ORDER
1. This is an application In revision filed against an order of the Temporary Civil & 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. Sub-section (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) ofSection 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.
4. One can contemplate a case, in which it may be necessary to put up a person named as an accused for identification for the proof of his guilt, but if the Magistrate is of opinion that a particular case is of that type, a more proper procedure for him might be to direct an investigation in the case by a Police Officer, who will then, in the course of the investigation, be able to obtain warrants under Sub-section (2) of Section 202, and arrange for the identification of the accused in due course. If the Magistrate does not direct an investigation by a Police Officer, he may examine such evidence as is produced before him by the complainant and, in the course of that examination, require the witnesses, who are supposed to be able to identify the accused, to give as much information about the features of the accused as they possibly can and, when summons or warrants are ultimately issued against the accused under Sub-section (1) of Section 204, he may instruct him or them to appear in court duly covered, so that he may not be seen by the witnesses, who come to give evidence against him. It may also be open to the Magistrate merely to issue summons against the accused to appear before him during the enquiry under Sub-section (1) of Section 202 itself duly covered, but that will have to be merely for the purpose of his identification and that too at the option of the accused to appear and get himself identified, and secure the advantage of an order being passed in his favour at an earlier stage if the witnesses fail to identify him. The accused may not he agreeable to take any risk and, in that case, he cannot be compelled to appear before the court so long as the Magistrate does not decide to proceed against him under Sub-section (1) of Section 204. It appears to me that the issue of the warrants against the present applicant at the stage of an enquiry under Sub-section (1) of Section 202 of the Code of Criminal Procedure was altogether without jurisdiction.
5. A few cases were cited before me on behalf of the applicant. The first case relied upon was Karsandas Naranji v. Ramji Dosa, AIR 1951 Kutch 82. But it does not seem to have any application to the facts of this case. All that was decided in that case was that once a Magistrate takes cognisance of an offence and issues process against the person complained against, he cannot subsequently direct the Police to make an enquiry against him. K. Savaranna v. State AIR 1957 Andh Pra 472, is a case the facts of which appear to be reverse to what they are in the present case. What has been held in that case is that once a process compelling the attendance of the accused is issued by the Magistrate, he cannot avail of the provisions of Section 202 of the Code of Criminal Procedure for making an enquiry against him. The view taken in the case may be interpreted to mean that since an enquiry under Sub-section (1) of Section 202 cannot be made after the issue of a process compelling the attendance of an accused, the process may not be issued (if the issuing of such process has been postponed and an enquiry taken up by the Magistrate), so long as that enquiry is not completed by him. The decision in Appa Rao Mudaliar v. Janakiammal : AIR1927Mad19 is directly in point. In this case the question whether an accused person may be summoned to appear before the enquiry under Sub-section (1) of Section 202 is concluded, was considered by a Full Bench of the Madras High Court. It was held that summoning of an accused before the conclusion of an enquiry under Sub-section (1) of Section 202 may sometime turn out to be to the advantage of the accused himself as the Magistrate may, on hearing the accused, find it impossible to rely upon the evidence, which is presented before him on behalf of the complainant, but, even so, that procedure was not warranted by the provisions of the Code. It was observed:--
'The object of the chapter of the Code in which Section 202 appears is to prevent accused persons being harassed at all or asked to appear if in the opinion of the Magistrate no prima facie case is made out; and in my opinion, the Code never contemplated that at that stage they should either be asked or permitted to state their cases'.
6. I, therefore, find it impossible to agree with the view of the Sessions Judge that the Magistrate could issue non-bailable warrants against the present applicant for the purposes of his being put up for identification by the witnesseswhich were to be examined by the complainant. It is true that the witnesses, whom the complainant may be producing in court, if those witnesses do not know the applicant by name, will not be in a position to give direct evidence against him; but how and in what manner the complainant is to satisfy the Magistrate that a prima facie case is made out for purposes of Section 202(1), is for the complainant t decide. As I have already said, one of the ways for doing this might be that the witnesses describe the features of the accused person in detail in their statements and the Magistrate may, by some evidence, which may be placed before him (may be the statement of the complainant himself) satisfy himself that the person so described by the witnesses is the person named as accused in the complaint, and then may issue the necessary process against him under Section 204(1).
7. The issue of warrants for the arrest of the applicant and his production in the court of the Magistrate was, therefore, not warranted by the provisions of the Code, and the order to that effect passed by the Magistrate on 17th September, 1965, has to be set aside. The other two orders, which were challenged before the Sessions Judge, are liable to be set aside on the ground that the Magistrate has refused to pass orders on those applications unless the applicant decided to appear in his court. It was undesirable for the Magistrate to require the appearance of the applicant in his court. It is all the more undesirable for him to indirectly compel his attendance by refusing to pass orders on the applications which could be legitimately moved on his behalf in the court.
8. The application is allowed. The three orders passed by the Magistrate dated 17th September, 1965, 12th October, 1965 and 14th February, 1966, are set aside. The applicant shall not be compelled to appear in the court of the Magistrate till he decides to summon him under Section 204 of the Code of Criminal Procedure. Regarding the request of the applicant that he may be put up for identification at Farrukhabad instead of Etah, the Magistrate will pass orders on merits without laying down any condition regarding the appearance of the applicant in his court first.