# Tilkayal ";hri Govindlt1lji Maharaj v. 51011 of Rajaslhan

- **Citation:** [1964] 1 S.C.R. 639
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** S.J. Imam, K. SuBBA RAo, N. Raghubar Dayal, J. R. M Udholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tilkayal-hri-govindlt1lji-maharaj-v-51011-of-rajaslhan-2802
- **Pages:** 17

## Headnote

Criminal Law-Proceeding under •· 202 Criminal Pro<»-
dure Oode-Revision.pelitim by rllllpondent No. 1 and the other
persons-IVhelher rllllpondent No. 1 has locus Btandi to conteRt
criminal ca-Be before i .. ue of process-Procedural defect-Powers
of M"ilistrate in committal proceedings and in con•idering
evidence-Recording
of reasons-Gode
of Criminal Proce·
dure, 1898 (Act 5 of 1898), sa. 202, 203.
A first
information report was filed stating that the
respondent No. I and some others committed murder. Thereafter a person claiming t.; be a relative of the dccea•ed filed a
complaint alleging that the first information report was false
and that certain persons other than those stated in the first
information report had committed the murder. It was prayed
that process be issued against these persons.
The Sub-Divi·
sional Ma~istrate before whom thii complaint was filed directed
the First Class Magistrate to inquire into the allegation and to
make a report. Subsequently the nephew of the deceased filed
a complaint alleging that respondent No. 1 had committed the
murder.
The Sub-Division-11 Magistrate directed the
First
Class Magistrate to enquire into this complaint also and to
report.
During the enquiry aparl from the witness produced
1963
Tilkayal
";hri Govindlt1lji
Maharaj
v.
.51011 of Rajaslhan
Gqjmdr11adkar, J.
1963
January, 22.
640
SUPREME COURT REPORTS [1964]VOL.
196J
hy the complainant, respondent No. 1 was allowed to be repre·
Ototulro Dto 5'ingA
sentcd by a counsel and two persons who had been named in
v.
the first inform,tion report alon~ with respondent No. 1 were
Pro/UV~ Cla1mrlro Bost .examined as court witnesses.
The First Class Magistrate after
conducting inquiry under s. 203 Criminal Procedure Code, 1898,
made a report stating that "pri""' Jacie case had been made
out ag~inst the personJ mentirmed in the first complaint.
He
made another report on the second complaint stating that no
pima Jncie case had been made against respondent No. I.
Sub-Divisional Magi<trate direct.d the initiation of committal
proceedings ag.iinst the pe•som mentioned in the first complaint.
On a revision application filed hy the complainant in the second
complaint
the SeSJions Jurlge directed the Sub-Divisional
Magistrate to conrluct further inquiry against respondent No. I
who took the matter in revision to the High Court. The th=
persons a~inst whom commhtal proceedings were ordered also
filed revision application before the High Court.
Both the
petitions were hearrl together.
The revision applications by
respondent No. I and one of the three othors were allowed.
Th• pre!ICnt app•al is under a certificate granted under Art. Ill
(I) (c) of the Constitution of India.
The mdn contentions of the appellant before this Court
w<re (!\ the respondent No. I had no locu• •l~lldi to appear
and contest a criminal ca<c before the imie of process (2) the
te't applied by the High Court for determining the question of
is!iue of process wa' erroneous (3) the Magistrate making an
inquiry under s. 202 Criminal Procedure Code had no juris.
diction to wei~h the evidence as if it were a trial (4) the Sub.
Divisi1,nal M;,gic;tr;.te ought to have given his reasons under
s. 203 Criminal Procedure Code for dismi<Sing the complaint.
Hrld, that an accused person d0"5 not come into the
pir.turo at all till proc<'s i' iS<ued.
Even thou~h he m'y be
allowed to be represented by counsel he h., no right to take
part in the proceedings nor has the Magistrate jurisdiction to
permit him to do so.
"The MJgistratt: cannot put questions at
the instance of a person named as accused but ~gainst \\'horn no
process has been is1ued nor can he examine any witnC"Sst"s at the
instance of that person.
The inquiry m1de by the Magistrate
was therefore vitiated.
VtJdilol Pancho/ v. D<1ttotry~ Duhji Gharlfr;.•onkar, [1961]
I S C. R. I, rcforrod to.
For derrnnining the q•1estion whether process is to be
issued or not the test to be applied is whether there is "sufficient
i S.C.R.
