets valued at Rs. 1,00,000/- to Lusaka, Japan. In the course of investigation, they arrested respondent No. 1, who along with others was produced before the learned Chief Metropolitan Magistrate, Esplanade Court, Bombay, on November 14, 1986. The accused were remanded to jail custody pending investigation and their prayer for bail was rejected. However, Respondent No. 1 complained to the leaned Magistrate, that he had been assaulted by applicant No. 1. His statement was recorded and the medical report was called for from the jail hospital. Respondent No. 1 remained in custody for some time After his release on December 24, 1986 he filed a complaint in the Court of the Additional Chief Metroplitan Magistrate, 37th Court Esplanade, Bombay, as against the presents applicants charging them under section 323 and 506 read with 34 of the Indian Penal Code. The allegation, broadly, is that the Customs Officers assaulted him by first and kicks and manhandled him when he was in their custody. The learned Magistrate issued procese under sections 323 and 506 read with 34 of the Indian Penal Code.

2. The applicants, as accused, appeared before the learned Magistrate and the case was pending for some time. On or about October 19, 1987, the plea of the accused i.e. the applicants herein, was recorded as the learned Magistrate treated the same as summons case. Thereafter, the case was kept for the purpose of leading evidence by the complainant. Instead, on November 24, 1987, the complainant i.e. respondent No. 1. made an application to the effect that if one reads the complaint elaborately, the complaint discloses an offence which is triable exclusively by the Court of Sessions and as such an enquiry should be held under section 202 of the Code of Criminal Procedure. The complainant, therefore, submitted that he should be permitted to lead evidence under section 202(2) proviso of the Code of Criminal Procedure and for that purpose he prayed that summons be issued to all the witnesses whose names were mentioned in the said application. This was objected to by the accused, i.e. the applicants herein. The learned Magistrate heard both the sides and finally by his order dated February 21, 1989, granted the application made by respondent No. 1. He directed the complainant to examine himself on oath under section 202(2) of the Code of Criminal Procedure and to examine all his witnesses cited by him in the said application. It is this order which ha been challenged in this application.

3. The limited question I have to consider is as to whether after the issue of process under section 204(1) of the Code of Criminal Procedure, can the Magistrate be permitted to go back and again proceed under section 202(2) proviso, as if it is an enquiry before the issue of process ?

4. Under section 202(1) of the Code of Criminal Procedure, it is open to a Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, to postpone the issue of process against the accused and either 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. Under sub-section 2, proviso if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. But if instead of postponing the issue of process, if it appears to him that he can take cognizance of an offence of which he is authorised to take cognizance he can issue process under section 204. In the present case, this is exactly what had happened before the learned Magistrate when respondent No. 1 filed the complaint. At that po

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1989 Supreme(Bom) 186

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