Dharma Das Biswas vs The State

Mitter, J.—The point involved is whether a Magistrate, to whom a case has been transferred u/s 192 can issue process u/s 204, Code of Criminal Procedure.

Section 190 provides for cognizance of offences by Magistrates. Sub-section (2) of Section 192 provides that any Chief Presidency Magistrate. District-Magistrate or Sub-divisional Magistrate may transfer any case, of which he has taken cognizance for enquiry or trial to any Magistrate subordinate to him. Section 204, which is concerned with the issue of process, provides that if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding, he shall issue process for the attendance of the accused. The rest of the section is not material to the present purpose.

The point urged by Mr. Banerjee is that in terms of Sub-section (1) of Section 204, only the Magistrate who has taken cognizance of an offence, and not the Magistrate to whom the case has been transferred u/s 192, can issue process. The language of: Sub-section (1) of Section 204 does not support this contention. What the section enjoins is that if in the opinion of a Magistarte taking cognizance of an offence, there is sufficient ground for proceedings he shall issue process.. The section in terms does not prohibit the transferee Magistrate from issuing process. Nevertheless, the point taken by Mr. Banerjee is novel and may have to be discussed further in some other case.

An appropriate Magistrate taking cognizance of an offence may issue process u/s 204 and then transfer the case under 192. Such a Magistrate may also transfer a case, of which he has taken cognizance before issuing any process. In that event, the transferee Magistrate may, u/s 202, for reasons to be recorded in writing, postpone the issue of process. Thus, in a ease u/s 202 the transferee Magistrate has power to issue process, although he himself has not taken cognizance of the offence. An order for transfer u/s 192 operates as a transfer of the whole case. In my view, such a transfer involves transfer the power to issue process, even though the transferee Magistrate did not originally take cognizance of the offence. I should add that cognizance is taken of the offence and not of the offenders and that, therefore, if the evidence before the transferee Magistrate discloses the complicity of persons against whom process had not already been issued, the transferee Magistrate may issue process against them.

In my view, the Rule should be discharged.

Sen, J.—In this case we are concerned with the question whether; a Magistrate to whom a case has been transferred for disposal has the power to issue process against certain persona whose names transpired in the course of the evidence but who were not sent up by the police in the charge-sheet.

The facts of the case are briefly as follows: On August 20, 1959, one Satish Chandra Roy lodged an information at Polba police-station alleging that about 8 or 8-30 p.m. in the previous evening 150 to 200 people came armed with spears, spades etc. attacked the chowkidar who was guarding a bundh or embankment and killed the chowkidar and cut the bundh or embankment for the purpose of draining out water which had accumulated on the lands of the village to which the raiding party belonged. The Police took up investigation and on February 4, 1960, submitted a charge-sheet under Sections 148/302/149 of the Indian Penal Code against 15 persons, but not including the two Petitioners. Dharmadas Biswas and Sambhu Nath Mukherjee. These two Petitioners had been arrested by the Police in the course of the investigation, but they were discharged u/s 173 of the, Code of Criminal Procedure. On February 4, 1960, when the Policy:8ubmitted the charge-sheet against 15 other accused, the Sub-Divisional Magistrate, Hooghly, after receiving the charge-sheet transferred the case for disposal to Shri K.M. Pyne, Magistrate, 1st Class, for disposal. On March 21, 1960, 2 P.Ws. were examined and cross-examined and the case was adjourned to, April 3, 1960, for examination of further P.Ws. On April 3, 1960, when the case was taken up, the Court Inspector filed a petition for issuing process against the two Petitioners Dharmadas Biswas and Sambhu Nath Mukherjee on the ground that the evidence already recorded disclosed a prima- facie case against them. The learned Magistrate after hearing arguments of both sides summoned the two Petitioners in respect of charges under Sections 148, 302 and 302/149 of the Indian Penal Code. The two Petitioners appeared on April 19, 1960, and were granted bail by the learned Magistrate. At that stage the Petitioners moved This Court and obtained a Rule; and Mr. N.C. Banerjee appearing for the Petitioners had urged that Shri K.M. Pyne, not being the Magistrate who took cognizance of the case on the police report, had no jurisdiction to summon persons not named in the charge-sheet and that his order was therefore altogether bad. In this connection Mr. Banerjee has referred to Section 204(I) of the Code of Criminal Procedure, which provides that if, in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he shall issue summons warrant as the case may be, for the appearance or production of the accused before him. Mr. Banerjee has urged that only the Magistrate who took cognizance of the case on the police report, viz., Sub Divisional Magistrate, Hooghly, could issue process against persons hot named in the charge-sheet, and that the Magistrate to whom case had been transferred had no such power.

