Chandra Deo Singh Vs. Prokash Chandra
Bose & ANR  INSC 8 (22 January 1963)
22/01/1963 MUDHOLKAR, J.R.
IMAM, SYED JAFFER SUBBARAO, K.
CITATION: 1963 AIR 1430 1964 SCR (1) 639
F 1971 SC1389 (11) R 1972 SC2639 (22) R 1976
SC1947 (3) R 1977 SC2018 (5) RF 1978 SC1568 (6) R 1983 SC 595 (8) RF 1986
Criminal Law-Proceeding under s. 202 Criminal
Procedure Code-Revision petition by respondent No. 1 and the other
persons-Whether respondent No. 1 has locus standi to contest criminal case
before issue of process-Procedural defectPowers of Magistrate in committal
proceedings and in considering evidence-Recording of reasons-Code of Criminal
Procedure, 1898 (Act 5 of 1898), ss. 202, 203.
A first information report was filed stating
that the respondent No.1 and some others committed murder. Thereafter a person
claiming to be a relative of the deceased filed a complaint alleging that the
first information report was false and that certain persons other than those
stated in the first information report had committed the murder.
It was prayed that process be issued against
The Sub-Divisional Magistrate before whom
this complaint was filed directed the First Class Magistrate to inquire into
the allegation and to make a report. Subsequently the nephew of the deceased
filed a complaint alleging that respondent No.1 had committed the murder. The
SubDivisional Magistrate directed the First Class Magistrate to enquire into this
complaint also and to report. During the enquiry apart from the witness
produced 640 by the complainant, respondent No.1 was allowed to be represented
by a counsel and two persons who had been named in the first information report
along with respondent No. 1 were examined as court witnesses. The First Class
Magistrate after conducting inquiry under s. 203 Criminal Procedure Code, 1898,
made a report stating that a prima facie case had been made out against the
persons mentioned in the first complaint. He made another report on the second
complaint stating that no prima facie case had been made against respondent No.
1. Sub-Divisional Magistrate directed the initiation of committal proceedings
against the persons mentioned in the first complaint. On a revision application
filed by the complainant in the second complaint the Sessions judge directed
the Sub-Divisional Magistrate to conduct further inquiry against respondent No.
1 who took the matter in revision to the High Court. The three-.
persons against whom committal proceedings
were ordered also filed revision application before the High Court. Both the
petitions were heard together. The revision applications by respondent No. 1
and one of the three others were allowed.
The present appeal is under a certificate
granted under Art.
134 (1) (c) of the Constitution of India.
The main contentions of the appellant before
this Court were (1) the respondent No. 1 had no locus standi to appear and
contest a criminal case before the issue of process (2) the test applied by the
High Court for determining the question of issue of process was erroneous (3)
the Magistrate making an inquiry under s. 202 Criminal Procedure Code had no
jurisdiction to weigh the evidence as if it were a trial (4) the Sub.
Divisional Magistrate ought to have given his reasons under s. 203 Criminal
Procedure Code for dismissing the complaint.
Held, that an accused person does not come
into the picture at all till process is issued. Even though he may be allowed
to be represented by counsel he has no right to take part in the proceedings
nor has the Magistrate jurisdiction to permit him to do so. The Magistrate
cannot put questions at the instance of a, person named as accused but against
whom no process has been issued nor can he examine any witnesses at the
instance of that person. The inquiry made by the Magistrate was therefore
Vadilal Panchal v. Dattatrya Dulaji
Ghadigsonkar,  1 S. C. R. 1, referred to.
For determining the question whether process
is to be issued or not the test to be applied is whether there is
"sufficient 641 ground for proceedings" and not whether there is
sufficient ground for conviction.
Parmand Brahmchari v. Emperor, A. I. R. 1930
Pat. 30 Radha Kishun Sao v. S. K. Misra, A. I. R. 1949 Pat. 36, Ramkisto Sahu
v. State of Bihar, A. I. R. 1952 Pat. 125, Emperor v. J. A. Finan, A. 1. R.
1931 Bom. 524 and Baidya Nath Singh v. Muspratt, (1886) 1. L. R. 14 Cal. 141
While acting under s. 202 Criminal Procedure
Code it is not open to the Magistrate to consider the statements recorded by
the police during investigation or to consider the evidence adduced before him
in another complaint. What the Magistrate could not do the High Court also was
incompetent to do.
