SARKARIA, J. - (1.) Whether in view of Clause (a) of the first Proviso to Section 202 (1) of the Code of Criminal Procedure, 1973, a Magistrate who receives a complaint, disclosing an offence exclusively triable by the Court of Session, is debarred from sending the same to the police for investigation under Section 156 (3) of the Code, is the short question that falls to be determined in this appeal by special leave. The question arises in these circumstances:
(2.) Rrepondent 1 herein made a complaint on 26/07/1975 before the Judicial Magistrate, First Class, Dharmavaram against the appellants herein alleging that on account of factions existing in village Thippapalli the appellants formed themselves into an unlawful assembly, armed with deadly weapons, such as axes, spears and sticks, on the night of 20/06/1975 and entered the houses of several persons belonging to the opposite party, attacked the inmates and forcibly took away jewels, paddy, ground-nuts and other valuables of the total value of two lakhs of rupees. It was further alleged that the miscreants thereafter went to the fields and removed parts of machinery worth over Rs. 40,000.00, installed at the wells of their enemies. On these facts it was alleged that the accused had committed offences under Sections 147, 148, 149, 307, 395, 448, 378 and 342 of the Penal Code. The offences under Sections 307 and 395 are exclusively triable by the Court of Session. The Magistrate on receiving the complaint forwarded it to the Police for investigation with this endorsement: "Forwarded under Sec. 156 (3), Cr. Procedure Code to the Inspector of Police, Dharmavaram for investigation and report on or before 5-8-1975." The appellants moved the High Court of Andhra Pradesh by a petition under Section 482 of the Code of Criminal Procedure, 1973 (which corresponds to Sec. 561-A of the old Code) praying that the order passed by the Magistrate be quashed inasmuch as "it was illegal, unjust and gravely prejudicial to the petitioners." The learned Judge of the High Court, who heard the petition, dismissed it by an order dated, 20/10/1975. Hence this appeal.
(3.) MR. Bassi Reddy, appearing for the appellants contends that the High Court has failed to appreciate the true effect of the changes wrought by the Code of 1973. according to the Counsel, under the new Code, if a complaint discloses an offence triable exclusively by a Court of Session, the Magistrate is bound to proceed with that complaint himself before issuing process to the accuse. The point pressed into argument is that clause (a) of the first Proviso to Section 202 (1), of the new Code peremptorily prohibits the Magistrate to direct investigation of such a complaint by the Police or any other person. The cases, Gopal Das v. State of Assam, AIR 1961 SC 986; Jamuna Singh v. Bhadai Shah, (1964) 5 SCR 37 = (AIR 1964 SC 1541) referred to by the High Court are sought to be distinguished on the ground that they were decided under the old Code, Section 202 of which did not provide for any such ban as has been expressly enacted in the 1st Proviso to Section 202 of the new Code. As against this, Mr. Rama Reddy, whose arguments have been adopted by Mr. Chaudhry, submits that the powers conferred on the Magistrate under Section 156 (3) of Code are independent of his power to send the case for investigation under Section 202 of the Code; that the power under Section 156 (3) can be invoked at a stage when the Magistrate has not taken cognizance of the case, while Section 202 comes into operation after the Magistrate starts dealing with the complaint in accordance with the provisions of Chapter XV. It is urged that since in the instant case, the Magistrate had sent the complaint for police investigation, without taking such cognizance Section 202 including the bar enacted therein, was not attracted. In the alternative, it is submitted that the ban in the 1st Proviso to Section 202, becomes operative only when the Magistrate after applying his mind to the allegations in the complaint and the other material, including the statement of the complainant and his witnesses, if any, recorded under Section 200, is prima facie satisfied that the offence complained of is triable exclusively by the Court of Session. The point sought to be made out is that a mere allegation in the complaint that the offence committed is one exclusively triable by the Court of Session, does not oust the jurisdiction of the Magistrate to get the case investigated by the police or other person. The word "appears" according to Counsel, imports a pre-requisite or condition precedent, the existence of which must be objectively and judicially established before the prohibition in the 1st Proviso to Section 202 becomes operative. It is added that in the instant case, the existence of this condition precedent was not and indeed could not be established.;