# RAMGOPAL GANPATRAI RUIA & ANOTHER v. THE STATE OF BOMBAY

- **Citation:** [1958] 1 S.C.R. 618
- **Court:** Supreme Court of India
- **Decided:** 1958
- **Bench:** B. P. Sinha, Govinda Menon, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramgopal-ganpatrai-ruia-another-v-the-state-of-bombay-1406
- **Pages:** 23

## Headnote

Sessions Trial-Commitment proceeding-Order of discharge
by Presidency Magistrate-High Court. if can set aside such order
and direct com1J1itment-High Court's power of revision-'Sufficient
grounds,' meaning of-Duty of Committing Magistrate-Code of
Criminal Procedure (Act V of 1898) ss. 439, 209, 210, 213.
The High Court has ample power under s. 439, read with
s. 435, of the Code of Criminal Procedure to revise an order of
discharge made by a Presidency Magistrate in a commitment
proceeding, and to direct the committal of the accused person to
the Court of Session. Section 439 of the Code contemplates all
the powers of an Appellate court under s. 423 of the Code, except
the power to convert a .finding of acquittal into one of conviction
and that such powers may be exercised in the case of any proceeding. There is, therefore, no basis for the proposition that the
High Court can revise only such orders as are made appoolable
by the C9de.
Malik Pratap Singh v. Khan Mohammed, (1909) I.LR. 36 Cal.
994 and Emperor v. Varjivandas alias Kalidas Bhaidas, (1902)
I.L.R. 27 Born. 84, referred to.
The words "sufficient grounds" occurring in ss. 209, 210 and
213 of the Code of Criminal Procedure do not mean sufficient
grounds for the purpose of conviction but mean such evidence as
would be sufficient to put the accused up'm trial by the jury. In
each case, therefore, the committing Magistrate has to be satisfied
whether or not a prima facie case has been made out against the
accused person by reasonably reliable evidence. Where he is
satisfied that it has been, he has to commit the accused to the
Court of Session and it is for the jury to decide which of the
conflicting versions it should accept and either to convict or
acquit him.
Queen Empress v. Namdev Satva]i, (1887) I.LR. II Born. 372
approved.
Case-law reviewed.
Consequently,
in a case where a committing
Presidency
Magistrate, on a full and elaborate consideration of a large volume
of evidence, both oral and documentary, adduced both by the
prosecution and the defence came to the conclusion
that no
Criminal court would convict the accused persons on such evidence
and discharged them and the High Court in exercise of its powers
SUPREME COURT REPORTS
619
under s. 439 of the Code of Criminal Procedure set aside the order
of discharge and directed the committal of the accused persons to
the Court of Session on charges .under s. 409 and s. 409 read with
s. 109 of the Indian Penal Code and it could not be said that the
evidence had not made out a prima facie case against the accused
persons or that it could not be reasonably relied on.
Held, that it was pre-eminently a case for committal to the
Court of Session, the order of discharge made by the Presidency
Magistrate was highly improper and the High Court's order must
be affirmed.
Held further, that the appellants 9ould not be allowed to
make· a grievance of the inordinate delay in bringing them to
trial, for which they themselves were primarily responsible, and
such delay could be no ground for not holding the trial at all.
CRIMINAL APPELLATE JuRismcTION: Criminal Appeal No. 3 of 1954.
Appeal by special leave froIJ1 the judgment and.
order dated the 22nd June, 1951, of the Bombay High
Court in Criminal Revision Application No. 1425 of
1950, arising out of the judgment and order dated the
9th September, 1950, of the Court of the Presidency
Magistrate Fifth Court, Dadar, Bombay in Cause No.
7825/P of 1949.
P. R. Das, S. A. Desai, SheUim Samuel and I. N.
Shroff, for the appellant.
B. D. Boovariwala, Jindra Lal and ~. H. Dhebo.r,
for the respondent.
1957. October 8. The following Judgment of the
Court was delivered by
SINHA, J . ..:._The main question for determination
in this appeal by special leave is whether the High
Court has power, and, if so, the extent of such power,
to revise an order of discharge passed by a Presidency
Magistrate. The order impugned in this case was
passed by a "Division Bench of the Bombay High Court
(Bhagwati and Vy

## Text

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1957
Octobu8,
6l8
SUPREME COURT REPORTS
[1958]
RAMGOPAL GANPATRAI RUIA & ANOTHER
v.
THE STATE OF BOMBAY
(B. P. SINHA, GOVINDA MENON and
J. L. KAPUR, JJ;)
Sessions Trial-Commitment proceeding-Order of discharge
by Presidency Magistrate-High Court. if can set aside such order
and direct com1J1itment-High Court's power of revision-'Sufficient
grounds,' meaning of-Duty of Committing Magistrate-Code of
Criminal Procedure (Act V of 1898) ss. 439, 209, 210, 213.
