IMPORTANT POINT
There is no legal obligation on the part of the Magistrate to take recourse in every case to the procedure laid down in Section 202, Criminal Procedure Code, which comes into play only when the Magistrate decides to postpone issuing of process.

ORDER

R.K. Saksena, J. - The facts giving rise to these revisions are identical and a common question of law is involved for determination. The revisions were therefore heard together and are being disposed of by a common order.

2. The facts which admit of no controversy are that two complaints were filed, one against Tek Chand and the other against Karam Chand (revisionists) by Sri. D.A. Nistance. Intelligence officer, Narcotics Control Bureau, New Delhi (opposite party no. 2) alleging that each was cultivating opiwn poppy and was in possession of the same in contravention of the provisions of Section 8 (b) & (c) of Narcotic Drugs and Psychotropic Substances Act, 1985 punishable under Section 18 of the said Act. It is not disputed that opposite party no. 2 is a public servant and he, in the discharge of his official duty, made the complaints. The offence is triable by a court of session. The Magistrate took cognizance of the offence and summoned the revisionists. After their appearance, the Magistrate committed the cases to the ill court of session. The cases were numbered as Sessions Trial 83 and Sessions Trial 84 in the court of session. The trials were made over to II Additional Sessions Judge Dehradun for disposal. Both the revisionists moved applications in these cases before II Additional Sessions Judge, Dehradun, alleging that because the committing Magistrate had not resorted to or complied with the provisions of the proviso to Section 202 of the code of Criminal Procedure, the order committing the case to the court of session was bad in law. The learned Additional Sessions Judge has, by his impugned order dated the 15th of February, 1988 rejected the contention. The correctness and the propriety of this order has been assailed by means of these revisions.

3. Drawing our attention towards the proviso to Section 202 of the Code of Criminal Procedure, the learned counsel for the revisionists contended that it being a case triable by a court of session, it was incumbent on the complainant to examine all his witnesses and because this has not been complied with, the impugned order is illegal and liable to be set aside. The learned counsel for the opposite-parties, on the contrary, contended that it is not obligatory on the part of the Magistrate to resort to the enquiry or investigation contemplated by Section 202 of the Code of Criminal Procedure and; therefore, the said proviso is inapplicable to the facts of the instant case. Reliance is placed on a well known decision of the Supreme Court in Antulay's Case1 and also on a case reported in Harish Dwarkadas Gandhi v. G.B. Yadav2.

4. On a plain reading of sub-section (1) of Section 202 of the Code of Criminal Procedure, specially the words may, if he thinks fit, it is manifest that it is entirely within the discretion of the Magistrate whether or not an enquiry under Section 202 should be made or an investigation ordered. There is no legal obligation on the part of the Magistrate taking cognizance of an offence to take recourse in every case to the procedure laid down in Section 202, which comes into play only when the Magistrate decides to postpone issuing of process. In Harish Dwarkadas Gandhi's ease after referring to certain decisions, it was laid down:

"It is crystal clear that it is not at all necessary and obligatory on the part of a Magistrate to hold an inquiry before issuing process and he is empowered to take cognizance and issue process without holding an inquiry or directing investigation. It may be pertinent to note here that the proviso to Section 202 (2) of the Code is pitted against the parent sub-Section (2) and not sub-Section (1) and as such it an hardly be construed a controlling or fettering the discretion, which vests in the Magistrate under sub-section (1). Therefore, the proviso in question is intended to qualify sub-section (2) to which it is appended and make it obligatory upon the Magistrate to call upon the complainant to produce all his witne