Satipada Biswas vs The State

N.K. Sen, J.—This Rule is directed against on order of the Sessions Judge, Hooghly, dated November 12, 1957, by which he directed the issue of process against the Petitioner and another u/s 304 read with Section 114 and Section 147 of the Indian Penal Code and to make a further enquiry into their case. A similar Rule was issued at the instance of Satipada Biswas (Criminal Revision No. 64 of 1958) arising out of the same order of the learned Sessions Judge, both Rules having arisen out of the same order are being dealt with together.

Upon a charge-sheet filed by the police against a large number of persons, the learned Magistrate Shri B.C. Banerjee started an enquiry preliminary to commitment under the provisions of Section 207A of the Code of Criminal Procedure. There was, however, no charge sheet submitted by the police against the two Petitioners in the present two Rules, In short, the prosecution case was that C.S. Dag 134, Mouja Jeypur belonged to one Jatindra Nath Banerjee and the opposite party Akhoy Majhi used to cultivate in lihag under him. On May 4, 1957 while Akhoy Majhi and other Bhagidars were actually ploughing, the Petitioner Ajit Ghose and the Petitioner Satipada Biswas in the other Rule with 30 or 40. others, all armed, came upon the land and began to assault Bhagidars. In course of the assault one man of the name of Nanda Chalak on the side of the opposite party was killed and six others were injured. It appears that before the learned Magistrate some witnesses were examined and also cross-examined.

On August 28, 1957, a petition was filed on behalf of the opposite party Akhoy Majhi praying for issue of a process against the two Petitioners. The learned Magistrate on the following day, viz., on August 29, 1957, examined and cross-examined some more witnesses and fixed September 4, 1957, as the next date for examining other prosecution witnesses. On this day he disposed of the petition filed on behalf of the Akhoy Majhi and ordered as follows:

I have decided to proceed with the case with the present accused. After evidence is recorded, I shall be prepared to consider if Ajit and Satipada should be summoned. The petition of Akhoy Majhi is, therefore, rejected.

It should be observed that the State did not join the opposite party Akhoy Majhi in his petition nor did the State file any independent application for proceeding against the two Petitioners.

Against the aforesaid order of the learned Magistrate, the opposite party Akhoy Majhi moved an application under Sections 435 and 437 of the Code of Criminal Procedure before the Sessions Judge and in that application he prayed that the enquiry before the learned Magistrate should proceed against the Petitioners or in the alternative the case should forthwith be committed to the Court of Sessions.

This application was allowed by the learned Sessions Judge who directed the issue of process against the Petitioners in both the Rules u/s 304 read with Sections 114 and 147 of the Indian Penal Code and to make further enquiries into their case.

Mr. J.M. Banerjee, appearing on behalf of the Petitioners, has submitted that the order passed by the Sessions Judge is bad in law inasmuch as the learned Magistrate had never refused to summon the Petitioners, but only said that he would consider after evidence was recorded, if the Petitioners should be summoned. Mr. Banerjee next argues that the order of the learned Sessions Judge was misconceived inasmuch as he had never refused to issue process and that the learned Sessions Judge had no jurisdiction to pass the order complained of.

The learned Sessions Judge in a lengthy order has commented upon the action of the police in not arresting the Petitioner Ajit Ghosh and not arranging for a Test Identification of Ajit Ghosh and Satipada Biswas. He found fault with the manner in which the investigation was conducted and the statement recorded and also referred to the apprehension of the opposite party that the Petitioners would never be summoned.

Mr. N.C. Banerjee, in opposing the Rule, contends that the order of the learned Magistrate can only mean that the petition of Akhoy Majhi being rejected it amounted to an order of discharge. He has drawn my attention to the case of Girish Chandra Ghosh, v. Emperor ILR (1902) Cal 457. On the strength of this decision he argues that refusing to issue a process amounted to a dismissal of the complaint and as such a motion for further enquiry before the Sessions Judge lay. In the case cited above, it appears that a complaint was made to a Magistrate against several persons but the Magistrate instituted proceeding against only one of them and after his conviction refused to issue process against the others. The judgment in the above case is no authority for the proposition submitted by Mr. N.C. Banerjee. That case was instituted on a complaint and an application was made after the termination of the proceeding. In the present case proceeding was pending and reading the order of the learned Magistrate and giving it a reasonable interpretation, it is clear that the Magistrate only wanted to see if evidence against the Petitioners would be forthcoming.

Mr. N.C. Banerjee then argues on the authority of the decision in the case of Nitai Charan Ghosh and Ors. v. Kshetra Nath Ganguly (1936) 40 C.W.N. 573: ILR 63 Cal 819 that the proper court for making an application for summoning the other persons against whom allegations have been made was the court that had taken cognizance of the offence. A court takes cognizance of offences and not of offenders. This proposition, in my judgment, is not doubted. The court that had taken cognizance of offences can undoubtedly summon other persons for trial, if considered necessary. This is exactly what the learned Magistrate did when he said that after evidence was recorded, he would be prepared to consider if Ajit and Satipada should be summoned. The last case cited by Mr. N.C. Banerjee is the case of Dedar Buksh v. Shyamapada Das Malakar ILR (1914) Cal 1013. The case cited is only on authority for the point that a Magistrate is competent to proceed against others not named in the petition of complaint. The decision of this case only strengthens the propriety of the order passed by the learned Magistrate in this case.

