# Rashtriya Mill Mazdoor Sangh v. A po/lo Mills Ltd. Hidayatullah ]. Mtirth II. z960 Pf'amat ha Nath Mukherjf!e

- **Citation:** [1960] 3 S.C.R. 245
- **Court:** Supreme Court of India
- **Decided:** 1957-02-28
- **Case number:** Criminal Appeal No. 116 of 1958
- **Bench:** K. c. DAS GUPTAandJ. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rashtriya-mill-mazdoor-sangh-v-a-po-lo-mills-ltd-hidayatullah-mtirth-ii-z960-pf-1580
- **Pages:** 6

## Headnote

Criminal Trial-Accu.sed discharged of offence triable as warrant
case-If can be tried for any other triable as summons case on facts
aisdosed in the Police Report-Cognizance by Magistrate-Code of
Criminal Procedure (V of I898), ss. 25IA(2), I90(I)(b).
A Criminal case was instituted in the c,ourt of a Magistrate
at Calcutta against the appellant under s. 332 of the Indian
Penal Code for voluntarily causing hurt to the Bailiff.of Calcutta
Corporation and another. After hearing both sides the Magistrate was of the opinion that the charge under s. 332 could not
be sustained but as there was evidence to establish a prima f acie
case under s. 323 of the Indian Penal Code, he charged the appellant under that section. The appellant pleaded not guilty and
(I) [I955) I S,C.R. 99r.
32
Rashtriya Mill
Mazdoor Sangh
v.
A po/lo Mills Ltd.
Hidayatullah ].
Mtirth II.
z960
Pf'amat ha Nath
Mukherjf!e
v.
State of JV est
Bengal
Das Gupta. ].
246
SUPREME COURT REPORTS
[1960)
·claimed to be tried and submitted that in view of the prov1s10ns
of s. 25rA(2) of the Criminal Procedure Code, he should have been
acquitted and the trial for the offence under s. 323, Indian Penal
Code, could not be proceeded with. The Magistrate rejected the
contention and convicted the appellant.
On the question \Vhether a magistrate after making an order
of discharge under s. 25rA(2) of the Criminal Procedure Code in
respect of a charge of an offence triable as a \varrant case can.
still proceed to try the accused for another offence, which would
be made out from the police report:
Held, that an order of discharge made by the Magistrate in
exercise of the powers under sub-s. (2) of s. 25rA, does not mean
the discharge of the accused in respect of all the offences, which
the facts mentioned in the police report would make out. The
order of discharge being only in respect of the offences triable
under Chapter XXI does not affect in any way the position
that charges of offences triable under Chapter XX also are contained in the police report. In the instant case even after the
order of discharge was made in respect of the offence under
s. 332 of the Indian Penal Code, the minor offence under s. 323
of which the Magistrate had also taken cognizance remained for
trial as there was no indication to the contrary. That being an
offence triable under Chapter XX of the Code of Criminal procedure the Magistrate rightly followed the procedure under Chapter XX.
When a Magistrate takes cognizance under s. r9o(r)(b) of the
Criminal Procedure Code, he takes cognizance of all offences,
constituted by the facts reported by the Police Officer and not of
some only out of those offences.

## Text

3 S.C.R. SUPREME COURT REPORTS
24:5
beside the point. It was wholly immaterial whether
profits were made or losses were incurred in the year,
if the employers continued to retain the labour force
so as to be available for the days on which the Mills
worked.
In our opinion, the Appellate Tribunal after giving
a finding that a claim for compensation equal to half
the wages and dearness allowances was just and proper, erred in holding that it was not admissible because
of the decision of this Court in the Muir Mills case (1).
That case had no application to the facts here.
The
Appellate Tribunal also erred in declining to grant
compensation on the ground that since bonus was
granted the claim for compensation could not be
entertained. The case of badli workers does not appear.
to have been separately raised, and we see no reason
not to award them compensation; but payment of
such compensation will be subject to the same condition, as was impose(! by the Industrial Court.