The High Court has ample power under s. 439, read with
s. 435, of the Code of Criminal Procedure to revise an order of
discharge made by a Presidency Magistrate in a commitment
proceeding, and to direct the committal of the accused person to
the Court of Session. Section 439 of the Code contemplates all
the powers of an Appellate court under s. 423 of the Code, except
the power to convert a .finding of acquittal into one of conviction
and that such powers may be exercised in the case of any proceeding. There is, therefore, no basis for the proposition that the
High Court can revise only such orders as are made appoolable
by the C9de.
Malik Pratap Singh v. Khan Mohammed, (1909) I.LR. 36 Cal.
994 and Emperor v. Varjivandas alias Kalidas Bhaidas, (1902)
I.L.R. 27 Born. 84, referred to.
The words "sufficient grounds" occurring in ss. 209, 210 and
213 of the Code of Criminal Procedure do not mean sufficient
grounds for the purpose of conviction but mean such evidence as
would be sufficient to put the accused up'm trial by the jury. In
each case, therefore, the committing Magistrate has to be satisfied
whether or not a prima facie case has been made out against the
accused person by reasonably reliable evidence. Where he is
satisfied that it has been, he has to commit the accused to the
Court of Session and it is for the jury to decide which of the
conflicting versions it should accept and either to convict or
acquit him.
Queen Empress v. Namdev Satva]i, (1887) I.LR. II Born. 372
approved.
Case-law reviewed.
Consequently,
in a case where a committing
Presidency
Magistrate, on a full and elaborate consideration of a large volume
of evidence, both oral and documentary, adduced both by the
prosecution and the defence came to the conclusion
that no
Criminal court would convict the accused persons on such evidence
and discharged them and the High Court in exercise of its powers
SUPREME COURT REPORTS
619
under s. 439 of the Code of Criminal Procedure set aside the order
of discharge and directed the committal of the accused persons to
the Court of Session on charges .under s. 409 and s. 409 read with
s. 109 of the Indian Penal Code and it could not be said that the
evidence had not made out a prima facie case against the accused
persons or that it could not be reasonably relied on.
Held, that it was pre-eminently a case for committal to the
Court of Session, the order of discharge made by the Presidency
Magistrate was highly improper and the High Court's order must
be affirmed.
Held further, that the appellants 9ould not be allowed to
make· a grievance of the inordinate delay in bringing them to
trial, for which they themselves were primarily responsible, and
such delay could be no ground for not holding the trial at all.
CRIMINAL APPELLATE JuRismcTION: Criminal Appeal No. 3 of 1954.
Appeal by special leave froIJ1 the judgment and.
order dated the 22nd June, 1951, of the Bombay High
Court in Criminal Revision Application No. 1425 of
1950, arising out of the judgment and order dated the
9th September, 1950, of the Court of the Presidency
Magistrate Fifth Court, Dadar, Bombay in Cause No.
7825/P of 1949.
P. R. Das, S. A. Desai, SheUim Samuel and I. N.
Shroff, for the appellant.
B. D. Boovariwala, Jindra Lal and ~. H. Dhebo.r,
for the respondent.
1957. October 8. The following Judgment of the
Court was delivered by
SINHA, J . ..:._The main question for determination
in this appeal by special leave is whether the High
Court has power, and, if so, the extent of such power,
to revise an order of discharge passed by a Presidency
Magistrate. The order impugned in this case was
passed by a "Division Bench of the Bombay High Court
(Bhagwati and Vyas, JJ.), dated June 22, 1951, setting
aside the order dated September 9, 1950, passed by a
Presidency Magistrate of Bombay, directing the appellants who were accused 1 and 2 before the lea:i:-ned
magistrate to take their trial in the Court of Session,
on a charge under s. 409, Indian Penal Code, as against
1957
Ramgopal
Ga11patrai
Ruia & A not ht r
v.
The State o;
Bombay
Sinha .I.
1957
Ra111gopal
Ganpatrai
Ruia & Another
v.
The State of
Bonibay
Sinha J.
620
SUPREME COURT REPORTS
[1958]
the first accused and under s. 409, read with s. 109,
Indian Penal Code, as against the second accused.
The facts leading upto, this appeal, in bare outline,
are as follows : On July 8, 1947, Raja Dhanraj Girji
Narsingh Girji, Chairman of the Dhanraj Mills
Limited, who will be referred to in the course of this
judgment as the complainant, lodged a first informaticin report before the Inspector of Police, General
Branch, C.I.D., Bom~ay,. in writing, to the effect
that the Dhanraj Mills were formerly his private
property which he converted into a limited concern in
1935. He is the life-Chairman of the Board of Directors of the concern. Till 1937, he was the Managing
Agent, but; in that year, he transferred the managing
agency to ~amgopal Ganpatrai, the first appellant
who converted the managing agency into a private
limited concern consisting of himself and members of
his family. In 1943, the first appellant floated two
private limited concerns under the name and style of
(1) Ramgopal Ganpatrai and Sons as the Managing
Agents and (2) Ramrikhdas Balkisan and Sons
Limited, as the selling agents. Thus, the first appellant
came to have control of the managing agency and the
selling agency. as also of the Mills, all inter-connected.
