Rajindra Nath Mahato Vs. T. Ganguly,
Dy. Superintendent & ANR  INSC 330 (2 December 1971)
CITATION: 1972 AIR 470 1972 SCR (2) 671 1972
SCC (1) 450
Code of Criminal Procedure (Act 5 of
1898),ss. 202, 204 and 561A--Power to issue process--Who has--Right of High
Court, to go Into weight of evidence under s. 561A.
After taking cognizance of an offence against
the respondent the Magistrate enquired into it and submitted a report to the
Sub-Divisional Magistrate that a prima facie case was made out against the
respondents. The Sub-Divisional Magistrate directed the issue of process. The
High Court in a petition to quash the issue of process hold that under s. 204,
the Sub-Divisional Magistrate had no right to issue process since he was not
the Magistrate who had taken cognizance of the offence, and also observed that
the evidence in the case came from tainted sources.
Dismissing the appeal to this Court,
HELD: (1) Under s. 204, Cr. P.C. the
Magistrate who takes cognizance could issue process and under s. 202, Cr.
P.C., a Magistrate to whom a case had been
transferred could issue process. Since, in the present case, the magistrate who
issued process had not taken cognizance of the offence and there was no order
transferring the case to him, the High Court was right in quashing the issue of
process. [673 C-F] (2) Under s. 561A, Cr. P.C., the High Court could go into
the question as to whether there was any legal evidence.
APPELLATE JURISDICTION: Criminal Appeal No.
291 of 1968.
Appeal by special leave from the judgment and
order dated March 28, 1968 of the Calcutta High Court in Criminal Revision No.
159 of 1968.
P. K. Chatterjee, for the appellant.
P. K. Chakravarty, for respondent No. 1.
The Judgment of the Court was delivered by
Ray, J. This is an appeal by special leave from the judgment dated 28 March,
1968 of the High Court at Calcutta quashing the processes issued against the
three accused persons.
The appellant on 8 March, 1966 filed a
petition of complaint against the Block Development Officer Purulia, the
Officerin Charge of the local Police Station and T. Ganguly, the Deputy
Superintendent of Police, Purulia under section 395 of the Indian Penal Code on
the allegation that during search of the appellant's house they committed
dacoity in the house. The Magistrate dismissed the complaint under section 203
of the Code of Criminal 672 Procedure on the ground that the complaint was
incompetent without sanction as the accused were Government servants.
The complainant thereafter moved the Sessions
Judge, Purulia against the order of dismissal. A reference was made to the
Calcutta High Court. The learned Single Judge of the Calcutta High Court
accepted the reference, set aside the order of the Magistrate and sent the case
back for proceeding in accordance with law.
On 27 March, 1967 the Magistrate Shri S. K.
Ganguly took cognizance of the case and fixed a date for holding judicial
enquiry. The Magistrate on 22 November, 1967 came to the conclusion that a
prima facie case under section 395 of the Indian Penal Code had been made out
against the three accused and submitted a report to the Sub-Divisional
Magistrate, Purulia. The Sub-Divisional Magistrate, Purulia on receipt of the
report of the judicial enquiry passed an order on 6 December, 1.967 directing
the issue of process against all the three accused. This order forms the
subject matter of the appeal.
One of the accused thereafter moved the High
Court at Calcutta for quashing the process. The High Court at Calcutta said
that cognizance of the offence was taken by the Magistrate Shri S. K. Ganguly
but process was issued by the Magistrate Shri S. Sarkar and held that Shri
Sarkar not having taken cognizance of the offence had no right to issue process
under section 204 of the Code of Criminal Procedure.
The High Court, therefore, quashed the
process and observed that the learned Magistrate who had taken cognizance of
the offence if he was so advised would be at liberty to issue processes against
the other two accused persons.
The question for consideration is whether
Shri Sarkar could have issued process in the-present case. Shri Ganguly was the
Magistrate who took cognizance. Shri Sarkar was not the Magistrate who took
cognizance. Therefore, under section 204 of the Code of Criminal Procedure the
Magistrate who took cognizance of the case could issue process.
Sections 191 and 192 of the Code of Criminal
Procedure contemplate transfer of cases by a Magistrate, who has taken
cognizance, of an offence. Section 191 of the Code of Criminal procedure of
transfer of a case or commitment to the Court of sessions on the application of
Section 192 of the Code of Criminal Procedure
speaks of transfer of a case by a Magistrate who has taken cognizance to any
Magistrate subordinate to him for enquiry or trial.
673 In these cases where either the
Magistrate has taken cognizance and is in session of the case or where a case
is transferred by a Magistrate who has taken Cognizance to another Magistrate
subordinate to him the complainant is required to be examined under section 200
of the Code of Criminal Procedure. There are certain exceptions with which we
are not concerned in the present appeal. The relevant section which confers
power on the Magistrate to whom the case has been transferred to issue process
is section 202 of the Code of Criminal Procedure. The language of section 202
of the Code of Criminal Procedure is that the Magistrate may, for reasons to be
recorded in writing, postpone the issue of process for compelling the
attendances of the person complained against. Therefore the power of the
Magistrate to issue process under section 202 of the Code, of Criminal
Procedure is not limited by the terms of section,204 of. the Code-of Criminal
Procedure to issue process.
Therefore, the two courses are : first, under
section 204 of. the Code of Criminal Procedure for the Magistrate taking
cognizance to issue process Or secondly under section 202 of the Code of
Criminal Procedure for a Magistrate to whom a case has, been transferred to
In the present case there was no order of
transfer of the case, by Shri Ganguly to Shri Sarkar. The issue of process is a
matter for judicial determination. Before issuing a process' the Magistrate has
to examine the complainant.
That is why the issue of process is by the
Magistrate who has taken cognizance or the Magistrate to whom the case has been
transferred. The High Court therefore correctly quashed the issue of process.
It was contended on behalf of the appellant
that the High Court should not have gone to the question as to whether a prima
facie case was established or not. The High Court under section 561-A of the
Code of Criminal Procedure can go into the question as to whether there is any
When the High Court said that the evidence in
the present case came from tainted sources and was not reliable the High Court
meant what can be described as 'no case to go to the jury'.
The High Court correctly quashed the process
Ganguly. The appeal therefore fails and is
V.P.S. Appeal dismissed.