# THE SUPREME COURT REPORTS .J VADILAL PANCHAL I960 v. May 6. DATTATRAYA DULAJI GHADIGAONKER AND ANOTHER

- **Citation:** [1961] 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** S. K. Das, J. L. Kapur, M. HrnAYATULLAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-supreme-court-reports-j-vadilal-panchal-i960-v-may-6-dattatraya-dulaji-1920
- **Pages:** 13

## Headnote

.
Criminal Procedure-Complaint-Magistrate referring complaint to police for report-Plea of self-defence-Magistrale dismissing complaint upholding such plea on the basis of police reportLegality-Indian.Evidence Act, I872 (I of I872), s. I05-Code of
Criminal Procedure, I898 (Act 5 of I898), ss. 200, 202, 203.
On June 3, I956, riots broke out after a public meeting held
in Bombay in connection with the re-organisation of the State of
Bombay was dispersed on account of the disturbances created.
therein. The car in which the appellant was travelling was
stopped by the crowd and some of those who surrounded the car
~
caught hold of him by his neck and hair and wanted to drag him
out of the car. The appellant then opened fire with his revolver.
The respondent's brother, S, who was hit on the chest by one of
'
..
the shots fired was removed to the hospital but died before medi-
\
cal assistance could be given. The police surgeon who made a
post-mortem examination expressed the opinion that the shot
must have been fired from a distance of 2 to 18 inches only. The
Coroner's Jury returned a verdict that S died of the wound caused by a bullet fired by the appellant "under such circumstances
as would render the firing to be in the exercise of the right of
private defence and as such justified."
The respondent filed a complaint in the court of the Presi-
--J
dency Magistrate, Bombay, on the allegation that his brother
died as a result of the firing resorted to by the appellant who
}
thereby committed an offence punishable under s. 302 of the
1
Indian Penal Code and prayed that process might be issued
against him. The Magistrate referred the complaint to the police
for enquiry and report under s. 202 of the Code of Criminal Procedure and after considering the report said: "From the statemen ts recorded by the Police in this case and from the surround-
~
ing circumstances of the case, I have come to the definite conclu-
!
sion that the report of the Police stating that the shot was fired
'
by the accused in self-defence is true ...... The statement of the
police surgeon conclusively supports the conclusion ...... The eye
,)
witnesses brought by the complainant are not credible witnesses.
....
It will be harassment to the accused and waste of public time if
any process is issued in this case ". The Magistrate, accordingly,
dismissed the complaint under s. 203 of the Code of Criminal
• •
2
SUPREME COURT REPORTS [1961(1)]
1960
Procedure. The High Court, in revision, set aside the order of
dismissal and directed the Magistrate to issue process against the
V•dil•I Panchal appellant and deal with the case in accordance with law, on the
v.
grounds that this was not a case in which it was proper for the
Dallatr•y• Dulaji Magistrate to dismiss the complaint under s. 203 of the Code of
G/oadiga""A"
Criminal Procedure, that proof of the plea of self-defence could
b Another
not be held to have been established from the mere report of the
police, a.nd that there was nothing in s. 202 or s. 203 of the Code
of Criminal Procedure wbich abrogated the rule as to the presumption laid down ins. 105 of the Indian Evidence Act.
Held, that under s. 203 of the Code of Criminal Procedure
the judgment which the ~agistrate has to form must be based on
the statements of the complainant and his witnesse~ and the
result of the investigation or inquiry, and in arriving at bis hdgment he is not fettered in any way except by judicial consi<!erntions; provided that there are satisfactory and reliable materials
on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not, if he 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, 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.
Held, further, that on the facts of the present case, the
order of the Magistrate was c

## Text

THE SUPREME COURT REPORTS
.J
VADILAL PANCHAL
I960
v.
May 6.
DATTATRAYA DULAJI GHADIGAONKER
AND ANOTHER.
(S. K. DAS, J. L. KAPUR and M. HrnAYATULLAH, JJ.)
.
Criminal Procedure-Complaint-Magistrate referring complaint to police for report-Plea of self-defence-Magistrale dismissing complaint upholding such plea on the basis of police reportLegality-Indian.Evidence Act, I872 (I of I872), s. I05-Code of
Criminal Procedure, I898 (Act 5 of I898), ss. 200, 202, 203.
