Chandra Deo Singh v. Prokash Chandra Bose & Anr.

Judgment

CRIMINAL APPELLATEjURISDICTION ; Criminal Appeal No. 155of1960. Appeal from the judgment and order dated January 27, 1960, of the Calcutta High Court in Criminal Revision No. 620 of 5!.l. Suku'flUJr Ghose, for the appellant . . Jai Gopal Sethi, C. L. Sareen and Y. Kumar, for respondent No. 1. Chantlr11 Dee Singh PrBkasli lhand1a Bost 1'63 r..:hanrlra Dn Singh ?101.:zJh Ch.Jtb• Buie Mudlwliurr, J. 642 SUPREME COURT REPORT:S [1964] VOL. l!l63. January 22. The Judgmt>nt of the Court was delivered by ML"llHOLKAR, J.-This is an appeal by certi· ficate granted by the High Court of Calcutta under Art. 134 (1) (c) of the Constitution of India. The facts which are relevant for the purpose of this appeal are briefly these :

On December 25, 1957, one Panchanan Roy lodged a first information report at 11.00 p. m. at the police station, Bhangor, in the district of 24 Parganas alleging that respondent No. l (Prokash Chandra Bose) who is the proprietor of a fishery had killed a man named Nageswar Singh who was a da7'Wl.11z posted at the informant's master's fishery by shooting him with a gun. After the occurrence,. the assail¥Jts's party was chased, but the principal cul· prit namely respondent J'l<o. l made f?OOd his escape in his own car. Two of his associates, Pannalal Saha and Sankar Gho>h, were arrested by the local people and produced in the police station. On the 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 Mahendra Singh who claimed to be a distant relative of the deceased daru:an, but which fact 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 the final report of the police· and asked for processes to be issued against certain other persons on the allegation that those persons had murdered Nageswar Singh. The comp· laint further contained a statement to the effect that the first information 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 Bidhu Bhusan Sarkar who was an enemy of respondent No. l. After examining Mahendra Singh on 1 s.c.:k.. SUPREME COtJRT REPORTS oath and looking intci the police papers, the learned Sub-Divisional Magistrate asked Mr. N. M. Chowdhry, Magistrate, First Class, to hold a judicial enquiry into the allegations made by Mahendra Singh and to submit a report to him by a certain date. 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. Chowdhry on December 30, 1958 stating therein that respondent No. 1 had fired a shot at Nageswar Singh at point blank range and thereby murdered him.

After examining him 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 certain date. During this enquiry, respondent No. 1 was permitted by the learned Magistrate to appear through counsel. Seven witnesses were produced by the complainant Chandra Deo Singh and examined by the learned Magistrate. In addition, Pannalal Saha a:nd Sankar Ghose who, it might be remembered, arc alleged to have been the associates of respondent No. 1, were examined as court witnesses and the suggestion is that the learned Magistrate did this at the instance of the counsel for respondent No. 1. On February 9, 1959, Mr. N. M. Choudhry made a report to the Sub-Divisional Magistrate to the effect that a prima f acie case has been made out against three persons, Upendra Neogi, Asim Monda! and Arun Monda! under s. 302/34 of the Indian Penal Code.

On .the same day, he made another report to the Sub-Divisional Magistrate saying that no prima Jacie case was made out against respondent No. I. On the basis of the first report, the S1'b- Divisional Magistrate directed summonses to be issued against the three persons named in that report and commenced committal proceedings against them. 19i3 CMnir• Du Si'trtla Prokasli CluuulrtJ ••J• A-ludholklfT, J. C"4n1r• Dto Si"lh Prokash Cluiridrtl Bou MuJho/Juu, J, The Sub-Divisional :Magistrate on seeing the second report dismissed the complaint of Chandra Dco Singh without assigning any reason. Chandra Deo Singh preferred an application for revision before the Sessions Judge, Ali pore, who, after issuing notice to respondent No. l and hearing his counsel, directed the Sub-Divisional Magistrate •to make further enquiry against him. Thereupon respondent No. l preferred a revision application before the High Court, which came up for hearing before a single judge of that court.