The complainant had six annas share in the managing
agency and the reni.aining interest therein was owned
by the first appellant and his family. Differences arose
between the complainant and the first appellant in
respect of the affairs of the Mills. The complainant's
suspicions were aroused with respect to the accounts
of the Mills, and as a result of his private enquiries,
he claims to have discovered that "there were large
defalcations committed in the management of this
Mill". It appeared to him that during September to
December, 1945, the first appellant as the Managing
Agent, in the c9urse of his large purchasE!s of Cotton
bales for consumption in the Mills, had "dovetailed
in these transactions about 20 bogus entries of socalled purchases of 3, 719 cotton bales from fictitious
merchants in the Bombay market. The cost of these
purchases
involved
an
approximate
sum
of
Rs. 8,27,000." Against the customary practice of the
S.C.R.
SUPREME COURT REPORTS
621
Mills, the first appellant made payments in respect of
those fictitious purchases by bearer cheques which
were cashed by his men and the cash, thus obtained
was misappropriated. by him to his personal use and
account. In order tci cover up those fictitious and
bogus purchases, false entries had been made in the
books and registers and the receipts, kept by the Mills.
In order to balance the stock-in-hand of cotton bales,
the first appellant and his associates in the crime like
the second appellant, who is described as the office
manager, showed bogus sales of an equal number of
bales said to contain deteriorated cotton at reduced
rates. The sale-price of such bogus sales amounted
to Rs. 4,19,000, thus, causing a loss of .over four lacs
of rupees to the shareholders. The sale price is also
said to have been received in cash by bearer cheques
which have, likewise, been cashed by the employees of
the Mills and similarly misappropriated to the appellant's account. A third series of bogus purchases are
said to have been in respect of stores, dyes and
chemicals, etc., approximately of the value of five lacs
of rupees "by falsely debiting various sums of money
to a number of non-existent parties". In order to
conceal . the fraud, thus perpetrated on the Mills,
other false entries in the books of account and other
documents relating to those bogus transactions were
alleged to have been made by the first appellant and
his underlings. It was, further, alleged that the complainant's suspicions were further strengthened by the
false statement made at a Directors' meeting that
th~re was a strike and that the strikers had burnt
some records of the Mills. Three persons, namely, the
first appellant, Harprasad Gupta, the second appellant and A. R. Mulla Feroz who was subsequently
discharged by the magistrate were named as the three
accused persons concerned in the crime of embezzlement in respect of the funds of the Mills. During their
investigati_on, the Police had taken possession of the
relevant books of account from the pr~cinCts of the
Mills. On July 19, 1948, a charge-sheet under s. 409
ands. 409/109, Indian Penal Code, was submitted by
the Police, against the aforesaid · three persons, for
1957
Ramgopal
Ga11patrai
Ruia & A11other
v.
·The State of
Bombay
SinhaJ.
1957
Ramgopa/
Gunpatrai
lluia & Another
v.
The State of
Bombay
Sinha J.
622
SUPREME COURT REPORTS
[1958]
defalcation of Rs. 8,97,735 and odd between August 1,
1945 to July 31, 1956. The names of 40 witnesses
appear in the charge-sheet.
The learned Presidency Magistrate, Shri C. B.
Velkar, passed a 'preliminary order' in which he
considered the question whether the enquiry against
the accused persons should take the form of the
procedure for summons trial or for l warrant trial or
commitment proceedings preliminary to their being
placed on trial before a Court of Session. After a
consideration of the police charge-sheet and his own
powers adequately to punish the offenders if their
offence were made out, and the relevant provisions of
the Criminal Procedure Code, he recorded theJollowing order:
" .......... I hold that this case is . governed by
s. 207 Criminal Procedure Code and as such I order
that this case should be proceeded with on Sessions
Form."
Thereafter, the learned magistrate examined as many
as 42 witnesses for the prosecution between November, 1948 and October, 1949. He also considered the
written statements of the accused persons, filed in
October and December that year and a very large
volume of documentary evidence, which was exhibited
in the case, numbering many hundreds of exhibits and
rlinning into thousands of pages, as will presently
appear. On December 17, 1949, after hearing counsel
for the parties and considering their respective versions as contained in the oral and documentary evidence, the learned magistrate recorded the following
<>rder:
" .......... I agree with this view and order that
accused No. 3 should be discharged.
As regards accused Nos. 1 and 2 I holcl that there is
a prima facie case to charge them and for reasons
already mentioned I restrict the charges to the following counts :".
Then, he framed seven separate charges in respect of
milch smaller ·Sums against the :two accused persons
under s. 409, read with s. 1011, Indian Penal Code.
He also decided, apparently on a misunderstanding
of a circular issued by the Registrar of City Civil and
S.C.R.