Where there is a prima facie case even though
much can be said on both sides, a committing Magistrate is bound to commit the
accused for trial.
Ramgopal Ganpatrai Ruia v. State of Bombay,
 S. C. R. 618, referred to.
When a Magistrate dismisses a complaint
because there are no sufficient grounds for proceeding with the trial he shall
record his reasons for doing so.
Willie (Williams) Slaney v. State of Madhya
Pradesh,  2 S. C. R. 1140, considered.
There is nothing which prevents the
undertaking of an inquiry against one person when an inquiry is pending against
different persons with reference to the same offence.
CRIMINAL APPELLATE JURISDICTION Criminal
Appeal No. 155 of 1960.
Appeal from the judgment and order dated
January 27, 1960, of the Calcutta High Court in Criminal Revision No. 620 of
Sukumar Ghose, for the appellant.
Jai Gopal Sethi, C. L. Sareen and Y.. Kumar,
for respondent No. 1.
642 1963.January 22. The judgment of the
Court was delivered by MUDHOLKAR, I.-This is an appeal by certificate granted
by the High Court of Calcutta under Art. 134 (1) (c) of the Constitution of
India. The facts which are relevant for the purpose of this appeal are briefly
On December 25, 1957, one Panchanan Roy
lodged a first information report at I 1.00 p. in. at the police station,
Bhangor in the. district of 24 Parganas alleging that respondent No. 1 (Prokash
Chandra Bose) who is the proprietor of a fishery had killed a man named
Nageswar Singh who was a darwan posted at the informant's master's fishery by
shooting him with a gun. After the occurrence, the assailants's party was
chased.. but the principal culprit namely respondent No. 1 made good his escape
in his own car. Two of his associates, Pannalal Saha and Sankar Ghosh, were
arrested by the local people and produced in the police station. On the basis
of the first information report, the police undertook investigation, but
ultimately they submitted a final report as late as on September 17, 1958.
On November 3, 1958, one Mahendra Singh who
claimed to be a distant relative of the deceased darwan, but which fact is
denied by the widow of the deceased filed a complaint before Mr. C. L.
Choudhry, the Sub-Divisional Magistrate of 24 Parganas Alipore, against the
final report of the police and asked for processes to be issued against certain
other persons on the allegation that those persons had murdered Nageswar Singh.
The complaint further contained a statement to the effect that the first
information report lodged by Panchanan Roy with the police on December 25, 1957,
was false and that he had done so at the instance of his Master Bidhu Bhusan
Sarkar who was an enemy of respondent No. 1.
After examining Mahendra Singh on 643 oath
and looking into the police papers, the learned SubDivisional Magistrate asked
Mr. N. M. Chowdhry, Magistrate, First Class, to hold a judicial enquiry into
the allegations made by Mahendra Singh and to submit a report to him by a
During the pendency of the enquiry into the
complaint of Mahendra Singh, Chandra Deo Singh, the nephew of the deceased
filed a complaint before Mr. Chowdhry on December 30, 1958 stating therein that
respondent No. 1 had fired a shot at Nageswar Singh at point blank range and
thereby murdered him. After examining him on oath, the SubDivisional Magistrate
referred the matter again to Mr. N. M. Chaudhry Magistrate, First Class, for
enquiry and report to him by a certain date. During this enquiry, respondent
1 was permitted by the learned Magistrate to
appear through counsel. -Seven witnesses were produced by the complainant
Chandra Deo Singh and examined by the learned Magistrate.
In addition, Pannalal Saha and Sankar Ghose
who, it might be remembered, are alleged to have been the associates of
respondent No. 1, were examined as court witnesses and the suggestion is that
the learned Magistrate did this at the instance of the counsel for respondent
On February 9, 1959, Mr. N. M. Choudhry made
a report to the Sub-Divisional Magistrate to the effect that a prima facie case
has been made out against three persons, Upendra Neogi, Asim Mondal and Arun
Mondal under s. 302/34 of the Indian Penal Code. On the same day, he made
another report to the Sub-Divisional Magistrate saying that no prima facie case
was made out against respondent No. 1. On the basis of the first report, the
SubDivisional Magistrate directed summonses to be issued against the three
persons named in that report and commenced committal proceedings against them.
644 The Sub-Divisional Magistrate on seeing
the second report dismissed the complaint of Chandra Deo Singh without
assigning any reason. Chandra Deo Singh preferred an application for revision
before the Sessions judge, Alipore, who, after issuing notice to respondent No.