On June 3, I956, riots broke out after a public meeting held
in Bombay in connection with the re-organisation of the State of
Bombay was dispersed on account of the disturbances created.
therein. The car in which the appellant was travelling was
stopped by the crowd and some of those who surrounded the car
~
caught hold of him by his neck and hair and wanted to drag him
out of the car. The appellant then opened fire with his revolver.
The respondent's brother, S, who was hit on the chest by one of
'
..
the shots fired was removed to the hospital but died before medi-
\
cal assistance could be given. The police surgeon who made a
post-mortem examination expressed the opinion that the shot
must have been fired from a distance of 2 to 18 inches only. The
Coroner's Jury returned a verdict that S died of the wound caused by a bullet fired by the appellant "under such circumstances
as would render the firing to be in the exercise of the right of
private defence and as such justified."
The respondent filed a complaint in the court of the Presi-
--J
dency Magistrate, Bombay, on the allegation that his brother
died as a result of the firing resorted to by the appellant who
}
thereby committed an offence punishable under s. 302 of the
1
Indian Penal Code and prayed that process might be issued
against him. The Magistrate referred the complaint to the police
for enquiry and report under s. 202 of the Code of Criminal Procedure and after considering the report said: "From the statemen ts recorded by the Police in this case and from the surround-
~
ing circumstances of the case, I have come to the definite conclu-
!
sion that the report of the Police stating that the shot was fired
'
by the accused in self-defence is true ...... The statement of the
police surgeon conclusively supports the conclusion ...... The eye
,)
witnesses brought by the complainant are not credible witnesses.
....
It will be harassment to the accused and waste of public time if
any process is issued in this case ". The Magistrate, accordingly,
dismissed the complaint under s. 203 of the Code of Criminal
• •
2
SUPREME COURT REPORTS [1961(1)]
1960
Procedure. The High Court, in revision, set aside the order of
dismissal and directed the Magistrate to issue process against the
V•dil•I Panchal appellant and deal with the case in accordance with law, on the
v.
grounds that this was not a case in which it was proper for the
Dallatr•y• Dulaji Magistrate to dismiss the complaint under s. 203 of the Code of
G/oadiga""A"
Criminal Procedure, that proof of the plea of self-defence could
b Another
not be held to have been established from the mere report of the
police, a.nd that there was nothing in s. 202 or s. 203 of the Code
of Criminal Procedure wbich abrogated the rule as to the presumption laid down ins. 105 of the Indian Evidence Act.
Held, that under s. 203 of the Code of Criminal Procedure
the judgment which the ~agistrate has to form must be based on
the statements of the complainant and his witnesse~ and the
result of the investigation or inquiry, and in arriving at bis hdgment he is not fettered in any way except by judicial consi<!erntions; provided that there are satisfactory and reliable materials
on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not, if he 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, 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.
Held, further, that on the facts of the present case, the
order of the Magistrate was correct and that the judgment of the
High Court setting aside that order on an erroneous view of the
scope of s. 203 of the Code of Criminal Procedure must be set
aside.
CRIMINAL
APPELLATE
JuRISDIOTION:
Crimi1111;l
Appeal No. 117 of 1958.
Appeal by special leave from the judgment and
order dated September 13, 1957, of the Bombay High
Court in Criminal Petition Application No. 834 of
1957, arising out of the judgment and order dated
April 30, 1957, of the Presidency Magistrate, IV Class,
Girgaon, Bombay, in C&Be No. 6/1 & R of 1956 .
H. M. Chokai, Rajni PaUl, B. K. B. Naidu and/. N.
Shroff, for the appellant.
Janardan Sharma, for respondent No. I.
Purshottam Trikamdas, H. R. Khanna, D. Gupta and
.R.H. Dhebar, for respondent No. 2.
1960; May 6. The Judgment of the Court ·was
delivered by
I ....
•
'-
...
•
S.C.R.
SUPREME COURT REPORTS
3
S. K. DAS, J.-This is an unfortunate case in which
a complaint filed in the Court of the Presidency Magis. vadilal Panchal
trate, Bombay, on October 31, 1956, byoneDattatraya
. T.
