Pramatha Nath Mukherjee Vs. The State of
West Bengal [1960] INSC 44 (11 March 1960)
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1960 AIR 810 1960 SCR (3) 245
ACT:
Criminal Tyial-Accused discharged-of offence
triable as Warrant case-If can be tried for any other triable as summons case
on facts disclosed in the Police Report- Cognizance by Magistrate-Code of
Criminal Procedure (V of 1898), SS. 251A(2), 190(1)(b).
HEADNOTE:
A Criminal case was instituted in the court
of a Magistrate at Calcutta against the appellant under s. 332 of the Indian
Penal Code for voluntarily causing hurt to the Bailiff of Calcutta Corporation
and another. After hearing both sides the Magistrate was of the opinion that
the charge under s.
332 could not be sustained but as there was
evidence to establish a Prima facie case under s. 323 of the Indian Penal Code,
he charged the appellant under that section.
The appellant pleaded not guilty and (1)
[1955] 1 S.C.R. 991.
32 246 claimed to be tried and submitted that
in view of the provisions Of S. 251A(2) of the Criminal Procedure Code, he
should have been acquitted and the trial for the offence under s. 323 Indian
Penal Code, could not be proceeded with.
The Magistrate rejected the contention and
convicted the appellant.
On the question whether a magistrate after
making an order of discharge under S. 251A(2) of the Criminal Procedure Code in
respect of a charge of an offence triable as a warrant case can still proceed
to try the accused for another offence, which would be made out from the police
report:
Held, that an order of discharge made by the
Magistrate in exercise of the powers under sub-s. (2) Of S. 251A, does not mean
the discharge of the accused in respect of all the offences, which the facts
mentioned in the police report would make out. The order of discharge being
only in respect of the offences triable under Chapter XXI does not affect in
any way the position that charges of offences triable under Chapter XX also are
contained in the police report. In the instant case even after the order of
discharge was made in respect of the offence under s. 332 Of the Indian Penal
Code, the minor offence under S. 323 of which the Magistrate bad also taken
cognizance remained for trial as there was no indication to the contrary. That
being an offence triable under Chapter XX of the Code of Criminal procedure the
Magistrate rightly followed the procedure under Chapter XX.
When a Magistrate takes cognizance under s.
190(1)(b) of the Criminal Procedure Code, he takes cognizance of all offences,
constituted by the facts reported by the Police Officer and not of some only
out of those offences.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 116 of 1958.
Appeal from the judgment and order dated
February 28,1957, of the Calcutta High Court in Criminal Revision No. 1158 of
1956, arising out of the judgment and order dated June 26, 1956, of the
Additional Chief Presidency Magistrate, Calcutta, in G. R. Case No. 284 of
1956.
K. R. Chaudhury, for the appellant.
B. Sen, P. K. Ghose for P. IC Bose, for the
respondent.
1960. March 1 1. The Judgment of the Court
was delivered by DAS GUPTA, J.-The question raised in this appeal is whether a
Magistrate after making an order of discharge under s.
251A(2), Cr. P. C., in respect of a charge
for an offence triable as a warrant case can still proceed to try the accused
for another offence disclosed by the police report and triable as a summons
case.
247 The case against the appellant was
instituted on a police report which charged him with an offence under s. 332 of
the I.P.C. for " voluntarily causing hurt by means of a piece of wood to
the complainant, Sisir Kumar Bose, Bailiff of Calcutta Corporation and Chandra
Sekhar Bhattacharjee, an employee of Calcutta Corporation with the intent to
prevent or deter those persons from discharging their duties as public
servants." The Magistrate after satisfying himself that the documents
referred to in s. 173 Cr. P. C. had been furnished to the accused examined the
documents and was of opinion after hearing counsel of both parties that the
charge under s. 332 I.P.C. could not be sustained. He was however of opinion
that there was evidence to establish a prima facie case under s. 323 I.P.C. He
accordingly charged the accused under s. 323 I.P.C. examined him and when he
pleaded not guilty and claimed to be tried posted the case for the examination
of prosecution witnesses. On the next hearing date a submission was made on
behalf of the accused that in view of the provisions of s. 251(2) Cr. P. C. the
accused should have been acquitted altogether and no trial for the offence
under s. 323 I.P.C. could be proceeded with.
