# BIPAT GOPE v. STATE 0.1!' BIHAR

- **Citation:** [1962] Supp. 2 S.C.R. 948
- **Court:** Supreme Court of India
- **Decided:** 1960-07-28
- **Case number:** CRIMINAL APPELLATE JumsmcTION: Criminal Appeal No. 153 of 1960
- **Bench:** M. Hm..i.YA.TULLAH, J.C. S.Ilui
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bipat-gope-v-state-0-1-bihar-2361
- **Pages:** 7

## Headnote

Criminal Prowlure-CommiUmml proettding-Ortlu of
di4cltatr;e l>y M agi4trate, First Ola&, after trying tlae wlwk caae
-Procedure under s. 207A(6), Criminal Procedure Code
Jol/Dwt4-l/ in ezcuo of jurisdktio-Code of CrimiMl P..-.
dure, 1898 (Act V of 1898), s, 207..4(6).
In procccdinl!.' under s. 207A(6) of the Code of Criminal
Proccdwe the Magistrate discharged the accused after recording the evidenc~ in the case. The High Court on rev.illon set
aside the order and directed the Magfatrate to commit the
accused to stand trial before the court of scssbn. The Magiatrate examined witnesses, held spot inspection.
He did not
stop to find out if there was evidence which, if believed, would
establish, at least, a prima facie case, but went on further to
disbelieve that evidence, by an elaborate and paimtaldng
process of examination, in aid of which he brought to bear his
own appraisal of inconsistencies, improbabilities etc. In •hort,
he tried the whole case from one and to the other and established his point in a fairly elaborate order.
Held, that the jumdiction conferred by sub-s. (6) of
s. 207 A, does not entitle the Magistrate to try the case on his
own, and forestall the drcision of the court of session.
The
order of discharge passed by him in the present case, therefore,
wu in cxccas of jurladic:tion, and muat he set aside.
,
I
)
2 s.c.R.
SUPREME COURT REPORTS
949
CRIMINAL APPELLATE JumsmcTION: Criminal
Appeal No. 153 of 1960.
Appeal by special le!lve from the judgment
and order dated July 28, 1960, of the Patna High
Court in Criminal Revision No. 1243 of 1959.
Sarjoo Prasad, B.K. Banerje,e, P.K. Ohatterje,e,
and A.K. Nag, for the appellants.
S.P. Varma, for the respondent.
1962. February 1.-The Judgment of the Court
was delivered by
II/di
B;plll 00[>1
v.
S:ate of Bilrar
H!DAYATULLAH, J.-This is an appeal by
Hidqyaluifoh J,
special leave against an order of the High Court
of Patna, by which an order passed by the Magistrate, First Class, discharging the appellants under
s. 207A(6) of the Code of Criminal Procedure, was
set aside, and the Magistrate was directed to
commit the appellants to the Court of Session to
stand their trial under ss. 307 /34 and 148 of the
Indian Penal Code. The only question that is
argued is whether the High Court was justified in
setting aside the order of the Magistrate, which, it
is cla.imed was passed in the proper exercise of the
jurisdiction conferred by s. 207A(6) of the Code.
The facts of the case, in ~rief, are as follows:
011 March 26, 1959, at about 10-15 p.m. one
Rajbahadur Rai alias Chhote Rai, was alleged to
have been assaulted by the appellants at a place
where Chhote Rai WllB sitting, at the pan shop of
one Raghunath Prasad. The appellants are said
to have arrived there in a private car and a
tandem, and after assaulting Chhote Rai, to have
gone away in these two vehicles. After investigation, the ~ppellants were prosecuted under ss. 307 i·
34 and 148 of the Indian Penal Code, with the
result already mentioned.
Before the order of discharge was made, the
Magistrate heard the· evidence of nine witnesses
!NI
/Jij>ol llep1
••
Stw•JBV..
HiioyobJ/o~ J,
950
SUPREME OOURT REPORTS [1962) SUPP.
including Chhote Rai and Ragbunath, who had
given the first information report. Tho witn!'sses
also includtod two other alleged eye-witne>:oes,
Bhushan ::iingh (P.W. 2), aud ::-heonandim Yadcv
(P.W. 6).
The Magistrate, aft.tr nicording the
evidence and holding a spot inspection and hearing
the parties, discharged the appellants, as he "a;;
of opinion (in his own words)-
·
"in view of the aforesaid di8ere pant,
unreliable and incredible and highly int<·rested prosecution evidence, no Court can consider
it worthwhile prirna f acie even for a t1 ial.
In
a case af this nature. it is the l<"gal obligatiun
of a Magistrate to discharge the a<·cus<·d
persons, as disc118sed above."
