SALIM Vs. DEPUTY SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) Can a Magistrate forward a complaint to the police for investigation under S.156(3) of the Code of Criminal Procedure when the offence complained of is exclusively triable by a Court of Session That is the question to be resolved in this petition filed under S.482 of the Code of Criminal Procedure to quash the proceedings arising out of Crime No. 234 / CR / 99 / CBCID., Special Investigation Group - I, Thiruvananthapuram.

(2.) The facts necessary for the disposal of this petition may be stated as follows: The petitioner is the 1st accused in Crime No. 234 / CR / 99 / CBCID, Special Investigation Group - I, Thiruvananthapuram. The crime was originally registered as Crime No. 164/99 of Valiyathura Police Station. The case arose on a complaint filed by the de facto complainant against the petitioner and others before the Chief Judicial Magistrate's Court, Thiruvananthapuram, alleging the commission of the offences punishable under S.195, 196, 201, 211, 120B and S.307 of the Indian Penal Code which was forwarded to the police for investigation under S.156(3) of the Crl. P. C. Subsequently as per a report filed by the investigating officer the offence under S.21 of the N. D. P. S. Act is also included in the charge. The allegation is that accused Nos. 1 to 3 hatched a conspiracy to implicate the de facto complainant in a false narcotic case and in pursuance of the conspiracy the 1st accused procured 1.78 K.gms. of heroin and kept the same in a room at Bangalore, from where the DRI officials seized the contraband. It is further alleged that one of the accused informed the DRI officials that the heroin was brought there for handing over the same to the complainant for sale.

(3.) The petitioner filed a petition before this Court as Crl. M. C. No. 5072/99 to quash the proceedings exercising the jurisdiction under S.482 of the Crl. P. C. Though the petitioner sought a stay of all further proceedings, this court was not inclined to stay the investigation. However, the petitioner was ordered to be released on bail on executing a bond for Rs. 10,000/- with two solvent sureties for the likesum to the satisfaction of the investigating officer. Thereafter the investigating officer moved an application before this Court for cancellation of the order and also to permit the investigating agency to arrest the petitioner in connection with the crime. This Court by order dated 7.12.2000 cancelled the order and directed the petitioner to move for bail before the Chief Judicial Magistrate's Court, Thiruvananthapuram. A direction was also given to the police not to arrest the petitioner for a period of three weeks from the date of the order or for a period of two weeks from the date on which a copy of the order is made available to the petitioner whichever is earlier. Against this order, the petitioner moved a petition for special leave to appeal before the Hon'ble Supreme Court. The grievance of the petitioner before the Supreme Court was that the observation made by this Court that "there is prohibition for normal grant of bail imposed through S.37 of the N. D. P. S. Act" is likely to be understood by the court below before which the bail application would be moved as one of imposing a total prohibition for granting bail. The Supreme Court made it clear that the said observation is not to be read like that and the observation only highlights the need to comply with S.37 of the Act. The Supreme Court also directed the petitioner to surrender before the court and apply for bail and two weeks time was also granted to the petitioner. But without surrendering before the lower court as directed by the Supreme Court, the petitioner moved an application for bail before the Chief Judicial Magistrate, Thiruvananthapuram through his counsel. The said application was dismissed. The petition filed under S.482 for quashing the proceedings was dismissed by this Court as per the order in Crl. M. C. 5072/99 dated 7th December, 2000. After the dismissal of the petition, the petitioner has again come up with this petition to quash the proceedings on the ground that the order of the Magistrate forwarding the petition to the police for investigation is illegal since one of the offences complained of is exclusively triable by the court of Session.