The Magistrate rejected this contention and
directed that the trial of the accused for an offence under s. 323 I.P.C. would
proceed under Chapter XX. That procedure was followed and ultimately the
accused was convicted under s. 323 I.P.C.
and sentenced to pay a fine of rupees fifty
only and in default to undergo rigorous imprisonment for one month. The
appellant's application under s. 439 Cr. P.C. for revision of this order was
rejected by the High Court. The learned Judge was of opinion that " if the
Magistrate finds on the materials before him that a summons case offence has
been committed by the accused, he has, the right and duty to proceed in
accordance with the provisions of Chapter XX of the Cr. P.C. The word "
discharge " used in sub-s. (2) of s. 251A Cr. P.C. must be read as having
reference to a discharge in relation to the specific offence upon which the accused
has been charge-sheeted. It does not necessarily mean that the accused cannot
be proceeded against for some other.
248 offence, say a summons case offence,
under Chapter XX Cr.
P.C." in spite of the discharge under s.
251A(2). The present appeal is filed on the strength of a certificate granted
by the High Court under Art. 134(1)(c) of the Constitution.
The relevant provisions of ss. 251 and 251A
of the Code of Criminal Procedure are in these words:
" S. 251 :-In the trial of warrant-cases
by Magistrates, the Magistrates shall:- (a)in any case instituted on a
police-report, follow the procedure specified in s. 251A; and (b)in any other
case, follow the procedure specified in the other provisions of this Chapter.
S. 251 A.
(1)...............................................
(2) If, upon consideration of all the
documents referred to in s. 173 and making such examination, if any, of the
accused as the Magistrate thinks necessary and after giving the prosecution and
the accused an opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge him.
(3)If, upon such documents being considered,
such examination' if any, being made and the prosecution and the accused being
given an opportunity of being heard, the Magistrate is of opinion that there is
ground for presuming that the accused has committed an offence triable under
this Chapter, which such Magistrate is competent to try, and which, in his
opinion, could be adequately punished by him, he shall frame in writing a
charge against the accused." It is quite clear that, in deciding whether
action shall be taken by him under sub-s. (2) or sub-s. (3) of s. 251A the
Magistrate has to form an opinion whether there is any ground for presuming
that an accused has committed an offence triable under Chapter XXI or there is
no such ground. When his opinion is that there is ground for a presumption that
the accused has committed an offence punishable under Chapter XXI Which the
Magistrate is competent to try and which could be adequately punished by him he
shall proceed with the trial. But when he forms the opinion that there is no
ground for presuming that an offence 249 punishable under Chapter XXI has been
committed by the accused his duty is to discharge the accused. The real
question is, when an order of discharge is made by the Magistrate in exercise
of the powers under sub-s. (2) of s. 251A is the discharge in respect of all
the offences which the facts mentioned in the police report would make out ?
The answer must be in the negative. When the Magistrate makes an order under s.
251A(2) he does so as, after having considered whether the charge made in the
police report of the offences triable under Chapter XXI is groundless he is of
opinion that the charge in respect of such offence is groundless; but the order
of discharge has reference only/to such offences mentioned in the charge-sheet
as are triable under Chapter XXI. It very often happens that the facts
mentioned in the charge-sheet constitute one or more offences triable under
Chapter XXI as warrant cases and also one or more other offences triable under
Chapter XX. The order of discharge being only in respect of the offences
triable under Chapter XXI does not affect in any way the position that charges
of offences triable under Chapter XX also are contained in the police report.
But, says the learned counsel for the
appellant, the Magistrate cannot proceed- with the' trial of these other
offences friable under Chapter XX because no cognizance has been taken of such
other offences. He contends that only after a fresh complaint has been made in
respect of these offences triable under Chapter XX that the Magistrate can take
cognizance and then proceed to try them after following the procedure
prescribed by law, This argument ignores the fact that when a Magistrate takes
cognizance of offences under s. 190(1)(b) Cr. P.C., he takes cognizance of all
offences constituted by the facts reported by the police officer and not only
of some of such offences. For example, if the facts mentioned in the police
report constitute an offence under s. 379 I.P.C. as also one under s. 426
I.P.C.
the Magistrate can take cognizance not only
of the offence, under s. 379 but also of the offence under s. 426. In the
present case the police report stated facts which constituted an offence under
s. 332 I.P.C. but these facts necessarily constitute also a minor offence under
s. 323 I.P.C. The Magistrate when he took cognizance under s. 190(1)(b) Cr.
P.C. of the offence under s. 332 I.P.C. cannot but have taken cognizance also
of the minor offence under s. 323 I.P.C. Consequently, even after the order of
discharge was made in respect of the offence under s. 332 I.P.C. the minor
offence under s. 323 of which he had also taken cognizance remained for trial
as there was no indication to the contrary. That being an offence triable under
Chapter XX Cr. C.P. the Magistrate rightly followed the procedure under Chapter
XX.
The appeal is accordingly dismissed.
Appeal dismissed.
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