SUPREME COURT

## Text

1 S.C.R.
SUPREME COURT RgPORTS
639
the qualifications for
holding the office of the
Goswami but we reverse its decision in so far as it
relates to the latter part of s. 30 (2) (a) which deals
with the allowances payable to the Goswami.
In
the circumstances of this case, we direct that parties
should bear their own costs throughout.
·Appeal dismissed.
CHANDRA DEO SINGH
v.
PROKASH CHANDRA BOSE & ANR.
(S.J. IMAM, K. SuBBA RAo, N. RAGHUBAR DAYAL,
and J. R. M UDHOLKAR, JJ.)
Criminal Law-Proceeding under •· 202 Criminal Pro<»-
dure Oode-Revision.pelitim by rllllpondent No. 1 and the other
persons-IVhelher rllllpondent No. 1 has locus Btandi to conteRt
criminal ca-Be before i .. ue of process-Procedural defect-Powers
of M"ilistrate in committal proceedings and in con•idering
evidence-Recording
of reasons-Gode
of Criminal Proce·
dure, 1898 (Act 5 of 1898), sa. 202, 203.
A first
information report was filed stating that the
respondent No. I and some others committed murder. Thereafter a person claiming t.; be a relative of the dccea•ed filed a
complaint alleging that the first information report was false
and that certain persons other than those stated in the first
information report had committed the murder. It was prayed
that process be issued against these persons.
The Sub-Divi·
sional Ma~istrate before whom thii complaint was filed directed
the First Class Magistrate to inquire into the allegation and to
make a report. Subsequently the nephew of the deceased filed
a complaint alleging that respondent No. 1 had committed the
murder.
The Sub-Division-11 Magistrate directed the
First
Class Magistrate to enquire into this complaint also and to
report.
During the enquiry aparl from the witness produced
1963
Tilkayal
";hri Govindlt1lji
Maharaj
v.
.51011 of Rajaslhan
Gqjmdr11adkar, J.
1963
January, 22.
640
SUPREME COURT REPORTS [1964]VOL.
196J
hy the complainant, respondent No. 1 was allowed to be repre·
Ototulro Dto 5'ingA
sentcd by a counsel and two persons who had been named in
v.
the first inform,tion report alon~ with respondent No. 1 were
Pro/UV~ Cla1mrlro Bost .examined as court witnesses.
The First Class Magistrate after
conducting inquiry under s. 203 Criminal Procedure Code, 1898,
made a report stating that "pri""' Jacie case had been made
out ag~inst the personJ mentirmed in the first complaint.
He
made another report on the second complaint stating that no
pima Jncie case had been made against respondent No. I.
Sub-Divisional Magi<trate direct.d the initiation of committal
proceedings ag.iinst the pe•som mentioned in the first complaint.
On a revision application filed hy the complainant in the second
complaint
the SeSJions Jurlge directed the Sub-Divisional
Magistrate to conrluct further inquiry against respondent No. I
who took the matter in revision to the High Court. The th=
persons a~inst whom commhtal proceedings were ordered also
filed revision application before the High Court.
Both the
petitions were hearrl together.
The revision applications by
respondent No. I and one of the three othors were allowed.
Th• pre!ICnt app•al is under a certificate granted under Art. Ill
(I) (c) of the Constitution of India.
The mdn contentions of the appellant before this Court
w<re (!\ the respondent No. I had no locu• •l~lldi to appear
and contest a criminal ca<c before the imie of process (2) the
te't applied by the High Court for determining the question of
is!iue of process wa' erroneous (3) the Magistrate making an
inquiry under s. 202 Criminal Procedure Code had no juris.
diction to wei~h the evidence as if it were a trial (4) the Sub.
Divisi1,nal M;,gic;tr;.te ought to have given his reasons under
s. 203 Criminal Procedure Code for dismi<Sing the complaint.
Hrld, that an accused person d0"5 not come into the
pir.turo at all till proc<'s i' iS<ued.
Even thou~h he m'y be
allowed to be represented by counsel he h., no right to take
part in the proceedings nor has the Magistrate jurisdiction to
permit him to do so.
"The MJgistratt: cannot put questions at
the instance of a person named as accused but ~gainst \\'horn no
process has been is1ued nor can he examine any witnC"Sst"s at the
instance of that person.
The inquiry m1de by the Magistrate
was therefore vitiated.
VtJdilol Pancho/ v. D<1ttotry~ Duhji Gharlfr;.•onkar, [1961]
I S C. R. I, rcforrod to.
For derrnnining the q•1estion whether process is to be
issued or not the test to be applied is whether there is "sufficient
i S.C.R.