1 and hearing his counsel, directed the Sub-Divisional Magistrate to make
further enquiry against him. Thereupon respondent No. 1 preferred a revision
application before the High Court, which came up for hearing before a single
judge of that court. It would appear that the three persons against whom summonses
were ordered to issue by the Sub-Divisional Magistrate also preferred a
revision application before the High Court. Both the revision applications were
heard together. The learned judge granted the application of respondent No.1 as
well as that of Upendra Neogy. 'We are informed by learned counsel for
respondent No.1 that eventually two of the three persons against whom summonses
were ordered to be issued by the Sub-Divisional Magistrate were committed for
trial before the Court of Sessions. But he was unable to say definitely whether
they were actually tried and if so, what the result of the trial was.
Aggrieved by the order of the learned single
judge, the appellant Chandra Deo Singh made an application under Art.
134 of the Constitution for the grant of a
certificate of fitness for appeal to this court which as already stated, was
granted by the High Court. The certificate was sought by the appellant on four
grounds. The first ground was that respondent No. 1 had no locus standi to
appear and contest a criminal case before the issue of process. The second
ground was that the test propounded by the learned single judge for determining
the question whether any process should be issued by the court was erroneous.
The third ground was that a Magistrate making an enquiry under s. 202 of the
Code of Criminal Procedure had no jurisdiction "to 645 weigh the evidence
in golden scales" as was done in the present case. The fourth and last
ground was that the learned Sub-Divisional Magistrate acted in contravention of
the provisions of s. 203 Cr. P. C. in dismissing the complaint without
recording any reason for doing so. The High Court granted the certificate on
all the grounds except the first. It has been held by this court that the -High
Court cannot limit its certificate in this manner and, therefore, we propose to
examine all the four grounds taken by the appellant.
Taking the first ground, it seems to us clear
from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an
accused person does not come into the picture at all till process is issued.
This does not mean that he is precluded from being present when an enquiry is
held by a Magistrate. He may remain present either in person or through a counselor
agent with a view to be informed of what is going on But since the very
question for consideration being whether he should be called upon to face an
accusation, he has no right to take part in the proceedings nor has the
Magistrate any jurisdiction to permit him to do so. It would follow from this,
therefore, that it would not be open to the Magistrate to put any question to
witnesses at the instance of the person named as accused but against whom
process has not been issued ; nor can he examine any witnesses at the instance
of such a person. of course, the Magistrate himself is free to put such
questions to the witnesses produced before him by the complainant as he may
think proper in the interests of justice. But beyond that, he cannot go. It
was, however, contended by Mr. Sethi for respondent No. 1 that the very object
of the provisions of Ch. XVI of the' Code of Criminal Procedure is to prevent
an accused person from being harassed by a frivolous complaint and, therefore,
power is given to a Magistrate before whom complaint is made to 646 postpone
the issue of summons to the accused person pending the result of an enquiry
made either by himself or by a Magistrate subordinate to him. A privilege
conferred by these provisions can, according to Mr. Sethi, be waived by the
accused person and he can take part in the proceedings.
No doubt, one of the objects, behind the
provisions of s. 202, Cr.P.C. is to enable the Magistrate to scrutinise
carefully the allegations made in the complaint with a view to prevent a person
named therein as accused from being called upon to face an obviously frivolous
complaint. But there is also another object behind this provision and it is to
find out what material there is to support the allegations made in the
complaint. It is the bounden duty of the Magistrate while making an enquiry to
elicit all facts not merely with a view to protect the interests of an absent
accused person, but also with a view to bring to book a person or persons
against whom grave allegations are made.
Whether the complaint is frivolous or not
has, at that stage, necessarily to be determined on the basis of the material
placed before him by the complainant. Whatever defence the accused may have can
only be enquired into at the trial. An enquiry under s. 202 can in no sense be
characterised as a trial for the simple reason that in law there can be but one
trial for an offence. Permitting an accused person to intervene during the
enquiry would frustrate its very object and that is why the legislature has
made no specific provision permitting an accused person to take part in an
enquiry. It is true that there is no direct evidence in the case before us that
the two persons who were examined as court witnesses were so examined at the
instance of respondent No. 1 but from the fact that they were persons who were
alleged to have been the -associates of respondent No. 1 in the first
information report lodged by Panchanan Roy and who were alleged to have been
arrested on the spot by some of the local people, they would not have been
summoned by the Magistrate 647 unless suggestion to that effect had been made
by counsel appearing for respondent No. 1. This inference is irresistible and
we hold that on this ground, the enquiry made by the enquiring Magistrate is
vitiated. In this connection; the' observations of this court in Vadilal
Panchal v. Dattatraya Dulaji Ghadigsonkar (1), may usefully be quoted "The
enquiry is for the purpose of ascertaining the truth or falsehood of the
complaint that is, for ascertaining whether there is evidence in support of the
complaint so as to justify the issue of process and commencement of proceedings
against the person concerned.
