- (1.) S. K. Phaujdar, J. Through this ap plication under Section 482, Cr. P. C. the applicants have challenged an order of the III Addl. Sessions Judge, Varanasi, dated 5-8-1998 insofar as he had directed the Superintendent of Police, Chandauli, to register a case under Section 58 of the N. D. P. S. Act and Section 394,1. P. C. against the applicants and to get the matter inves tigated into by L Circle Officer and to make feed back report to him. There is a further direction to return Rs. 1600/- to one Madan Lal, who was being prosecuted for an offence under the N. D. PS. Act.
(2.) THE order in question indicates that one Madan Lal stood prosecuted under Section 20 of the N. D. P. S. Act in case Crime No. 404 of 1998 by the officials of the Government Railway Police at Mughalsarai. An application for bail was moved and was rejected by Sri Indra Bahadur Singh, III Addl. Sessions Judge, Varanasi, on 24-7-1998. On a subsequent date this very Sessions Judge had recorded the statement on oath as given by Madan Lal and upon that statement recorded on 5-8-1998 he had directed the aforesaid ac cused to be released on bail and had also directed that the statement given to him be forwarded to the Superintendent of Police, Chandauli, with a direction that the Police Inspector, Uma Shanker Pandey, Head Constable Sant Kumar, and Constable Islam, who were responsible for the arrest of Madan Lal, be prosecuted under Sec tion 58 of the N. D. P. S. Act and also under Section 394, I. P. C. THE Addl. Sessions Judge further directed that investigation should be made by some Circle Officer and the fact of registration of a case should be informed to the court and the materials snatched from Madan Lal should be returned. The Sessions Judge appears to have been influenced by the statement of Madan Lal made to him in which he had stated that he was on his way to Jodhpur with his wife who was in the family way. He was having with him Rs. 1600/- for a surgery which was likely to be made. He came from Patna, dropped at Mughalsarai and waited for the train for Jodhpur. At Mughalsarai station he was sitting on a Bench and another person was also sitting there with an attache case. When police personnel were approaching them that other person told Madan Lal to keep a watch on the attache while he comes back. He then left the place. Two police officials came and asked him to open his bag. Me gave a search of his bag which contained only his clothes. He was asked about the attache case. The police officials took a personal search and found Rs. 1600/- with him. They took away the sum. They charged him with possession of the at tache case, as well as locked him up. He was subsequently informed that Ganja was found in the attache case. It was contended on behalf of the applicants that the police officials had found an attache case on the same bench where Madan Lal was sitting and that at tache case was containing Ganja and as such Madan Lal was arrested. It was stated further that the Sessions Judge had no power of cognizance under Section 190, Cr. P. C. and as such he could not have referred a complaint to the police under Section 156 (2), Cr. P. C. It was further contended that no case under Section 58 of the N. D. P. S. Act was at all made out.
(3.) THE learned A. G. A. submitted on behalf of the State that the courts of law must be deemed to was necessary to do will be deemed forbidden unless there is a specific legal bar there for. It was submitted that the Sessions Judge was a responsible Judicial Officer and when commission of an offence was made known to him, he was within his rights to make a reference to the police and there was now rung in the order. Sri Amar Saran appearing for the applicants, relied on a decision of the Pun jab Chief Court of the 1910. It made a reference to Sections 156 (3), 190 and 193, Cr, P. C. of 1898. Fortunately, the sections in the Cr. P. C. of 1974 also cover the same powers. It was held herein that an order by the Sessions Judge directing the police to make enquiry under Section 156 (3), Cr. P. C. was ultra vires. It was held that Section 156 gave a power to order an investigation only to a Magistrate empowered under Section 190 and as such the direction of the Sessions Judge was bad.;