SUPREME COURT REPORTS
623
i9S7
Sessions Court, of August, 1949, to try the case himself.
This, hi out opinion, ·was a serious mistake on his part
inasmuch as he lost sight of those very considerations
on which he had previously, in his order of May 6,
1948, decided to hold only a preliminary inquiry "on
Sessions Fortn". The learned magistrate appears to
have thought that, as an offence under s. 409, Indian
Penal Code, was not exclusively triable by a Court of
Session, irrespective of the enormity of the offence
alleged and . his power .properly and adequately to
punish such an offence, he was empowered by the Circular aforesaid to try the- case. This was a grave
error in e~ercise of judicial discretion vested in the
magistrate.
Raitlgopa/
Ganparrtii
Ruia ~ Another
v.
The State Government of Bombay moved the High
Court against the order aforesaid of the learned Presidency Magistrate deciding to try the case himself on
the seven mutilated charges framed by him.
The
application in revision was heard by a Division Bench
consisting of Bavdekar and Chainani, JJ. The High
Court by its order dated March 1, 1950, remitted the
proceedings to the learned magistrate, after reframing
the charges which are as under :
"That you, accused No. 1 Ramgopal Ganpatrai
Ruia being an agent of the Dhanraj Mills Ltd., and
in such capacity entrustea With property; viz., the
amoun.t of Rs. 6,06,661-3-6, being the proceeds of the
cheques Nos. Exhibits J/22, J/23, J/25, H/3, H/4, J/l,
J/2, J/4, J/5, J/30 to J/32, J/33, J/34, J/10 to J/13,
bP.longing to the said Mills, committed at Bombay,
between the dates of the 21st August, 1945 and the
31st of December, 1945, criminal breach of trust with
respect to the above property, and thereby committed
an offence punishable under section 409 of the Indian
Penal Code and within the cognizance of the Court of
Session of the City of Greater Bombay.
And I further charge you, accused No. 2 Harprasad
Ghasiram Gupta, and the said Ramgopal Ganpatrai
Ruia, accused No. l, between the dates of the 21st
(If August, 1945 and the 31st of December, 1945, at
-Bombay committed the offence of criminal breach of
trust as an agent in respect of the amount of
The State of_ __
Bolribay
Sinha J.
1957
Ramgopal
Ganpatrai
Ruia & Another
v.
The State of
Bombay
Sinha J.
624
SUPREME COURT REPORTS
[1958J
Rs. 6,06,661-3-6, being the proceeds of the cheques
Exhibits J/22, J/23, J/25, H/3 and H/4, J/1, J/2, J/4,
J/5, J/30 to J/32, J/33, J/34, J/10 to J/13 belonging
to the said Mills, and that you between the said dates
and at the same place abetted the said accused No. 1.
Ramgopal Ganpatrai Ruia, in the commission of the
said offence of criminal breach of trust as an agent,
which was committed in consequence of your abetment, and you have thereby committed an offence
punishable under section 109, when read with section
409 of the Indian Penal Code; and within the cognizance of the Court of Session, Greater Bombay."
After setting out the case of the parties in some
detail, the High Court acceded to the arguments
made on behalf of the State that the charges framed
by the learned Presidency Magistrate, required to be
completely changed in form and substance. Though
it did not "desire to fetter the discretion of the magistrate", it clearly expressed the view that "the case
ought to be committed to the Court of Session". The
High Court clearly took the view that the magnitude
of the case and the amount of punishment in the event
of a conviction, clearly justified a committal. But
~n spite of giving that clear direction in view of the
fact that the magistrate himself had found a prima
f acie case for the prosecution, it returned the proceedings to the learned magistrate after re-framing
the charges, with a direction to expedite the case.
On receiving the case back from the High Court,
the learned magistrate recorded the evidence of two
defence witnesses in great detail, covering about 50
pages in print and accounting for the months of March
to June, 1950. It appears that in spite of the expression of opinion by the High Court, as aforesaid, that
it was a fit case for committal to the Court of Session,
the learned magistrate decided to discharge the accused. On September 9, 1950, after hearing the arguments, he wrote a very elaborate judgment running
into more than 30 pages in print. Though in forn1 it
is an order passed in commitment proceedings, it
reads like a judgment after a full trial. The learned
magis!rate stated the prosecution case in all its details,
I
S.C.R.
