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Chandra Deo Singh Vs. Prokash Chandra Bose and anr. - Court Judgment

LegalCrystal Citation
CourtSupreme Court of India
Decided On
Reported inAIR1963SC1430; [1964]1SCR639
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 202 and 203
AppellantChandra Deo Singh
RespondentProkash Chandra Bose and anr.
Cases ReferredWillie (William) Slaney v. The State of MadhyaPradesh
Books referredHalsbury's Laws of England, Vol. 10, 3rd Edn.
.....leave under article 134 (1) (c) against order - where there is prima facie case made against accused magistrate is bound to commit accused for trial - contended that since there was only one offence and there can be only one trial and since other persons tried for that offence there could be no further enquiry - no material on record to show that what happened in enquiry - it was open to court before which commitment proceedings against two accused were pending to consider whether they should be stayed pending the result of enquiry with reference to respondent but there could be no legal impediment to enquiry against respondents. - indian penal code, 1890 section 34: [dr.arijit pasayat & asok kumar ganguly, jj] held, section is based on principle of joint liability. common..........and report to him by a certaindate. during this enquiry, respondent no. 1 was permitted by the learnedmagistrate to appear through counsel. seven witnesses were produced by thecomplainant chandra deo singh and examined by the learned magistrate. inaddition, pannalal saha and sankar ghose who, it might be remembered, arealleged to have been the associates of respondent no. 1, were examined as courtwitnesses and the suggestion is that the learned magistrate did this at theinstance of the counsel for respondent no. 1. 3. on february 9, 1959, mr. n. m. choudhry made a report to thesub-divisional magistrate to the effect that a prima facie case has been madeout against three persons, upendra neogi, asim mondal and arun mondal under s.302/34 of the indian penal code. on the same day, he.....

Mudholkar, J.

1. This is an appeal by certificate granted by the High Court of Calcuttaunder Art. 134(1)(c) of the Constitution of India. The facts which are relevantfor the purpose of this appeal are briefly these :

On December 25, 1957, onePanchanan Roy lodged a first information report at 11.00 p.m. at the policestation, Bhangor, in the district of 24 Parganas alleging that respondent No. 1(Prokash Chandra Bose) who is the proprietor of a fishery had killed a mannamed Nageswar Singh who was a darwan posted at the informant's master'sfishery by shooting him with a gun. After the occurrence, the assailants'sparty was chased, but the principal culprit namely respondent No. 1 made goodhis escape in his own car. Two of his associates, Pannalal Saha and SankarGhosh, were arrested by the local people and produced in the police station. Onthe basis of the first information report, the police undertook investigation,but ultimately they submitted a final report as late as on September 17, 1958.

On November 3, 1958, one MahendraSingh who claimed to be a distant relative of the deceased darwan, but whichfact is denied by the widow of the deceased - filed a complaint before Mr. C.L. Choudhry, the Sub-Divisional Magistrate of 24 Parganas Alipore, against thefinal report of the police and asked for processes to be issued against certainother persons on the allegation that those persons had murdered Nageswar Singh.The complaint further contained a statement to the effect that the firstinformation report lodged by Panchanan Roy with the police on December 25,1957, was false and that he had done so at the instance of his Master BidhuBhusan Sarkar who was an enemy of respondent No. 1. After examining MahendraSingh on oath and looking into the police papers, the learned Sub-DivisionalMagistrate asked Mr. N. M. Chowdhry, Magistrate, First Class, to hold a judicialenquiry into the allegations made by Mahendra Singh and to submit a report tohim by a certain date.

2. During the pendency of the enquiry into the complaint of Mahendra Singh,Chandra Deo Singh, the nephew of the deceased filed a complaint before Mr. Chowdhryon December 30, 1958 stating therein that respondent No. 1 had fired a shot atNageswar Singh at point blank range and thereby murdered him. After examininghim on oath, the Sub-Divisional Magistrate referred the matter again to Mr. N.M. Chaudhry Magistrate, First Class, for enquiry and report to him by a certaindate. During this enquiry, respondent No. 1 was permitted by the learnedMagistrate to appear through counsel. Seven witnesses were produced by thecomplainant Chandra Deo Singh and examined by the learned Magistrate. Inaddition, Pannalal Saha and Sankar Ghose who, it might be remembered, arealleged to have been the associates of respondent No. 1, were examined as courtwitnesses and the suggestion is that the learned Magistrate did this at theinstance of the counsel for respondent No. 1.