--
,J Dulaji Ghadigaonkar, respondent herein, has to be fine.. Dattafray• Dulaji
lly disposed of in the year 1960 in circumstances which
Ghadigaonher
we shall state at once. On June 3, 1956, in the evening,
"'Another
a. public meeting wa.s held a.t a pla.ce called Chowpatty
s. K. Das J.
in Bombay which was to be addressed by the Prime
Minister of India. The meeting wa.s called in connex.
ion with a.n agitation which was then going on for the
reorganisation of the State of Bombay. There was
considerable disturbance at the meeting as a result
;
whereof it had to· be dispersed,. and large crowds of
_. · people began to wander about in various localities
around . Chowpatty including an area round Charni
Road Station. The case of the complaining respondent was that at about 8 p. m. his younger brother
Sita.ram was crossing Queen's Road near a building
called Laud Mansion. At that time there was·e; large
crowd on the road and members ··of that crowd were
stopping vehicles passing by th.at road. One taxi cab
-4
which had come from the direction ofthc Opera. House
an.d was going towards Churchgate· was already stopped. Site.ram was then accompanied by Sashikant
Kamtekar and Nand Kumar Va.gal.
When these
three had crossed the road, they heard the reports of
revolver shots and on looking back they found that a.
person called .Bhayya was injured by one of the shots
and fell down on the footpath.
Sita.ram and his
. ,
friends went to help -Bha.yya.; at this stage, another
shot was fired .by one of the occupa.nts of a blue car
which was near the taxi ca.b referred to ea.rlier. Sita.
ram was hit on his chest, and the bullet having
entered the chest cavity injured the right ventricle of
the heart. Sita.ram was removed to the G. T. Hospital
but. died before medical assistance could be given.
Dr. H.
~. Metha, Police Surgeon, who made a postmortem examination of the dead body, opined that
.p
_j Sita.ram died of shock and haemorrhage as a result of
the gun shot wound he had received. The doctor
further said that the cha.rring round the wound . indicated that the shot had been fired from a distance of
2 to 18 inches only.
4
SUPREME COURT RKPORTS [1961(1)]
1960
The case of the respondent was that V adilal PanVadilal Panchal cha.I, appellant before us, fired the shot from the blue
v.
, oar. The occupants of the car were K. K. Shah,
Dattatraya D11laJi advooate, his son Vine.y, e.nd one Re.tile.I Se.nghvi on
.._
Ghadigaonker
the be.ck see.t, a.nd the appellant a.nd chauffeur Mohid6- Another
din on the front sea.t.
K. K. Sha.h wa.s mentioned in
the complaint a.s one of the compla.ine.nt's witnesses.
S. K. Das j. H
d
f
h
e wa.s examined a.n ea.id tha.t a. ter t e meeting was
over, he.and his compe.nions were returning in his ca.r
to his house.
Because of the trouble, the oar travelled
by a. longer route a.nd when it reached Queen's Hoa.d,
there were large crowds on that road who were pelting stones, shouting slogans e.nd committing other
a.eta of violence; a. public bus wa.s burnt, and a. ta.xi ca.b
which wa.s proceeding a.head of K. K. Shah's ca.r wa.s
stopped. Some three or four hundred people surrounded bis ca.r, pelted stones and shouted "ma.ro " "ma.ro".
Some of them attempted to drag out Ra.tile.I Sanghvi
who occupied a. corner s.ee.t; some caught hold of the
a.ppella.nt by his neck a.ad hair a.nd wanted to dra.g .
him out of the ca.r.
The appellant then opened fire
with his revolver. The rioters then held be.ck, a.nd
the wa.y was clear for the car to pa.ss.
The oar then
drove a.way and after some time K. K. Shah and the
a. ppellant went to Gamdevi Police Station where the
latter made a. report of what ha.d happened. The
a.ppella.nt was sent to Nair Hospital where he was
medically treated a.nd allowed to go.
The Coroner of Bombay held a.n inquest into the
. death of Sita.ram at which K. K. Shah, Sa.shikant
Kamtekar and several other witnesses were examined.
The Coroner's Jury returned a. verdict that Sita.ram
died of the gunshot wound caused by a bullet fired by
the appellant " under such circumstances as would
render the firing to be in exercise of the right of
private defence and as such justified". This verdict
was returned on October 16, 1956. Sometime earlier,
on July 3, 1956, to be precise, the complaining respondent had made a.n enquiry through his advocate from •
the Commissioner of Police, Bombay, as to whether
the ·appellant had been arrested: the reply received
was that the enquiries made by the police did not
S.C.R.
SUPREME COURT REPORTS
5
reveal any offence having been committed by the
appellant and the police proposed to take no action.
