RAJINDRA NATH MAHATO versus T. GANGULY, DY. SUPERINTENDENT & ANR.

RAJINDRA NATH MAHATO

T. GANGULY, DY. SUPERINTENDENT & ANR. December 2, 1971

(A.°N. RAY AND D. G. PALEKAR, JJ.J

Code of Cri111i11al-Procedure (Act 5 of 1898), ss. 202, 204 <111d 561A-B Pcn1'£'r to i.~s11e proces.-;-W/io· has-Right of Hif{h Couri fo, go into weight of evide1l<'<' 11flder ~- 56 lA.

After taking cognizance of an offence against the rcsponc.J.~n.t. the }(fagistratc enquired into it and submitted report to the Sub-D1v1swnal Magistrate that pri111n facie case \\'as n1ac!c out against the respondents. The Sub-Dhisional Magistrate directed the issue of process. The High Court in petition to quash the issue of process held that under s. 204. the Sub-Divisional ?\1agistrate had no right to issue process since he was not the ~fagistratc \vho had taken cognizance of the offence. and also observed that the evidence in the case came fron1 tainted sources.

Disn1issing the appcul to this Court.

HELD : I I) Under >. 20~. Cr. P.C. 1hc Magistrate who takes cognizanci.: could issue prOCt!Ss and undt!r s. 202. Cr. P .C .. Magistrate to whon1 :i case had been transferred could issue process. Since, in the present cas..:. the 1nagistratc \\'ho issued process had not taken cognizance of the offence and there \Vas no order transferring the case to him, the High Cotfrt '.\';1s right in quashing the is::iuc oi process. L673 C-F]

(2) Under s. 561A. Cr. P.C.. tho High Court could go into the ques-tion as lo \\'h\.·th .. :r thcre·,\'as :i_nv legal C\idcncc. [673 F-Gl

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 291 of 1968.

Appeal by special leave from the j11dgment and order dated March 28. 1968 of the Calcutta Hi!!h Court in Criminal Revision No. 159 of 1968. -

P. K. Chatrerj<'<'. for the appellant.

P. ·K. Chakravarty. for respondent No. I.

The- Judgment of the Court was delivered by

Ray, J. This i> an appeal by special leave from the judg-ment dated 28 M;irch. 1968 of the High Coun at Calcutta quashing the processes issued against the three accused persons.

Th~ appellant on 8 March, 1966 filed petition of complaint against the Block Development Officer Purulia, the Officer-in-Chargc of the local Police Station and T. Ganguly, the Deputy Superintendent of Police, Purulia under section 395 of the fridian Penal Code on th~ allegatio.n ~at during searc)l of the appellant's house they comn11tted dac01ty m the house. The Magistrate dis-missed lhe complaint under section 203 of the Code of Crimim~J

Procedure on the ground that the complaint was without sanction as the accused were Government servants.

incompetent

The complainant thereafter moved the Sessions Judge, Purulia against the order of dismissal. reference was made to the Calcutta High Court. The learned Single Judge of the Calcutta High Court accepted the reference, set aside the order of the Magistrate and sent the case back for proceeding in accordance with law.

On 27 March, 1967 the Magistrate Shri S. K. Ganguly took cognizance of the case and fixed date for holding judicial enquiry. The Magistrate on 22 November, 1967 came to the conclusion that prima facie case under section 395 of the Indian Penal Code had been made out against the three accused and submitted report to the Sub-Divisional Magistrate, Purulia. The Sub-Divisional Magistrate, Purulia on receipt of the report of the judicial enquiry passed an order on 6 December, 1967 directing the issue of process against all the three accused. This order forms the subject matter of the appeal.One of the accused thereafter moved the High Court at Calcutta for quashirtg the process. The High Court at Calcutta said that cognizance of the offence was taken by the Magistrate Shri S. K. Ganguly but process was issued by the Magistrate Shri S. Sarkar and held that Shri Sarkar not having taken cognizance of the offence had no right to issue process under section 204 of the Code of Criminal Procedure. The High Court, therefore, quashed the process and observed that the learned Magistrate who had taken cognizance of the offence if he was so advised would be at liberty to issue processes against the other two ac-cused persons._

The question for consideration is whether Shri Sarkar could have issued process in the present case. Shri Ganguly was the Magistrate who took cognizance. Shri Sarkar was not the Magis-trate who took cognizance. Therefore, under section 204 of the Code of Criminal Procedure the Magistrate who took cognizance of the case could issue process.

Sections 191 and 192 of the Code of Criminal Procedure con-template transfer of cases by Magistrate, who has taken cogni-zance of an offence. Section 191 of the Code of Criminal Pro-cedure speaks of transfer of case or commitment to the Court of Sessions on the application of the accused. Section 192 of the Code of Criminal Procedure speaks of transfer of case by Magistrate who has taken cognizance to any Magistrate sub-ordinate to him for enquiry or trial.

R. N. MAHATO V. T. GANGULY, DY. SUPDT. (Ray, J.)

In these cases where either the Magistrate has taken cogni-zance and is in seisin of the case or where case is transferred by Magistrate who has taken cognizance to another Magistrate subordinate to him th1: complainant is required to be examined under section 200 of the Code of Criminal Procedure. There are certain exceptions with which we are not concerned in the present appeal. The relevant section which confers power on the Magistrate to whcm the case has been transferred to issue process is section 202 of the Code of Criminal Procedure. The language of section 202 of the Code of Criminal Procedure is that the Magistrate may, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against. Therefore, the power of the Magistrate to issue process under section 202 of the Code of Criminal Procedure is not limited by the terms of section 204 of the Code of Criminal Procedure to issue process.

Therefore, the two courses are : first, under section 204 of the Code of Criminal Procedure for the Magistrate taking cognizance to issue process or secondly under section 202 of the Code of Criminal Procedure for Magistrate to whom case has been transferred to issue process.

In the present case there was no order of transfer of the case by Shri Ganguly to Shri Sarkar. The issue of process is matter for judicial determination. Before issuing process the Magi~­trate has to examine the complainant. That is why the issue of process is by the Magistrate who has taken cognizance or the Magistrate to whom the case has been transferred. The High Court therefore correC'lly quashed the issue of process.

It was contended on behalf of the appellant that the High Court should not have gone to the question as to whether prlma facie case was established or not. The High Court under section 561-A of the Code of Criminal Procedure can go into the ques-tion as to whether there is any legal evidence. When the High Court said that the evidence in the present case came from taint-ed sources and was nc,t reliable the High Court meant what can be described as 'no ca!:e to go to the jury'.

The High Court correctly quashed the process against T. Ganguly. The appeal therefore fails and is dismissed.

Appeal dismissed.