SUPREME COURT REPORTS
641
ground for proceedings" and nor whether there is sufficient.
ground for conviction.
Parmand Brahmchari v. Emperor, A. I. R. 1930 Pat. 30,
Iladha Kishun Sao v. S. K. Miara, A. I. R. 1949 Pat. 36,
Ramkisto Sahu v. State of Bihar, A. I. R. 1952 Pat. 125,
Emperor v. J. A. Finan, A. I. R. 1931 Born. 524 and Baidya
Nath Singh v. Muspratt, (1886) I., L. R. 14 Cal. 141 discussed,
While acting under s. 202 Criminal Procedure Code it is
not open to the Magistrate to consider the statements recorded
by the police during investigation or to consider the evidence
adduced
before
him in
another complaint.
What the
Magistrate could not do the High Court also was incompetent
Iv do.
Where there is a prima facie case even though mu oh can be
said on both sides, a committing Magistrate is bound to commit
the accused for trial.
Ilamgopal
Ganpatrai Iluia v. State of Bombay,\ [1958)
S. C.R. 618, referred to.
_
When a Magistrate dismisses a cc,mplaint because there
are no sufficient grounds for proceeding with the trial he shall
record his reasons for doing so.
Willie (Willia,,..) Slaney v. State of Madhya Pradtah,
[1955] 2 S. C.R. 1140, considered,
There is nothing which prevents the undertai<ing of an
inquiry against one person when an inquiry is pending against
different persons with reference to the same offence.
CRIMINAL APPELLATEjURISDICTION ; Criminal
Appeal No. 155of1960.
Appeal from the judgment and order dated
January 27, 1960, of the Calcutta High Court in
Criminal Revision No. 620 of 5!.l.
Suku'flUJr Ghose, for the appellant .
. Jai Gopal Sethi, C. L. Sareen and Y. Kumar,
for respondent No. 1.
Chantlr11 Dee Singh
••
PrBkasli lhand1a Bost
1'63
r..:hanrlra Dn Singh
~.
?101.:zJh Ch.Jtb• Buie
Mudlwliurr, J.
642 SUPREME COURT REPORT:S [1964] VOL.
l!l63. January 22. The Judgmt>nt of the Court
was delivered by
ML"llHOLKAR, J.-This is an appeal by certi·
ficate granted by the High Court of Calcutta under
Art. 134 (1) (c) of the Constitution of India. The
facts which are relevant for the purpose of this
appeal are briefly these :
On December 25, 1957, one Panchanan Roy
lodged a first information report at 11.00 p. m. at
the police station, Bhangor, in the district of 24
Parganas alleging that respondent No. l (Prokash
Chandra Bose) who is the proprietor of a fishery had
killed a man named Nageswar Singh who was a
da7'Wl.11z posted at the informant's master's fishery by
shooting him with a gun.
After the occurrence,. the
assail¥Jts's party was chased, but the principal cul·
prit namely respondent J'l<o. l made f?OOd his escape
in his own car. Two of his associates, Pannalal
Saha and Sankar Gho>h, were arrested by the local
people and produced in the police station. On the
basis of the first information report, the police undertook investigation, but ultimately they submitted a
final report as late as on September 17, 1958.
On November 3, 1958, one Mahendra Singh
who claimed to be a distant relative of the deceased
daru:an, but which fact is denied by the widow of the
deceased -
filed a complaint before Mr. C. L..
Choudhry, the Sub-Divisional Magistrate of 24
Parganas Alipore, against the final report of the
police· and asked for processes to be issued against
certain other persons on the allegation that those
persons had murdered Nageswar Singh. The comp·
laint further contained a statement to the effect that
the first information report lodged by Panchanan
Roy with the police on December 25, 1957, was false
and that he had done so at the instance of his Master
Bidhu Bhusan Sarkar who was an enemy of respondent No. l. After examining Mahendra Singh on
1 s.c.:k..
SUPREME COtJRT REPORTS
643
oath and looking intci the police papers, the
learned Sub-Divisional Magistrate asked Mr. N. M.
Chowdhry, Magistrate, First Class, to hold a judicial
enquiry into the allegations made
by Mahendra
Singh and to submit a report to him by a certain
date.
During the pendency of the enquiry into the
complaint of Mahendra Singh, Chandra Deo Singh,
the nephew of the deceased filed a complaint before
Mr. Chowdhry on December 30, 1958 stating therein
that respondent No. 1 had fired a shot at Nageswar
Singh at point blank range and thereby murdered
him.