SUPREME COURT REPORTS
625
setting out the documentary evidence on which the
charges were based, runnirig into 33 paragraphs and
ten pages in print. Then, he proceeded to state the
defence version equally ela.b1J>rately, and embarked
upon a very detailed exaimnation of the evidence in
the case, to find which version is the more acceptable
one. He felt convinced that the defence version depending as it did, on the large mass of documentary
evidence, explained by oral ·evidence of both sides,
was the more acceptable one. He discussed seriatim
the evidence which according to the prosecution lent
itself to the sinister inferences to be drawn against
the accused persons, and then weighed all that evidence and balanced it as against the innocent interpretations sought to be put on that large mass of evidence
on behalf of the accused. In the result, he passed the
following o'rder in the last paragraph of this judgment:
"This case is pending with me for about two years
and had gone on practically on the basis of audit of.
the mill accounts in respect of these transactions in
a Criminal Court. I do n.ot think that I will be justified 'in permitting the time of another court being
occupied for this case unless a conviction in the case
is reasonably probable. For several reasons given
above nnd looking to the evidence of the prosecution
as regards the question of delivery beil,lg taken or not,
I am of the opinion that on the evidence before me no
criminal court would convict the accused and I therefore hold that there are no sufficient grounds for
committing the accused for trial and this is not a fit
case t.o go to the sessions."
The Government of Bombay moved the High Court
in revision against the aforesaid order of dischilrge
against the two appellants. The revisional application was heard and disposed of by a Division Bench by
its judgment and order, dated June 22, 1951, which is
almost as long as that of the learned Presidency
Magistrate, running into about 30 printed pages. The
High Court, after going into the history of the case,
set out the prosecution version and the volumino.us
evidence on which the prosecution case was founded.
The , High Court pointed out that from a cursory
L2SC/6l-3
1957
Rtimgopal
Ganpatrai
Ruia&.Anothtr
v.
The· State of
Bombay
Sinha J.
626
SUPREME COURT REPORTS
[19581
)957
Ra111gopa/
Ganpatrai
Ruia & Anotlter
examination bf the evidence led on behalf of the prosecution, it appeared : that 3,719 bales of cotton were
purported to be purchased by the Mills, and an equal
nl.unber of bales of that commodity were purported to
be sold on behalf of the Mills, during the months of
v.
Tht, State of
Boin bay
Sinha J.
September to December, 1945; that not only the number of bales was the same but also the classification of
cotton purchased and sold; that except in two instances, in almost all cases of purchases and sales, the
transactions of sales purported to have taken place
some days after the alleged purchases, and that in no
case did any sale purport to have taken place earlier
than the purported purchase; that unlike admittedly
genuine transactions, weighment certificates were not
taken by the sellers but by the accused No. 2 to P.W.
Chottey Lal; that the invoices from Chottey Lal were
not taken by the sellers but by the accused No. 2; that
cheques for large amounts running into thousands
and lacs of rupees, prepared by Bhatt-a bank employee-were not crossed and order cheques but bearer
cheques; that such bearer cheques were not made over
to the alleged sellers or their agents but were taken
away by accused No. 2; that those cheques were not
cashed by the alleged sellers but by the employees of
the Mills; that the receipts for the amounts were signed by persons like accused No. 2 for fictitious agents
of fictitious vendors. These were some of the circumstances which had been strongly relied upon by the
prosecution for showing that all those alleged transactions of sale and purchase of cotton bales were bogus
transactions which had been entered in the books of
account kept by the company with a view to benefiting
the accused persons, particularly the first accused. It
was also pointed out that most of the moneys obtained
in the course of the alleged transactions of sales and
purchases were in one-thousand~rupee notes. 278 of
such one-thousand-rupee notes were traced to a bank
on account of the first appellant and 118 of such onethousand-rupee notes were traced to another bank on
similar account. It was also pointed out in the judgment that no previous permission of the Textile Controller was obtained in respect of the movement of
S.C.R.
SUPREME COURT REPORTS
627
cotton, which, during the relevant period, was necessary under the law. Similarly, in respect of the purchases of stores, etc., the persons shown in the memoranda of purchase were not found in the mcμ-ket to be
dealing :with any such commodities and did not possess
the necessary licence.
The High Court also noticed the arguments. advanced on behalf of the accused persons to the effect
that the:, transactions of sales and purchases which
were alleged by the prosecution to be mere fictitious
transactions which had no existence iil fact, were real
transactions but had been in the ostensible names of
some persons for the benefit of the second accused
and his partners who did not think it advisable or
expedient to use their own names; that· the transactions have been regularly entered ·in the books and
registers maintained by the Mills and ·passed through
several hands in the usual course of business, as .done
by the Mills and as evidenced by the largenuinber'of
entries relating to the transactions iinpeached in this
case. The High Court also noticed the several explanations offered by the defence to show tl).at the transactions had no sinister significance; and that they were
capable of bearing innocent interpretations ·supporting the defence version. In otir opinion, the High
Court need not have examined the defence version in
as great a detaii as they have done; but, perhaps, they
took that course in view of the very elaborate judgment written by the learned Presidency Magistrate
The High Court expressed their conclusions. in these
terms.
"We have referred to the evidence on which the
prosecution relies and also to the evidence on which
the defence relies. We do not wish, nor is it our. function in this application, to express our views regarding
its eventual acceptance or otherwise. We wish to
appraise it only prima facie and ·from that point of.
view it appears to us that having regard to the mass
of circumstances and evidence in the case it is not
possible to say that no Court would ever convict the
accused or that the Judge would withdraw the case1957
Rtlmgopal
Gon]Hltrai
Ruia &: Anotht rv.
