AMOD LAUL Vs. STATE AND B N KUMAR

JUDGEMENT

(1.) By this revision petition the petitioner Amod Laul who was originally the complainant in the trial court and on whose complaint B.N. Kumar, respondent No. 2 herein, was summoned for an offence under section 45 read with section 48(4) of Delhi Rent Cantrol Act, seeks reversal of the impugned judgment of the Additional Sessions Judge, New Delhi, passed on 3rd May, 1985, whereby the revision petition of respondent no. 2 was allowed and the case was remanded to the learned Magistrate for further action in accordance with law.

(2.) From a reading of the order of the learned magistrate and also of the impugned judgment a few facts which are not being rebutted emerge. They are: (1) that on filing of the complaint the learned magistrate recorded the statement of the complainant under section 200 of the Code of Criminal Procedure; (2) thereafter while acting under section 202 of the Code the learned magistrate directed the Station House Officer of police station Kalkajji to investigate into the allegations contained in the complaint and make bis report ; (3) that after the receipt of the report of the investigation officer, the learned magistrate recorded the statement of another witness. It was stated by My. Mathur, learned counsel for the petitioner, at the bar that that witness happened to be the biother of the complainant-tenant; and (4) that a process was issued to B.N. Kumar, respondent no. 2 herein, after the learned magistrate had taken into consideration the statements recorded by him, i.e., the statement of the complainant recorded before directing investigation and the statement of the brother of the complainant together with the report submitted by the investigation officer. It was that order of the learned magistrate which was impugned before the learned Additional Sessions Judge.

(3.) The ground of attack was that after directing the Station House Officer of police station Kalkaji to investigate and report, the learned magistrate was incompetent to record the evidence of other witness and as such the statement recorded of the brother of the complainant could not have been kept in view for summoning the accused. This argument on behalf of B.N. Kumar, respondent no. 2 herein, prevailed. The learned Additional Sessions Judge was of the view that under section 202 of the Code a magistrate has only two options; either to enquire into the case himself or to direct an investigation. Relying on a judgment of the Calcutta High Court, the learned Judge has held that once the option is exercised, the other alternative cannot be adopted. Thus, it has been held that after directing investigation by the police the magist"ate's decision to record further evidence was illegal and as such that evidence ought not be kept in view. The judgment relied upon is of a Division Bench in Sankar Chandra Chose v. Roopraj S. Bhansally, 466 1981 Crl.L.J.1002. Their Lordships therein have referred to and agreed with an earlier unreported Division Bench judgment of that Court in. (Netai Sen v. J. B. Ghosh). In conclusion it has been held : ''On going through the provision of section 202 of the Code, we are of the opinion that in a particular case if a Magistrate postpones the issue of summons then two courses are open to him. He can either make an enquiry into the case himself or direct that an investigation be made. The Magistrate can direct an investigation to be made either by a Police Officer or by such other person as he thinks fit. If he makes an enquiry himself, he cannot direct investigation. Again, when he directs an investigation, he cannot enquire into the matter himself. This is exactly what has been found by their Lordsips in the Bench decision referred to above in interpreting the provisions of section 202 of the Code."