It appears that the learned Judge had proceeded on the assumption that the learned Magistrate had refused to issue a process and throughout his order he proceeded on the supposition that the learned Magistrate would never issue a process against the two Petitioners in the two Rules. It is contended on behalf of the Petitioner that the refusal of the learned Magistrate to issue a process at that stage is not subject to revision u/s 436 of the Code of Criminal Procedure. The learned Sessions Judge has extensively referred to police diary to show that there was ample evidence against the two Petitioners which made it incumbent upon the police to have sent them up on a charge and in any case upon the materials available from the case diary, the learned Magistrate should have summoned the two Petitioners also. Section 437 of the Code under which the learned Judge was moved empowered the Sessions Judge to direct a commitment or to make a further enquiry into those cases only in which the accused persons had been improperly discharged. The provisions of this section, therefore, are not at all attracted in the present case. Section 436 of the Code runs as follows:

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 Magistrates subordinate to him to make, and the District Magistrate may himself make or direct any subordinate Magistrate to make, further enquiry 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:

The learned Sessions Judge under the provisions of this section could only order further enquiry into any complaint which has been dismissed u/s 203 or Sub-section (3) of Section 204 or into a case of any person accused of an offence which had been discharged.

Reference has been made to Sub-section (3) of Section 207A of the Code and Mr. N.C. Banerjee argues that under the Code, as amended now, a procedure very much different from what it used to be previously has been prescribed. From this he argues that a Magistrate can only deal with persons who are actually present before him. It follows, therefore, that in the present enquiry he could not proceed against other persons who were not before him unless they had been summoned. Mr. J. M. Banerjee argued that even if that be so, in the present case cognizance having been taken on a police report a Magistrate, upon proper evidence, could call for supplementary charge-sheet, u/s 173 of the Code of Criminal Procedure and start another commitment enquiry if he thought that was necessary. I am of the view that this submission of Mr. J.M. Banerjee is correct and should be accepted.

There is nothing on the record to show that the learned Magistrate had finally decided not to proceed against the Petitioners and therefore, the arguments that by refusing to summon the Petitioners the Magistrate had really discharged them cannot be accepted. The learned Judge has referred to the case of Bhujanga Bhusan Das Vs. The State and Another, , decided by Debebrata Mookerjee, J., in support of the proposition that the proper court before whom an application was to be made for issue of process was the court that was holding an enquiry u/s 207A of the Code. The principles laid down in the case with which I entirely agree are, not applicable at all to the facts of the present case. In that case an application was made by way of complaint before another court about the same facts for which the prosecution was pending in a different court. Here facts are entirely different. An application was made by a private individual before the same court for issuing process against whom no charge-sheet had been filed. In the first place, in a case where an enquiry preliminary to commitment was proceeding before a Magistrate at the instance of the Police, the right of private individual to make an application of this nature is open to doubt, specially in view of the fact that the State was in charge of the prosecution. In the second place, the learned Magistrate was entirely right in saying that he would consider the matter when evidence would be forthcoming. From the order itself it cannot be inferred as was taken for granted by the learned Sessions Judge, that he had finally refused to issue process against the Petitioners. The order passed by the learned Magistrate in the terms in which it was passed cannot amount to a discharge of the Petitioners, as has been assumed by the learned Judge. When a person is not sent up on a charge-sheet, the question of his improper discharge does not arise. In my judgment, the learned Judge was under some confusion when on a reference to the case cited above, he took it for granted that it would be a case of taking piecemeal cognizance by different courts.

Mr. N.C. Banerjee argued that under the provisions of Section 204 of the Code of Criminal Procedure if there is sufficient ground for proceeding a Magistrate taking cognizance can call other persons for trial. It will be seen that the learned Magistrate in the present case acted on this supposition that he had authority to do so and it is clear that he wanted to exercise that authority, but that only after considering what evidence would be forthcoming against those persons. It appears further that the motion before the learned Sessions Judge was one under the provisions of Section 437 of the Code. Under the provisions of that section the learned Sessions Judge could not have passed the order that he did by directing the issue of process against the Petitioners nor could he have passed the order complained of under the provisions of Section 436 of the Code.

Throughout his judgment the learned Sessions Judge has repeatedly referred to Section 436 of the Code. If he had really purported to act under that section he would have seen that he had no power to direct the issue of process against any person and all that he could have done was to order a further enquiry. The learned Judge having proceeded entirely on the assumption that the learned Magistrate''s order had amounted to a discharge, his whole order is coloured by that view. I am not saying that when proper evidence is forthcoming the learned Magistrate will not take proper steps to bring the offenders to book or commit them to the sessions, but what I feel is that in view of the order that the learned Magistrate passed, the Sessions Judge was not right in directing the issue of process against the Petitioners at that stage. In this view, the order of the Sessions Judge cannot be upheld and must be set aside. The learned Magistrate will, however, be left to use his discretion upon the evidence and take such steps in accordance with law as he would think fit.

The Rule is, accordingly, made absolute.

This order will govern Criminal Revision Case No. 64 of 1958.