The section does not say that a regular trial
for adjudging the guilt or otherwise of the person complained against should
take place at that stage for the person complained against can be legally
called upon to answer the 'accusation made against him only when a process has
issued and he is put on trial." Coming to the second ground, we have no
hesitation in holding that the test propounded by the learned single judge of
the High Court is wholly wrong. For determining the question whether any
process is to be issued or not, what the Magistrate has to be satisfied is
whether there is "sufficient ground for proceeding" and not whether
there is sufficient ground for the conviction. Whether the evidence is adequate
for supporting the conviction can be determined only at the trial and not at
the stage of enquiry. A number of decisions were cited at the bar in which the
question of the scope of the enquiry under s. 202 has been considered.
Amongst those decisions are : Parmanand
Brahmachari v. Emperor (2); Radha Kishun Sao v. S. K. Misra (3); Ramkisto Sahu
v. The State of Bihar(4) ; Emperor v. J. A. Finan(5) and Baidya Nath Singh v.
Muspratt(6). In all these cases, it has been held that the object (1)  1
S.C.R. 1, 9.
(3) A.I.R. (1949) Pat. 36.
(5) A.I.R. (1931) Bom. 524.
(2) A.I.R. (1930) Pat. 30.
(4) A I.R. (1952) Pat. 125.
(6) (1886) I.L.R. 14 Cal. 141.
648 of the provisions of s. 202 is to enable
the Magistrate to form an opinion as to whether process should be issued or not
and to remove from his mind any hesitation that be may have felt upon the mere
perusal of the complaint and the consideration of the complainant's evidence on
oath. The courts have also pointed out in these cases that what the Magistrate
has to see is whether +,here is evidence in support of the allegations, of the
complainant and not whether the evidence is sufficient to warrant a conviction.
The learned judges in some of these cases
have been at pains to observe that an enquiry under s. 202 is not to be likened
to a trial which can only take place after process is issued, and that there
can be only one trial. No doubt, as stated in sub-s. (1) of s. 202 itself, the
object of the enquiry is to ascertain the truth or falsehood of the complaint,
but the Magistrate making the enquiry has to do this only with reference to the
intrinsic quality, of the statements made before him at the enquiry which would
naturally mean the complaint itself, the statement on oath made by the
complainant and the statements made before him by persons examined at the
instance of the complainant.
This brings us to the third ground. Section
203 of the Code of Criminal Procedure which empowers a, Magistrate to dismiss a
complaint reads thus :
" 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
witnesses and, the result of the investigation or inquiry, if any, under s.
202, there is in his judgment no sufficient ground for proceeding. In such case
he shall briefly record his reasons for so doing." The power to dismiss a
complaint rest% only with a Magistrate who has taken cognisance of it.
649 If before issue of process, he had sent
down the complaint to a Magistrate subordinate to him for making the enquiry,
he has the power to dismiss the complaint, if in his judgment, there is no
sufficient ground for proceeding. One of the conditions, however, requisite for
doing so is the consideration of the statements on oath if any made by the
complainant and the witnesses and of the result of the investigation of the
enquiry which he had ordered to be made under s. 202, Cr.P.C. In the case
before us, an investigation by a police officer was not ordered by the learned
Sub-Divisional Magistrate, but an enquiry by a Magistrate, First Class. He had,
therefore, to consider the result of this enquiry. It was not open to him to
consider in this connection the statements recorded during investigation by the
police on the basis of the first information report lodged by Panchanan Roy or
on the basis of any evidence adduced before him during the enquiry arising out
of the complaint made by Mahendra Singh. All these were matters extraneous to
the proceedings before him.