In the result, the appeal will be allowed, the order
of the Appellate Tribunal set aside and the order of
the Industrial Court restored. The respondents shall
bear the costs here and in the Tribunals below.
Appeal allowed.
PRAMATHA NATH MUKHERJEE
v .
.
THE STATE OF WEST BENGAL
(K. c. DAS GUPTAandJ. c. SHAH, JJ.)
Criminal Trial-Accu.sed discharged of offence triable as warrant
case-If can be tried for any other triable as summons case on facts
aisdosed in the Police Report-Cognizance by Magistrate-Code of
Criminal Procedure (V of I898), ss. 25IA(2), I90(I)(b).
A Criminal case was instituted in the c,ourt of a Magistrate
at Calcutta against the appellant under s. 332 of the Indian
Penal Code for voluntarily causing hurt to the Bailiff.of Calcutta
Corporation and another. After hearing both sides the Magistrate was of the opinion that the charge under s. 332 could not
be sustained but as there was evidence to establish a prima f acie
case under s. 323 of the Indian Penal Code, he charged the appellant under that section. The appellant pleaded not guilty and
(I) [I955) I S,C.R. 99r.
32
Rashtriya Mill
Mazdoor Sangh
v.
A po/lo Mills Ltd.
Hidayatullah ].
Mtirth II.
z960
Pf'amat ha Nath
Mukherjf!e
v.
State of JV est
Bengal
Das Gupta. ].
246
SUPREME COURT REPORTS
[1960)
·claimed to be tried and submitted that in view of the prov1s10ns
of s. 25rA(2) of the Criminal Procedure Code, he should have been
acquitted and the trial for the offence under s. 323, Indian Penal
Code, could not be proceeded with. The Magistrate rejected the
contention and convicted the appellant.
On the question \Vhether a magistrate after making an order
of discharge under s. 25rA(2) of the Criminal Procedure Code in
respect of a charge of an offence triable as a \varrant case can.
still proceed to try the accused for another offence, which would
be made out from the police report:
Held, that an order of discharge made by the Magistrate in
exercise of the powers under sub-s. (2) of s. 25rA, does not mean
the discharge of the accused in respect of all the offences, which
the facts mentioned in the police report would make out. The
order of discharge being only in respect of the offences triable
under Chapter XXI does not affect in any way the position
that charges of offences triable under Chapter XX also are contained in the police report. In the instant case even after the
order of discharge was made in respect of the offence under
s. 332 of the Indian Penal Code, the minor offence under s. 323
of which the Magistrate had also taken cognizance remained for
trial as there was no indication to the contrary. That being an
offence triable under Chapter XX of the Code of Criminal procedure the Magistrate rightly followed the procedure under Chapter XX.
When a Magistrate takes cognizance under s. r9o(r)(b) of the
Criminal Procedure Code, he takes cognizance of all offences,
constituted by the facts reported by the Police Officer and not of
some only out of those offences.
CRIMINAL
APPELLATE JURISDICTION:
Criminal
Appeal No. 116 of 1958.
Appeal from the judgment and order dated February 28, 1957, of the Calcutta High Court in Criminal
Revision No. 1158of1956, arising out of the judgment
and order dated June 26, 1956, of the Additional Chief
Presidency Magistrate, Calcutta, in G. R. Case No. 284
of 1956.
K. R. Chaudhury, for the appellant.
B. Sen, P. K. Ghose for P. K. Bose, for the respondent.
1960. March 11. The Judgment of the Court was
delivered by
DAS GUPTA, J.-The question raised in this appeal
is whetller a Magistrate after making an order of discharge under s. 251A(2), Cr. P. C., in respect of a charge
for an offence triable as a warrant case can still procc0d to try the accused for another offence disclosed
by the police report and triable as a summons case.
...