The State of
Bombay
Sinha J.
1957
Ramgopal
Ganpatrai
l~uia &: Another
v.
The State af
Bombay
Sinlra J.
628
SUPREM:E COURT REPORTS
[1958]
from the Jury on the ground of there being no evidence at all."
The High Court then examined the legal arguments advanced on behalf of the parties, and a number of rulings of the different High Courts in India.
Upon such an examination, the High Court's conclusion is as follows :
"The correct position is not that he should commit
the case to the Sessions Court only if a conviction, in
his opinion, is bound to follow. If there are circumstances for and against, if there are probabilities for
and against, if there is evidence for and against with
which there is nothing wrong prime facie, which on
an appraisement by the jury may lead to a conviction
or may not, his duty is to commit the case and not
discharge the accused. The test is that if there is
credible evidence which, if accepted, may lead to conviction, he ought to commit. If the magistrate comes
to the conclusion that the evidence is such that no
Court would ever convict, he should not commit the
case."
In the result, the High Court allowed the application setting aside the order of the learned magistrate
and
directing that the appellants shall
stand
committed to the Court of Session, the first appellant
for a charge under s. 409, Indian Penal Code, and the
second appellant under s. 409, read with s. 109, Indian
Penal Code, that is to say, on the charges as framed
by the Division Bench of the High Court in their order
dated March 1, 1950, when the matter was before
them on the previous occasion.
The accused persons then moved this Court and
obtained special leave to appeal from the order aforesaid of the High Court, directing their committal to
the Court of Session. The special leave was granted
by this Court, on January 15, 1952, and further proceedings against the appellants in the Court of Session were stayed.
The learned counsel for the appellants has raised
three main contentions against the order· passed by
the High Court: (1) that this Court should not direct
a trial of the accused persons after such a long delay
S.C.R.
SUPREME COURT REPORTS
629
of about 12 years from the time the offence is alleged
to have been committed; (2) that the High Court had
no jurisdiction to revise the order of discharge passed
by a Presidency Magistrate, and (3) that assuming
that the High Court had such a jurisdiction, it erred
in setting aside the .order of· the magistrate when
there was no mis-direction in the order of discharge,
nor had it been shown that it was an improper order
in all the circumstances of the case. Under the last
heading, a further contention was raised that the High
Court had not considered all the grounds on which the
order of discharge was passed.
It is convenient to deal with the contentions in
the order in which they have been. raised at the Bar.
As .regards the delay in bringing the case to trial, it
cannot be said that the blame lies all at the door of the
prosecution. As will presently appear, the accused
persons themselves have largely contributed to this
inordinate delay in bringing the case to trial. During
the period of 1948 to 1951, the case travelled to the
High Court of Bombay four times on inter1ocutory
matters.
Only two of those revisional proceedings
have been noticed abovt!, the other two not being
necessary to be referred to for the purposes of this
appeal. As already stated, special leave was granted
by this Court in January, 1952. . The records, the
preparation of which lay mainly with the appellants,
was not received until January, 1954. The record as
prepared at the instance of the appellants and as it
stands now, runs into eleven big volumes running into
over 5, 700 closely printed pages. Of these volumes, .
only the first three have been referred to in the course
. of the arguments at the Bar-only portions of them.
The remaining eight volumes have all gone waste.
This case is a very telling illustration of waste of
public time and private funds. Even after the receipt
of the records, the parties between them' have succeeded in preventing the case from being put up for final
hearirig and disposal for another three years. It is
not necessary to go into any further details, but the
Court must look with great disfavour upon, and publicly denounce, the way in which the appeal has been
19S7
Ramgopal
Ganp0trai
Ruia &: Another
••
The State of
Bombay
Sinlia J.
1957
Rmngopal
Ganpatrai
Ruia &: Another
v.
Th• State of
Bombay
Sinha J.
630
SUPREME COURT REPORTS
[19581
prosecuted during the last more than 5 years that the
case has remained pending in this Court. It cannot,
therefore, be said that the appellants have any just
grievance that the case has remained pending for
more than nine years since after the submission of the
charge-sheet and has not yet been brought to trial.
They have largely to thank themselves for this result.
We cannot, therefore, for a moment, entertain the plea
. that on the ground of delay, the case should not proceed to trial, if this Court upholds the order of commitment made by the High Court.
The most important ground of attack against the
order of the High Court is'that it had no jurisdiction
to set aside the order of discharge passed by a Presidency Magistrate. This contention is based upon the
ground, firstly that s. 437 of the Code of Criminal Procedure, which specifically deals with the power to
order commitment, does not, in terms, apply to a case
dealt with by a Presidency Magistrate. It was, therefore, suggested that the Legislature did not intend
that an order of discharge passed by such a magistrate
should be interfered with at all. Secondly, it was
contended that those cases, to be presently noticed,
which have held that the authority of the High Court
to interfere with such an order is derived from the
provisions of ss. 435 and 439, read with s. 423 of the .
