Umashankar Ramgopal Sharma
State of Gujarat
Para 8. A bare perusal of the section itself indicates that in a complaint which prima facie discloses an offense exclusively triable by the court of sessions, then in such circumstances, the Magistrate has no power to direct police investigation under section 202 of the Code. In a case where it appears to the Magistrate that the offense complaint is triable exclusively by the court of sessions, then he shall have to call upon the complainant to produce all his witnesses and examine them on oath. After the examination of the complainant and his witnesses, the learned Magistrate may, thereafter, take an appropriate decision whether to issue process or not.
Para 9. In the present case, the learned Sessions Judge, as observed earlier, rightly came to the conclusion that the procedure adopted by the learned Metropolitan Magistrate was not in accordance with the law and rightly quashed the order passed by the learned Metropolitan Magistrate. However, after quashing the order passed by the learned Metropolitan Magistrate, the learned Sessions Judge should have stopped at that stage. At best, the learned Sessions Judge should have remitted the matter to the learned Magistrate with appropriate directions to proceed further in accordance with the law.
Para 10. The question that falls for my consideration is whether there is any provision in the Code of Criminal Procedure or in any other statute giving specific powers to the court of sessions to order investigation under section 156(3) of the Code.
Para 14. A Court of Sessions is under section 6 clearly a Court quite differentiated from the Court of a Magistrate. Section 193 also inter alia makes this quite plain. A Session Court is not a Magistrate empowered under section 190. No other section or provision of the Code gives Session Court power to order such an inquiry.
Para 16. Thus, the impugned order passed by the learned Additional Sessions Judges insofar as it directed the Maninagar Police Station to undertake an investigation of the complaint filed by the complainant under section 156(3) read with section 397 of the Code is absolute without jurisdiction and deserves to be quashed.