After examining him on oath, the SubDivisional Magistrate referred the matter again to
Mr. N. M. Chaudhry Magistrate, First Class, for
enquiry and report to him by a certain date.
During
this enquiry, respondent No. 1 was permitted by the
learned
Magistrate to appear through
counsel.
Seven witnesses were produced by the complainant
Chandra Deo Singh and examined by the learned
Magistrate. In
addition,
Pannalal
Saha a:nd
Sankar Ghose who, it might be remembered, arc
alleged to have been the associates of respondent
No. 1, were examined as court witnesses and the suggestion is that the learned Magistrate did this at the
instance of the counsel for respondent No. 1.
On February 9, 1959, Mr. N. M. Choudhry
made a report to the Sub-Divisional Magistrate to
the effect that a prima f acie case has been made out
against three persons, Upendra Neogi, Asim Monda!
and Arun Monda! under s. 302/34 of the Indian
Penal Code. On .the same day, he made another
report to the Sub-Divisional Magistrate saying that
no prima Jacie case was made out against respondent
No. I. On the basis of the first report, the S1'bDivisional Magistrate directed summonses to be
issued against the three persons named in that report
and commenced committal proceedings against them.
19i3
CMnir• Du Si'trtla
v.
Prokasli CluuulrtJ ••J•
A-ludholklfT, J.
1963
C"4n1r• Dto Si"lh
v.
Prokash Cluiridrtl Bou
MuJho/Juu, J,
644
SUPREME COURT REPORTS [1946] vot.
The Sub-Divisional :Magistrate on seeing the second
report dismissed the complaint of Chandra Dco Singh
without assigning any reason. Chandra Deo Singh
preferred
an
application
for
revision
before
the Sessions Judge, Ali pore, who, after issuing notice
to respondent No. l and hearing his counsel, directed
the Sub-Divisional Magistrate •to
make further
enquiry against him. Thereupon respondent No. l
preferred a revision application
before the High
Court, which came up for hearing before a single judge
of that court. It would appear that the three
persons against whom summonses were ordered to
issue by the Sub·Divisional Magistrate also preferred
a revision application before the High Court. Both
the revision applications were heard together. The
learned judge granted the application of respondent
No. l as well as that of Upendra Neogy. We are
informed by learned counsel for re 0 pondent i\o. l
that eventually two of the three persons a.~ainst
whom summonses were· ordered to be issued by the
Sub-Divisional Magistrate were committed for trial
before the Court of Sessions.
But he was unable to
say definitely whether they were actually tried and
if so, what the result of the trial was.
Aggrieved by the order of the learned single
judge, the appellant Chandra Dco Singh made an
application under Art. 134 of the Constitution for the
grant of a certificate of fitness for appeal to this court
which as already stated, was granted by the High
Court.
The certificate was sought by the appellant
on four grounds. The first ground was that respon·
dent No. I had no locus standi to
appear and
contest a criminal case before the issue of process.
The second ground was that the test propounded
by the learned single judge for determining the
question whether any process shou Id be issued by the
court was erroneous. The third ground was that a
i'vfagistrate making an enquiry under s. 202 of the
Code of Criminal Procedure had no jurisdiction "to
1 S.C.R.
SUPREME COURT REPORTS
645
'
·weigh the evidence in golden scales" as was done in
the present case.
The fourth and last ground was
that the learned Sub-Divisional Magistrate acted in
contravention of the provisions of s. 203 Cr. P. C. in
dismissing the complaint without recording any
reason for doing so. The High Court granted the
certificate on all th~ grounds except the first. It has
been held by this court that the High Court cannot
limit its certificate in this manner and, therefore, we
propose to examine all the four grounds taken by the
appellant.
Taking the first ground, it seems to us clear
from the entire scheme of Ch. XVI of the Code of
Criminal Procedure that an accused.person docs not
come into the picture at all till process is issued.
This does not mean that he is precluded from being
present when an enquiry is held by a Magistrate.
He may remain present either in person or through
a counsel or agent with a view to be informed of
what is going on.
But since the very question for
consideration being whether he should be called
upon to face . an accusation, he has no right to take
part in the proceedings nor has the Magistrate any
jurisdiction to permit him to do so. It would follow
from t.his, therefore, that it would not be open to the
Magistrate to put any question to witnesses at the
instance of the person named as accused but against
whom process has not been issued ; 11or can he examine any witnesses at the instance of such a person.