3. On February 9, 1959, Mr. N. M. Choudhry made a report to theSub-Divisional Magistrate to the effect that a prima facie case has been madeout against three persons, Upendra Neogi, Asim Mondal and Arun Mondal under s.302/34 of the Indian Penal Code. On the same day, he made another report to theSub-Divisional Magistrate saying that no prima facie case was made out againstrespondent No. 1. On the basis of the first report, the Sub-Divisional Magistratedirected summonses to be issued against the three persons named in that reportand commenced committal proceedings against them.

4. The Sub-Divisional Magistrate on seeing the second report dismissed thecomplaint of Chandra Deo Singh without assigning any reason. Chandra Deo Singhpreferred an application for revision before the Sessions Judge, Alipore, who,after issuing notice to respondent No. 1 and hearing his counsel, directed theSub-Divisional Magistrate to make further enquiry against him. Thereuponrespondent No. 1 preferred a revision application before the High Court, whichcame up for hearing before a single judge of that court. It would appear thatthe three persons against whom summonses were ordered to issue by theSub-Divisional Magistrate also preferred a revision application before the HighCourt. Both the revision applications were heard together. The learned judgegranted the application of respondent No. 1 as well as that of Upendra Neogy.We are informed by learned counsel for respondent No. 1 that eventually two ofthe three persons against whom summonses were ordered to be issued by theSub-Divisional Magistrate were committed for trial before the Court ofSessions. But he was unable to say definitely whether they were actually triedand if so, what the result of the trial was.

5. Aggrieved by the order of the learned single judge, the appellant ChandraDeo Singh made an application under Art. 134 of the Constitution for the grantof a certificate of fitness for appeal to this court which as already stated,was granted by the High Court. The certificate was sought by the appellant onfour grounds. The first ground was that respondent No. 1 had no locus standi toappear and contest a criminal case before the issue of process. The secondground was that the test propounded by the learned single judge for determiningthe question whether any process should be issued by the court was erroneous.The third ground was that a Magistrate making an enquiry under s. 202 of theCode of Criminal Procedure had no jurisdiction 'to weigh the evidence ingolden scales' as was done in the present case. The fourth and last groundwas that the learned Sub-Divisional Magistrate acted in contravention of theprovisions of s. 203 Cr.P.C. in dismissing the complaint without recording anyreason for doing so. The High Court granted the certificate on all the groundsexcept the first. It has been held by this court that the High Court cannotlimit its certificate in this manner and, therefore, we propose to examine allthe four grounds taken by the appellant.

6. Taking the first ground, it seems to us clear from the entire scheme ofCh. XVI of the Code of Criminal Procedure that an accused person does not comeinto the picture at all till process is issued. This does not mean that he isprecluded from being present when an enquiry is held by a Magistrate. He mayremain present either in person or through a counsel or agent with a view to beinformed of what is going on. But since the very question for considerationbeing whether he should be called upon to face an accusation, he has no rightto take part in the proceedings nor has the Magistrate any jurisdiction topermit him to do so. It would follow from this, therefore, that it would not beopen to the Magistrate to put any question to witnesses at the instance of theperson named as accused but against whom process has not been issued; nor canhe examine any witnesses at the instance of such a person. Of course, theMagistrate himself is free to put such questions to the witnesses producedbefore him by the complainant as he may think proper in the interests ofjustice. But beyond that, he cannot go. It was, however, contended by Mr. Sethifor respondent No. 1 that the very object of the provisions of Ch. XVI of theCode of Criminal Procedure is to prevent an accused person from being harassedby a frivolous complaint and, therefore, power is given to a Magistrate beforewhom complaint is made to postpone the issue of summons to the accused personpending the result of an enquiry made either by himself or by a Magistratesubordinate to him. A privilege conferred by these provisions can, according toMr. Sethi, be waived by the accused person and he can take part in theproceedings. No doubt, one of the objects behind the provisions of s. 202,Cr.P.C. is to enable the Magistrate to scrutinise carefully the allegationsmade in the complaint with a view to prevent a person named therein as accusedfrom being called upon to face an obviously frivolous complaint. But there isalso another object behind this provision and it is to find out what materialthere is to support the allegations made in the complaint. It is the boundenduty of the Magistrate while making an enquiry to elicit all facts not merelywith a view to protect the interests of an absent accused person, but also witha view to bring to book a person or persons against whom grave allegations aremade. Whether the complaint is frivolous or not has, at that stage, necessarilyto be determined on the basis of the material placed before him by thecomplainant. Whatever defence the accused may have can only be enquired into atthe trial. An enquiry under s. 202 can in no sense be characterised as a trialfor the simple reason that in law there can be but one trial for an offence.Permitting an accused person to intervene during the enquiry would frustrateits very object and that is why the legislature has made no specific provisionpermitting an accused person to take part in an enquiry. It is true that there isno direct evidence in the case before us that the two persons who were examinedas court witnesses were so examined at the instance of respondent No. 1 butfrom the fact that they were persons who were alleged to have been theassociates of respondent No. 1 in the first information report lodged byPanchanan Roy and who were alleged to have been arrested on the spot by some ofthe local people, they would not have been summoned by the Magistrate unlesssuggestion to that effect had been made by counsel appearing for respondent No.1. This inference is irresistible and we hold that on this ground, the enquirymade by the enquiring Magistrate is vitiated. In this connection, theobservations of this court in Vadilal Panchal v. Dattatraya Dulaji Ghadigsonkar : [1961]1SCR1 , may usefully be quoted :