It would appear that the three persons against whom summonses were ordered to issue by the Sub·Divisional Magistrate also preferred a revision application before the High Court. Both the revision applications were heard together. The learned judge granted the application of respondent No. l as well as that of Upendra Neogy. We are informed by learned counsel for re 0 pondent i\o. l that eventually two of the three persons a.~ainst whom summonses were· ordered to be issued by the Sub-Divisional Magistrate were committed for trial before the Court of Sessions. But he was unable to say definitely whether they were actually tried and if so, what the result of the trial was. Aggrieved by the order of the learned single judge, the appellant Chandra Dco Singh made an application under Art. 134 of the Constitution for the grant of 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 on four grounds. The first ground was that respon· dent No. I had no locus standi to appear and contest a criminal case before the issue of process. The second ground was that the test propounded by the learned single judge for determining the question whether any process shou Id be issued by the court was erroneous. The third ground was that a i'vfagistrate making an enquiry under s. 202 of the Code of Criminal Procedure had no jurisdiction "to ·weigh the evidence in golden scales" as was done in the present case. The fourth and last ground was that the learned Sub-Divisional Magistrate acted in contravention of the provisions of s. 203 Cr. P. C. in dismissing the complaint without recording any reason for doing so. The High Court granted the certificate on all th~ grounds except the first.

It has been held by this court that the High Court cannot limit its certificate in this manner and, therefore, we propose to examine all the four grounds taken by the appellant. Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused.person docs not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face . an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so.

It would follow from t.his, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued ; 11or can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses ·produced before him by the complainant as h;: may think proper in the interests of justice. But beyond that, he cannot go. It was, however, contended by Mr. Sethi for respondent No. l \hat the very object of the provisions of Ch. XVI of the Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolous complaint and, therefore, power is given to a Magistrate before whom complaint is made to Chandra Deo Singh Prokash Cliondr,_ Bose Mudholkar: J. Ch.nJr• De• Sinzh Pt1A·wla Cluuu!rc Rosi Mud!w/l:ar, J, postpone the issue of summons to the accused person pending the result of an enquiry made either by himself or by a Magistrate subordinate to him. privilege conferred by these provisions can, according to Mr. Sethi, be waived by the accused person and he can take part in the proceedings.

No doubt, one of the objects behind the provisions of s. 202, Cr.P.C. is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from heing called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the br,undeu duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations arc made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under s.

202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused pcrsc:.n to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific pre.vision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so examined at the instance of respondent No. I but from the fact that they were persons who were alleged to have been the associates of respondent No. I in the first information report lodged by Panchanan Roy and who were alleged to have been arrested on the spot by some of the local people, they would not have been summoned by the Magistrate unless suggestion to that t"lfect had been made by counsel appearing for respondent No. 1.

This inference is irresistible and we hold that on this ground, the enquiry made by· the enquiring Magistrate is vitiated. In this connection, the observations of this court in Vadilal Panchal v. Datf;atraya Dulaji Ghadiysonkar {'}, may usefully be quoted : · "The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint ; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement 6f proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place' at that stage for the person complainetl against can be legally called upon to answer the accusation made against ):iim only when a process has issued and he is put on trial." Coming to the second ground, we have no hesitation in holding that the test 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, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not. whether there is sufficient ground for the conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under s. 202 has been considered. Amongst those decisions are: Parmanand Brahmachari v. Emperor('); Radha Kishun Sao v. S. K. Misra ("); Ramkisto Sahu v. The State of Bihar(') ; Emperor v. J. A. Fina11(') and Baidya Nath Singh v. Muspratt(6). In all these cases, it has been held that the object (I) (1961] I S.C.R. I, 9. (2) A.1.R. (1930) P•t. 3~. (3) A.J.R. (1919) Pat. 36. (4) .'\ l.R. (19321 Pat. 125. (5', A.LR. (1931) Bom. 524. (6) (188j) l.L.R. If Cll. Ml. Chandra Deo Singh Fr1kash Chandra Bose Mudholkar, J ..

