HARERAM SATPATHY versus TIKARAM AGARWALA AND 3 OTHERS

HARERAM SATPATHY

TIKARAM AGARWALA AND 3 OTHERS

August 24, 1978

[JASWANT SINGH AND P. S. KAILASAM, JJ.]

(7og11iza11ce of offences by Magistrate under section 190 of the Criminal Procl'dure Code. 1913--0nce cognizance has bee11 take1t by the Magistrate, he take.\· CO[!f1izance of an offence and not offenders.

Re1·isionaf JurL~diction of the lliglt Court-High Court's power of revision under Section 401 of tlze Criminal Procedure Code, 1973 is very limited in go-ing into the matter wl1ere the Magistrate, has, aflfi' ~atisfyi11g hilnself prima facie existence of sufficient n1aterial for proceeding against an accused, issued process .

One Parsuram Satpathy, brother of the nppellant sought the heJp and protec-tion of the officer-in-charge of the Balangir polke station, on 27-11-1974, alle&" ing conspiracy to mu.rder him. On 29-11-1974 the appellant lodged First Information Report in the same police station, that the named person! and some others coming in jeep kiUed his brother Pa.rsuram by dashing the jeep against the cycle on which. he \Vas going, The Police took up investigation of the case, submitted charge sheets against six persons, only for the offence of intentionally causing the death of Parsuram on 29-11-1974, and gave final report saying that from the investigation ca.rried oo by it no offence appeared to have been made out against the respondents. The Sub-Divisional ~Iagistrate Balangir, on further complaint by the appellaint, finding prima facie case under Section 302 I.P.C. against the present respondents directed issue of non-bailable warrants against them. In revision, the High Court, set aside the orders of the J\fagis-trate.

Allowing the appeal by special leave the Court

liELD : 1. Under Section 190 of the Criminal Procedure Code, the ~f<1.gis­trate takes cognizance of an offence made out in the Police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually, the offenders involved in the case might have been has to be decided by the ~fagistra.te, after taking cognizance of the 0ffence.

[353 A-BJ

R.agliuhan:-. Dubey v. State of Bihar, [1967] 2 SCR 423 Smt. Nagawwa v. Veeta1n111a Sliivulingappa Konjalai and Ors., [1976] Supp. S.C.R. 123 and Chandra Deo Singh v. Prokar Chandra Bose, [1964] l SCR 639, 648 reiterated.

2; Once the Magistrate has, after satisfying himself prima facie that there is sufficient material for proceeding against the accused issued process 'against him, the High COurt cannot go into the matter in exercise of its revisionat jurisdiction which is very limited. [353 C-D]

7Snll. Na!_!awwa v. Jeeranna ShivaHngappa Konjalai and Ors., [19761 Supp. S.C.R. 123; applied 1 ,. "' ,..,

Obserration :

Under Section 227 of the Criminal Pro..:-:edure Code is open to the Court of Session on committal of the case to it to discharge the accused if upon con-sideration of the record of the case and documents subn1ittcd thercw·ith and after hearing the submissions of the parties, it considers that there is no sufficient .l. ground for proceeding against the accused. [354 C-Dl

Sanjay Gandhi v. Cfnion of lndia, [1978] 2 S.C.R. 861 referred to.

CRIMINAI, APPELLATE JURISDICTION : Criminal Appeal No. 551

of 197(1

Appeal by Special Leave from the Judgment and Order dated 25-8-76 of the Orissa High Court in Criminal Revision No. 344 and 365 of 1975.

fl. B. Dalal· and C. S. S. Rao for Appellant No. I

V. 1',f. Tarkunde and R. K. Mehta for Appellant No. 2.

Go,·ind Dass, Sudarsha11 Bagga and (Mrs.) S. llagga for Rc>pon-dents Nos . .1-3

The Judgme'nt of the Court was delivered by

JASWANT SINGH, J. This uppcal by Special Leave which is c1red-cd against the Judgment and Order dated August 25, 1976 of the High Court of Orissa in Criminal RevL>ions Nos. 344 and 365 of 1975 setting aside the order dated November 20, 1975 of the Sub-Divisional 1VJagistrate, Halangir~ directing issue of process against respond-:nls J to 3. arises in the follo\ving circumstances:

