ORDER
K.L. Shrivastava, J.
1. This revision petition is directed against the order dated 7-8-1990 passed by the IVth Additional Sessions Judge, Indore in Sessions Trial No. 242 of 1988 whereby the petitioner’s objection that for reason of non-compliance with the proviso below Sub-section (2) of Section 202 of the Criminal Procedure Code, 1973 (for short ‘the Code’), the committal order dated 4-10-1988 passed by the Ist Additional Chief Judicial Magistrate, Indore, Under Section 203 ibid is vitiated and the Sessions Court could not take cognizance of the various offences against him, has been negatived.
2. Circumstances giving rise to the revision petition are these: The Narcotic Inspector, Indore filed against the petitioner and his co-accused Salim Mohammad, the non-applicant No. 2, a criminal complaint in the Court of Ist Additional Chief Judicial Magistrate, Indore alleging commission of offences Under Section 8/21 and other sections of the Narcotic Drugs and Psycho tropic Substances Act, 1985 (for short ‘the Act’) by them on 9-6-1988.
3. The learned Additional Chief Judicial Magistrate, acting Under Section 209 of the Code, has committed the case to the Court of Session, Indore. It is registered as Sessions Trial No. 242 of 1988 and is pending in the Court of the IVth Additional Sessions Judge as already stated.
4. Before the learned Additional Sessions Judge, the petitioner raised the objection referred to above who, however, relying on the decision in Union of India v. Nachhatarsingh and Ors. (Criminal Revision No. 139/1989 decided on 20-4-1990) overruled the objection by the impugned order.
5. The contention of the learned counsel for the petitioner is that the offences in question relate to a period prior to the Act No: 2 of 1989 (for short ‘the Amending Act’) by which certain sections in the principal Act have been substituted. As no Special Court has been constituted as envisaged by Section 36 of the Act as it exists, it was incumbent on the learned Additional Chief Judicial Magistrate to comply with the requirement of the proviso below Sub-section (2) of Section 202 of the Code before committing the case to the Court of Session as provided Under Section 209 ibid. In support of his submission, he has placed reliance on the decisions in Bajji’s case, l981 Cr. LJ 1558 = 1981 MPLJ 684 and the Full Bench decision in Moideen Kutty Haji’s case, 1987 Cr.LJ 1106 = AIR 1987 Kerala 184.
6. The contention of the learned counsel for the Union of India is that on an analytical examination of the provisions in Sections 200 to 204 of the Code it is quite clear that the proviso to Sub-section (2) of Section 202 comes into play only when the Magistrate postpones the issue of process and decides to hold inquiry Under Section 202 and in the instant case the learned Magistrate on the basis of the materials collected Under Section 67 of the Act by officers referred to in Section 42 ibid who are not Police Officers, being of the opinion that there is sufficient ground for proceeding, has issued process without any enquiry and no exception can be taken to the impugned order. He further urges that the material referred to above, also fulfils the purpose of inquiry contemplated by the provision in question. In support of his submissions, the learned counsel has placed reliance on various decisions including in Abdul Hamid Khan Pathans case, 1987 E. F. R. 707; Kewal Krishna’s case, AIR 1980 SC 1780 and Harish Dwarkadas Gandhi’s case, 1989 Cr.LJ 2197.
7. The point for consideration is whether the revision petition deserves to be allowed,
8. Before entering into the merits of the matter, it may be stated at the outset that it was with effect from 25-5-1989 that the principal Act was amended by the Amending Act and thereby Section 36 of the Act has been substituted by Section 36, and Section 36A to 36D. Section 36 of the Act deals with constitution of Special Courts and Section 36-A(1)(i) starting with a non-obstante clasue provides that notwithstanding anything contained in the Code, all offences under the Act shall be triable only by the Special Court as therein pointed out and Section 36-A(1)(d) provided that Special Court may take cognizance of an offence under the Act without the accused being committed to it for trial. Section 36-D(1) embodying the transitional provision is in these terms : –
“Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 until a Special Court is constituted Under Section 36, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) be tried by a Court of Session.”
Section 36C of the Act does not provide that Court of Session shall be deemed to be special Court.
9. It may be noted that there is nothing in the transitional provision in Section 36-D(1) of the Act regarding offences committed prior to 25-5-1989 i.e. prior to the first moment of that date (vide New India Assurance Co. Ltd’s case, 1990(II) MPWN 90) and it has no application to the case in hand, the alleged offences being of 9-6-1988. Court of Session has no original jurisdiction (vide Section 193 of the Code). Special court under the Act has original jurisdiction but there is no provision investing the Court of Session with such jurisdiction in respect of offences under the Act committed before 25-5-1989.
10. It is not in dispute that Special Court as envisaged Under Section 36 of the Act has not been constituted, and, therefore, committal of a-case Under Section 209 in the manner prescribed by the Code in relation to offences under the Act so punishable as to be triable under the second part of the First schedule of the Code by a Court of Session despite the material Under Section 67 of the Act, is a must. As the offence Under Section 8/21 of the Act is punishable with imprisonment for a minimum term of ten years, committal order had to be-passed. It may be stated here that Section 323 of the Code also provides for commitment but in a different context. It may be noted that the similar provision in Section 347 of the repealed code of 1898 was differently worded.