C~ariJ1if D11 \'i1ttilJ :,1okash Chni1r.i Bou Af11dholhlr, J. of the provisions of s. 202 is to enable the :Magistrate to form an opinion as to whether process should be is· sued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the com· plaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant 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 an enquiry under s. 202 is not to br, likened to a trial which can only take place after proce~s is issued, and that there can be only one trial. No doubt, as stated in sub-s. (I) of s.

202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the cbmplainant and the statements made before him by persons examined at the instance of the complainant. This brings us to the third ground. Section 203 of the Code of Criminal Procedure which empowers a Mdgistrate to dismiss a complaint reads thus "The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquiry, if any. under s. 202, there is in his judgment no sufficient ground for procee· ding. In such case he shall briefly record his reasons for so doing."

The power to dismiss a complaint rest< only with a Magistrate who has taken cognisance of it. I S.C.R. If before issue of process, he had sent down the complaint to a Magistrate subordinate to him for making the enquiry, he has the power to dismiss the complaint, if in his judgment, there is no sufficient ground for proceeding. One of the conditions, however, requisite for doing so is the consi~eration of the statements on oath if any made by the comp· lainant and the witnesses and of the result of the investigation of the enquiry which he had ordered to be made under s. 202, Cr.P.C. In the case before us, an investigation by a police officer was not ordered by the learned Sub-Divisional I\1:agistrate, but an enquiry by a Magistrate, First Class. He had, therefore, to consider the result of this enquiry.

It was not open to him to con~ider in this connection the statements recorded during investigation ,by the police on the basis of the first information report lodged by Panchanan Roy or on' the basis of any evidence adduced before him durihg the enquiry aris.ing out of the complaint made by Mahendra Smgh. All these were matters extraneous to the proceedings before him. Of course, as we have already stated, the learned Magistrate has nut given any reasons for dismissing the complaint and, therefore. we do not know what exactly weighed with him when he dismissed the complaint, but the learned single judge of the High Court who has dealt with the case elaborately has not kept the evidence adduced in the two complaints separate but appears to have been influenced in deciding one case on the basis of what was stated by the witnesses in the other case.

The High Court has relied upon the evidence of Pannalal Saha and Sankar Ghosc who ought never to have been examined by the enquiring Magistrate. The High Court has further relied upon the investigation made by the police in the complaint of Panchanan Roy. All this will be clear from the following passage in its judgment : "The version of these t~o witnesses (Parmalal Chandra Deo Singh ProkdJh Chandra Ros• Mudholkar, J. ~odr• Bto Sin:h Frokuh Cluzndra 8011 Mw!MJiar, .1, Saha and Sankar Ghose) is supported by the fact that the police when they went to the locality found a dead bird and a pair of shoes and a pair of black half pants 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 Monda! and Tarapado Naru. Mr. Ajit Kumar Dutt stated that the inquiring Magistrate was not right in examining Pannalal Saha and Shankar Ghose at the suggestion of an advocate for the accused Chabbi Bose and that the latter should not have been allowed at the inquiry.

When however there had already been a full investigation into the case by the officers under the supervision of the Superintendent of Police, it was desirable and proper for the inquiring magistrate to make a careful inquiry and not merely an one sided inquiry by examining such witnesses ~s might be producrd by an interested party. :vioreover, in this case, the learned magistrate was inquiring into both the comp· laints simultaneously and necessarily he could look at the evidence as a whole. In fact, two separate cases ought not to have been started at all, even though there were two separate complaints giving two different versions. These complaints were more or less Naraji petitions against the final report submitted by the police. There was only one incident in the course of which Nageswar Singh has lost his life. Therefore on the basis of the two Naraji petitions it would have been proper to hold one inquiry rather than two separate though simultaneous mqu1nes.