'The enquiry is for the purpose of ascertaining thetruth or falsehood of the complaint; that is, for ascertaining whether there isevidence in support of the complaint so as to justify the issue of process andcommencement of proceedings against the person concerned. The section does notsay that a regular trial for adjudging the guilt or otherwise of the personcomplained against should take place at that stage for the person complainedagainst can be legally called upon to answer the accusation made against himonly when a process has issued and he is put on trial.'

7. Coming to the second group, we have no hesitation in holding that thetest propounded by the learned single judge of the High Court is wholly wrong.For determining the question whether any process is to be issued or not, whatthe Magistrate has to be satisfied is whether there is 'sufficient groundfor proceeding' and not whether there is sufficient ground for theconviction. Whether the evidence is adequate for supporting the conviction canbe determined only at the trial and not at the stage of enquiry. A number ofdecisions were cited at the bar in which the question of the scope of theenquiry under s. 202 has been considered. Amongst those decisions are :Parmanand Brahmachari v. Emperor A.I.R. (1930) Pat. 30; Radha Kishun Sao v.S. K. Misra : AIR1949Pat36 ; Ramkisto Sahu v. The State of Bihar : AIR1952Pat125 ; Emperor v. J. A. Finan A.I.R. (1931) Bom. 524 andBaidya Nath Singh v. Muspratt I.L.R. (1886) Cal. 141. In all these cases,it has been held that the object of the provisions of s. 202 is to enable theMagistrate to form an opinion as to whether process should be issued or not andto remove from his mind any hesitation that he may have felt upon the mereperusal of the complaint and the consideration of the complainant's evidence onoath. The courts have also pointed out in these cases that what the Magistratehas to see is whether there is evidence in support of the allegations of thecomplainant and not whether the evidence is sufficient to warrant a conviction.The learned Judges in some of these cases have been at pains to observe that anenquiry under s. 202 is not to be likened to a trial which can only take placeafter process is issued, and that there can be only one trial. No doubt, asstated in sub-s. (1) of s. 202 itself, the object of the enquiry is toascertain the truth or falsehood of the complaint, but the Magistrate makingthe enquiry has to do this only with reference to the intrinsic quality of thestatements made before him at the enquiry which would naturally mean thecomplaint itself, the statement on oath made by the complainant and thestatements made before him by persons examined at the instance of thecomplainant.

8. This brings us to the third ground. Section 203 of the Code of CriminalProcedure which empowers a Magistrate to dismiss a complainant reads thus :

'The Magistrate before whom a complaint is made orto whom it has been transferred, may dismiss the complaint, if, afterconsidering the statement on oath (if any) of the complainant and the witnessesand the result of the investigation or inquiry, if any, under s. 202, there isin his judgment no sufficient ground for proceeding. In such case he shallbriefly record his reasons for so doing.'

9. The power to dismiss a complaint rests only with a Magistrate who hastaken cognisance of it. If before issue of process, he had sent down thecomplaint to a Magistrate subordinate to him for making the enquiry, he has thepower to dismiss the complaint, if in his judgment, there is no sufficientground for proceeding. One of the conditions, however, requisite for doing sois the consideration of the statements on oath if any made by the complainantand the witnesses and of the result of the investigation of the enquiry whichhe had ordered to be made under s. 202, Cr.P.C. In the case before us, aninvestigation by a police officer was not ordered by the learned Sub-DivisionalMagistrate, but an enquiry by a Magistrate, First Class. He had, therefore, toconsider the result of this enquiry. It was not open to him to consider in thisconnection the statements recorded during investigation by the police on thebasis of the first information report lodged by Panchanan Roy or on the basisof any evidence adduced before him during the enquiry arising out of thecomplaint made by Mahendra Singh. All these were matters extraneous to theproceedings before him. Of course, as we have already stated, the learnedMagistrate has not given any reasons for dismissing the complaint and,therefore, we do not know what exactly weighed with him when he dismissed thecomplaint, but the learned single judge of the High Court who has dealt withthe case elaborately has not kept the evidence adduced in the two complaintsseparate but appears to have been influenced in deciding one case on the basisof what was stated by the witnesses in the other case. The High Court hasrelied upon the evidence of Pannalal Saha and Sankar Ghose who ought never tohave been examined by the enquiring Magistrate. The High Court has furtherrelied upon the investigation made by the police in the complaint of PanchananRoy. All this will be clear from the following passage in its judgment :

