Arunendu Prokash Bose vs Pulin Behiri Roy Chowdhury

P.N. Mookerjee, J.—This is a Reference u/s 438 of the Code of Criminal Procedure from the learned Additional Sessions Judge of 24-Parganas, arising out of a ease wherein the accused were tried summarily under Sections 323 and 448 of the Indian Penal Code and convicted and sentenced to pay a fine of Rs. 20 each, in default, to rigorous imprisonment for two weeks. The learned Additional Sessions Judge has recommended "that the "order of conviction and sentence imposed on the accused "Petitioners be set aside and that a retrial by some other "magistrate according to the ordinary procedure under "appropriate charges be directed".

It appears that against the accused who are five in number a complaint was lodged before the learned subdivisional officer, Alipore, on or about June 15, 1949, praying for summons under Sections 448, 323, 147 and 324 of the Indian Penal Code on certain allegations made therein. The complainant was examined on oath and the matter was sent to the police for enquiry and report. On receipt of the police report, the learned magistrate dismissed the complaint u/s 203 of the Code of Criminal Procedure and rejected the complainant''s prayer for a judicial enquiry. There was a motion before the learned Additional Sessions Judge who directed a further enquiry and the case having then gone back to the learned magistrate processes were issued u/s 323 of the Indian Penal Code and all the accused were eventually convicted and sentenced as aforesaid. The matter has now come up to this Court on a reference made by the learned Additional Sessions Judge whose recommendation I have already set out above.

In the opinion of the learned Additional Sessions Judge, the learned Magistrate was not justified in issuing process only u/s 323 of the Indian Penal Code and trying the case summarily. According to the learned Judge, the petition of complaint, read with the complainant''s initial examination on oath,. disclosed offences u/s 147, 324 and 448 of the Indian Penal Code and, accordingly, by issuing process only u/s 323 of the Indian Penal Code and trying the case summarily the learned magistrate acted illegally and the trial held by him was void in law u/s 530(g) of the Code of Criminal Procedure.

I have carefully looked into the records of the case with the assistance of the learned advocates appearing for the parties and I am not satisfied that, on the materials before the court, the learned magistrate was bound to issue or ought to have issued process under Sections 147 and 324 of the Indian Penal Code, that is, for offences not triable summarily under the Code. I cannot, therefore, accept the reference of the learned Additional Sessions Judge on the grounds set out in the letter of reference. The two cases cited by the learned Judge, namely, Bishu Shaik v. Saher Mollah (1) (1902) ILR 29 Cal. 409 and Emperor v. Balwant Singh ILR [1939] All. 931 were cases where the learned Judges of this Court and the Allahabad High Court were satisfied that charges ought to have been framed for graver offences not triable summarily and in that view of the matter they set aside the summary proceedings and ordered retrial in a regular way. Those cases, however, are not authorities for holding-it is not the law also,-that merely because graver allegations are made in the petition of complaint and in the complainant''s initial examination on oath, the magistrate, if he decides to issue process, must issue process for the graver offences. Despite the complainant''s allegation that major offences had been committed by the accused the magistrate is entitled to issue process only for a minor offence, triable summarily, if he is satisfied that a prima facie case only of such an offence, and not of the major offences alleged, had been established at that stage and, except where it appears that the learned magistrate''s conclusion was not justified, the summary trial for the minor offence cannot be attacked u/s 530(q) of the Code. As, therefore, I am unable to agree with the learned Additional Sessions Judge that, upon the materials on record, the learned magistrate ought to have issued process under Sections 147 and 324 of the Indian Penal Code, I cannot accept this reference on grounds stated in the letter of reference.

The above, however, is not the end of the matter. I have already stated that at the initial stage the learned magistrate dismissed the complaint u/s 203 of the Code of Criminal Procedure after perusing the police report and rejected the complainant''s prayer for a judicial enquiry and, thereupon, the matter was taken to the learned Additional Sessions Judge who directed a further enquiry and when the matter came back, thereafter, to the learned magistrate for further enquiry, process u/s 323 of the Indian Penal Code was issued. It appears, on an examination of the records before me, that in directing a further enquiry on September 13, 1949, the learned Additional Sessions Judge made inter alia the following observations:

The magistrate having jurisdiction to ascertain the truth of the complaint may, before ''issuing the process u/s 202 of the Criminal Procedure Code, take any preliminary steps for finding out whether the complaint is true or not. If after examining the complaint, the magistrate finds it necessary to remove some hesitation which made him reluctant to issue process at once, he may make an order under this section which, however, requires that reasons should be given when the issue of process is postponed. As no such reasons were given in the present case, the enquiry as ordered to be made by the police as regards the truth or otherwise of the complaint prima facie was not in conformity with the terms of Section 202 of the Code of Criminal Procedure and should accordingly be set aside. Considering the entire circumstances, I think there was sufficient reason to issue process against the accused persons u/s 323 of the Indian Penal Code at any rate. In this view, I allow this petition and order that a further enquiry be made into the complaint of the Petitioner at any rate u/s 323 of the Indian Penal Code.