•
3 S.C.R. SUPREME COURT REPORTS
247
The case against the appellant was instituted on a
police report which charged him with an offence
under s. 332 of the I.P.C. for "voluntarily causing
hurt by means of a piece of wood to the complainant,
Sisir Kumar Bose, Bailiff of Calcutta Corporation and
Chandra Sekhar Bhattacharjee, an employee of Calcutta Corporation with the intent to prevent or deter
those persons from discharging their duties as public
servants." The Magistrate after satif'\fying himself
that the documents referred to ins. 173 Or. P. C. had
been furnished to the accused examined the documents
and was of opinion after hearing counsel of both
parties that the charge under s. 332 I.P.C. could not
be sustained. He_ was however of opinion that there
was evidence to establish a prima facie case under
s. 323 I.P.C. He accordingly charged· the accused
under s. 323 I.P.C. examined h.im and when he pleaded not guilty and claimed to be tried posted the case
for the examination of prosecution witnesses. On the
next hearing date a submission was made on behalf of
the accused that in view of the provisions of s. 251(2)
Cr. P. 0. the accused should have . been acquitted
altogether and no trial for the offence under s. 323
I.P.C. could be proceeded with.
The Magistrate
rejected this contention and directed that the trial of
the accused for an offence under s. 323 I.P.C. would
proceed under Chapter XX. That procedure was
followed and ultimately the accused was convicted
under ~· 323 I.P.C. and sentenced to pay a fine of
rupees fifty only and in default to undergo rigorous
imprisonment for one month. The appellant's application· under s. 439 Cr. P.O. for revision of this order
was rejected by the High Court. The lear11ed Judge
was of opinion that "if the Magistrate finds on the
materials before him that a summons case offence has
been committed by the accused, he has, the right and
duty to proceed in accordance with the provisions of
Chapter XX of the Cr. P.O. The word "discharge"
used in sub-s. (2) of s. 251A Cr. P.'O. must be read as
having reference to a discharge in relation to the
specific offence upon which the accused has. been
charge-sheeted. It does not necessarily mean that the
accused cannot be proceeded agai:rist for some other
Pramatha Nath
Mukherjee
v.
State of West
Bengal
Das Gupta ].
z960
Pramatha Nath
Mukherje•
v.
State of West
Bengal
Das Gupta j.
248
SUPREME COURT REPORTS
[1960]
offence, say a summons case offence, under Chapter XX Cr. P.C." in spite of the discharge under
s. 251A(2). The present appeal is filed on the strength
of a certificate granted by the High Court under A1t.
134(l)(c) of the Constitution.
The relevant provisions of ss. 251 and 251A of the
Code of Criminal Procedure are in these words :-
" S. 251 :-In the trial of warrant-cases by Magistrates, the. Magistrates shall:-
.
(a) in any case instituted on a police-report,
follow the procedure specified in s. 251A; and
(b) in any other case, follow the procedure specified in the other provisions of this Chapter.
S. 251A. (1) .................................................. .
(2) If, upon consideration of all the documents
referred to in s. 173 and making such examination,
if any, of the accused as the Magistrate thinks
necessary and after giving the prosecution and the
accused an opportunity of being heard, the Magistrate considers the charge against the accused to be
groundless, he shall discharge him.
(3) If, upon such documents being considered,
such examination, if any, being made and the prosecution and the accused being given an opportunity
of being heard, the Magistrate is of opinion that
there is ground for presuming that the accused has
committed an offence triable under this Chapter,
which such Magistrate is competent to try, and
which, in his opinion, could be adequately punished
by him, he shall frame in writing a charge against
the accused."
It is quite clear that in deciding w hetber action
shall be taken by him under sub-s. (2) or sub-s. (3) of
s. 251A the Magistrate has to form an opinion whether
there is any ground for presuming that an accused has
committed an offence triable under Chapter XXI or
there is no such ground. When his opinion is that
there is ground for a presumption that the accused has
committed an offence punishable under Chapter XXI
which the Magistrate is competent to try and which
could be adequately punished by him he shall proceed
with the trial. But when he forms the opinion that
there is no ground for presuming that an offeuce
•
-
-r
3 S.C.R. SUPREME COURT REPORTS
249
punishable under Chapter XXI has been committed
by the accused his duty is to discharge the accused.