Vadilal Panchal
.,/
On October 31, 1956, the respondent filed his com_
.
plaint. The learned Presidency Magistrate to whom Dattatraya Dulaji
the complaint was made referred it to the 8uperinten.
Ghadigaonker
dent of Police, C. I. D., for enquiry and report.
& Another
Presumably, he acted under s. 202 of the Code of Criminal Procedure. On November 15, 1956, the Suprintens. K: Das J.
dent, of Police submitted the report of his Inspector in
which it was stated:
"From the exhaustive enquiries made immediately after the incident it was disclosed that Shri Vadilal
Panchal was justified in resorting to firearms in .J!elf
defence of himself and the other occupants of the
motor car ".
On January 17, 1957, the learned Magistrate gave
the respondent another opportunity to examine his
witnesses before the enquiring officer, because by
reason of a revision application made to the High
Court earlier against the order referring the case to
the policy for enquiry, the respondent did not produce his witnesses before the enquiring officer.
The
enquiring officer then examin.ed all the witnesses and
submitted his report on March 12, 1957. This time
also the enquiring officer said :
'' From their statements and other evidence on
re®rd, it is clear that Shri Wadilal Panchal opened
fire in the exercise of his right of private· defence,
which verdict the learned Coroner's Jury also brought
after a protracted hearing of the Inquest Proceedings.
Copies of all statements recorded by me, are attached
for reference ".
On April 30, 1957, the learned Presidency Magistrate
considered the report of the enquiring officer in great
detail with reference to the statements of all the
witnesses and said :
"The Police have recorded in detail the statements of all witnesses produced by the complainant as
well as of 'all the occupants of the car. There is,
therefore, material on record showing fully whether
the circumstances existed making out the .right of
private defence available to the accused. The fact
6
SUPREME COURT REPORTS [1961(1)]
i96o
whether the ca.ee falls within one of exceptions or not
ca.n be cRtablished on the evidence of the witneBBes
Vadalal Panchal
v.
produced by the prosecution itself though of course the
Da11atraya Dula;• burden of proof lies on the accused.
From the stateGhadogaonker
ments, recorded by the Police in this ca.se and from
""Anoth"
the surrounding circumstances of the ca.se, I ha.ve
come to the definite conclusion tha.t the report of the
s. K. Das f.
police stating tha.t the shot wa.s fired by the accused
in self-defence is true. As I ha.ve st.a.tad tho statement
of the police surgeon conclusively supports the conclusion.
I ha. ve come to the conclusion tha.t the statemcntR of the four eye witnesses brought by the
complainant arc false.
These eye witnes9es a.re not
crerlible witnesses. It will be harassment to the accused and waste of public time if any process is issued in
this case ".
Accordingly, he dismissed the. complaint under
s. 203, Code of Criminal Procedure.
Against this order of dismissal the respondent-complainant moved the High Court. The High Court
net a.side the order of dismissal and directed the learn- ·
ed Presidency Magistrate to issue process against the
a.ppclla.nt a.nd deal with the case in accordance with
law, on a. ground which the High Court expressed in
the followmg words:
"Now, in the case before us, causing of the <lea.th
of Sita.ram being indisputable, if it was found a.s tho
petitioner a.lieges that it wa.s the shot fired by the respondent tha.t ca.used the death of Sita.ram, the accused
would hiwe to establish the necessary ingredients of
the right of private defence a.a la.id down in section 96
and onwards of the Pena.I Code.
We do not find anything in a.ny of the sections in Chapter XVI to show
that such !l<n exception can be held to he established
from the mere report of the police. That, in our view,
is contrary to tho provision8"of s. 105 of the Indian
Evidence Act which are mandatory provisions. There
is nothing in s. 202 or s. 203 of the Criminal Proced uro Code which abrogates the rule a.a to the presumption la.id down in s. 105 of the Evidence Aot a.nd t,he
mode of proof of exception la.id down in imperative
language in that section.
·-
•
S.C.R.
SUPREME COURT REPORTS
7
In these circumstances and for ·the reasons aforer96o
said, we find that this was not a case in which it was v d.1 1 P
h 1
"
h I
d M ,
d'
,
h
a ' a
anc a
proper 1or t e ea.rne
a.g1strate to 1sm1ss t e com-
·
v.