The Magistrate reached this conclusion on a fairly
Jong appraisal of the evidence in the caso, cliscussing it front tho angle of credibil

## Text

1962
~H..,,....,
S«retttrJ, S.U.
/"""' Jli/1...-,'
il•10ri4Ji011
...
'l'A1 S«:r•""'·
~'"" Dislri&t
7 ,.,;i, IF"'"''
um.
lllfl
Fdnoar;J I,
948 SUPREME COURT REPORTS (1962) SUPP.
'
that the normal lifo of the printing machinery is
20 years, a divisor will have to be adopted and by
the adoption of the proper divisor it would follow
that there is no available surplus for the relavant
year. That is why the award passed by tho Tribunal directing the appellant to distribute Ra. 1.25
lakhs byway of bonus amongst its employees for the
year I !156-57 has to be set aside. The appeal is
accordingly allowed; but there would be no order as
to costs.
BIPAT GOPE
v.
STATE 0.1!' BIHAR
(.M. Hm..i.YA.TULLAH and J.C. S.ILUI, JJ.)
Criminal Prowlure-CommiUmml proettding-Ortlu of
di4cltatr;e l>y M agi4trate, First Ola&, after trying tlae wlwk caae
-Procedure under s. 207A(6), Criminal Procedure Code
Jol/Dwt4-l/ in ezcuo of jurisdktio-Code of CrimiMl P..-.
dure, 1898 (Act V of 1898), s, 207..4(6).
In procccdinl!.' under s. 207A(6) of the Code of Criminal
Proccdwe the Magistrate discharged the accused after recording the evidenc~ in the case. The High Court on rev.illon set
aside the order and directed the Magfatrate to commit the
accused to stand trial before the court of scssbn. The Magiatrate examined witnesses, held spot inspection.
He did not
stop to find out if there was evidence which, if believed, would
establish, at least, a prima facie case, but went on further to
disbelieve that evidence, by an elaborate and paimtaldng
process of examination, in aid of which he brought to bear his
own appraisal of inconsistencies, improbabilities etc. In •hort,
he tried the whole case from one and to the other and established his point in a fairly elaborate order.
Held, that the jumdiction conferred by sub-s. (6) of
s. 207 A, does not entitle the Magistrate to try the case on his
own, and forestall the drcision of the court of session.
The
order of discharge passed by him in the present case, therefore,
wu in cxccas of jurladic:tion, and muat he set aside.
,
I
)
2 s.c.R.
SUPREME COURT REPORTS
949
CRIMINAL APPELLATE JumsmcTION: Criminal
Appeal No. 153 of 1960.
Appeal by special le!lve from the judgment
and order dated July 28, 1960, of the Patna High
Court in Criminal Revision No. 1243 of 1959.
Sarjoo Prasad, B.K. Banerje,e, P.K. Ohatterje,e,
and A.K. Nag, for the appellants.
S.P. Varma, for the respondent.
1962. February 1.-The Judgment of the Court
was delivered by
II/di
B;plll 00[>1
v.
S:ate of Bilrar
H!DAYATULLAH, J.-This is an appeal by
Hidqyaluifoh J,
special leave against an order of the High Court
of Patna, by which an order passed by the Magistrate, First Class, discharging the appellants under
s. 207A(6) of the Code of Criminal Procedure, was
set aside, and the Magistrate was directed to
commit the appellants to the Court of Session to
stand their trial under ss. 307 /34 and 148 of the
Indian Penal Code. The only question that is
argued is whether the High Court was justified in
setting aside the order of the Magistrate, which, it
is cla.imed was passed in the proper exercise of the
jurisdiction conferred by s. 207A(6) of the Code.
The facts of the case, in ~rief, are as follows:
011 March 26, 1959, at about 10-15 p.m. one
Rajbahadur Rai alias Chhote Rai, was alleged to
have been assaulted by the appellants at a place
where Chhote Rai WllB sitting, at the pan shop of
one Raghunath Prasad. The appellants are said
to have arrived there in a private car and a
tandem, and after assaulting Chhote Rai, to have
gone away in these two vehicles. After investigation, the ~ppellants were prosecuted under ss. 307 i·
34 and 148 of the Indian Penal Code, with the
result already mentioned.
Before the order of discharge was made, the
Magistrate heard the· evidence of nine witnesses
!NI
/Jij>ol llep1
••
Stw•JBV..
HiioyobJ/o~ J,
950
SUPREME OOURT REPORTS [1962) SUPP.
including Chhote Rai and Ragbunath, who had
given the first information report. Tho witn!'sses
also includtod two other alleged eye-witne>:oes,
Bhushan ::iingh (P.W. 2), aud ::-heonandim Yadcv
(P.W. 6).