What the Magistrate could not do, the High Court was incompetent to do, and, therefore, its order reversing that of the Sessions Judge cannot IPe sustained. Reliance is however, placed by Mr. Sethi on the decision of this court in Vadilal's case (1), at p. 10 of the report. What was considered there by this court was whether as a matter of law, it was not open to a Magistrate to accept the plea of the right of private defence at a state when all that he had to determine was whether process is to issue or not. The learned Judges held that it is competent to a Magistrate to consider such a plea and observed : "If the Magistrate has not misdirected himself as to the scope of an enquiry under s. 202 and has applied his mind judicially to the materials before him, we think that it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment.

What bearing such' a plea ha1 on the case of the complainant and his witnesses, to what extent they are falsified by the evidence of other 'witnesses,-all these are questions .which must be answered with reference to the facts of each case. No universal rule can be laid in respect of such questions." On the basis of these observations it was urged that this court has held that 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 to hold that while considering the evidence tendered at the enquiry it is open to the Magistrate to consider whether the accused could have acted· in self-defence. Fortunately, no such question arise~ for consideration in this case but we may point out that since the object of an enquiry under s. 202 is to ascertain whether the allegations made in tlie complaint are intrinsically true, the Magistrate acting under s.

203 has to satisfy himself that there is sufficient ground for pro·ceeding. In order to come to this conclusion. he is entitled to (1) (1961) 1 S.C.R. I, 9. 1963 - Chandr• Do Sif!.t;h Prok.sic Clwu/r• B•se Mutlhelka.r, J. J9t :r ChandrtJ Dto Sin~!t ProJ:ash Chandra floJe Aludlm/kar, J. I • g. consider the evidence taken by him or recorded in ·an eNquiry under s. 202, or statements made in an investigation under· that section, as the case may be. He ·is not entitled to rely upon any material besides this. B)C ''evidence of other wiLnesses" the· learned judges had apparently in mind the statement:> of persons examined bl:' the police during investigation under s. 202. It is permissible under s. 203 of the Code to consider such evidence along with the state· ments of the complainant recorded by the Magistrate and decide whether to issue proc;:ess or dismiss the complaint. The investigation in that case was made by the police under s.

202, CI'..P.C. at the.instance of the Presidency Magistrate. Apparently, the statement of the various witnesses questioned by the police were self,contradictory. That being the case, it was open 'to' the Presidency Magistrate to consider which of th~rh to accept ai'Idwhich tu reject. The enquiring :Magistrate has not stated· nor has the High Court found in the ca~c ·!Jefnrc m that the evidenci: adduced on behalf of the compl.1inanl and his own evidence were self-contradictory and, therefore, it coulq not be said that there was anything intrinsically false-in the allegations made in the complaint. Learned counsel for the appellant referred us to the decision of ~his court in Ram{/Opal Grinpatmi Riifo v. The Stole uJ IJ0111briy ('). Jn that case, after quoting a passage from Halsbury's Laws of England, Vol. 10, 3rd Edn. in art. ti6(i at p. 3li5"where the law regarding commitment for trial \Jas. been stated, this court has observed :

"In each case; therefore, the magistrate holding ,.the preliz:ninary inquirx has to be s~tisfied that a priJn<t Jacie case is . made out against tht; accused by the evidence of, witnesses entitled tq a rea~onable degree of .,credit, and· unless he is so sati~fied, h<; is not .to commit. J Applying th!! afore~aid test to the present case, can it be said that there is no evidenc1: ~o maJ,e out ll (1) [1956] S.C.R. 618, 638. l S.C.R. StJl>~EME COURt REPORTS prima Jacie" case, or that the voluminous evidence adduced in · this case is so incredible that no reasonable body of persons could rely upon it ? As already indicated, in this, case, there is a large volume of documentary evidence-the latter being wholly books and registers and other documents kept or is used by the Mills themselves, which may lend themselves to the. inference that the accused are guiltylor to the contrary conclusion.