It appears further that when after this the records were put up before the learned magistrate on September 20, 1949, he recorded an order in the following terms:

Seen order of the learned Additional Sessions Judge directing a further enquiry Summon all the five accused persons u/s 323 of the Indian Penal Code. Fix 12-11.

From the above, it seems to me plain that the learned Magistrate felt himself bound by the observations in the concluding paragraph of the learned Additional Sessions Judge''s judgment, quoted above, and issued process u/s 323 of the Indian Penal Code, without applying his mind to, and himself considering independently, the question whether there was any prima facie case, on the materials on record, for issuing a process u/s 323 of the Indian Penal Code. The further enquiry that was ordered in this case was clearly one u/s 436 of the Code of Criminal Procedure and the observations of the learned Additional Sessions Judge that "there was sufficient reason to "issue process against the accused persons u/s 323 of the "Indian Penal Code at any rate" were hardly proper or appropriate and, to say the least, they were too strong for the occasion and rather unhappy and unfortunate, and as I feel convinced that the learned magistrate was considerably, if not wholly, influenced by these observations in issuing process against the accused and as I feel further that in the circumstances of this case, such action on the part of the learned magistrate caused a material failure of justice to the prejudice of the accused, the above order of the learned magistrate issuing process and all subsequent proceedings must be set aside.

When an order for further enquiry is made the matter is again at large and the learned magistrate should be left sufficiently free to consider afresh the materials already on record and/or any other or further materials that may be available to him and such consideration should not be fettered by any final expression of opinion as to any prima facie case against the accused, accompanying the order for further enquiry, or by any direction for issue of process against the accused.

It was, of course, open to the learned Additional Sessions Judge if he was fully convinced that there was a prima facie case against the accused under one or other sections of the Indian Penal Code to refer the matter to this Court u/s 438 of the Code of Criminal Procedure for appropriate action with an expression of his own opinion, but when instead of making such a reference the learned Additional Sessions Judge chose to make an order for further enquiry he ought not to have burdened it with observations which would leave very little scope for further enquiry and would in effect at once put the accused on trial. It is well to remember, in this connection, that under 436 of the Code the learned Additional Sessions Judge was only empowered to direct a further enquiry. That section did not authorise him to frame a charge or direct the framing of a charge and, consequently, observations amounting virtually to such a direction could not properly be made in an order under that section. This view is amply supported by the authorities of this Court to which I shall presently refer below. It seems to me proper, therefore, in the circumstances of this case, to modify the order of the learned Additional Sessions Judge, dated September 13, 1949, directing further enquiry by expunging the last paragraph thereof, quoted above, and substituting therefore merely an order allowing the complainant''s application and directing a further enquiry, and to set aside all orders and proceedings made or taken in the case in pursuance of the said order of the learned Additional Sessions Judge.

The course which I have indicated above seems to be the most apposite. It meets the requirements of law. It also accords with the justice of the case. It is supported on principle by the Full Bench decision of this Court, reported in the case of Hari Dass Sanyal v. Saritulla (1888) ILR 15 Cal. 608, and in the two later decisions reported in Nibaran Chandra Mukherji v. Sital Chandra Bag (1920) 25 C.W.N. 312 and Bechu Mia v. Anwar Nabi (1924) 30 C.W.N. 312. It is not also opposed to the Madras Full Bench case Narayanswamy Naidu v. Emperor (1909) ILR 32 Mad. 220 and it further avoids the awkward administrative difficulty envisaged by Sankaran Nair J. in his referring judgment in that case, the views expressed wherein were reaffirmed by him in his dissentient judgment in the Full Bench itself. It is also well in consonance with the relevant statutory provisions and it does justice to both the complainant and the accused in accordance with law. I have, therefore, no hesitation in accepting the same and deciding this case accordingly.

I, accordingly, accept this reference-though not on grounds stated in the letter of reference,-and set aside the conviction of the accused and the sentences passed upon them. I also modify the order for further enquiry made by the learned Additional Sessions Judge on September 13, 1949, in the way, indicated above, and Bet aside all orders and proceedings in the case, made or taken after that date. The case will now proceed afresh from the stage when further enquiry was ordered on September 13, 1949, the learned Additional Sessions Judge''s order of that date being modified as indicated above. This further enquiry will now be held and the case disposed of in accordance with law and in the light of the observations, contained in this judgment, by some competent magistrate, other than the learned magistrates who have dealt with it at the previous stages, to be selected by the learned district magistrate of 24-Parffands.

The reference is answered as above.