'The version of these two witnesses (Pannalal Sahaand Sankar Ghose) is supported by the fact that the police when they went tothe locality found a dead bird and a pair of shoes and a pair of black halfpants in wet condition. This find of the dead bird and the pair of shoes etc.has not explained on the version given by Panchanan Roy, Upendra Mondal andTarapado Naru. Mr. Ajit Kumar Dutt stated that the inquiring Magistrate was notright in examining Pannalal Saha and Shankar Ghose at the suggestion of anadvocate for the accused Chabbi Bose and that the latter should not have beenallowed at the inquiry. When however there had already been a fullinvestigation into the case by the officers under the supervision of theSuperintendent of Police, it was desirable and proper for the inquiringmagistrate to make a careful inquiry and not merely an one sided inquiry byexamining such witnesses as might be produced by an interested party. Moreover,in this case, the learned magistrate was inquiring into both the complaintssimultaneously and necessarily he could look at the evidence as a whole. Infact, two separate cases ought not to have been started at all, even thoughthere were two separate complaints giving two different versions. These complaintswere more or less Naraji petitions against the final report submitted by thepolice. There was only one incident in the course of which Nageswar Singh haslost his life. Therefore on the basis of the two Naraji petitions it would havebeen proper to hold one inquiry rather than two separate though simultaneousinquiries.'

10. What the Magistrate could not do, the High Court was incompetent to do,and, therefore, its order reversing that of the Sessions Judge cannot besustained.

11. Reliance is however, placed by Mr. Sethi on the decision of this courtin Vadilal's case : [1961]1SCR1 . What wasconsidered there by this court was whether as a matter of law, it was not opento a Magistrate to accept the plea of the right of private defence at a statewhen all that he had to determine was whether process is to issue or not. Thelearned Judges held that it is competent to a Magistrate to consider such aplea and observed :

'If the Magistrate has not misdirected himself asto the scope of an enquiry under s. 202 and has applied his mind judicially tothe materials before him, we think that it would be erroneous in law to holdthat a plea based on an exception can never be accepted by him in arriving at hisjudgment. What bearing such a plea has on the case of the complainant and hiswitnesses, to what extent they are falsified by the evidence of otherwitnesses, - all these are questions which must be answered with reference tothe facts of each case. No universal rule can be laid in respect of suchquestions.'

12. On the basis of these observations it was urged that this court has heldthat a Magistrate has the power to weight the evidence adduced at the enquiry.As we read the decision, it does not lay down an inflexible rule but seems tohold that while considering the evidence tendered at the enquiry it is open tothe Magistrate to consider whether the accused could have acted inself-defence. Fortunately, no such question arises for consideration in thiscase but we may point out that since the object of an enquiry under s. 202 isto ascertain whether the allegations made in the complaint are intrinsicallytrue, the Magistrate acting under s. 203 has to satisfy himself that there issufficient ground for proceeding. In order to come to this conclusion, he isentitled to consider the evidence taken by him or recorded in an enquiry unders. 202, or statements made in an investigation under that section, as the casemay be. He is not entitled to rely upon any material besides this. By'evidence of other witnesses' the learned judges had apparently inmind the statements of persons examined by the police during investigationunder s. 202. It is permissible under s. 203 of the Code to consider suchevidence along with the statements of the complainant recorded by theMagistrate and decide whether to issue process or dismiss the complaint. Theinvestigation in that case was made by the police under s. 202, Cr.P.C. at theinstance of the Presidency Magistrate. Apparently, the statement of the variouswitnesses questioned by the police were self-contradictory. That being thecase, it was open to the Presidency Magistrate to consider which of them toaccept and which to reject. The enquiring Magistrate has not stated nor has theHigh Court found in the case before us that the evidence adduced on behalf ofthe complainant and his own evidence were self-contradictory and, therefore, itcould not be said that there was anything intrinsically false in theallegations made in the complaint. Learned counsel for the appellant referredus to the decision of this court in Ramgopal Ganpatrai Ruia v. The State ofBombay [1958] S.C.R. 618, 638. In that case, after quoting a passage fromHalsbury's Laws of England, Vol. 10, 3rd Edn. in art. 666 at p. 365 where thelaw regarding commitment for trial has been stated, this court has observed :

