BIMAL ALIAS BISHNU DAS Vs. STATE

JUDGEMENT

(1.) THIS is an application In revision filed against an order of the Temporary Civil and Sessions Judge, Etah, dated 27th May, 1966, by which he disposed of three revision applications Nos. 16, 17 and 18 of 1966 filed in his Court.

(2.) THE applicant Bimal is named as an accused in a complaint filed under Section 302 read with Section 34 of the Indian Penal Code by one Pt. Bihari Lal. The complaint is, in fact, against two persons, Sri Raghuraj Singh, a Sub-Inspector of Police and the present applicant, Bimal. On the complaint being presented, the statement of the complainant was recorded under Section 200 of the Code of Criminal Procedure, and then the complainant was directed to produce evidence under Section 202 of the Code. No additional evidence has been examined so far on behalf of the complainant. An application was, however, moved by him on 17th September, 1955, in which it was stated that the accused Bimal was required to be identified by his witnesses and that he might, therefore, be summoned by the issue of non-bailable warrants against him. The Magistrate passed an order that non-bailable warrants be issued against Bimal and that instructions may also be issued that he was to be kept duly covered. But the Magistrate has not given any reason why and how he was satisfied that the issue of non-bailable warrants was necessary. The question is if it was within his jurisdiction to issue non-bailable warrants, when the evidence under Section 202 of the Code of Criminal Procedure was yet to (sic) examined.

(3.) SUB-SECTION (1) of Section 202 of the Code of Criminal Procedure clearly states that for reasons to be recorded in writing, the Magistrate may "postpone the issue of process for compelling the attendance of the person complained of" and then proceed to enquire into the case himself. This is what the Magistrate did, when he directed the complainant to produce evidence under Section 202 of the Code of Criminal Procedure. It means, therefore, that, by implication, he postponed the issue of process for compelling the attendance of Bimal aforesaid, within the meaning of Sub-section (1) of Section 202 of the Code. If the issue of process against Bimal was postponed by the Magistrate, the question remains whether the Magistrate could, at a later stage in the same proceeding before any evidence was examined by him under Section 202, issue a warrant of arrest against Bimal and that too a non-bailable one. The first impression, which one gets on reading Sub-section (1) of Section 202, is that the Magistrate has no such power. The Sessions Judge has referred to Sub-section (2) of Section 202. which relates to an enquiry or investigation by a person other than the Magistrate, or a Police Officer, and provides that such person shall exercise all the powers conferred by the Code of Criminal Procedure on an officer in-charge of a Police Station except that he shall not have the power to arrest without warrant. The Sessions Judge has read this Sub-section as meaning that even when an enquiry or invesigation is being held under Sub-section (2), the person making the enquiry will have the power to arrest with a warrant and he has, therefore, inferred that a Magistrate who is himself making an enquiry under Sub-section (1), may issue a warrant for the arrest of the person accused. I do not, however, find it possible to agree with this interpretation of Sub-section (2) of Section 202 of the Code of Criminal Procedure. Sub-section (2) is intended to invest the person making the enquiry, including a Police Officer, with powers of an officer incharge of a Police Station in connection with a particular enquiry or investigation, and then it goes on to restrict that power by saying that he shall not be entitled to arrest any person without warrant. Subsection (2), therefore, merely restricts the powers of the person making the enquiry or the investigation under it. Whether or not it would be necessary during the course of that enquiry to arrest a person, will be a matter which will have to be looked into by the Magistrate, who is asked to issue warrants for the same. Sub-section (1) of Section 202, however, does not reserve the power to issue a bailable or non-bailable warrant in the Magistrate who is making the preliminary enquiry before this enquiry is completed. If the Magistrate is not satisfied with the statement of the complainant and the statements of such of the witnesses as are present and examined under Section 200 of the Code, it is only then that he directs some enquiry or investigation under Section 202 (1 ). The Magistrate having decided that, before the accused persons may be summoned, it is necessary to undertake such enquiry or investigation, postpones the issue of process for compelling his attendance. It would be reversing the process of the proceedings before him, if he, even though the evidence under Sub-section (1) of Section 202 still remains to be produced, decides to issue non-bailable, or even bailable, warrants against him.