On November 27, 1974 Parsuram Satpathy. brother of Harernm Salpathy, the appellant herein, who was Journalist by profession and staunch supporter of Bhartiya Lok Dal, sought the help and pro-tection of the Officer-in-charge of the. Police Station, Balangir, on the ground that he had learnt from B. Kramanda Bohidar, member of the Congress Party., that there was conspiracy to murder him. On the evening of November 29, 1974, the appellant made repon to the Officer-in-charge of the aforesaid Police Station, alleging therein that Premlal Suna, Parsanna Pal, Gulla Ghasi, Jagyna Puruscth, Bighna Raj Misra, Jayanarayan Spirpathy, Bikram Bohidar and Tikaram Agarwala, members of Yuva Congress Party and poli-tical adversaries of his brother, Parsnram, had been openly declaring since the· last 3 or 4 days that they would take the lifo of Parsuram and had been moving around his house in lhc Congress Jeep looking out for an opportunity to kill him (i.e. Parsuram). The report went i9n to [1]say that at or about 7 p.m. of that day he saw Prcmlal Suna,

Guna Ghasi., Dhobai Charanpodh, Jagyana Puruseth, Tikaram Agar-wala, Aratatrnn Singh Deo, Prasanna Kumar Pal and some' others com-ing in Jeep from the side of Patita Pavan Academy and killing his brother by dashing the jeep against the cycle on which he was going on Dhobapara Road. On receipt of this report the police took up investi-gation of the case and on completion thereof submitted charge-sheet against six persons viz. Premlal Suna. Jagyana Puruseth. Gunaidhi Bancl>Jior Ghasi, Dhobai Podh, Prafulla Bhoi, Sugyan Sandh and on the allegations that they intentionally caused the death of Parsuram Satpa-thy on November 29, 1974 in the manner stated above. So far as the present respondents were concerned the police submitted final report saying that from the investigation carried on by it no offence appeared to have been made out against them. As thei police did not proceed agains't all the 13 persons mentioned in the aforessid report made by him, the appellant filed complaint in the Court of the Sub-Divisional Magistrate, Ba!angir, reiterating the allegation made by him against the, aforesaid .i 3 persons including the respondents herein who did riot figure as accused in the aforesaid police chargesheet. After going through the statements made u/s 161 of the Cr. P. C. by the appellant and Bhibudananda Udgata, Harndanana Nanda and Sankar Tripathy and finding prima facie case under section 302 of the Indian Penal Code made out against the respondents, the Magistrate directed the issue of non-bailable warrants against them. Aggrieved by this order the respondents took the matter in revision to the High Court. single Judge of the High Court after detailed and meticulous scrutiny of the aforesaid statements made by the appellant and others set aside the order of the Sub-Divisional Magistrate issuing process against the respondents, holding that there was no material on record to n1ake out prim.a facie case against the respondents and that the order of the Magistrate issuing process against the respondents was without juris-diction. Dissatisfied with this order, the appellant, has as already· stated, come up in appeal to this Court.1'wo n1ain questions arise for[1 ]determination in this cas-3 namely :--

( 1) Whether, after submission of the final report by the police stating therein that there was no sufficient evidence to justify the forwarding of the respondents to him. it was open to the Sub-Divisional Magistrate, Balangir to add the respon-dents as accused in the case and issue process against them.

( 2) Whether the High Court_ was justified in going into the merits of the case and interfering with the order of the Sub-Divisional Magistrate impleading the respondents as

The first point is no longer res integra. It is squarely covered by the decision of this Court in Raghubans Dubey v. State of Bihar(') where it was held as follows :

"In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find ont who the offenders really are and once he come' to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence."