Code, have been wrongly decided. In other words, it
is contended that on a proper construction of those
sections of the Code, it should be held that there was no
power in the High Court to set aside an order of discharge passed by a Presidency Magistrate, though it
has been taken as settled law during the last about half
a century, so far as High Courts are concerned, that
such as order is revisable by the High Court. Before
examining the rulings of the High Courts of Bombay
and Calcutta, bearing on this controversy, we shall first
examine the relevant provisions of the Code itself and
find out for ourselves whether as a matter of interpretation of those sections, the contention has any force.
Under s. 435, the High Court or any Sessions Judge or
a District Magistrate or a Sub-Divisional Magistrate,
specially so empowered, has been vested with the
S.C.R
SUPREME COURT REPORTS
631
power to call for and examine the record of any proceeding before any inferior . criminal court, for the
purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or
order. Section 436, dealing as it does with the power
to direct further inquiry, need not detain us. Section
437 is equally out of the way, because it deals with
the powers of a Sessions Judge or a District Magistrate, to order commitment in cases triable exclusively by a Court of Session. · Section 439 is "the opera::-
tive section and the question now before us must be
answered with referenee to the terms of that section.
It proviqes that on examining the record of "any proceeding", the High Court "may1 in its discretion, exercise any of the powers conferred on a court of appeal
by sections 423 ............ ", (omitting portions not
necessary for our present purpose), except that . the
section does not authorise a High Court to "convert
a finding of acquittal into one of convi-ction." We have,
therefore, to exa,mine the terms of s. 423 which contains the powers of an appellate court in dealing with
appeals. The learned counsel for the appellants contended that as an order of discharge is not appealable
under the Code, it can be set aside only under the
specific provisions of the Code contained in ss. 436 and
437 and not otherwise. It has already been pointed
out that these two sections are out of the way in this
appeal. In other words, the argument is that only
that order is revisable under s. 439 of the Code which
is appealable under the Code. This argument has only
to be stated to ·be rejected in view of the very wide
terms in ,which s. 439 has been warded. Section 439
has to be read along with s. 435 so far as the present
controverSy is concerned. Section 435 certainly authorises the High Court besides other courts mentioned
therein, to "call for and examine the record -of any
proceeding before any inferior criminal court". It has
not been, and it cannot be contended that a Presidency
Magistrate is not such an inferior criminal court. If
the High Court is empowered to call for the record of
any proceeding before a Presidency Magistrate, it follows that it may examine the correctness, legality or
1957
Ramgopal
,Ganpatrai
Ruia & A11otller
.v.
The State oJ
Bombay
SinhaJ.
632
SUPREME COURT REPORTS
[1958]
1957
propriety of any order passed by him and if it finds
Romgopal
that thP. order is not correct or is illegal or improper,
c""patrai
it may, acting under s. 439, exercise any of the powers
R11ia & Another conferred on a court of appeal by s. 423. But at this
v.
stage, it has been pointed out that the power to order
Tire State of committal for trial is contained in clause (a) of s. 423
Bombay
SinhaJ.
(1), and that clause begins with the words "in an appeal from an order of acquittal". It has, therefore,
been contended that unless there is an appeal against
an order of acquittal, the High Court's power to order
that the accused be committed for trial, cannot be
exercised under s. 439. But s. 417 of the Code specifically deals with an appeal to the High Court against
acquittal, and its powers in dealing with such an appeal are contained ins. 423 (1) (a). If the appellant's
argument is well-founded, s. 439 becomes redundant
in so far as it deals with the power of the High Court
to order committal for trial. In our opinion, the fallacy of this argument lies in reading all the words of
s. 423 into s. 439, which the latter section does not
contemplate. Section 439 only authorizes the High
Court in revision to exercise any of the powers confer;~ed under s. 423. It does not further make reference
to the cases in which such powers have to be exercised. The latter question does not arise because s. 439
its1!lf makes the sweeping provision that "in the case
of any proceeding", the High Court may exercise the
powers enumerated ins. 423. We have, therefore, to
look into s. 423 to find out not the cases in which the
High Court can interfere but only the nature of the
power that it can exercise in a case, in its revisional
jurisdiction, that is to say, we have to incorporate
only the several powers contained in s. 423, into s.
439, except the power to convert a finding of acquittal
into one of conviction.
The argument that the power of revision contained
in s. 439 can be exercised only in cases of appealable
orders, is also negatived by referring to s. 441 which
incorporates s. 435. Section 441 specifically provides
for the record "of any proceeding of any Presiden_cy
Magistrate" being called for by, the High Court under
s. 435. In such as case, such a magistrate is empower-
S.C.R.