11. This brings us to the controversy as to the scope of the proviso below Sub-section (2) of Section 202 of the Code.
12. Sub-section (2) of Section 202 of the Code along with its proviso may usefully be reproduced. It reads thus : –
“In an inquiry under Sub-section (1) the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.”
13. The contention of the learned counsel for the petitioner is that the scheme of the provision and the language employed in the proviso show that conducting of inquiry in complaint cases disclosing an offence exclusively triable by a Court of Session is not left to the discretion of the Magistrate concerned. He urged that Section 208(1) of the Code provides that where in a case instituted otherwise than on police report it appears to the Magistrate issuing process Under Section 204 that the offence is triable exclusively by the Court of Session he shall furnish to the accused the statements recorded Under Section 200 or Section 202 of all persons examined by the Magistrate. A persual of Section 227 ibid shows that the Court of Session which has to consider the question of charge has the advantage of documents for finding out whether or not there is sufficient ground for proceeding against the accused. Learned counsel urges that the provision in Section 202 shows that the Legislature thereunder intended two types of inquiries a discretionary inquiry in complaint cases involving offences other than those exclusively triable by court of session and a mandatory inquiry in other complaint cases. In the discretionary inquiry the Magistrate can either inquire into the case himself or direct an investigation to be made as therein contemplated. But ina mandatory inquiry that discretion to direct investigation is taken away by the proviso (a) to Section 202(1).
14. The contention of the learned counsel for the Union of India is that Chapter XV (Sections 200 to 203) bears the heading complaints to Magistrates and from a perusal of these Sections 200 and 203 of the Code it is clear that after complying with the requirements of the former section the Magistrate, if he is of opinion that there is no sufficient ground for proceeding, has to dismiss the complaint under the latter provision and there is no question of following the provision in Section 202 ibid. He urged that it is only where on the material on record he is not in a position to form an opinion as to whether there is sufficient ground for proceeding so as to issue process Under Section 204 or that there is no sufficient ground for proceeding so as to entail dismissal of the complaint Under Section 203 of the Code, and he thinks fit to postpone the issue of process against the accused that recourse to provision in Section 202 of the Code has to be taken. According to the learned counsel the proviso to Sub-section (2) and not Sub-section (1) and as such it can hardly be construed as controlling or fettering the discretion which is invested ‘in the Magistrate under Sub-section (1) in the matter of inquiring. According to the learned counsel the proviso is intended to qualify Sub-section (2) alone and if the Magistrate has not taken recourse to Section 202 there is no question of complying with the proviso.
15. On a careful consideration of the submissions made by the learned counsel for the parties I am of the view that, there is force in the contention sought to be canvassed by the petitioner’s learned counsel and the revision petition must, therefore, be allowed.
16. As pointed out in Principles of Statutory Interpretation by Justice G. P. Singh, former Chief Justice of M. P. High Court, a statute is an edict of the Legislature and is to, be construed according to ‘the intent of them and make it.’ The duty of the judicature is to act upon the true intention of the legislatufemens or Sentencia Legis as expressed. The function of the Courts is only to expound and not to legislate and where the words of the statute are clear and unambiguous it is the plain duty of the Court to give effect to them and not to import extraneous considerations in order to discover the legislative intent. It is only when for some reason an ambiguity creepa in that such aids are permissible. When a provision is capable of bearing two or more constructions, the most firmly established rule of construction of such provision is the rule laid down in Heydon’s case which is also known as ‘purposive construction’ or ‘mischief rule’. Reference in this connection may be made to the decisions in Bengal Immunity Co. ‘s case, AIR 1955 SC 661 and Babaji Kondaji Garod’s case, AIR 1982 SC 1379.
17. As a general rule, a proviso is added to an enactment to qualify or carve out an exception to what is in the enactment and ordinarily a proviso is not interpreted as stating a general rule and it is a fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. Therefore, it has to be construed harmoniously with the main enactment. In the decision in I. T. Commr. v. I. M. Bank Ltd., AIR 1959 SC 713, it has been pointed out that it is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. Ordinarily it is not to be read as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. As a general rule the proviso must be taken to govern the main provision of law which immediately precedes it unless the language of the statute shows a different intention. However, as pointed out in the decision in State of Rajasthan v. Mrs. Leela Jain and Ors., AIR 1965 SC 1296, a proviso may really not be a proviso in the accepted sense but an independent legislative provision. As laid down in the decision in I. T. Commr., U. P. v. Jagganath, AIR 1969 SC 209, where language is abundantly clear and no other view is possible, it is futile to go into the question whether a proviso operates as a substantive provision or only by way of an exception.