In Smt. Nagawwa v. Veeranna Shivlingappa Konialai & Ors.(') this Court while laying down the categories of the cases in which an order of Magistrate issuing process against the accused can be quash-ed observed : ·

"It is well settled by long eatena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in snpport of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is very limited one."

To tl1e same effect is the decision of this Court in Chandra Dea Singh v. Prokar Chandra Bose(') where after full discussion of the n1attcr it vvas held that at the time of taking dccisi?n \Vhcthcr pro-cess should issue against the accused or not what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant su' as to justify the issue of process and commencement of proccodings against the accused, and not whether the evidence is sufficient to warrant his conviction.

(!) [1967) 2 S. C.R. 423. (2) [19761 Supp. S.C.R. 123. (3) [196411 s.c.R. 639, 648.

From the foregoing it is crystal clear that under section 190 of the Code of Crimin,µ Procedure the Mai:istratc takes cognizance of an offence made out in the po'lice report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders involved in the case might have been has to be decided by the Magistrate after taking cognizance of the offence

In the instant case the Sub-Divisional Magistrate took cognizance of the offence on the police report, after taking cognizance of the offence and perusal of the record he appears to have satisfied hjrnself that there were prima facie grounds for issuing process against the respondents. In so doing the Magistrate did not in our Judgment exceed the power vested in him under law .

The first point is accordingly decided in the affirmative. Thls second point does not present any difficulty. It is well settled that once the Magistrate has after satisfying himself prima facie that there is sufiicient material for proceeding against the accused issued proc~ss against him, the High Court cannot go into the matter in exercise of its revisional jurisdiction which is very limited. The following obser-vations made in Smt. Nagwwa v. Veeranna Shivalingappa Konjalai & OrJ. (Supra) are apposite in this connection :

"It is true that in corning to decision as to whether process would be issued the Magistrate can take into consi-deration inl1erent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support o( the allegations bnt fhere appears to be very thin line of demarcation between probability of conviction of the accused and establislnncnt of pri1na focie case against him. The Magistrate has been given an undoubted discre-tion :n the maiter and the discretion has to be judicially exer-cised hy him. Once the Magistrate has exercised his discre-tion it i,s not for the High Court or even this Court to substi-tute its own discretion for that of the Magistrate or to exa-1uine the case on merits with ·a view to find out \Vhether or not the allegations in the complaint, if proved, would ulti-mately end in cunviction of the accused. These considera-tions, in our opinion, are totally foreign to' the scope and ambit of an inquiry under s. 202 of the Code of Criminal Procedure."

Now as the Magistrate was restricted to finding out whether there was prima facie case or not for proceeding against the accused and c<mld not enter into detailed dis"cussion of the merits or demerits of

the car.e and the scope of the revisional jurisdiction was very limited the High Court could not in our ·opinion launch on detailed and meticulous examination of the case on merits. A' the High Court has. clearly exceeded 'its jurisdiction in selting aside the order of the Sub-Divisional Magistrate, we cannot do otherwise than to allow the appeal. In the result the appeal succeeds and the judgment and order of the High Court is set aside.

Bcfm parting with the case we wish to observe that the grie-vance of the respondents that there is no material to support the faked and-cdoked up story against them is taken care of (as held in Sanjay Gand/ii v. Union of India(') to which one of us (Jaswant Singh, J.) was party by section 227 of the Code of Cr!. Procedure 1973 under which it is open to the Court of Session on committal of the case to it to' discharge the aCC)JSed if upon consideraticn of the record of the ease and documents submitted therewith and after hearing the submis-sions of the parties it considers that there is no sufficient ground for proceeding against the accused. The -:espondents would fherefore be at liberty to invoke the provisions of ccction 227 of the Code on the case being committed to the Court of Session.

As the learned counsel appearing for the respondents has given an undertaking that he will cause the attendcnce of the respondents be-fore the Sub-Divisional Magistrate, Balangir, on Septcmbci- 18, 1978, the Bon-bailable warrants issued against the respondents shall not be execl!tccl till that date.

f!f!Clli allowed

(I) {1978] 2 S.C.R. 86t.