The High Court has taken pains to point out that this is one. of those cases where much can be said on both sides. It ;Will be for the jury to decide which of the two conflicting versions will find acceptance at their hands. This was pre-eminently a case which should h;,ive· been committed to the Court of Sessions for trial, and it 'is a little surprising that t~e learned Presidency Magistrate allowed himself to be convinced to the contrary.;, Thus, where there is a prima facie case, even though much can be said on both 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 that the offence is committed \by some other person, or persons the ma~ter has to ~e left to be decided by the appro· priate forum at the appropriate stage and issue of process cannot be refused.

Incidentally, we may point out that the offence with which respondent No. 1 hils been charged with is one triable by jury. The High Court, by dealing with the evidence in the way in which it has done, has in effect sanctioned the usurpatio'l by the Magistrate of the functions of a jury which the Magistrate was wholly incompetent to do. I In view of what we have stated above, it is not necessary to say very much about the last ground. Chandr'.I Deo Singh Prokash Chandr« Bose Mudltolkar, J. Section 203 of the Code of Criminal Procedure pro; Clwii'• n,.. Sin:h vides that where the Magistrate dismisses a complaint . Prtk.,h ZiwM,. Ba,, because in his judgment there is no sufficient ground for proceeding with the trial, he shallrecord his Mudlwlkar, J. reasons for doing so. ·Here, . as already stated, the Magistrate perused the report of the enquiring . Magistrate and then proceeded to dismiss the complaint. It is stated on behalf of respondent No. 1 that this is at best an error in his order and,' therefore, ·it is curable under. s.

537(a) of the Code· of Criminal Procedure.· In support of this view, reliance is placed upon the decision of this· court in Willie (William) Slaney v. The State of ~Madhya Pradesh ('). Here, the error is of a kind which goes to the. root of the · matter. It is possible to say• that giving of reasons is a pre-requisite for making an order of dismissal of' a complaint ·and absence of the reasons. would make the order a nullity. Even assuming, however, that the rule laid down in Slaney's case (')• applies to such a case, prejudice is writ large on the face • of the 'order'. The complainant is entitled to know why his· complaint has been dismissed with a view to consider an approach to a· revisional court. · Being kept in ignorance of the reasons clearly prejudices his right to move the revisional court . and where ·he · takes a matter' to the ri:visional court renders his task before tliat court difficult, particularly in view. of the limited si:ope of the provisions of s;

438 and 439, Code of Criminal Procedure. For ·all these reasons; we hold that the High Court was in· error in setting aside the · order of the Sessions · Court and direct that further enquiry be·· made into· the complaint of the appellant against respondent No. l'. .. · · Mr. Sethi, however,: contends that since ·there is only one offence i. c., the murder of Nageswar Singh, there can be only one trial and since other persons are being . tried for that offence, therte could. · be no further enquiry. As there was no material on record we could not know what happened· to the (J)[l955j 2 S.C.R. 1110. i I: I I I i ' I. enquiry against Asim Monda! and Arun Monda! after the dismissal of their application for revision by the High Court. We, therefore, called for .. a report from the Sub-Divisional Magistrate, 24 Parganas.

That report has been received. would appear from that report that on March 2jj 1961, the High Court directed that the commitment proceedings against these two persons be stayed ·pending the disposal of the present appeal by this court. We cannot appreciate the argument that an enquiry against a different person with reference to the same offence cannot be undertaken. lt will be open to the court before which commitment proceedings against Asim Monda! and Arun Monda! are pending to consider whether they should be stayed pending the result of the enquiry with reference to the respondent before us, but there can be no legal impediment to the enquiry against the (espondent. Appeal allowed. Further enquiry directed. Ch.Jnirti l)t1 Siftth Pr1k4Sh Cha"'1a 61se Mudholkor, J.