'In each case; therefore, the magistrate holdingthe preliminary inquiry has to be satisfied that a prima facie case is made outagainst the accused by the evidence of witnesses entitled to a reasonabledegree of credit, and unless he is so satisfied, he is not to commit. Applyingthe aforesaid test to the present case, can it be said that there is noevidence to make out a prima facie case, or that the voluminous evidenceadduced in this case is so incredible that no reasonable body of persons couldrely upon it As already indicated, in this, case, there is a large volume ofdocumentary evidence - the latter being wholly books and registers and otherdocuments kept or is used by the Mills themselves, which may lend themselves tothe inference that the accused are guilty or to the contrary conclusion. TheHigh Court has taken pains to point out that this is one of those cases wheremuch can be said on both sides. It will be for the jury to decide which of thetwo conflicting versions will find acceptance at their hands. This waspre-eminently a case which should have been committed to the Court of Sessionsfor trial, and it is a little surprising that the learned Presidency Magistrateallowed himself to be convicted to the contrary.'

13. Thus, where there is a prima facie case, even though much can be said onboth sides, a committing Magistrate is bound to commit an accused for trial.All the greater reason, therefore, that where there is prima facie evidence,even though an accused may have a defence like that in the present case thatthe offence is committed by some other person, or persons the matter has to beleft to be decided by the appropriate forum at the appropriate stage and issueof process cannot be refused. Incidentally, we may point out that the offencewith which respondent No. 1 has been charged with is one triable by jury. TheHigh Court, by dealing with the evidence in the way in which it has done, hasin effect sanctioned the usurpation by the Magistrate of the functions of ajury which the Magistrate was wholly incompetent to do.

14. In view of what we have stated above, it is not necessary to say verymuch about the last ground. Section 203 of the Code of Criminal Procedureprovides that where the Magistrate dismisses a complaint because in hisjudgment there is no sufficient ground for proceeding with the trial, he shallrecord his reasons for doing so. Here, as already stated, the Magistrateperused the report of the enquiring Magistrate and then proceeded to dismissthe complaint. It is stated on behalf of respondent No. 1 that this is at bestan error in his order and, therefore, it is curable under s. 537(a) of the Codeof Criminal Procedure. In support of this view, reliance is placed upon thedecision of this court in Willie (William) Slaney v. The State of MadhyaPradesh : 1956CriLJ291 . Here, the error is of a kind which goes to theroot of the matter. It is possible to say that giving of reasons is apre-requisite for making an order of dismissal of a complaint and absence ofthe reasons would make the order a nullity. Even assuming, however, that therule laid down in Slaney's case : 1956CriLJ291 , applies to such acase, prejudice is writ large on the face of the 'order'. The complainant isentitled to know why his complaint has been dismissed with a view to consideran approach to a revisional court. Being kept in ignorance of the reasonsclearly prejudices his right to move the revisional court and where he takes amatter to the revisional court renders his task before that court difficult,particularly in view of the limited scope of the provisions of s. 438 and 439,Code of Criminal Procedure. For all these reasons, we hold that the High Courtwas in error in setting aside the order of the Sessions Court and direct thatfurther enquiry be made into the complaint of the appellant against respondentNo. 1.

15. Mr. Sethi, however, contends that since there is only one offence i.e.,the murder of Nageswar Singh, there can be only one trial and since otherpersons are being tried for that offence, there could be no further enquiry. Asthere was no material on record we could not know what happened to the enquiryagainst Asim Mondal and Arun Mondal after the dismissal of their applicationfor revision by the High Court. We, therefore, called for a report from theSub-Divisional Magistrate, 24 Parganas. That report has been received. It wouldappear from that report that on March 22, 1961, the High Court directed thatthe commitment proceedings against these two persons be stayed pending thedisposal of the present appeal by this court. We cannot appreciate the argumentthat an enquiry against a different person with reference to the same offencecannot be undertaken. It will be open to the court before which commitmentproceedings against Asim Mondal and Arun Mondal are pending to consider whetherthey should be stayed pending the result of the enquiry with reference to therespondent before us, but there can be no legal impediment to the enquiryagainst the respondent.

16. Appeal allowed.

17. Further enquiry directed.

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