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1989 Supreme(All) 227
HIGH COURT OF ALLAHABAD
K.K.Birla
KALLOO
Versus
UNION OF INDIA
Decided On : 12 April 1989
Cri. Revision No. 1058 of 1988 connected with Crl. Revisions Nos. 1130 of 1988 and 1755 of 88
KESHAV SAHAI, S.P.Malviya, Shirish Chandra,
The Magistrate is not required to hold an inquiry under Section 202 of the Cr.P.C. if the complaint is made by a public servant acting or purporting to act in the discharge of his official duties.
Headnote:
CRIMINAL PROCEDURE CODE - Section 202 - Inquiry - Public Servant Complaint - Discretion of Magistrate - Summoning Order - Legality.
Fact of the Case:
Three connected criminal revisions arose out of the summoning orders passed by the Chief Judicial Magistrate, Varanasi, in cases involving complaints filed by the Intelligence Officer of Narcotics Control Bureau, Government of India, Varanasi, under Sections 8/20/23/25 of the Narcotics Drugs and Psychotropic Substance Act, 1985, read with Section 11 of the Customs Act.
Finding of the Court:
1. The Magistrate is not required to hold an inquiry under Section 202 of the Code of Criminal Procedure (Cr.P.C.) if the complaint is made by a public servant acting or purporting to act in the discharge of his official duties. 2. The Magistrate has the discretion to take cognizance of the offense and issue process immediately without postponing the issuance of process under Section 202 of the Cr.P.C. 3. The accused is not prejudiced by the absence of an inquiry under Section 202 of the Cr.P.C. as they will have access to the material relied upon by the prosecution before the commitment is made under Section 209 of the Cr.P.C.
Issues: 1. Whether it is mandatory for the Magistrate to hold an inquiry under Section 202 of the Cr.P.C. even if the complaint is made by a public servant acting or purporting to act in the discharge of his official duties. 2. Whether the Magistrate's order summoning the accused without holding an inquiry under Section 202 of the Cr.P.C. is illegal and prejudicial to the accused.
Ratio Decidendi: 1. The provisions of Chapter XV of the Cr.P.C., which deal with complaints to Magistrates, provide different treatment for complaints made by private persons and complaints made by public servants acting in their official capacity. 2. The first proviso to Section 200 of the Cr.P.C. dispenses with the need for the Magistrate to examine the complainant and witnesses if the complaint is made by a public servant acting in the discharge of his official duties. 3. Section 202 of the Cr.P.C. provides for the postponement of the issuance of process and the holding of an inquiry or investigation only if the Magistrate thinks fit. 4. The Magistrate's discretion to take cognizance of the offense and issue process immediately without postponing the issuance of process under Section 202 of the Cr.P.C. is legal and within the ambit of the provisions of Chapter XV of the Cr.P.C. 5. The accused is not prejudiced by the absence of an inquiry under Section 202 of the Cr.P.C. as they will have access to the material relied upon by the prosecution before the commitment is made under Section 209 of the Cr.P.C.
Final Decision: The revisions were dismissed, holding that the Magistrate's order summoning the accused without holding an inquiry under Section 202 of the Cr.P.C. was legal and did not suffer from any infirmity.
These are three connected Crl. revisions. Criminal Revision No. 1058 of 1988 and Crl. Revision No. 1130 of 1988 arise out of the order dated 19-5-1988 passed by the Chief Judicial Magistrate, Varanasi, while Crimi nal Revision No. 1755 of 1988 arises out of the order dated 5-9-1988 passed by the Chief Judicial Magistrate, Varanasi. As the common question arises in all these three revisions, they are being disposed of by this common order.
2. In brief, an Intelligence Officer of Narcotics Control Bureau, Govern ment of India at Varanasi along with his staff raided the premises H. No. 8531 Audhgarbi, Varanasi on 28-5-1987. Three Kilograms of imported Ganja of Nepal origin and incriminating documents were recovered. Channoo Lal in Criminal Revision No. 1130 of 1988 and Jagdish son of Kalloo alias Kalika Sao in Criminal Revision No. 1058 of 1988 were in the premises at the time of the raid. According to the prosecution, the premises are alleged in the occupation and control of Kalloo revisionist. After obtaining report from the Chemical Examiner the complaint dated 27-8-1987 was filed under Sections 8202325, Narcotics Drugs and Psychotropic Substance Act, 1985 read with Section 11 of the Customs Act, by the Intelligence Officer of Narcotics Control Bureau, Govern ment of India, Varanasi.
3. A raid was made on the same premises on 30-10-1987. Some Opiums and Ganja etc. were recovered from the custody and control of Jai Prakash and others regarding which complaint against Jai Prasad and four others including Kalika and Chhottey Lal was filed for the offences under Sections 810202325 29 of the Narcotics Drugs and Psychotropic Substance Act, 1985 read with Section 11 of the Customs Act. In the first case the summoning order was passed on 19-5-1988 regarding which Criminal Revision Nos. 1058 of 1130 of 1988 have been preferred, and summoning order was passed by Chief Judicial
Magistrate in the other case on 5-9-1988 regarding which Chottey Lal has preferred criminal revision No. 1755 of 19b8.
4. Counter- affidavit and rejoinder- affidavit have been exchanged in the cases and the cases have been heard on merits at the admission stage itself and are being disposed of finally. In Criminal revision No. 1058 of 1988 and Criminal Revision No. 1755 of 1988 the petitioners were represented by the learned counsel while none appeared on behalf of the petitioner Channoo Lal in Criminal Revision No. 1130 of 1988.
5. In these cases the complaint was filed by the Intelligence Officer of Narcotics Control Bureau, Government of India Varanasi, a public servant, which was accompanied by papers, and the Chief Judicial Magistrate, Varanasi, straight way summoned the accused by the impugned orders. These summoning orders have been challenged.
6. The main contention by the learned counsel for the revisionists is that the Magistrate ought to have held an inquiry as provided under Section 202 of the Code of Criminal Procedure (hereinafter referred to as the Code), it amounts to an illegality, that the offences for which the petitioners have been summoned are triable exclusively by the Court of Sessions and are serious offences and therefore holding ot the inquiry was mandatory and its absence has adversely affected the petitioners and as such the impugned order is liable to be set aside. On other hand, the contention on behalf of Union of India representing the Intelligence Officer of Narcotics Control Bureau, Government of India, Varanasi, (hereinafter referred to as opposite parties) is that no such inquiry was necessary and the Chief Judicial Magistrate has not committed any illegality. It was also contended on behalf of the opposite-parties that the scopes of the revision is limited, the order passed by the Chief Judicial Magistrate is within its jurisdiction and as such these revisions are not maintainable. Both (he parties have relied upon and referred some cases. It has further been contended by the learned counsel for the petitioners t