.
plaint under s. 203, there being no evidence before the Dattatraya Dulaji
learned Magistrate as and by way of proof to establish
Ghadigaonker
the exception of the right of private defericA pleaded
& Another
by the respondent".
.
The appellant then moved this Court and obtained
s. K. Lias f.
specie.I leave to appeal from the order of the High
Court dated September 13, 1957.
The short question before us is-was the High Court
right in its view that when a Magistrate directs an
enquiry under s .. 202 of tho Code of Criminal Procedure for ascertaining the truth or falsehood of a complaint and receives a report from the enquiring officer
supporting a plea of self.defence made by the person
complained against, it is not open to him to hold that
the plea is correct on the basis of the report and the
statements of witnesses recorded by the enquiring
officer? Must he, as a matter of law, issue process in
such a cas1e and leave the person complained against
to establish his plea of self-defence a.t the trial ? · It
may be" pointed out here that the High Court itself
recognised that it would not be correct to !a.y down a
proposition in absolute terms that whenever a defence
under a.ny of the exceptions in the Indian Penal Code
is pleaded by the person com plained against, the
Magistrate would not be justified in dismissing the complaint and must issue process. Said the High Court:
"As we have already observed, if there is a complaint,
which itself discloses a. complete defence under any of
the exceptions, it might be a case where a Magistrate
would be justified in dismissing such a complaint find-·
ing that there was no sufficient ground to proceed with
the case."
We are of the view that the High Court was in
error in holding in this case th.at a.s a matter of law,
it was not open to the learned Presidency Magistrate
to come to the conclusion that on the materials before
him no offenc.e had been ma.de out and there wa.s no
sufficient ground for proceeding further ou the com-.
plaint.
8
SlJPREME COURT REPORTS [1961(1)]
I96o
The relevant sections bee.ring on the q ueation a.re
Vadilal Pamhal 88. 200, 202 and 203.
v.
" S. 200. A llla.giatra.to ta.king cognizance of a.n
Dattatrnya Dula1i offence on complaint aha.II a.t onco examine the com.
Ghadigaoftk"
pla.ina.nt a.nd the witnesses present, if a.ny, upon oath,
& A•01•"
a.nd tho substance of the examination aha.II be reduced
s. K. Das ;. to writing a.nd aha.II be signed by the complainant a.nd
the witneBBea, a.nd also by the Ma.gistra.te :
Provided a.a follows : -
(a.) .............................................................. .
(a.a.) ............................................................ .
(b) where the Magistrate is a. Presidency Magistrate, such oxa.mina.tion ma.y be on oath or not a.s the
Ma.gistra.te in ea.ch case thinks fit, a.nd where the complaint is ma.de in writing need not be reduced to
writing; but the Magistrate ma.y, if he thinks fit,
before. the ma.ttor of the complaint is brought before
him, require it to be reduced to writing;
(c) .................. ············ ................................ .
S. 202(1). Any Ma.giatra.te, on receipt of a. com.
plaint of a.n offence of which he is authorised to take
cognizance, or which ha.a been transferred to him under
section 192, may, if he thinks fit., for reasons to be
recorded in writing, postpone the issue of process for
compelling the attendance of the person complained
age.inst, a.nd either inquire into the case himself or, if
he is a. Magistrate other that a. Magistrate of the third
class, direct a.n inquiry or investigation to be ma.de by
a.ny Magistrate subordinate to him, or by a. police.
officer, or by such other person a.s he thinks fit, for the
purpose of ascertaining the truth or falsehood of the
complaint:
Provided that ........................ (it is unnecessary
to read the proviso).
(2) If a.ny inquiry or investigation under this section is ma.de by a. person not being a. M a.giatra.te or a.
police.officer, such person she.II exercise a.II the powers
conferred by this Code on an officer in charge of a.
police-station, except that he aha.II not have power to
arrest without warrant.
(2A) Any Magistrate inquiring into a. case under
-
:
...
S.C.R.
SUPREME COURT REPORTS
9
this section may, if he thinks fit, take evidence of wit1960
nesses on oath.
Vadilal Panchal
(3) This section applies also to the police in the
v.
towns of Calcutta and Bombay.
Dattatmya Dulaji
S. 203. The Magistrate before whom a complaint
Ghadigaonker
is made or to whom it has been transferred, may dis-
& Another
miss the complaint, if, after considering the statement
on oath (if any) of the complainant and the witnesses
s. K. Das 1·
and the result of the investigation or inquiry (if any)
under section 202, there is in his judgment no sufficient ground for proceeding. In such cases he shall
briefly record his reasons for so doing".
