# RAJINDRA NATH MAHATO v. T. GANGULY, DY. SUPERINTENDENT & ANR

- **Citation:** [1972] 2 S.C.R. 671
- **Court:** Supreme Court of India
- **Decided:** 1971-12-02
- **Case number:** Criminal Appeal No. 291 of 1968
- **Bench:** A.°N. Ray, D. G. Palekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajindra-nath-mahato-v-t-ganguly-dy-superintendent-anr-5529
- **Pages:** 3

## Headnote

Code of Cri111i11al-Procedure (Act 5 of 1898), ss. 202, 204 <111d 561APcn1'£'r to i.~s11e proces.-;-W/io· has-Right of Hif{h Couri fo, go into weight
of evide1l<'<' 11flder ~- 56 lA.
After taking cognizance of an offence against the
rcsponc.J.~n.t. the
}(fagistratc enquired into it and submitted a report to the Sub-D1v1swnal
Magistrate that a pri111n facie case \\'as n1ac!c out against the respondents.
The Sub-Dhisional Magistrate directed the issue of process.
The High
Court in a petition to quash the issue of process held that under s. 204.
the Sub-Divisional ?\1agistrate had no right to issue process since he was
not the ~fagistratc \vho had taken cognizance of the offence.
and
also
observed that the evidence in the case came fron1 tainted sources.
Disn1issing the appcul to this Court.
HELD : I I) Under >.
20~. Cr. P.C. 1hc
Magistrate
who
takes
cognizanci.: could issue prOCt!Ss and undt!r s. 202. Cr. P .C .. a Magistrate
to whon1 :i case had been transferred could issue process. Since, in the
present cas..:. the 1nagistratc \\'ho issued process had not taken cognizance
of the offence and there \Vas no order transferring the case to him, the
High Cotfrt '.\';1s right in quashing the is::iuc oi process. L673 C-F]
(2) Under s. 561A. Cr. P.C.. tho High Court could go into the question as lo \\'h\.·th .. :r thcre·,\'as :i_nv legal C\idcncc. [673 F-Gl