Of course, the Magistrate himself is free to put such
questions to the witnesses ·produced before him by
the complainant as h;: may think proper in the
interests of justice. But beyond that, he cannot go.
It was, however, contended by Mr. Sethi for respondent No. l
\hat the very object of the provisions of
Ch. XVI of the Code of Criminal Procedure is to
prevent an accused person from being harassed by a
frivolous complaint and, therefore, power is given to
a Magistrate before whom complaint is made to
1963
Chandra Deo Singh
'·
Prokash Cliondr,_ Bose
Mudholkar: J.
1963
Ch.nJr• De• Sinzh
v.
Pt1A·wla Cluuu!rc Rosi
Mud!w/l:ar, J,
646 SUPREME COURT REPORTS (1964) VOL.
postpone the issue of summons to the accused person
pending the result of an enquiry made either by
himself or by a Magistrate subordinate to him.
A
privilege conferred by these provisions can, according
to Mr. Sethi, be waived by the accused person and
he can take part in the proceedings.
No doubt,
one of the objects behind the provisions of s. 202,
Cr.P.C. is to enable the Magistrate to scrutinise
carefully the allegations made in the complaint with
a view to prevent a person named therein as accused
from heing called upon to face an obviously frivolous
complaint. But there is also another object behind
this provision and it is to find out what material
there is to support the allegations made in the complaint. It is the br,undeu duty of the Magistrate
while making an enquiry to elicit all facts not merely
with a view to protect the interests of an absent
accused person, but also with a view to bring to book
a person or persons against whom grave allegations
arc made.
Whether the complaint is frivolous or not
has, at that stage, necessarily to be determined on
the basis of the material placed before him by the
complainant. Whatever defence the accused may
have can only be enquired into at the trial.
An
enquiry under s. 202 can in no sense be characterised
as a trial for the simple reason that in law there can
be but one trial for an offence.
Permitting an
accused pcrsc:.n to intervene during the enquiry would
frustrate its very object and that is why the legislature
has made no specific pre.vision permitting an accused
person to take part in an enquiry. It is true that
there is no direct evidence in the case before us that
the two persons who were examined as court witnesses
were so examined at the instance of respondent No.
I but from the fact that they were persons who were
alleged to have been the associates of respondent
No. I in the first information report lodged by
Panchanan Roy and who were alleged to have been
arrested on the spot by some of the local people, they
would not have been summoned by the Magistrate
1 S.C.R.
SUPREME COURT REPORTS
647
unless suggestion to
that t"lfect had been made
by counsel appearing for respondent No. 1. This
inference is irresistible and we hold that on this
ground, the enquiry made by· the enquiring Magistrate is vitiated. In this connection, the observations
of this court in Vadilal Panchal v.
Datf;atraya
Dulaji Ghadiysonkar {'}, may usefully be quoted :
· "The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint ;
that is, for ascertaining whether there is evidence in support of the complaint so as to
justify the issue of process and commencement
6f 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 complainetl against can be
legally called upon to answer the accusation
made against ):iim only when a process has
issued and he is put on trial."
Coming to the second ground, we have no
hesitation in holding that the test propounded by
the learned single judge of the High Court is wholly
wrong.. For determining the question whether any
process is to be issued or not, what the Magistrate
has to be satisfied is whether there is "sufficient
ground for proceeding" and not. whether there is
sufficient ground for the conviction. Whether the
evidence is adequate for supporting the conviction
can be determined only at the trial and not at the
stage of enquiry. A number of decisions were cited
at the bar in which the question of the scope of the
enquiry under s. 202 has been considered.
Amongst
those decisions are: Parmanand Brahmachari v.
Emperor('); Radha Kishun Sao v. S. K. Misra (");
Ramkisto Sahu v. The State of Bihar(') ; Emperor v.
J. A. Fina11(') and Baidya Nath Singh v. Muspratt(6).
In all these cases, it has been held that the object
(I) (1961] I S.C.R. I, 9.
(2) A.1.R. (1930) P•t. 3~.
(3) A.J.R. (1919) Pat. 36.
(4) .'\ l.R. (19321 Pat. 125.
(5', A.LR. (1931) Bom. 524.
(6) (188j) l.L.R. If Cll. Ml.
1963
Chandra Deo Singh
..
Fr1kash Chandra Bose
Mudholkar, J ..
C~ariJ1if D11 \'i1ttilJ
..
:,1okash Chni1r.i Bou
Af11dholhlr, J.