The Magistrate, aft.tr nicording the
evidence and holding a spot inspection and hearing
the parties, discharged the appellants, as he "a;;
of opinion (in his own words)-
·
"in view of the aforesaid di8ere pant,
unreliable and incredible and highly int<·rested prosecution evidence, no Court can consider
it worthwhile prirna f acie even for a t1 ial.
In
a case af this nature. it is the l<"gal obligatiun
of a Magistrate to discharge the a<·cus<·d
persons, as disc118sed above."
The Magistrate reached this conclusion on a fairly
Jong appraisal of the evidence in the caso, cliscussing it front tho angle of credibility of witnrsses,
their antecedents, the probabilities of the !''lse,
the nature of the allegt•d weapon, the medical
evidence and ;o on.
In short, it will not be wrong
to say that h<: tried the case, instead of finding
out whether there was no ground for sending up
the appellants to stand their trial before th<' Court
of Session. The High Court, in the or<lf'r under
appeal, held that the Magistrate went heyon<l thu
powers conferred u,pon him of enquiring into th11
case with a. view to committing it to the court of
Se88ion.
ScC'tion 207 A is a new ~ection, which has
been introduced by the Code of Crimin1~l Proccdur1~
(Amenrlmcnt) Act, IU55
(:!6 of 195;)). It lays
down the procedure which the Magistrates must
follow in a.n enquiry in proceedings started on a
pulice report, preparatory to commitment of «aSPs
to the Court of :-iession.
Suh-scdin1rn (l ). (:!)and
(3) deal with th1> fixing of dat""· iH•uing of
procc&.•cs and ensuring that copies of the <l<H:ument•
referrer! to in
s. J7:l of the Code of Criminal
'
. ,
)
.-
2 S.C.R.
SUPREME COURT REPORTS
951
Procedure have been furnished to the accused.
Sub-section (4) then enjoins upon the Magistrate
that he shall proceed to take the evidence of such
persons, if any, as may be produced by the
prosecution as witnesses to the actual commission
of the alleged offence, and also enables him to
take the evidence of any one or more of the other
witnesses for the prosecution as he considers, in
his opinion, necessary. The sub-section divides
the witnesses into two categories, viz... witnesses
to the actual commission of tho offence and other
witnesses like formal witnesses, or those who
cannot depose to the actual commission of the
offence. Of the first category, those that the
prosecution produces, must be examined; but the
other witnesses may be examined, only if the
Magistrate considers it necessary. It seems, prima
facie, that
the prosecution cannot
insist on
their examination. An accused is given by subs. (5} a right to cross-examine the witnesses, who
a.re examined, and the prosecution can also reexamine them. Then comes sub·s.(6), which reads
as follows :-
"When the evidence referred to in subsection \4) has been taken and tbe Magistrate
has considered all the documents referred to
in section l 73·and has, if necessary, examined the accused· for the purpose of enabling
him to explain any circumstances appearing
in the evidence against him and given the
prosecution and tho accused an opportunity
of being heard, such Magistrate shall, if he
is of opinion that such evidence and documents disclose no grounds for committing the
accused person for trial, record his reasons
and discharge him, unless it app0ars to the
Magistra~ that such person ~houlrl bn tried
before himself or some other Magi>trate, in
which case he shall proceed accordingly."
This sub·section, it is contended, gives the
1961
Bipat Gop.
v.
Stal• of Bihor
Hida;>alullah J.
IHI
Bf1<1 G ...
••
81•1,.JBiA•
H~WJ.
952 SUPREME COURT REPORTS [1962) SUPP.
Magistrate the option not to oommit an accused but
to disohargo him, if he is of opinion. for reasons to
be recorded, that the evidence discloses no grounds
for committing the accused peNon, unless it appears
to him that the person should be tried before himself or some other Magistrate. The Magistrate, in
this case, thought that the power conferred upon
him by this sub-section enabled him to examine the
evidence throughly, and if it did not satisfy him, to
discharge the accused. This view of the Magistrate
was not accepted by the High Court.
