Bhujanga Bhusan Das vs The State

Debabrata Mookerjee, J.—This Rule is directed against an order made by the Sessions Judge of Midnapore purporting to be u/s 436 of the Code of Criminal Procedure.

It appears that about 18 persons are on trial before a learned Magistrate at Midnapore on several charges under Sections 148, 324, 323 of the Indian Penal Code. The prosecution allegation is that as the result of firing from a gun a man called Basanta Das was injured fatally. Some witnesses for the prosecution were examined in chief on July 1, 1954. The Court Sub-Inspector who was conducting the prosecution prayed by a petition for summoning the present Petitioner u/s 302 of the Indian Penal Code. The ground upon which the application was based was that the evidence of three prosecution witnesses suggested the complicity of the Petitioner in a charge u/s 302 of the Indian Penal Code which evidently related to the death caused by gunshot injuries. The learned Magistrate considered the position arising out of the application filed by the Court Sub-Inspector and he held that on the evidence of the witnesses before him there was no independent testimony yet suggestive of the Petitioner''s complicity. He referred also to the General Diary entry which was treated as the first information report, and in those circumstances he did not feel persuaded to take action at that stage upon the petition which was filed by the Court-Inspector praying for process u/s 302 against the Petitioner. Thereafter, it appears that the Sessions Judge of Midnapore was moved in revision against the order of the learned Magistrate dated July 1, 1954, to which I have just referred. This revision petition before the learned Judge questioned the propriety of the order of the learned Magistrate dated July 1, by which the latter had refused to take action against the Petitioner at that stage of the proceedings. The learned Judge, however, by an order dated January 22, 1955, allowed the petition. That order closed with these words:

In the result, the order of the learned Magistrate rejecting the petition of the Court Sub-Inspector in respect of Bhujanga Das is set aside and he is directed to hold further enquiry u/s 302, I.P.C., against Bhujanga Das. The procedure of Chapter XVIII of the Code of Criminal Procedure should be followed as far as possible.

In his order the learned Judge purported to give reasons to show that the refusal of the learned Magistrate to issue process against the Petitioner u/s 302 of the Indian Penal Code was the result of improper exercise of discretion. The circumstances of the case and the Police papers appeared to indicate to the learned Judge that the officer who was responsible for the General Diary entry was not to be believed and that the evidence before the Magistrate justified the issue of process u/s 302 of the Indian Penal Code against the Petitioner. It is not necessary to refer in detail to the circumstances on which reliance was placed in support of the order thus made. To me it appears that many of the observations in the learned Judge''s order are rather premature. He did not even hesitate to pronounce at that stage on the value of the General Diary entry and upon the reliability of the police officer who made the entry. In any event, that is a matter with which I am not immediately concerned.

The substantial question which arises in this case is under what powers the learned Judge purported to exercise jurisdiction in a case of this kind. I have set out above the concluding portion of the learned Judge''s order with a view to indicate what exactly were the powers he intended to exercise in dealing with the order of the Magistrate dated July 1, 1954. It seems, to all intents and purposes, that the learned Judge acted u/s 436 of the Code of Criminal Procedure. That section is in these words:

On examining any record u/s 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrate''s subordinate to him to make, and the District Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed u/s 203 or Sub-section (3) of Section 204, or into the case of any person accused of an offence who has been discharged:

Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.

It is quite clear that the High Court or the Sessions Judge may direct a subordinate court to make further inquiry into a complaint which has been dismissed u/s 203 or under Sub-section (3) of Section 204 or into the case of any person accused of an offence who has been discharged.

Section 436 gives well defined powers to the court to deal with specified cases in which only action can be taken under the provisions of that section. The order to be revised must be one made u/s 203 or one under Sub-section (3) of Section 204 or an order by which a person accused of an offence has been discharged.

From the facts which I have set out above it does not appear that the present case can in any way be compressed within the limits of any of these three alternatives mentioned in Section 346. The application of the Court Sub-Inspector cannot be treated as a complaint since it is in substance a report of a Police Officer within the meaning of Section 4, Clause (h) of the Code of Criminal Procedure. Furthermore, the refusal of the Magistrate to act on the report cannot be treated as an order of dismissal u/s 203. There can be no question either of the case being covered by Sub-section (3) of Section 204; nor can there be a question of the present Petitioner being improperly discharged, since he had not been summoned and put into any proceedings at all. Therefore, I find it extremely difficult to say under what section of the Code the learned Sessions Judge purported to interfere and direct a "further inquiry" into the matter.

It was open to the learned Judge to make a reference u/s 438 of the Code of Criminal Procedure to this Court setting out the circumstances of the case on which he relied and to recommend action to be taken against the Petitioner. He has not done that. On the other hand, the learned Judge thought that he had ample powers to take action himself by way of directing a further enquiry. I cannot but hold that he completely misdirected himself in this regard. The result of the learned Judge''s order was that the Magistrate to whom that order was communicated treated the same as being in effect a direction upon him to summon the Petitioner straight away u/s 302 of the Indian Penal Code. Furthermore, there was another direction given that the proceedings ought not to be continued under Chapter XXI but that they should be dealt with under Chapter XVIII of the Code of Criminal Procedure.

If the order of the learned Judge interfering with the discretion of the Magistrate as expressed in the latter''s order of July 1, 1954, is an order without jurisdiction, the consequence that inevitably follows is that the order of the Magistrate passed in pursuance of that order, summoning the Petitioner u/s 302 Indian Penal Code is bad and must be set aside.

I wish, however, to observe that it will be perfectly open to the Magistrate who is dealing with the proceedings to consider whether on the materials to be placed before him, he should summon the Petitioner or any other person who may be concerned with the commission of any offences. It would be equally open to him to convert the proceedings which are being tried in accordance with the procedure for trial of warrant cases, into one under Chapter XVIII of the Code of Criminal Procedure should such course appear to the Magistrate to be necessary in the interests of justice. Gravity of the offences alleged will indeed be an important element in the consideration.

The Rule is accordingly made absolute. The order of the learned Judge, dated January 22, 1955, and the consequential order of the Magistrate dated February 2, 1955, are both set aside. Let the records be returned without delay.