of course, as we have already stated, the
learned Magistrate has not given any reasons for dismissing the complaint and,
therefore, we do not know what exactly weighed with him when he dismissed the
complaint, but the learned single judge of the High Court who has dealt with
the case elaborately has not kept the evidence adduced in the two complaints
separate but appears to have been influenced in deciding one case on the basis
of what was stated by the witnesses in the other case. The High Court has
relied upon the evidence of Pannalal Saha and Sankar Ghose who ought never to
have been examined by the enquiring Magistrate. The High Court has further
relied upon the investigation made by the police in the complaint of Panchanan
Roy. All this Will be clear from the following passage in its judgment :
"The version of these two witnesses
(Pannalal 650 Saha and Sankar Ghose) is supported by the fact that the police
when they went to the locality found a dead bird and a pair of shoes and a pair
of black half pants in wet condition. This find of the dead bird and the pair
of shoes etc. has not explained on the version given by Panchanan Roy, Upendra
Mondal and Tarapado Naru. Mr. Ajit Kumar Dutt stated that the inquiring
Magistrate was not right in examining Pannalal Saha and Shankar Ghose at the
suggestion of an advocate for the accused Chabbi Bose and that the latter
should not have been allowed at the inquiry. When however there had already
been 'a full investigation into the case by the officers under the supervision
of the' Superintendent of Police, it was desirable and proper for the inquiring
magistrate to make a careful inquiry and not merely an one sided inquiry by examining
such witnesses as might be produced by an interested party. Moreover, in this
case, the learned magistrate was inquiring into both the complaints
simultaneously and necessarily be could look at the evidence as a whole. In
fact, two separate cases ought not to have been started at all, even though
there were two separate complaints giving two different versions. These
complaints were more or less Naraji petitions against the final report
submitted by the police. There was only one incident in the course of which
Nageswar Singh has lost his life. Therefore on the basis of the two Naraji
petitions it would have been proper to hold one inquiry rather than two
separate though simultaneous inquiries." What the Magistrate could not do,
the High Court was incompetent to do, and, therefore, its order reversing that
of the Sessions judge cannot be sustained.
651 Reliance is however, placed by Mr. Sethi
on the decision of this court in Vadilal's case (1), at p. 10 of the report.
What was considered there by this court was
whether as a matter of law, it was not open to a Magistrate to accept the plea
of the right of private defence at a state when all that he had to determine
was whether process is to issue or not. The learned judges held that it is
competent to a Magistrate to consider such a plea and observed "If the
Magistrate has not misdirected himself as to the scope of an enquiry tinder s.
202 and has applied his mind judicially to the materials before him, we think
that it would be erroneous in law to hold that a plea based on an exception can
never be accepted by him in arriving at his judgment. What bearing such a plea
has on the case of the complainant and his witnesses, to what extent they are
falsified by the evidence of other witnesses,all these are questions which must
be answered with reference to the facts of each case. No universal rule can be
laid in respect of such questions." On the basis of these observations it
was urged that this court has held that a Magistrate has the power to weight
the evidence adduced at the enquiry. As we read the decision, it does not lay
down an inflexible rule but seems to hold that while considering the evidence
tendered at the enquiry it is open to the Magistrate to consider whether the
accused could have acted in self-defence. Fortunately, no such question arises
for consideration in this case but we may point out that since the object of an
enquiry under s. 202 is to ascertain whether the allegations made in the
complaint are intrinsically true, the Magistrate acting under s. 203 has to
satisfy himself that there is sufficient ground for proceeding. In order -to
come to this conclusion, he is entitled to (1) (1961) 1 S.C.R. 1, 9. 652
consider the evidence taken by him or recorded in an enquiry under s. 202, or
statements made in an investigation under that section, as the case may be. He
is not entitled to rely upon any material besides this. By "evidence of
other witnesses" the learned judges had apparently in mind the statements
of persons examined by the police during investigation under s. 202. It is
permissible under s. 203 of the Code to consider such evidence along with the
statements of the complainant recorded by the Magistrate and decide whether to
issue process or dismiss the complaint.
The investigation in that case was made by
the police under s. 202, Cr. P.C. at the instance of the Presidency Magistrate.
