L N PAREIRA Vs. RAMESH MAHADEV GAIKWAD

JUDGEMENT

(1.) APPLICANT Nos. 1 and 2 are Preventive Officers of Customs and applicant No. 3 is the Superintendant of Customs. They detected a case of carriage of Mandrax tablets valued at Rs. 1,00,000/- to Lusaka, Japan. In the course of investigation, they arrested respondent No. 1, who along with others was produced before the learned Chief Metropolitan Magistrate, Esplanade Court, Bombay, on November 14, 1986. The accused were remanded to jail custody pending investigation and their prayer for bail was rejected. However, Respondent No. 1 complained to the leaned Magistrate, that he had been assaulted by applicant No. 1. His statement was recorded and the medical report was called for from the jail hospital. Respondent No. 1 remained in custody for some time After his release on December 24, 1986 he filed a complaint in the Court of the Additional Chief Metroplitan Magistrate, 37th Court Esplanade, Bombay, as against the presents applicants charging them under section 323 and 506 read with 34 of the Indian Penal Code. The allegation, broadly, is that the Customs Officers assaulted him by first and kicks and manhandled him when he was in their custody. The learned Magistrate issued procese under sections 323 and 506 read with 34 of the Indian Penal Code.

(2.) THE applicants, as accused, appeared before the learned Magistrate and the case was pending for some time. On or about October 19, 1987, the plea of the accused i. e. the applicants herein, was recorded as the learned Magistrate treated the same as summons case. Thereafter, the case was kept for the purpose of leading evidence by the complainant. Instead, on November 24, 1987, the complainant i. e. respondent No. 1. made an application to the effect that if one reads the complaint elaborately, the complaint discloses an offence which is triable exclusively by the Court of Sessions and as such an enquiry should be held under section 202 of the Code of Criminal Procedure. The complainant, therefore, submitted that he should be permitted to lead evidence under section 202 (2) proviso of the Code of Criminal Procedure and for that purpose he prayed that summons be issued to all the witnesses whose names were mentioned in the said application. This was objected to by the accused, i. e. the applicants herein. The learned Magistrate heard both the sides and finally by his order dated February 21, 1989, granted the application made by respondent No. 1. He directed the complainant to examine himself on oath under section 202 (2) of the Code of Criminal Procedure and to examine all his witnesses cited by him in the said application. It is this order which ha been challenged in this application.

(3.) THE limited question I have to consider is as to whether after the issue of process under section 204 (1) of the Code of Criminal Procedure, can the Magistrate be permitted to go back and again proceed under section 202 (2) proviso, as if it is an enquiry before the issue of process ?