The real question is, when an order of discharge is
made by the Magistrate in exercise of the powers
under sub-s. (2) of s. 251A is the discharge in respect
of all the offences which the facts mentioned in the
- police report would make out ? The answer must be
in the negative. When the Magistrate makes an order
under s. 251A(2) he does so as, after ha;.ing considered
whether the charge made in the police report of the
offences triable under Chapter XXI is groundless he
is of opinion that the charge in respect of such offence
is groundless ; but the order of discharge has reference
only -to such offences mentioned in the charge-sheet
as are triable under Chapter XXL It very often
happens that the facts mentioned in the charge-sheet
constitute one or more offences triable under <'.Jhapter XXI as warrant cases and also one or more other
offences triable under Chapter XX. The order of
discharge being only in respect of the offences triable
under .Chapter XXI does not affect in any way the
position that charges of offences triable under Chapter XX also are contained in the police report .
. But, says the learned counsel for the appellant, the -
Magistrate cannot proceed with · the trial of these
other offences triable under Chapter XX because no
cognizance has been taken of such other offences.
He contends that only after a fresh complaint has
been made in respect of these offences triable under
Chapter XX that the Magistrate can take cognizance
and then proceed to ·try them after following the procedure prescribed by law. This argument ignores the
fact that when a Magistrate takes cognizance of
offences under s. 190(l)(b) Cr. P.C., he takes cognizance
of all offences constituted by the facts reported by the
police officer and not only-of some of such offences.
For example, if the facts mentioned_ in the police
report constitute an offence under s. 379 I.P.C. as also
one under s. 426 I.P.C. the Magistrate can take cognizance not only of the offence under s. 379 but also of
the offence under s. 426. In the present case the
police report stated facts which constituted an offence
under s. 332 I.P.C. but these facts necessarily constiPramatha Nath
Mukherjee
v.
Sta/8 of Wsst
Bengal
Das Gupta].
Pramatha Nath
Mul1herjee
v.
State of West
Bengal
Dos Gupta ].
Marth z4.
250
SUPREME COURT REPORTS
[1960]
tute also a minor offence under s. 323 I.P.C. The
Magistrate when he took cognizance under s. 190(l)(b)
Cr. P.O. of the offence under s. 332 I.P.C. cannot but
have taken cognizance alHo ofthe minor offence under
s. 323 I.P.C. Consequently, even after the order of
discharge was made in respect of the offence under
s. 332 I.P.C. the minor offence under s. 323 of which
he had also taken cognizance remained for trial as
there was no itfdication to the contrary. That being
an offence triable under Chapter XX Cr. C.P. the
Magistrate rightly followed the procedure under
Chapter XX.
The appeal is accordingly dismissed.
Appeal dismissed.
IN RE: THE BERUBARI UNION AND
EXCHANGE OF ENOLA VES
REFERENCE UNDER ARTICLE 143(1) OF
THE CONSTITUTION OF INDIA
(B. P. SINHA, 0. J., s. K. DAS, P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SuBBA RAo,
'l\L HIDAYATULLAH, K. 0. DAS
GUPTA and J. C. SHAH, JJ.)
President's Reference-Inda-Pakistan Agreement, r958-Division of Berubari Union and exchange of Cooch-Behar Enclaves-If
involve cession of territory-Implementation-Amendment of Constitution-Constitution of India, Arts. I, 3, 368.
As a result of the Radcliffe Award dated August 12, 1947,
Berubari Union No. 12 fell within West.Bengal and was treated
as such by the Constitution which came into force on January 26,
1950, and has since been governed on that basis. Certain disputes arose between India and Pakistan subsequent to the Rad-
.cJiffe Award but Berubari was not in issue before the Bagge
Commission set up by agreement between the parties to decide
those disputes.
That commission made its award on January 26,
1950. Pakistan raised the question of Berubari for the first time
in 1952 alleging that under the Radcliffe Award it should form
part of East Bengal and was wrongly included in West Bengal.
On August 28, 1949, the Ruler of the State of Cooch-Behar
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