\
SUPREME COURT REPORTS
633
to submit, along with the record, 3. statement setting
z957
forth the grounds· of ·his decision or order, and
the High Court shall then "consider such statement G :;m~°J{"~ .s.
before over.ruling or setting aside the said decision or "" ~~:;h,;••
order." Section 441 is so widely worded as to include
v.
the deCision or order of a Presidency l\lagistrate in
The State of
any proceeding, which the High Court may set aside
Bombay
in a proper case. Under the Code; a Presidency
· Sinha J.
Magistrate may pass an order without recording the
reasons for such an order, for example, an order under
s. 213 (1) committing the accused for trial. If such an
order is called in question before the High Court, the
Presidency 1\Iagistrate concerned, unlike other magistrates, is permitted by the Code to supplement the
record by a statement setting forth the grounds of his
decision or order, so that the High Court may have
before it· not only the order or decision in question but
also a statement of the reasons therefor. It is manifest,
therefore, that on a consideration of the relevant
provisions of the Code, there is no warrant for the
extremely wide proposition which has been canvassed
before us.
Until the decision of the Calcutta High Court· in
J,falik Pratap Singh v. Khan J,fahomed('), there was a
divergence of judicial opinion in that Court as to the
power of the High Court under s. 439 to revise an
order of discharge passed by a Presidency 1\Iagistrate.
The cases pro and con are discussed in that ruling and
need not be specifically cited here. The learned
counsel for the appellants has not drawn our attention
to any decision of any. High Court in India to the
contrary. A Division Bench of the Bombay High
Court also in the case of Emperor v. Varjivandas alia~
Kalidas Bhaidas ('), has taken the same view after
discussing the Calputta and Allahabad cases. In view
of these considerations, it must be held that there is no
merit in the second contention raised on behalf of the
appellants.
Having held that the High Court had the necessary
jurisdiction, it remains to consider the last serious
objection raised on behalf of _the appellants to the
(1) (1909) I.L.R. ~6 Cal. 994.
(2) (1902) I.L.R. 27 Bom, 84.
634
SUPREl\IE COURT REPORTS
[1958)
I957
·. exercise of that jurisdiction by the High Court. In
this connection, it was contended that the High Court
G
:a';'8~1;
1
.
& erred in reversing the· order of the Presidency
· an ~::;h,;"a l\Iagistrate and directing the accused to take their
v. ·
trial in the Court of Session, because, it was further
The State of
argued, the High Court has not shown any misdirection
Bombay
in the well-considered order passed by the Presidency
Sinha].
l\Iagistrate, or that it was otherwise improper. It was
further urged that the sole ground on which the High
Court has set aside the order of discharge was that the
. jury may spell out a case which was not alleged by
the prosecution-a. case which is -wholly· inconsistent
with the case set out in the first information report
and sought to.be made out in evidence. In order to
appreciate the grounds on which this pa.rt of the
appellants' contentions has been rested, it is necessary
to examine the . relevant provisions of tho Code of
Criminal Procedure. Chapter XVIII deals with the
procedure before a committing magistrate. Under
s. 208, the magistrate has to take all such evidence as
may be produced by the prosecution and by the
accused.
Section 209 ·authorizes the magistrate to
discharge the . accused person ".if he finds that there
are not sufficient grounds for committing the accused
person for trial." Similarly, s. 210 authorizes the
magistrate to frame a charge declaring with what
offence the accused is charged if he "is satisfied
that there are sufficient grounds for committing
th& accused for trial." If the magistrate frames a
charge against the accused person as aforesaid, it is
open to the latter to examine witnesses in defence.
After such defence witnesses have been examined by
the magistrate, s. 213 authorizes him either to commit.
the accused for. trial or to cancel the charge and to
- discharge the accused if he is satisfied that there are
not sufficient grounds for committing him to the Court
of Session. As will presently appear, there is a large.
volume of case law on the question as to when a
magistrate should or should not commit an accused
person for trial. The controversy has centred round
interpretation of the words "sufficient grounds'', occurring in the relevant sections of the Code, set out above,
'
•
S.C.R.
SUPREME COURT REPORTS
635
decided by Mr. Justice Mahmood in the Allahabad
High Court, governed by s. 195 of the Criminal Procedure Code of 1872 (Act No. X of 1872), the eminent
judge took the view that the expression "sufficient
grounds" bas to be understood in a wide sense including the power of the magistrate to weigh evidence. In
that view of the matter, he ruled that if in the opinion
of the magistrate, the evidence against the accused
"cannot possibly justify a conviction" there was nothing in the Code to prevent the magistrate from discharging the accused even though the evidence consisted of statements of witnesses who claimed to ·be
eye-witnesses, but whom the magistrate entirely discredited. He also held that the High Court could interfere only if it came to the conclusion that the magistrate had committed a material error in discharging
the accused or had illegally or improperly underrated
the value of the evidence. Thus, he overruled the
contention raised on behalf of the prosecution that the
powers of the committing magistrate did not .extend
to weighing the evidence and that the expression
"sufficient grounds" did not include the power of discrediting eye-witnesses.