Sunil Baran Kanungo vs State

Debabrata Mookerjee, J.—This is a petition for revision of an order made by the Additional Sessions Judge of Howrah, on November 2, 1954 u/s 437 of the Code of Criminal Procedure directing committal of the Petitioners to the Court of Session to take their trial under Sections 147 and 333/149 of the Indian Penal Code.

These 4 Petitioners along with 37 other persons were proceeded against under Chapter XVIII of the Code of Criminal Procedure for having, as alleged, committed various offences under Sections 147, 333/149 and 353 of the Indian Penal Code. The learned Magistrate who held the enquiry preliminary to commitment made an order on July 19, 1954 by which he discharged these Petitioners and all the others proceeded against u/s 209 of the Code of Criminal Procedure. In the view of the learned Magistrate none of the persons could be convicted upon the evidence adduced and he was of the opinion that no jury could find against the accused upon such evidence as was adduced before him.

An application was, thereafter, made to the Sessions Judge, Howrah, which was directed against this order of discharge passed by the learned Magistrate. The application was eventually heard by the learned Additional Sessions Judge, Howrah, who allowed the application in part and directed commitment of the Petitioners to the Court of Session upon charges indicated above. It is against this order that the present Rule has been obtained.

For the purpose of this Rule it is not necessary to set out in detail the facts and circumstances transpiring in the evidence in the case. Suffice it to say that on September 28, 1953 at about 9 A.M. there was, according to the prosecution, a mob of about one thousand men who were found proceeding towards Deulty Railway Station. The men were shouting slogans from which it appeared that they intended to proceed to Calcutta and surround the Writers'' Buildings presumably with a view to securing redress of some of their grievances. At the time there was a prohibitory order u/s 144 of the Code of Criminal Procedure in force in the area in which the Writers'' Buildings are situated. A sub-inspector of police who had been posted at the Deulty P.S. along with some constables intercepted the procession in order to prevent the processionists from proceeding to Calcutta. This led to an attack on the police force with brickbats and stone chips resulting in injuries to members of the force. To prevent worsening of the situation the police made a lathi charge in the course of which some of the men were injured. At that stage the crowd having suddenly attacked the police force in order to prevent them from discharging their duties a general melee followed in the course of which some other policemen received injuries, and the police felt compelled to open fire with the result that one man in the crowd named Annada Dolui was killed by the revolver shot by the sub-inspector in charge of the police party. This was a signal to a further attack on the police but ultimately the mob dispersed. Consequent upon an information lodged an investigation followed which resulted in the submission of charge-sheet against as many as 41 persons including these 4 Petitioners.

As I have already indicated the learned Magistrate who held the enquiry under Chapter XVIII discharged all the accused persons holding that there was no evidence upon which the jury might reasonably be expected to convict any of the accused persons.

Mr. Chatterjee appearing in support of this Rule has contended that in view of the provisions contained in Chapter XVIII of the Code of Criminal Procedure it would be wrong to suppose that what the legislature intended was merely to use the magisterial enquiry as a mere medium through which a case has to pass automatically to the Court of Session. In other words, the argument is that the Magistrate while dealing with evidence adduced before him has a right and duty to apply his mind to the paramount question in the case as to whether the evidence that has been adduced is likely to be acceptable to the jury. In the discharge of this duty the Magistrate has to exercise, according to Mr. Chatterjee, his judicial discretion and apply his mind for ascertaining the truth or otherwise of the evidence before him.

The rival contention on behalf of the State is that in a case of this kind where charges triable by the Court of Sessions are preferred the magisterial duty extends to no more than seeing whether there is evidence to go to the jury. In other words, it can never be the duty of the Magistrate holding an enquiry under Chapter XVIII of the Code to assess and evaluate evidence. The manner of approach in a case dealt with under Chapter XVIII of the Code is, according to this view, completely different from the approach of a Magistrate who is trying the case out.

The real question, therefore, in this case is whether the learned Magistrate whose duty it was to see if a prima facie case had been made out has properly discharged that duty. Mr. Chatterjee has, therefore, placed before me excerpts from the order of the learned Magistrate discharging the Petitioners with a view to showing that the Magistrate in the present case did not exceed the limit prescribed by Section 210 of the Code of Criminal Procedure and that the conclusion reached by him that upon the evidence before him no jury could possibly convict was a proper conclusion.

In order to be able to assess the correctness or otherwise of the findings reached by the learned Magistrate in this behalf it was necessary to examine portions of the evidence in the case and I have, with the assistance of the learned advocates appearing on both sides, been taken through a considerable part of it.