The general scheme of the aforesaid sections is quite
clear. Section 200 says inter alia what a Magistrate
taking cognisance of an offence on complaint shall do
on receipt of.such a complaint. Section 202 says that
the Magistrate may, if he thinks fit, for reasons to be
recorded in writing, postpone the issue of process for
compelling the attendance of the person complained
against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint ; in
other words, the scope of an inquiry under the section
is limited to finding out the truth or falsehood of the
complaint in order to determine the question of the
issue of process. The inquiry is for the purpose of
ascertaining the truth or falsehood of the complaint;
that is, for ascertaining whethe_r there is evidence in
support of the complaint so as to justify the issue of
process and commencement of 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 complained against can be
legally called upon to answer the accusation made
against him only when a process has issued and he is
put on trial. Section 203, be it noted, consists of two
parts : the first part indicates what are the materials
which the Magistrate must consider, and the second
part says that if after considering those materials there
is in his judgment no sufficient ground for proceeding,
he may dismiss the complaint. Section 204 says that if
10
SUPREME COt:RT REPORTS (1961(1)]
1960
in the opinion of the Magistrate there is sufficient
ground for procecdin 0"', he shall take steps for the issue
Vadilal Panchal
v.
of necessary process.
Dallafraya n .. ia;i
Now, in the case before ns it is not contended that
Gh•d•gao"h"
tho learned Presidency Magistrate failed to consider
& .footh"
the mn.kria.ls which he ha.d to consider, before passing his order under s. 203 of the Code of Crimino.l
S. K. [Jas }. p
d
A
f ,.
h 1
d M
roce uro.
s a m .. tter o iact t e earno
1 agistra.te fully, fairly and impartially considered these
materials. What is conLended on behalf of the res.
pondent-complain,.nt is that as a matter of law it was
not open to the len,rned MagiHtrate to accept the plea
of right of self-defence at. a stage when all that he had
to determine was whether a process shollld issue or
not against the appdlil.nt,.
We aro unable to accept
this conteution as correct. Ii is manifestly cloar from
the provisions of s. 203 t.hat the judgment which the
:\fagistrate has to form must be based on the stateruClnts of the complainant n.nd his witnesses and the
result of the investigation or inquiry. The section itself makes that clear, and it is not necessary t-0 refer
to authorities in support thereof.
But the judgment
which the Magistrate has to form is whether or not
there is Rufficient ground for proceeding. This does
not mflan that the Magistrate is bound to accept the
result of the inquiry or invP.8tigation or that he must
accept any plea t.hat iA set up on behalf of the person
complained against. The Magistrate must apply his
judicial mind to the materials on which he has to
form his judgment. In arriving at his judgment he is
not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring
officer says, nor is he precluded from accepting a plea.
ha.sod on an exception, provided always there a.re satisfactory and reliable matt>.ria.ls on which he can base
his judgment as to whether there is sufficient ground
for proceeding on the complaint or not. 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
..
' f
S.C.R.
SUPREME COURT REPORTS
11
arriving at his judgment. What bearing such a plea
I96o
h_a.s on the case of the complainant and his witnesses, V adilal Panchal
to what extent they are falsified by the evidence of
v.
other witnesses-all these are questions which must Dattat>aya Dulaji
be answered with refnence to the facts of each case.
Ghadigaonk" ·
No universal rule can be laid in respect o~ such ques-
& Anothn
tions.
f
S. K. Das].
In support o its view the High Court has relied on
some of its earlier decisions : Emperor v. Dhondu
Bapu ('); Emperor v. Finan(') and Tulsidas v. Billimoria ('). We do not think that any of the aforesaid
decisions lays down any such proposition in absolute
terms as is contended for on behalf of the re.~pondent.
In Emperor v. Dhondu Bapu (') a complaint charging
defamation was dismissed by the Magistrate under
s. 203 without taking any evidence, on the ground
that the accused was protected by s. 499, exception 8.
It was held that the order of dismissal was bad.
Patkar, J ., sign.ificantly observed :
"If the Magistrate in this case had taken evidence on behalf of the prosecution and on behalf of
the accused, and passed a proper order for discharge,
the order of the District Magistrate ordering a further
enquiry without giving reasons might have stood on
a different footing.