18. As stated in paragraph 16 of the decision in M. Haji’s case (supra) there is, no doubt, force in the contention that different provisions of Section 202 of the Code could have been better framed so as to avoid the apparent ambiguity. It is the place where the proviso has been put that gives rise to controversy as to its scope. It is well-settled law that when there is ambiguity in the provision of a statute the Courts must lean to an interpretation which is consistent with the object which the legislature intended. In this connection the following observation of the Apex Court in the in the decision in Reserve
Bank of India v. Peerless Company, AIR 1987 SC 1023, may profitably be reproduced :-
“That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was. enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context.”
Though the report of the Law Commission is not part of the legislative exercise before the Parliament as stated in the decision in M. Haji’s case (supra), it has been pointed out therein that the Law Commission in its 41st report recommended the new Section 202 of the Code with the object of dispensing the committal inquiry in the presence of the accused and in the report it was stated that mandatory preliminary inquiry by Magistrate into the complaint takes the place of investigation by the police and constitutes sufficient safeguard for proper defence of the accused and the objects and purposes of the Commission were accepted by the Legislature as the basis for the new provision.
19. Serious offences are made triable exclusively by the Court of Session. In complaint cases regarding such offences in the repealed Code of Criminal Procedure, committal inquiry in which accused could cross-examine witnesses was contemplated (vide Section 207(b) and Section 208).
20. In the decision in A. R. Antuley’s case, AIR 1984 SC 718, which related to the Prevention of Corruption Act, 1947, before the Special Judge who is competent to take cognizance as a Court of original jurisdiction even on a complaint made to him, without the case being committed to him as provided in Section 193 of the Code, it has been pointed out that preliminary examination of witnesses even at a pre-process stage by the Special Judge is not on the footing that the case is exclusively triable by the Court of Session as contemplated by Section 202(2), proviso. There is no commitment and, therefore, Section 202(2), proviso is not attracted. The inquiry under the proviso is clearly mandatory and is not dependent on the Magistrate’s discretion. The contention that it is only when the Magistrate in his discretion decides to inquire Under Section 202(1) of the Code that the proviso is attracted is without merit. It may be pointed out that the inquiry contemplated under the aforesaid provision is merely ‘for the purpose of deciding whether or not there is sufficient ground for proceeding’. The mandate in the proviso to the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, militates against the aforesaid limited purpose of the provision. It may be noted that as provided Under Section 202(2) of the Code in the inquiry Under Section 202(1) in relation to offences not covered by the proviso, the Magistrate has the discretion in the matter of taking evidence of witnesses on oath but he has no such discretion under the proviso.
21. It is true that in a criminal proceeding till process is issued the accused has no locus standi. Even in an inquiry under the proviso it is not that the accused has a right of hearing. Here too he has no locus standi. It is not that law has absolutely no concern for an absentee accused. Section 204 of the Code provides that process is to be issued only when the Magistrate is of opinion that there is sufficient ground for proceeding. It is law’s concern to ensure fair trial to the accused in consonance with Article 21 of the Constitution that in relation to offences exclusively triable by Court of Session which carry with them harsh punishments, the proviso has been brought on the Statute Book. The proviso does justice also to the complainant in such cases as his complaint cannot be dismissed at the threshold without inquiry.
22. Reference in this connection may usefully be made to the decision in Prayag Singh’s case, 1990 (II) MPWN 96. Therein it has been pointed out that on committal of a case on police report the accused has the advantage of the previous statements of witnesses Under Section 161, Criminal Procedure Code and the mandantory inquiry under the proviso is intended to afford to the accused in a complaint case relating to offence exclusively triable by the Court of Session, somewhat similar material at the trial.
23. Section 4(2) of the Code provides that offences other than those under the Indian Penal Code shall be dealt with by its provisions but subject to provisions in any other enactment. Section 193 ibid shows that Court of Session has no original jurisdiction. It reads thus : –
“Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”
As already stated, the Act empowers the Special Court to take cognizance without commitment. In the decision in Nachhattar Singh’s case (supra) it has been held that because Special Court can take cognizance of cases without commitment, the decisions dealing with the proviso in question need not be considered. The decision does not take note of the fact that as no Special Court has been constituted, as provided Under Section 36 of the Act, Section 36A(1)(d) ibid which provides for trial before Special Court without the requirement of committal can have no application.
24. With advertence to several decisions including the one in W. Slaney’s, AIR 1956 SC 116, it has been held in Bajji’s case (supra) that non-compliance with the proviso is not an irregularity curable Under Section 465 of the Code but constitutes an illegality which vitiates the entire commitment proceedings.
25. As a result of the foregoing discussion I am of the view that the impugned order committing the case to the Court of Session without examining the complainant’s all witnesses is illegal and the Court of Session has no jurisdiction to take cognizance of the offences alleged.
26. In the result, the revision petition is allowed. The impugned order is set aside. The commitment proceedings being illegal are quashed and consequently the connected sessions trial too is quashed. The complaint case is remanded to the learned Magistrate with the direction for dealing with it in the light of the law stated above and passing such order as the law warrants.