It has, however, been held in a number of reported decisions that a Magistrate to whom a case has been validly transferred u/s 192 of the Code of Criminal Procedure and who is in seisin of the case can exercise all the powers which the Magistrate taking cognizance could have exercised, and in such circum-stances the Magistrate who took cognizance has no further power to issue process against anybody else, unless indeed he withdraws the case back to his file. In this connection reference may be made to the case Golapdi Sheikh v. Queen Empress ILR (1900) Cal. 979, Moul Singh v. Mahdbir Singh (1899) 4 C.W.N. 242 and Charu Chandra Das v. Nerendra Krishna Chakravorty (1900) 4 C.W.N. 367. In Golapdi Sheikh v. Queen Empress ILR (1900) Cal. 979 (Supra), the police after investigation sent up one Jagira for trial and other accused were named in the charge-sheet as absconding; the case was transferred to a Subordinate Magistrate who after taking evidence discharged Jagira; the police thereafter applied before the District Magistrate for issuing warrant against other accused; it was held that as the case had been transferred to a Subordinate Magistrate, only that Magistrate could issue warrant against the other accused named in the charge-sheet and District Magistrate had no jurisdiction to do so. In Moul Singh v. Mahabir Singh (1899) 4 C.W.N. 242 , the Subordinate Magistrate who tried certain persons and convicted them refused to issue further process against the remaining accused mentioned in the police report. It was held that the District Magistrate had no power to issue process against the remaining accused, as the Subordinate Magistrate to whom the case had been transferred was in seisin of the entire case. In Charu Chandra v. Narendra Krishna Chakravorty (1900) 4 C.W.N. 367, a Magistrate to whom the case had been transferred found it disclosed in evidence that certain other persons not before the Court were concerned in the offence, and thereupon issued process against them and tried them. It was held that the Magistrate did not act without jurisdiction. It was observed that the Magistrate had cognizance (season) of the offence, the case having been duly referred to him by the superior Magistrate; and haying cognizance (season) of the offence, it was his duty to proceed to deal with the evidence brought before him and to see that justice was done in regard to any person who might be proved by the evidence to be concerned in the offence. All these cases are divisional Bench eases. More recently, the principle laid down in these cases have been followed. In this connection referenced may be made to a decision of Edgily, J., in Hafizur Rahaman v. Aminal Haque (1940) 44 C.W.N. 1114 . It was held in that case that the Magistrate to whom the case had been transferred could proceed not only against the accused actually summoned by the Magistrate who had taken cognizance, but also against other persons whom the Subordinate Magistrate considered implicated, in the offence after considering the evidence. In Bhujanga Bhusan Das Vs. The State and Another, . Debabrata Mookerjee, J., took the same view. In that case a charge-sheet had been submitted against 19 persons and the case was ultimately transferred to a Magistrate, First Class, Shri S.K. Das Gupta. The Court Sub Inspector prayed for process before him against one Bhujanga Bhusan Das who had not been sent up in the charge-sheet but against whom the evidence disclosed a prima facie case, but the prayer was rejected by the Magistarte having seisin of the case. Thereafter, the widow of the deceased filed a petition of complaint against Bhujanga Bhusan Das before the Court of the Sub-Divisional Magistrate and after the petition of complaint had been dismissed there was. a revisional application before the Sessions Judge, Midnapore, and the learned Sessions Judge directed further enquiry. Debabrata Mookerjee, J., held that an independent complaint was not maintainable. That Shri S.K. Das Gupta had seisin of the entire case and the proper forum for application for process against Bhujanga Bhusan Das would be to the court of Shri S.K. Das Gupta. In this connection Mr. Debabrata Mookerjee, J., observed as follows:

It must be recalled that cognizance is taken of offences and not of offenders and in this case cognizance was taken of the offence when the police submitted the charge sheet. The police may not have sent up as an accused person a particular individual; but that does not prevent the court from considering the charge or holding an enquiry under Chapter XVIII of the Code of Criminal Procedure or from bringing before it for trial a person whose complicity is clearly suggested by the evidence heard by it. When a case is transferred upon cognizance being taken, the whole case is transferred upon cognizance being taken, and there cannot be the slightest doubt that piecemeal cognizance of offences is something unknown to the scheme of the Code of Criminal Procedure. When later on the case was transferred to the file of Sri S.K. Das Gupta the whole case went and no part of it was left behind to be dealt with in a piecemeal fashion. Therefore, if any process was to be asked for by anybody, the proper court in which to apply for it was the Court of Sri S.K. Das Gupta.

Mr. Banerjee has objected that in all these decisions, the Court did not take into consideration the wording of Section 204(1) of the Code of Criminal Procedure, which provides that the Magistrate taking cognizance of an offence may issue summons or warrant against the accused against whom there appears to be sufficient, ground for proceeding. It is true that the wording of Section 204(1), was not expressly considered in all the above decisions, but it is clear that when a case is transferred, the transferee Magistrate who gets seisin of the case has all powers of the Magistarte who took the cognizance of the case. u/s 192 of the Code of Criminal Procedure a case may be transferred at any stage, even before the complainant has been examined u/s 200 of the Code of Criminal Procedure. Section 202(7) provides that a Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him u/s 192, may if he thinks fit, postpone, the issue of process and either inquiry into the case himself or direct an inquiry or investigation to be made by any Magistrate subordinate to him or by a police officer or by such other person as he thinks fit. u/s 203 of the Code a 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 of the complainant and the result of the investigation or inquiry if any, there is in his judgment no sufficient ground for proceeding. Where the Magistrate to whom the case has been transferred considers that there is sufficient ground for proceeding,, he would certainly be entitled to issue process u/s 204 of the Code of Criminal Procedure. It is not contemplated in the code that the Subordinate Magistrate to whom a case had been transferred will transfer the case back to the Sub Divisional Magistrate or other Magistrate who took cognizance of the case, so that the Magistrate who actually took cognizance may issue process. In such a case, even though Section 204'' does not expressly refer to the Magistrate to whom the case has been transferred, it is clear that such Magistrate has all the powers u/s 204 of the Code of Criminal Procedure. In Section 204 the words "a Magistrate taking "cognizance of an offence" must be held to include a Magistrate having seisin of an offence. It may be pointed out that in the case Charu Chandra Das v. Narendra Krishna Mukherjee (1900) 4 C.W.N. 367 a Subordinate Magistrate to whom the case had been transferred was considered a Magistrate having cognizance of the case. It is clear that the word "cognizance" was used as an equivalent to the word "season" for the purpose of issuing of process against a person against whom the materials before the Magistrate disclosed a prima facie case.

Accordingly, it must be held that Shri K.M. Pyne, Magistrate, First Class, had jurisdiction to issue process against the two Petitioners against whom a prima facie case was disclosed by the evidence taken by the learned Magistrate.

This Rule is, therefore, discharged.