Sushilabala Mitter vs The State

Mookerjee, J.—This is a petition in revision for quashing the proceedings now pending against two accused persons in the Court of the Additional Chief Presidency Magistrate, Calcutta, or in the alternative, for setting aside the order refusing to exempt Petitioner no. 1 from personal appearance in court.

On behalf of the Petitioners it is contended, in the first place, that summons had been issued u/s 380, Indian Penal Code, though in the petition of complaint the complainant had merely stated that he had been informed by other persons about the commission of the particular offence during his absence from Calcutta.

His statement on this point is merely a hearsay. Such hearsay evidence being clearly inadmissible, the magistrate ought not to have taken cognisance of the offence and to have issued summons upon such inadmissible evidence. The complaint ought to have been dismissed summarily.

The facts necessary to appreciate this contention on behalf of the Petitioners may be shortly stated. The complainant alleged in the petition of complaint that he was a monthly tenant under Petitioner No. 1 Sushilabala Mitter in respect of a particular room in a premises where he was carrying on his business as a carpenter. He had been away to his native village and on his return on June 15, 1950, he found that the lock which he had placed on the door of the said room when he had left Calcutta had been broken open and the articles which were alleged to have been kept in that room had been removed. He had come to learn that Petitioner No. 2 before this Court who is a drawn under Petitioner No. 1 had, on the instruction of the latter, made a forcible entry into the room of the complainant and had taken away the articles which were left by him in that room.

For the conditions requisite for the initiation of proceedings in respect of and for cognisance of an offence by a magistrate, reference may be made to the provisions contained in Section 190 of the Code of Criminal Procedure. Under Clause (a) of Sub-section 1 of that section cognisance may be taken by a magistrate of any offence "upon receiving a complaint of facts which constitute such offence." Under Clauses (b) and (c) of the same sub-section, the magistrate may take cognisance of an offence either upon a report made by a police officer or upon information received by the magistrate from certain persons. The jurisdiction of the magistrate to take cognisance under Clauses (b) and (c) above is much wider than under Clause (a). Facts constituting the alleged offence must be stated in the petition of complaint. Although all the facts necessary to constitute the offence charged need not be specifically stated for attracting Clause (a) of Sub-section (2) of Section 190, there must be facts stated which attract the jurisdiction of the court to take cognisance of the offence.

The formality which the magistrate has to follow on receipt of a complaint is as provided in ch. XVI of the Code of Criminal Procedure. It is most desirable that the magistrate should follow the procedure as is clearly laid down in this chapter. Balai Lal Mukerjee v. Pasupati Chatterjee (1916) 21 C.W.N. 127. In Section 200 of the Code the circumstances under which the complainant is required to be examined by the magistrate is provided for. When the complaint is before a Presidency Magistrate, the rigidity of the rule is relaxed to a certain extent. Sections 202 and 203 of the Code of Criminal Procedure provide as follows:

(1) Any 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, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and either inquire into the case himself or, if he is a magistrate other than a magistrate of the third class, 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, for the purpose of ascertaining the truth or falsehood of the complaint:

Provided that, save where the complaint has been made by a court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200.

(2) If any inquiry or investigation under this section is made by a person not being a magistrate or a police-officer, such person shall exercise all the powers conferred by this Code on an officer in charge of a police-station, except that he shall not have power to arrest without warrant.

(2A) Any magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath.

(3) This section applies also to the police in the towns of Calcutta and Bombay.

The 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 (if any) of the complainant and the result of the investigation or inquiry (if any) u/s 202, there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing.

It is incontestable that a very wide discretion is given under the Code to a magistrate as to how a complaint is to be dealt with by him. It must be stated that, in the interest of the community, it is essential that a magistrate should be vested with an ample discretion with regard to the issue of process. At the same time, because of the procedure followed under this Code in India where the system of Grand Jury as in England does not exist, that discretion is to be exercised in such a manner that an innocent person may get protection at the initial stage, if and when unfounded complaints are filed before the magistrate,. It is necessary that caution and discretion should be used in issuing a process to answer a charge merely because a complaint had been alleged , against him. The very wide discretion given to the magistrate is, therefore, not wholly unfettered. We may here usefully refer to the words of caution used by Halsbury L.C. as to how a magistrate should exercise his discretion as given to him. Sharp v. Wakefield (1891) A.C. 173, 179.

An extensive power is confined to the justices in their capacity as justices to be exercised judicially; and "discretion" means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion; Rooke''s, Case (1598) 5 Company Rep. 99b, 100a : 77 E.R. 209, 210; according to law and not humour, It is to be, not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself : Wilson v. Rastall (1792) 4 T.R. 753, 757 : 100 E.R. 1283.

See also Subal Chandra Namadas v. Ahadulla Sheikh ILR (1926) 53 Cal. 606.

All that the magistrate has to satisfy himself, at this initial stage, is not whether the proceedings will result in conviction but whether a prima facie case has been made out and for that purpose the petition of complaint has to be scrutinised. It cannot be predicated that in every case where the complainant refers, amongst other things, to certain matters about which he had no first-hand knowledge, the petition of complaint is not to be entertained. When a complainant has no personal knowledge of the facts alleged in the petition of complaint, the magistrate should not, on that ground alone, dismiss it in limine but should allow the complainant, if he is so ready, to bring forward evidence to prove the facts. It will be for the magistrate thereafter to exercise his judicial discretion in the matter. In re. Kankuchand (1893) Ratanlal''s Unreported Criminal Cases 669.

In the case now before us, the magistrate does not appear to have properly applied his mind to the nature and character of allegations made in the petition of complaint and seems to have proceeded as a matter of course. Each one of the facts which may substantiate a charge u/s 380, Indian Penal Code, is stated in the petition as not being within the personal knowledge of the complainant but obtained from others long after the occurrence. In such a case, only an examination of the complainant would be of no assistance for deciding whether a prima facie case has been made justifying a process to issue to answer such a charge. The magistrate should have, in the circumstances of this case, asked the complainant either to bring forward the witness mentioned by him in the petition of complaint or to direct enquiry in the matter No materials had been placed before him on the basis of which he might exercise the discretion properly and judicially.

The entire proceedings have been vitiated because of the magistrate not dealing with the petition of complaint as he ought to have done.

This Rule is accordingly made absolute and the proceedings pending before the magistrate are quashed. This order will not however, debar the complainant from initiating fresh proceedings as he may be advised, on the allegations originally made by him in the present petition of complaint, to be dealt with according to law.

We may also indicate that the order by the magistrate refusing the prayer of Petitioner No. 1 for being exempted from personal appearance cannot be supported. Neither the cryptic order non the subsequent explanation sent to this Court by the magistrate furnish any reason why a lady over 70 years of age, who had been staying at Puri for months before the alleged occurrence and who was further certified by a medical man not to be in a fit physical condition to undertake the journey to Calcutta, was required by the magistrate to appear personally in his court. In this matter, also, the magistrate did not exercise his discretion properly u/s 205 of the Code of Criminal Procedure. The provisions of this section are to be ordinarily exercised liberally in the case of Indian ladies as there is still a great prejudice in this country against appearance of females in courts and public places. In view of the order that the pending proceedings are quashed, no separate direction is necessary on this point.

Guha, J.

I agree.