We do not think that, under the
circumstances of this case, there are adequate grounds
for interfering with the order of the District Magistrate."
-
In Emperor v. Finan (') the accused did not dispute
the correctness of the statements made by the complainant, hut in justification pleaded the order passed
by his superior officer and claimed protection under
ss. 76 and 79 of the Indian Penal Code. It is worthy
of note that the order of the superior officer was not
produced, but that officer very improperly wrote a
letter to the Magistrate saying that he had given such
an order. In these circumstances, the same learned
Judge who decided the earlier case observed:
"It was, therefore, incumbent on the M~gistrate
to investigate the com pie.int and to find out whether
(1) (1927) 29 Bom. L.R. 713, 715._
(2) {1931) 33 Bom. L.R. n82.
(3) (1932) 34 Bom. LR. 910.
12
SUPREME COURT REPORTS [1961(1)]
1960
the allegation of the accused that he was protected
Vad•lal P••<hal by RS. 76 and· 79 of t.he Indian Penal Code was made
v.
out by legal evidence btifore him."
Datl•"•Y• Dulaji The facts in Tulsidas v. BiUimoria (') were different,
Chadigannka
and the question there considered was whether a meme. Anolha
her of the Bar.in India had absolute privilege. That
s. K. Das J.
decision has very little bearing on the question now
before us.
Our attention has also been drawn to a decision of
the Labore High Court where the facts were somewhat
similar: Guiab Khan, deceased, through Karam Khan v.
Gulam Muhammad Khan and Others (').
In that case
also the person complained against took the plea of
self.defence, which was accepted. In the High Court
an objection was taken to the procedure adopted and
it was argued that the order of discharge should be
set aside. In dealing with that argument Broadway, J., said :
"Now a Magistrate is timpowered to hold an enquiry into a complaint of an offence in order to asce1'-
tain whether there is sufficient foundation for it to
issue process against the person or persons complained against. In the present case the Magistrate clearly
acted in the exercise of these powers under s. 202,
Criminal Procedure Code.
He allowed the complainant to produce such evidence in support of bis complaint as be wished to produce, and after a consideration of that evidence came to the conclusion that that
evidence was so wholly worthy (unworthy ?) of credence as·to warrant bis taking no further action in the
matter."
Therefore, none of the aforesaid decisions lay down
as an absolute proposition that a plea of self.defence
can in no event be considered by the Magistrate in
dealing with a complaint under the provisions of
ss. 200, 202 and 203 of the Code of Criminal Procedure.
On. the facts, there is very little to be said. Learned
Counsel for the State of Bombay supported the order
of the learned Magistrate and pointed out that even
on the narrow view taken by the High Court, a view
(1) (1931) :i. Bom. L.R. 910.
(1) A.I.R. 19'7 Lah. 30.
-
S.C.R.
SUPREME COURT REPORTS
13
to whioh he did not, however, subscribe, the learned
'960
Magistrate rightly held that there was.no su~cient Vadilal Pa,.chal
ground for proceeding; because the ear her version of
v.
some of the witnesses for the complainant itself show- Dattatraya Dulaji
ed that there was a riotous mob on the road which
Ghadigaonk"
attacked cars, burnt a public bus, pelted stones, etc.,
& Anolher
which was quite inconsistent with their later version
1
S. K. Das].
that Sitaram and, his companions were quiet y crossing the road and a shot was fired from a passing or
moving car. There was over-whelming material t.o
show that K. K. Shah's car was surrounded by the mob
and some of the rioters tried to drag out and attack
the appellant. K. K. Shah was one of the witnesses
mentioned by the complainant and so also two of the
Inspectors of Police. Their evidence . clearly supported the plea of the appellant and in any case,
showed that the witnesses examined on behalf of the
respondent were totally unworthy of credence as to
the circumstances in which the shots were fired. We
cannot therefore say that the learned Magistrate was
wrong in his . judgment that there was no sufficient
ground for proceeding further on the complaint.
We accordingly hold that the High Court set aside
the order of the learned Magistrate on an erroneous
view of the scope of s. 203 of the Code of Criminal
Procedure. We allow the appeal, set aside the order
of the High Court dated September 13, 1957, and
restore that . of the learned Presidency Magistrate
dated April 30, 1957.
Appeal allowed.