648
SUPREME COURT REPORTS [1964] VOL.
of the provisions of s. 202 is to enable the :Magistrate
to form an opinion as to whether process should be is·
sued or not and to remove from his mind any hesitation
that he may have felt upon the mere perusal of the com·
plaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in
these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of
the complainant and not whether the evidence is
sufficient to warrant a conviction. The learned
Judges in some of these cases have been at pains to
observe that an enquiry under s. 202 is not to br,
likened to a trial which can only take place after
proce~s is issued, and that there can be only one
trial.
No doubt, as stated in sub-s. (I) of s. 202
itself, the object of the enquiry is to ascertain the
truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with
reference to the intrinsic quality of the statements
made before him at the enquiry which would
naturally mean the complaint itself, the statement
on oath made by the cbmplainant and the statements
made before him by persons examined at the instance
of the complainant.
This brings us to the third ground. Section
203 of the Code of Criminal Procedure which
empowers a Mdgistrate to dismiss a complaint reads
thus
"The Magistrate before whom a complaint is
made or to whom it has been transferred, may
dismiss the complaint, if, after considering the
statement on oath (if any) of the complainant
and the witnesses and the result of the investigation or inquiry, if any. under s. 202, there is
in his judgment no sufficient ground for procee·
ding.
In such case he shall briefly record his
reasons for so doing."
The power to dismiss a complaint rest< only
with a Magistrate who has taken cognisance of it.
I S.C.R.
SUPREME COURT REPORTS
649
If before issue of process, he had sent down the
complaint to a Magistrate subordinate to him for
making the enquiry, he has the power to dismiss the
complaint, if in his judgment, there is no sufficient
ground for proceeding. One of the conditions,
however, requisite for doing so is the consi~eration
of the statements on oath if any made by the comp·
lainant and the witnesses and of the result of the
investigation of the enquiry which he had ordered
to be made under s. 202, Cr.P.C. In the case before
us, an investigation by a police officer was not
ordered by the learned Sub-Divisional I\1:agistrate,
but an enquiry by a Magistrate, First Class. He had,
therefore, to consider the result of this enquiry.
It
was not open to him to
con~ider in this connection
the statements
recorded during investigation ,by
the police on the basis of the first
information
report lodged by Panchanan Roy or on' the basis
of any evidence adduced before him durihg the
enquiry aris.ing out of the complaint made by
Mahendra Smgh.
All these were matters extraneous
to the proceedings before him. Of course, as we
have already stated, the learned Magistrate has nut
given any reasons for dismissing the complaint and,
therefore. we do not know what exactly weighed
with him when he dismissed the complaint, but the
learned single judge of the High Court who has
dealt with the case elaborately has not kept the
evidence adduced in the two complaints separate but
appears to have been influenced in deciding one case
on the basis of what was stated by the witnesses in
the other case. The High Court has relied upon the
evidence of Pannalal Saha and Sankar Ghosc who
ought never to have been examined by the enquiring
Magistrate. The High Court has further relied upon
the investigation made by the police in the complaint
of Panchanan Roy.
All this will be clear from the
following passage in its judgment :
"The version of these t~o witnesses (Parmalal
1963
Chandra Deo Singh
v.
ProkdJh Chandra Ros•
Mudholkar, J.
,,.,
~odr• Bto Sin:h
••
Frokuh Cluzndra 8011
Mw!MJiar, .1,
650 SUPREME COURT REPORTS [1964) VOL.
Saha and Sankar Ghose) is supported by the
fact that the police when they went to the
locality found a dead bird and a pair of shoes
and a pair of black half pants in wet condition.
This find of the dead bird and the pair of shoes
etc. has not explained on the version given by
Panchanan
Roy,
Upendra
Monda! and
Tarapado Naru. Mr.
Ajit Kumar Dutt stated
that the inquiring Magistrate was not right
in examining Pannalal Saha and Shankar
Ghose at the suggestion of an advocate for the
accused Chabbi Bose and that the latter should
not have been allowed at the inquiry. When
however there had already been a full investigation into the case by the officers under the
supervision of the Superintendent of Police,
it was desirable and proper for the inquiring
magistrate to make a careful inquiry and not
merely an one sided inquiry by examining such
witnesses ~s might be producrd by an interested
party.
:vioreover, in this case, the learned
magistrate was inquiring into both the comp·
laints simultaneously and necessarily he could
look at the evidence as a whole. In fact, two
separate cases ought not to have been started
at all, even though there were two separate
complaints giving two different versions. These
complaints were more or less Naraji petitions
against the final report submitted by the police.