## Text

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671
RAJINDRA NATH MAHATO
y.
T. GANGULY, DY. SUPERINTENDENT & ANR.
December 2, 1971
(A.°N. RAY AND D. G. PALEKAR, JJ.J
Code of Cri111i11al-Procedure (Act 5 of 1898), ss. 202, 204 <111d 561APcn1'£'r to i.~s11e proces.-;-W/io· has-Right of Hif{h Couri fo, go into weight
of evide1l<'<' 11flder ~- 56 lA.
After taking cognizance of an offence against the
rcsponc.J.~n.t. the
}(fagistratc enquired into it and submitted a report to the Sub-D1v1swnal
Magistrate that a pri111n facie case \\'as n1ac!c out against the respondents.
The Sub-Dhisional Magistrate directed the issue of process.
The High
Court in a petition to quash the issue of process held that under s. 204.
the Sub-Divisional ?\1agistrate had no right to issue process since he was
not the ~fagistratc \vho had taken cognizance of the offence.
and
also
observed that the evidence in the case came fron1 tainted sources.
Disn1issing the appcul to this Court.
HELD : I I) Under >.
20~. Cr. P.C. 1hc
Magistrate
who
takes
cognizanci.: could issue prOCt!Ss and undt!r s. 202. Cr. P .C .. a Magistrate
to whon1 :i case had been transferred could issue process. Since, in the
present cas..:. the 1nagistratc \\'ho issued process had not taken cognizance
of the offence and there \Vas no order transferring the case to him, the
High Cotfrt '.\';1s right in quashing the is::iuc oi process. L673 C-F]
(2) Under s. 561A. Cr. P.C.. tho High Court could go into the question as lo \\'h\.·th .. :r thcre·,\'as :i_nv legal C\idcncc. [673 F-Gl
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
291 of 1968.
Appeal by special leave from the j11dgment and order dated
March 28. 1968 of the Calcutta Hi!!h Court in Criminal Revision
No. 159 of 1968.
-
P. K. Chatrerj<'<'. for the appellant.
P. ·K. Chakravarty. for respondent No. I.
The- Judgment of the Court was delivered by
Ray, J.
This i> an appeal by special leave from the judgment dated 28 M;irch. 1968 of the
High Coun at Calcutta
quashing the processes issued against the three accused persons.
Th~ appellant on 8 March, 1966 filed a petition of complaint
against the Block Development Officer Purulia, the Officer-inChargc of the local Police Station and T. Ganguly, the Deputy
Superintendent of Police, Purulia under section 395 of the fridian
Penal Code on th~ allegatio.n ~at during searc)l of the appellant's
house they comn11tted dac01ty m the house.
The Magistrate dismissed lhe complaint under section 203 of the Code of Crimim~J
672
SUPREME COURT REPORTS
[1972) 2 S.C.R.
Procedure on the ground that the complaint was
incompetent
without sanction as the accused were Government servants.
The complainant thereafter moved the Sessions Judge, Purulia
against the order of dismissal.
A reference was made to the
Calcutta High Court.
The learned Single Judge of the Calcutta
High Court accepted the reference, set aside the order of the
Magistrate and sent the case back for proceeding in accordance
with law.
On 27 March, 1967 the Magistrate Shri S. K. Ganguly took
cognizance of the case and fixed a date for holding judicial
enquiry. The Magistrate on 22 November, 1967 came to the
conclusion that a prima facie case under section 395 of the
Indian Penal Code had been made out against the three accused
and submitted a report to the Sub-Divisional Magistrate, Purulia.
The Sub-Divisional Magistrate, Purulia on receipt of the report
of the judicial enquiry passed an order on 6 December, 1967
directing the issue of process against all the three accused.
This
order forms the subject matter of the appeal.
One of the accused thereafter moved the High
Court at
Calcutta for quashirtg the process.
The High Court at Calcutta
said that cognizance of the offence was taken by the Magistrate
Shri S. K. Ganguly but process was issued by the Magistrate Shri
S. Sarkar and held that Shri Sarkar not having taken cognizance
of the offence had no right to issue process under section 204 of
the Code of Criminal Procedure.
The High Court, therefore,
quashed the process and observed that the learned Magistrate
who had taken cognizance of the offence if he was so advised
would be at liberty to issue processes against the other two accused persons._
The question for consideration is whether Shri Sarkar could
have issued process in the present case. Shri Ganguly was the
Magistrate who took cognizance.
Shri Sarkar was not the Magistrate who took cognizance. Therefore, under section 204 of the
Code of Criminal Procedure the Magistrate who took cognizance
of the case could issue process.
Sections 191 and 192 of the Code of Criminal Procedure contemplate transfer of cases by a Magistrate, who has taken cognizance of an offence. Section 191 of the Code of Criminal Procedure speaks of transfer of a case or commitment to the Court
of Sessions on the application of the accused.
Section 192 of
the Code of Criminal Procedure speaks of transfer of a case by
a Magistrate who has taken cognizance to any Magistrate subordinate to him for enquiry or trial.
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R. N. MAHATO V. T. GANGULY, DY. SUPDT. (Ray, J.)
673
In these cases where either the Magistrate has taken cognizance and is in seisin of the case or where a case is transferred
by a Magistrate who has taken cognizance to another Magistrate
subordinate to him th1: complainant is required to be examined
under section 200 of the Code of Criminal Procedure.
There
are certain exceptions with which we are not concerned in the
present appeal.
The relevant section which confers power on
the Magistrate to whcm the case has been transferred to issue
process is section 202 of the Code of Criminal Procedure.
The
language of section 202 of the Code of Criminal Procedure is
that the Magistrate may, for reasons to be recorded in writing,
postpone the issue of process for compelling the attendance of
the person complained against.
Therefore, the power of the
Magistrate to issue process under section 202 of the Code of
Criminal Procedure is not limited by the terms of section 204 of
the Code of Criminal Procedure to issue process.
Therefore, the two courses are : first, under section 204 of
the Code of Criminal Procedure for the Magistrate taking
cognizance to issue process or secondly under section 202 of the
Code of Criminal Procedure for a Magistrate to whom a case has
been transferred to issue process.
In the present case there was no order of transfer of the case
by Shri Ganguly to Shri Sarkar. The issue of process is a matter
for judicial determination.
Before issuing a process the Magi~
trate has to examine the complainant.
That is why the issue of
process is by the Magistrate who has taken cognizance or the
Magistrate to whom the case has been transferred.
The High
Court therefore correC'lly quashed the issue of process.
It was contended on behalf of the appellant that the High
Court should not have gone to the question as to whether a prlma
facie case was established or not.
The High Court under section
561-A of the Code of Criminal Procedure can go into the question as to whether there is any legal evidence.
When the High
Court said that the evidence in the present case came from tainted sources and was nc,t reliable the High Court meant what can
be described as 'no ca!:e to go to the jury'.
The High Court correctly quashed the process against T.
Ganguly.
The appeal therefore fails and is dismissed.
V.P.S.
Appeal dismissed.