The conclusion that has been reached by the learned Magistrate while making an order of discharge u/s 209 of the Code can be assailed only if it can be shown that for the purpose of discharging his proper duties u/s 209 of the Code he went beyond the limits which that section implies. Section 210 of the Code of Criminal Procedure provides that if the Magistrate is satisfied that there were sufficient grounds for committing the accused for trial he shall frame a charge under his hand declaring with what offences the accused is charged. The words used, therefore, in this section are of considerable importance inasmuch as upon the true import of the words ''sufficient grounds for ''committing the accused for trial'' will depend the true extent or conversely the limitation on the power of the Magistrate. It is to be observed that the words "sufficient grounds for committing "the accused for trial" prima facie mean that the Magistrate''s mind has to be made up in regard to the principal question as to whether the evidence before him is of such a character as to induce credence at first sight. Mr. Chatterjee has laid emphasis upon the words which I have just quoted with a view to establishing the point he made that the magisterial enquiry is not to be reduced to mere formal proceeding at which all that the prosecution is required to do is to put up some witnesses who claim to be conversant with the facts intended to be proved at the trial. The duty of the Magistrate clearly is, according to Mr. Chatterjee, to see if the evidence such as it is survives the first scrutiny of a magisterial enquiry.

I am bound to say that there is considerable force in what Mr. Chatterjee has contended for. It cannot certainly be said that what the legislature intended by enacting the different provisions in Chapter XVIII of the Code of Criminal Procedure was merely providing a machinery to enable the case to be sent up to the Court of Session. Surely it was never the intention of the legislature to treat the committal proceedings as a mere reception centre for the witnesses for the prosecution from where they are to be passed on automatically to the Court of Session in order that they might deliver themselves of what they have to say in relation to the case. If the legislature wanted to reduce the enquiry before the Magistrate to a more or less decorative appendage which was never intended to serve any really useful purpose for trial of offences, nothing was easier than to say so. I should imagine that if that was the intention, there was hardly any need for a committal proceeding at all. Clearly, the first test of the hurdle for the prosecution is provided by this magisterial enquiry under Chapter XVIII and the legislature purposely gives to the Magistrate the power to apply before him those known tests for the purpose of finding out if the evidence is such as to be considered fit to usefully occupy the time and attention of a superior court. In this view the committal proceedings are not a mere decorative appendage but a real necessity inasmuch as the evidence led, before the Magistrate is required to pass through a sieve before it gets in the presence of the Judge and the Jury. I think the power given to the Magistrate u/s 210 is such power as would prevent useless commitments to be made and prevent waste of public time and money and above all to prevent unnecessary harassment of persons arraigned upon utterly worthless or wholly insufficient evidence.

The next question then arises as to what should be considered the outer limits of the Magistrate''s power in dealing with the evidence that has been led before him and what exactly is the extent to which the Magistrate is entitled to go. Is he entitled to go the whole length and arrive at conclusions upon the truth or otherwise of the evidence that has been adduced before him? I think the legislature provided a mean between the two courses in Section 210 of the Code of Criminal Procedure that a committal was to be made only when there were "sufficient grounds" for such committal. It was intended by the legislature that the Magistrate making an enquiry under Chapter XVIII is not required to go the full length and tax himself with the question as to whether in the ultimate analysis he as a Judge of facts will believe that evidence or not. The words which to my mind are quite significant are there should be "sufficient grounds for committing the accused for trial". I imagine that there is a difference between the grounds for holding that a man is guilty which grounds are different from the grounds which would only induce the Magistrate to hold that there is a case sufficiently strong to be committed for trial. Therein, to my mind, lies the difference which is perfectly understandable. If the evidence led before the Magistrate is on the face of it utterly unworthy to be accepted it would certainly be the duty of the Magistrate to refuse to commit. If, on the other hand, the evidence before him is such as to induce him to think that upon such evidence the man''s trial ought to take place there ought to be an order of commitment and in the latter case the Magistrate would, in my view, be arrogating to himself the function of the jury if he were to pronounce upon the trustworthiness or otherwise of that evidence.

In support of what Mr. Chatterjee has argued reference has been made to Sub-section (2A) of Section 337 of the Code of Criminal Procedure. That is a section which occurs in the Chapter headed "General Proceedings as to Enquiries and Trials." The section relates to the question of tendering of pardon to an accomplice. It is not necessary to refer in detail to the various provisions of that section. In Sub-section (2A) of the section the legislature has provided that where a tender of pardon has been accepted and the person pardoned has been examined under the provisions of that section the Magistrate before whom the proceedings are pending shall.