Apparently, the statement of the various witnesses questioned by the police
That being the case, it was open to the Presidency
Magistrate to consider which of them to accept and which to reject. The
enquiring Magistrate has not stated nor has the High Court found in the case
before us that the evidence adduced on behalf of the complainant and his own
evidence were self-contradictory and, therefore, it could not be said that
there was anything intrinsically false in the allegations made in the
complaint, Learned counsel for the appellant referred us to the decision of
this court in Ramgopal Ganpatrai Ruia v. The State of Bombay (1). In that case,
after quoting a passage from Halsbury's Laws of England, Vol. 10, 3rd Edn. in
art. 666 at p. 365 where the law regarding commitment for trial has been
stated, this court has observed :
"In each case; therefore the magistrate
holding the preliminary inquiry has to be satisfied that a prima facie case is
made out against the accused by the evidence of witnesses entitled to a
reasonable degree of credit, and unless he is so satisfied, he is not to
commit, Applying the aforesaid test to the present case, can it be said that
there is no evidence to make out (1)  S.C.R. 618,638, 653 prima facie
case, or that the voluminous evidence adduced in this case is so incredibly
that no reasonable body of persons could rely upon it ? As already indicated,
in this, case, there is a large volume of documentary evidence-the latter being
wholly books and registers and other documents kept or is used by the Mills
themselves, which may lend themselves to the inference that the accused are
guilty or to the contrary conclusion. The High Court has taken pains to point
out that this is one of those cases where much can be said on both sides. It
will be for the jury to decide which of the two conflicting versions will find
acceptance at their hands.
This was pre-eminently a case which should
have been committed to the Court of Sessions for trial, and it is a little
surprising that the learned Presidency Magistrate allowed himself to be
convinced to the contrary.
Thus, Where there is a prima facie case, even
though much can be said on both sides, a committing Magistrate is bound to
commit an accused for trial. All the greater reason, therefore, that where
there is prima facie evidence, even though an accused may have a defence like
that in the present case that the offence is committed by some other person, or
persons the matter has to be left to be decided by the appropriate forum at the
appropriate stage and issue of process cannot be refused. Incidentally, we may
point out that the offence with which respondent No. 1 has been charged with is
one triable by jury. The High Court, by dealing with the evidence in the way in
which it has done, has in effect sanctioned the usurpation by the Magistrate of
the functions of a jury which the Magistrate was wholly incompetent to do.
In view of what we have stated above, it is
not necessary to say very much about the last ground.
654 Section 203 of the Code of Criminal
Procedure provides that where the Magistrate dismisses a complaint because in
his judgment there 'is no sufficient ground for proceeding with the trial, he
shall record his reasons for doing so. Here, as already stated, the Magistrate
perused the report of the enquiring Magistrate and then proceeded to dismiss
the complaint. It is stated on behalf of respondent No. 1 that this is at best
an error in his order and, therefore, it is curable under s. 537(a) of the Code
of Criminal Procedure.
In support of this view, reliance is placed
upon the decision of this court in Willie (William) Slaney v. The State of
Madhya Pradesh (1). Here, the error is of a kind which goes to the root of the
matter. It is possible to say that giving of reasons is a pre-requisite for
making an order of dismissal of a complaint and absence of the reasons would
make the order a nullity. Even assuming, however, that the rule laid down in
Slaney's case (1), applies to such a case, prejudice is writ large on the'
'face of the corder'. The complainant is entitled to know why his complaint has
been dismissed with a view to consider an approach to a revisional court. Being
kept in ignorance of the reasons clearly prejudices his right to move the
revisiona1 court and where he, takes a matter to the revisional court renders
his task before that court difficult, particularly in view of the limited scope
of the provisions of s. 438 and 439, Code of Criminal Procedure.
For all these reasons, we hold that the High
Court was in error in setting aside the order of the Sessions Court and direct
that further enquiry be made into the complaint of the appellant against
respondent No. 1.
Mr. Sethi, however, contends that since there
is only one offence i. e., the murder of Nageswar Singh, there can be only one
trial and since other persons are being tried for that offence, there could be
no further enquiry. As there was no material on record we could not know what
happened to the, (1)  2 S.C.R. 1140, 655 enquiry against Asim Mondal and
Arun Mondal after the dismissal of their application for revision by the High
Court. We, therefore, called for a report from the SubDivisional Magistrate, 24
Parganas. That report has been received. It would appear from that report that
on March 22, 1961, the High Court directed that the commitment proceedings
against these two persons be stayed pending the disposal of the present appeal
by this court. We cannot appreciate the argument that an enquiry against a
different person with reference to the same offence cannot be undertaken. It
will be open to the court before which commitment proceedings against Asim Mondal
and Arun Mondal are pending to consider whether they should be stayed pending
the result of the enquiry with reference to the respondent before us, but there
can be no legal impediment to the enquiry against the respondent.
Further enquiry directed.