There was only one incident in the course of
which Nageswar Singh has lost his life. Therefore on the basis of the two Naraji petitions
it would have been proper to hold one inquiry
rather than two separate though simultaneous
.
. . ,,
mqu1nes.
What the Magistrate could not do, the High
Court was incompetent to do, and, therefore, its
order reversing that of the Sessions Judge cannot IPe
sustained.
1 S.C.R.
SUPREME COURT REPORTS 651
Reliance is however, placed by Mr. Sethi on
the decision of this court in Vadilal's case (1), at p. 10
of the report. What was considered there by this
court was whether as a matter of law, it was not open
to a Magistrate to accept the plea of the right of
private defence at a state when all that he had to
determine was whether process is to issue or not.
The learned Judges held that it is competent to a
Magistrate to consider such a plea and observed :
"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
arriving at his judgment. What bearing such'
a plea ha1 on the case of the complainant and
his witnesses, to what extent they are falsified
by the evidence of other 'witnesses,-all these
are questions .which must be answered with
reference to the facts of each case.
No universal rule can be laid in respect of such questions."
On the basis of these observations it was urged
that this court has held that a Magistrate has the
power to weight the evidence adduced at the enquiry.
As we read the decision, it does not lay down an
inflexible rule but seems to hold that while considering the evidence tendered at the enquiry it is open
to the Magistrate to consider whether the accused
could have acted· in self-defence.
Fortunately, no
such question arise~ for consideration in this case but
we may point out that since the object of an enquiry
under s. 202 is to ascertain whether the allegations
made in tlie complaint are intrinsically true, the
Magistrate acting under s. 203 has to satisfy himself
that there is sufficient ground for pro·ceeding. In
order to come to this conclusion. he is entitled to
(1) (1961) 1 S.C.R. I, 9.
1963 -
Chandr• Do Sif!.t;h
••
Prok.sic Clwu/r• B•se
Mutlhelka.r, J.
J9t :r
ChandrtJ Dto
Sin~!t
v.
ProJ:ash Chandra floJe
Aludlm/kar, J.
I
• g.
652 SUPREME COURT REPORTS [1964] VOL.
consider the evidence taken by him or recorded in ·an
eNquiry under s. 202, or statements made in an
investigation under· that section, as the case may be.
He ·is not entitled to rely upon any material besides
this.
B)C ''evidence of other wiLnesses" the· learned
judges had apparently in mind the statement:> of
persons examined bl:' the police during investigation
under s. 202.
It is permissible under s. 203 of the
Code to consider such evidence along with the state·
ments of the complainant recorded by the Magistrate
and decide whether to issue proc;:ess or dismiss the
complaint.
The investigation in that case was made
by the police under s. 202, CI'..P.C. at the.instance of
the Presidency Magistrate. Apparently, the statement
of the various witnesses questioned by the police were
self,contradictory. That being the case, it was open
'to' the Presidency Magistrate to consider which of
th~rh to accept ai'Id- which tu reject.
The enquiring
:Magistrate has not stated· nor has the High Court
found in the ca~c ·!Jefnrc m that the evidenci: adduced
on behalf of the compl.1inanl and his own evidence
were self-contradictory and, therefore, it coulq not
be said that there was anything intrinsically false-in
the allegations made in the complaint. Learned
counsel for the appellant referred us to the decision
of ~his court in Ram{/Opal Grinpatmi Riifo v. The
Stole uJ IJ0111briy (').
Jn that case, after quoting a
passage from Halsbury's Laws of England, Vol. 10,
3rd Edn. in art. ti6(i at p. 3li5"where the law regarding commitment for trial \Jas. been stated, this court
has observed :
"In each case; therefore, the magistrate holding
,.the preliz:ninary inquirx has to be s~tisfied that
a priJn<t Jacie case is . made out against tht;
accused by the evidence of, witnesses entitled tq
a rea~onable degree of .,credit, and· unless he is
so
sati~fied, h<; is not .to commit. J Applying
th!! afore~aid test to the present case, can it be
said that there is no evidenc1:
~o maJ,e out ll
(1) [1956] S.C.R. 618, 638.
•
l S.C.R.
StJl>~EME COURt REPORTS
653
prima Jacie" case, or that the voluminous evidence adduced in · this case is so incredible that
no reasonable body of persons could rely upon
it ? As already indicated, in this, case, there is
a large volume of documentary evidence-the
latter being wholly books and registers and
other documents kept or is used by the Mills
themselves, which may lend themselves to the.
inference that the accused are guiltylor to the
contrary conclusion.