Mr. Sarjoo. Pra88d for the appell,nts, contends, on the basis of the ruling of this Court in
Ramgopal Ganpatrai Ruia v. TM State of Bombay (' ),
that the course followed by the Magistrate in
determining whether there was credible evidence
or not was the right course, and point!! to certain
passages in the jud2ment in the above case as
supporting his proposition. The cited case interpreted s. 209 of t·ho Code of Criminal Procedure,
which, after amendment of the Code by Act 26 of
1955, deals with proceedings instituted otherwise
than on a police report, and under whirh the
Magi~trate can discharge Bii accused if he finds that
there aro "not sufficient grounds" for committing
the accused person for trial. The words of the two
SPctions are not the samll, and it is possible to sa. y
that the force of the two sections is also not the
same, and that s. 209 gives a power to enter upon
the merit~ of a case in 11 manner which s. 207 A doer
not warrant. Whether the ~hanp;e of the language
iR deliberate
or due to the fact that different
draftsm1•n drafted tho two sortions, the test for
diecharging the accused must, in a large way, be the
same under both tho sections, and it is hardly
necessary to decide the full of ambit of s. ~07 A.
and contrast it with that of H. 20!l. If there is any
indic ition in the la11gua11e, it is altogether on the
side that. the Magistrate must find a stronger case
for discharging an accuso<l under s. 207 A than under
(I) [1958] S.C.R. 618.
..
. '
..
2 s.c.R.
SUPREME OOURT REPORTS
953
s. 209.
But, whatever the meaning of the two
expresRions, neither of them invests the Magistrate
with the jurisdiction to decide the case, as if the
sessions trial was before him. To this extent, Mr.
Sarjoo Prasad fairly concedes, s. 207 A ( 6) cannot
b'.l carried. Put in other words, the section can
only mean that if there is a prima facie case triable
by the Court of Session, the Magistrate must
commit the 3ccused to the Court of Session to stand
his trial. What those cases would be, which would
satisfy the test, may not generally be stated here,
because, in our opinion, this case is far from the
borderline, where only difficulties are likely to be
met.
In this case, we are clear, on a reading of the
reasons recorded by the Magistrate, that he did not
stop to find out that there was evidence which, if
believed, would establish, at least, a prima facie
case but went on further to disbelieve that evidence
by an elaborate and painstaking process of examination, in aid of which he brought to bear his
own appraisal of inconsistencies, improbabilities
etc. In short, he tried the whole case from one
end to the other and established his point, as has
been said already, in a fairly elaborate order. In
this process, he disbelieved the injured person,
other eye-witnesses, contrasted the oral testimony
of how the offence took place with the medical
evidence and his own conclusions drawn from an
inspection of the site and other matters, to
numerous to detail here.
In our opinion, whatever the jurisdiction
conferred by sub-s.(6) of s. 207A, it does not
entitle a Migistrate to try the case ou his own, and
forestall the decision of the Court of Session, and
this is what the Magistrate, in fact, did here. We,
therefore, agi·eo that the order of discharge passed
by him was in excess of his jurisdiction, and it ls
1962
Bipat Go;.
v.
Slate of Bihar
Hida]Qlul la/I J.
'"'
~I GoPf
v.
/IUUe/BiMr
Hi""'""'1JeA J.
1'11>1 .. 1 '·
95t SUPREHE COURT REPORTS [1962] SUPP.
l l
h11.rdly necessa.ry in this case to show how far a
Mal!?istrate ca.n go to find that there is no ground
for committing the accused to stand bis trial in a
Court of Seesion. We seo no reason to interfere
with the order of the High Court, 11.nd diemiAs
the 11.ppeal.
It is a matter of regret that much delay ha.s
taken place in this ca.se, and it may harm the case
on the one side or the other. We hope that now
thll case will be he11.rd from day to day, 11.nd
disposed of,
11.6
expeditiously 11.S possible. We
further make it clear to the Court or Courts de11.ling with this case that any expression of opinion
on the merits of th" case whether b:v us or by the
High Court or the Magistrate, who first heard it,
or elRe where, in this ordPr or the ordrrs prece·
ding this, is to be completely ignored. and the
case shall be decided without being influPncecl in
any way by Ruch expression of opinion.
Appeal dismissed.
RAMALINGAM & CO.
v.
THE Sl'ATE OF MADRAS
(S. K. DAS, M. HrnAYATULLAH and J. C. SHAH.
JJ.)
Salu Taz-Contratt for sale of goud1 by corresponden«-
C. I. F. or G. F. controcf.1-Bill of /fJding hand.d otier
to
ban~us tD port with only on paym.nt-Whtfh-r properly in
good8 pa&Jed ;,. Mttdraa-Pooition of banker1 Vi•-a-Via wler and
foreign buy.,,_J,.i.,,,.,diary bank<r if agent o/ ulkr-Madra1
Gtneral Salt1 Ta:r: Act (Marl. 9 of 1931!).
The .._....,. were doing busine" principally as expor·
ters of vcg<table fibres 10 fon:ign countri<s. The contracts
of sale wen: C.I.F. or C.F. and wen: made by correspondence
on approval of samples sen! by the a.scssr<S to the fo~ign
buy<rs. The price was payable by draft upon bank credit to
be opened by the buyer ; who opened with bis own bankers
'·
• I