If he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence. commit him for trial, to the court of session or the High Court as the case may be.

The context in which this section appears is of course different from the immediate context of the committal proceedings. Nevertheless Sub-section (2A) does contain an indication as to how a Magistrate will act after a tender of pardon has been accepted and the person concerned has been examined. The section says that the accused will be committed for trial in such a case if the Magistrate is satisfied that there are reasonable grounds for believing that the accused has committed an offence.

Mr. Chatterjee has argued that the words in Sub-section (2A) of Section 337 are conclusive of the matter as respects the duties of the Magistrate in making or refusing to make an order of commitment. As far as I can see, it will be rather risky to take the words as they appear in this Sub-section, namely, that the accused will be committed for trial only if the Magistrate is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence as defining the powers of the Magistrate while dealing with a case u/s 210 of the Code of Criminal Procedure. Sub-section (2A) seems to me to be a provision where the legislature has felt more or less doubtful about the success of a case depending upon the testimony of an approver and consequently it felt called upon to enjoin on Magistrates the duty to see that in such cases where a tender of pardon has been accepted and the person concerned has been examined as a witness in the case there should be some evidence furnishing the basis of a reasonable belief that the accused is guilty of an offence. Tender of pardon to an accomplice is really the subject matter of the section and Sub-section (2A) merely enjoins upon the Magistrate a duty to see that a commitment is to be avoided despite the approver''s testimony unless and until the Magistrate is persuaded that there are reasonable grounds for believing that the accused is guilty of an offence. It would not, therefore, be, in my view, right to have recourse to the provisions of Sub-section (2A) of Section 337 for the purpose of deciding on the true effect of Section 210 of the Code of Criminal Procedure.

I have already indicated that the words "sufficient grounds "for committing an accused for trial" are and ought to be in themselves a safeguide for Magistrates dealing with committal proceedings. The grounds need not be sufficient for conviction. It will be enough if they are sufficient for trial.

Turning to the facts of the present case it is to be seen whether the learned Magistrate has correctly approached the evidence in the case. It seems to me that the entire evidence has been subjected to scrutiny by the learned Magistrate in the same way as one would expect him to do if he were trying the case out himself. It is not merely the question of an improbability appearing on the face of the witnesses'' evidence that is referred to by the learned Magistrate but considerations arising out of collating facts and circumstances transpiring from the evidence of other witnesses in the case that are taken note of with a view to deciding as to whether a particular witness or a particular fact has to be believed or disbelieved. This really amounts to trying the case out. As I said just now the questions of probabilities raised or even suggested remotely by the evidence are dealt with by the learned Magistrate not with a view to coming to a conclusion as to whether that evidence is sufficient for the purpose of a trial but with a view to seeing as to whether that would ultimately lead to a conviction. That is something which is precisely forbidden by the law. It is not the duty of the Magistrate while holding an enquiry under chapter XVIII of the Code to see if the evidence is sufficient for conviction. His duty will end by coming to a conclusion whether the evidence is just sufficient for a trial.

The learned Magistrate has in the present case in my view overstepped the limits and has considered everything without leaving anything for anybody else. It is not possible to agree with the learned Magistrate in the view he takes that it is impossible for a jury to find against the Petitioners upon the evidence such as this.

The learned Judge while directing commitment of the four Petitioners has, to my view, correctly, approached the questions which awaited the decision of the Magistrate. The learned Judge has found that the Magistrate took upon himself a duty of assessing the value of the evidence for the purpose of seeing that it was not good for conviction. He has accordingly held that the Magistrate has gone wrong. I agree substantially with the views expressed by the learned Judge as respects the import of Section 210 of the Code of Criminal Procedure.

The question then remains as to whether the learned Judge was right in directing committal of all the 4 Petitioners. Mr. Chatterjee has contended that there is hardly any evidence which might usefully occupy the attention of the Judge and the jury so far as Petitioner No. 4 Sk. Naran is concerned. Mr. Guha on behalf of the State concedes that this contention raised by Mr. Chatterjee is a substantial one and the evidence against the Petitioner Sk. Naran is indeed not of a type as would justify his commitment to the court of session. I agree and I think that the case of the Petitioner No. 4 stands on a different footing from that of the three other Petitioners.

In this view of the matter. I allow the petition of S.k. Naran, set aside the order directing his commitment to the court of sessions and make the Rule absolute so far as he is concerned. The Rule is discharged as respects Petitioners Nos. 1, 2 and 3 who will be tried according to law as directed by the Additional Sessions Judge of Howrah.