The High Court has
taken pains to point out that this is one. of those
cases where much can be said on both sides.
It ;Will be for the jury to decide which of the
two conflicting versions will find acceptance
at their hands. This was pre-eminently a case
which should h;,ive· been committed to the
Court of Sessions for trial, and it 'is a little
surprising that t~e learned Presidency Magistrate allowed himself to be convinced to the
contrary.;,
Thus, where there is a prima facie case, even though
much can be said on both sides, a committing Magistrate is bound to commit an accused for trial.
All
the greater reason, therefore, that where there is
prima facie evidence, even though an accused may
have a defence like that in the present case that the
offence is committed \by some other person, or persons
the ma~ter has to ~e left to be decided by the appro·
priate forum at the appropriate stage and issue of process cannot be refused. Incidentally, we may point
out that the offence with which respondent No. 1 hils
been charged with is one triable by jury. The High
Court, by dealing with the evidence in the way in
which it has done, has in effect sanctioned the usurpatio'l by the Magistrate of the functions of a jury which
the Magistrate was wholly incompetent to do.
I
In view of what we have stated above, it is not
necessary to say very much about the last ground.
1963
Chandr'.I Deo Singh
··-
Prokash Chandr« Bose
Mudltolkar, J.
'-;
~ -.._.'
,
654 SUPREME COURT REPORTS [1964] ,VQU.
. .!!!!_ .
Section 203 of the Code of Criminal Procedure pro;
Clwii'• n,.. Sin:h
vides that where the Magistrate dismisses a complaint
. Prtk.,h ZiwM,. Ba,, because in his judgment there is no sufficient ground
for proceeding with the trial, he shall- record his
Mudlwlkar, J.
reasons for doing so. ·Here, . as already stated, the
Magistrate perused the report of the enquiring
. Magistrate and then proceeded to dismiss the complaint. It is stated on behalf of respondent No. 1
that this is at best an error in his order and,' therefore,
·it is curable under. s. 537(a) of the Code· of Criminal
Procedure.· In support of this view, reliance is placed
upon the decision of this· court in Willie (William)
Slaney v. The State of ~Madhya Pradesh (').
Here,
the error is of a kind which goes to the. root of the
· matter. It is possible to say• that giving of reasons
is a pre-requisite for making an order of dismissal of'
a complaint ·and absence of the reasons. would make
the order a nullity. Even assuming, however, that
the rule laid down in Slaney's case (')• applies to such
a case, prejudice is writ large on the face • of the
'order'. The complainant is entitled to know why
his· complaint has been dismissed with a view to
consider an approach to a· revisional court. · Being
kept in ignorance of the reasons clearly prejudices his
right to move the revisional court . and where ·he ·
takes a matter' to the ri:visional court renders his task
before tliat court difficult, particularly in view. of
the limited si:ope of the provisions of s; 438 and 439,
Code of Criminal Procedure. For ·all these reasons;
we hold that the High Court was in· error in setting
aside the · order of the Sessions · Court and direct that
further enquiry be·· made into· the complaint of the
appellant against respondent No. l'. .. · ·
· • ., ' ·. :
. .
. .
..
'
'
Mr. Sethi, however,: contends that since ·there
is only one offence i. c., the murder of Nageswar
Singh, there can be only one trial and since other
persons are being . tried for that offence, therte could.
· be no further enquiry.
As there was no material on
record we could not know what happened· to the
(J)[l955j 2 S.C.R. 1110.
.
I!
\,
f!
!1
i
I: I
I
I
' \'
i
I !
1:
' I.
1 S.C.R.
SUPREME COURT REPORTS
655
enquiry against Asim Monda! and Arun Monda!
after the dismissal of their application for revision
by the High Court.
We, therefore,
called for
.. a report from the Sub-Divisional Magistrate, 24
Parganas.
That report
has
been received.
H
would appear from that report that on March 2jj
1961, the High Court directed that the commitment
proceedings against these two persons be stayed
·pending the disposal of the present appeal by this
court. We cannot appreciate the argument that an
enquiry against a different person with reference to
the same offence cannot be undertaken. lt will be
open to the court before which commitment proceedings against Asim Monda! and Arun Monda! are
pending to consider whether they should be stayed
pending the result of the enquiry with reference to
the respondent before us, but there can be no legal
impediment to the enquiry against the (espondent.
Appeal allowed.
Further enquiry directed.
1963
Ch.Jnirti l)t1 Siftth
••
Pr1k4Sh Cha"'1a 61se
Mudholkor, J.