Manish Ranjan Biswas vs Nemai Chandra Ghosh

K.K. Mitra, J.—This is a Reference u/s 438, Code of Criminal Procedure, made by the Additional Sessions Judge, Hooghly, recommending that the order dated June 6, 1970, passed by the Sub--Divisional Judicial Magistrate, Hooghly, and the order dated August 13,. 1970, passed by his successor--in--office should be quashed.

The facts of the case are as follows: The Petitioner Manish Ranjan Biswas lodged a First Information Report at the Mogra Police Station on March 17, 1970, over an incident which occurred at Keshoram Rayon Factory at Kutighat at 6--30 a.m. on that date making allegations against several persons for commission of various offences. The Police after completing investigation submitted a challan on April 28, 1970, against Nemai Chandra Ghosh and sixteen others in'' respect to various offences under the Penal Code. The Sub--Divisional Judicial Magistrate started G.R. case No. 432/70 on the basis of the Police report and took cognizance of the offence.

The complainant, however, was not satisfied with the Police report as some more persons who were alleged to be involved in the crime were not mentioned in the "charge--sheet and sent up by the Police. As such, on June 6,1970, Manish Ranjan filed a petition of complaint in respect to the same incident relating to commission of the same offences to the Sub--divisional Judicial Magistrate. In the petition of complaint he mentioned the name of seventeen persons as having committed the offences including ten persons in respect to whom the Magistrate had already taken cognizance and as proceeding in G.R. case No. 432/70. The Magistrate took cognizance of the offence for the second time, examined the complainant u/s 200, Code of Criminal Procedure, and issued summons against the accused Nos. 1 to 7, 9 to 12 and 17 under various sections of the Indian Penal Code.

Nemai Chandra Ghosh, who is an accused in both the cases that is, G.R. case No. 432/70 started on the basis of Police report and in G.R. case No. 386/70 subsequently started on the basis of complaint by the de facto complainant Manish Ranjan Biswas moved the Sessions Judge for taking action u/s 435/438, Code of Criminal Procedure. Hence the Reference.

The principal question which arises for consideration is whether the Magistrate acted illegally and/or improperly in taking cognizance of an offence on the basis of the complaint filed by the de facto complainant over an incident for which cognizance had already been taken by him on the basis of the Police report. There is no controversy on the point that a number of persons figure as accused common in both the cases.

u/s 190 a Magistrate is empowered to take cognizance of an offence upon three grounds--(a) upon receiving a complaint of facts which constitute such offence, (b) upon a report in writing of such fact made by any Police officer and (c) upon information received from any person other than a Police officer, or upon his own knowledge, or suspicion that such offence has been committed. It is a settled principle of law that a Magistrate is competent to take cognizance both on the basis of a complaint and also on the basis of a Police report about the same offence. In fact, there is nothing in sub--Section (1) of Section 190 to indicate that the grounds for proceeding and taking cognizance are mutually exclusive and that once a Magistrate has taken cognizance under Clause (b) to sub--Section (1) of Section 190 he is debarred from taking cognizance under Clause (a) to sub--Section (1) of Section 190 over the same incident or for the same offence. In support of the contention Mr. Chatterjee thus urged that there--was nothing illegal on the part of the Magistrate to take cognizance first on the basis of the Police report and then on the basis of the complaint. Mr. Chatterjee has relied on the decision of a Single Bench in Shankarlal Bholaram Vs. Mohammad Ayyub, Madaran Momin and Others, . In that case, there was one case started on the basis of the Police report and a second case was sought to be started by the private complaint and the learned Magistrate dismissed the complaint on account of the previous case. Obviously, the Magistrate could not dismiss the complaint which could be done in terms of the provisions of Section 203, Code of Criminal Procedure. The High Court thus set aside the order of dismissal. The facts of that case do not fully support the contention of Mr. Chatterjee in the facts and circumstances of the present case.

Mr. Chatterjee also relied on a case of the Rangoon High Court, U Po Yone and Ors. v. Emperor 34 Cri.L.J. 1185. In that case the Police after investigation sent up three persons for trial on a charge of murder and there was also a complaint case by another person and the learned Magistrate amalgamated the two cases. The only point urged in that case was that the two cases could not be amalgamated and tried together and the High Court found nothing wrong in it. The facts and circumstances of the case are different from the facts of this Case. The question involved here is whether the same persons can be asked to face trials in two distinct enquiry proceedings under chap. XVIII, Code of Criminal Procedure, as evidently there are some persons common in that case started on the basis of the Police report and the subsequent case started on the basis of the complaint of the de facto complainant. The procedure for such enquiry in the case of a Police report case is laid down in Section 207, Code of Criminal Procedure, while the procedure for the enquiry started on a private complaint would be those as laid down in Section 208 onwards. The procedures are entirely different. So, here the position is different. The procedure under chap. XVIII has been made different u/s 207 by Act XXVI of 1955. So, even though the Code is silent about amalgamation by a Magistrate of a complaint case with a Police report case it appears to be not contemplated under chap. XVIII of the Code of Criminal Procedure for the same incident involving same accused.

It is an established principle of law that the Magistrate takes cognizance of the offence and not of the offender and so it is within the ample jurisdiction of the Magistrate to proceed against persons who are not named in the challan submitted by the Police if there is evidence to indicate that they should he proceeded against. The de facto complainant might have filed a protest petition stating that some offenders had been left out in the challan and should be proceeded against and the Magistrate could use his discretion to find out on the basis of evidence if prima facie there were such other offenders as named in the protest petition who should be made accused. It would be improper in the circumstances of the case to allow the two distinct proceedings in respect to the same incident to continue simultaneously. There is also no scope for amalgamation of the two proceedings or for a joint trial u/s 239, Code of Criminal Procedure, when the procedures for the enquiry are different in respect to the two cases.

The jurisdiction of this Court is very wide and can be exercised to test the correctness of the proceedings pending in the lower Court in order to satisfy about the propriety of the proceeding. In the instant case, even though there was no illegality on the part of the Magistrate in taking cognizance once on Police report and then on the private complaint the same person being involved in both the cases in respect to offences committed in one incident and the procedures to be followed being entirely different there would be miscarriage of justice to the prejudice of the persons accused in both the cases if the two parallel trials are allowed to continue and, therefore, it is a fit case which calls for interference by this Court. The jurisdiction of the Court is. unfettered by the Legislature and it can never be crystallized by prescribing definite rules which would in effect bind this Court in exercise of its discretion. In fact, the discretion has been left untrampled and free to be fairly exercised according to the exigency of each case. In this case, it would be unfair to some of the accused common in both the cases to face two trials under two different procedures when there is no scope for amalgamation of trial or applying Section 239 of the Code of Criminal Procedure.

In the result, the order by the learned Magistrate taking cognizance and starting G.R. case No. 386/70 and issuing process against Nemai Chandra Ghosh and Ors. by order dated August 13, 1970, are set aside. It is, however, made clear that the de facto complainant may file an appropriate petition of protest to the learned Magistrate, in G.R. case No. 432/70 and it is left to the learned Magistrate to consider on the basis of evidence and materials if some more persons, besides those mentioned in the challan submitted by the Police, should be made accused in the preliminary enquiry before commitment to Sessions. The Reference is allowed.