Hareram Satpathy Vs. Tikaram Agar W
Ala & Ors  INSC 144 (24 August 1978)
SINGH, JASWANT SINGH, JASWANT KAILASAM, P.S.
CITATION: 1978 AIR 1568 1979 SCR (1) 349 1978
SCC (4) 58
Cognizance of offences by Magistrate under
section 190 of the Criminal procedure Code. 1973- Once cognizance has been
taken by the Magistrate , the taken cognizance of an offence and not offenders
Revisional jurisdiction of the High Court
power of revision under section 401 of criminal procedure code, 1973 is very
limited in going into the matter where the Magistrate, has after satisfying
himself prima facie existence of sufficient material for proceeding against an
accused , issued process.
One Parsuram Satpathy. brother of the
appellant sought the help and protection of the officer-in-charge of the
Ballangir police station on 27-11-1974, alleging conspiracy to murder him. On
29-11-1974 the appellant lodge First Information Report in the same police
station, that the named persons and some others coming a jeep killed his
brother Parsuram by dashing of jeep against the cycle on which he was going The
Police took up investigation of the case, submitted charge sheets against six
persons, only for the offence of intentionally causing the death of Parsuram on
29-11-1974, and have a final report saying that from the investigation carried
on by it no offence appeared to have been made out against the respondents. The
Sub-Divisional Magistrate Balangir, on a further complaint by the appellant,
finding a prima facie case under Section 302 I.P.C. against the present
respondents directed issue of non-bailable a warrants against them. In
revision. the High Court, set aside the orders of the Magistrate.
Allowing the appeal by special leave the
HELD: 1. Under Section 190 of the Criminal
Procedure Code, the Magistrate takes cognizance of an offence made it in the
Police report or in the complaint and there is nothing like taking cognizance
of the offenders at that stage. As to who actually the offenders involved in the
case might halve been has to be decided by the Magistrate, after taking
cognizance of the offence.
[353 A-B] Raghubans Dubey v. State of Bihar,
 2 SCR 423 Smt. Nagawwa v. Veetamma Shivalingappa Konjalai and ors.,
 Supp. S.C.R. 123 and Chandra Deo Singh v. Prokar Chandra Bose,  1
SCR 639, 648 reiterated.
2. Once the Magistrate has. after satisfying
himself prima facie that there is sufficient material for proceeding against
the accused issued process against him. the High Court cannot go into the
matter in exercise of its revisional jurisdiction which is very limited. [353
C-D] Smt. Nagawwa v. Veeranna Shivalingappa Konialai and ors.,  Supp.
S.C.R. 123; applied 350 Observation:
Under Section 227 of the Criminal Procedure
Code it is open to the Court of Session on committal of the case to discharge
the accused if upon consideration of the record of the case and documents
submitted there with and after hearing the submissions of the parties it
considers that there is no sufficient ground for proceeding against the accused
. [354-C-D] Sanjay Gandhi v. Union of India  2 S.C.R. 861 referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 551 or 1976 Appeal by Special Leave from the judgment and Order
dated 25-8-76 of the Orissa High Court in Criminal Revision No. 344 and 365 of
1975 H.B.Datar and C. S. S. Rao for Appellant No. 1 V. M. Tarkunde and R. K.
Mehta for Appellant No.2.
Govind Dass , Sudarshan Bagga and (Mrs..) S
Bagga for Respondents Nos 1-3 The Judgment of the Court was delivered by
JASWANT SINGH J. This appeal by Special Leave high is direct against the.
Judgment and order dated August '5, 1976 of the High Court of Orissa in
Criminal Revisions No. 344 and 365 of 1975 setting aside the order date
November 20,1975 of the Sub-Divisional Magistrate, Balangir.
directing, issue of press against respondents
1 to arises in the following, circumstances:
On November 27, 197.1 Parsuram Satpathy,
brother of Hareram Satpathy, the appellant herein, who was a Journalist by
profession and a staunch of Bhartiya Lok Dal, sought the help and protection of
the Officer on charge of the Police Station, Balangir, on the ground that he
had learnt from B.
Kramanda Bohidar. a member of the Congress
party that there was a conspiracy to murder him . On the evening of November
29, 1974, the appellant made a report to the Officer-in- charge of the
aforesaid Police Station, alleging therein that Premlal Suna, Parsanna Pal Guna
Ghasi, Jagyna Puruseth ,Bighna Raj Misra Jayanarayan Spirpathy, Bikram Bohidat
and Tikaram Agarwala, members of Yuva Congress Party and political adversaries
of his brother ,Parsuram, had been openly declaring since the last 3 of 4 days
that they would take the life of Parsuram and had been moving around his house in
the Congress jeep looking out for an opportunity to kill him (i.e. Parsuram).
The report went on to say that at or about 7 P.M. of that day he saw Premlal
Suna, 351 Guna Ghasi, Dhobai Charanpodh, Jagyana Pursued, Diker Agarwala,
Aratatran Singh Deo, Prasanna Kumar Pal and some, others coming in a Jeep from
the side of Patita Pavan Academy and killing his brother. by dashing the Jeep
against the cycle on which he was going on Dhobapara Road. On receipt of this
report the police took up investigation of the case and on completion thereof
submitted a charge-sheet against six persons viz. Premlal Suna. Jagyana
Gunaidhi Banchhor Ghasi, Dhobai Podh,
Prafulla Bhoi, Sugyan Sandh and on the allegation that they intentionally
caused the death of Parsuram Satpathy on November 29, 1974 in the manner stated
above. So far as the present respondents were concerned the police submitted a
final report saying that from the investigation carried on by it no offence
appeared to have been made out against them. As the police did not proceed
against all the 13 persons mentioned in the aforesaid report made by him,
appellant filed a complaint in the Court of the Sub-Divisional Magistrate,
Balangir, reiterating the allegation made by him against the aforesaid 13
persons including the respondents herein who did not figure as accused in the
aforesaid police chargesheet. After going through the statements made u/s 161
of the Cr. P. C.
by the appellant and Bhibudananda Ducat,
Harudanana Nanda an(1 Sankar Tripathy and finding a prima facie case under
section 302 of the Indian Penal Code made out against the respondents? the
Magistrate directed the issue of non- bailable warrants against them. Aggrieved
by this order the respondent took the matter in revision to the High Court. A
single Judge of the High Court after a detailed and meticulous scrutiny of the
aforesaid statements made by the appellant and others set aside the order
sub-Divisional Magistrate issuing process against the respondents holding that
there was no material on record to make out a prima facie case against the
respondents and that the order of the Magistrate issuing process against the
respondents was without jurisdiction. Dissatisfied with this order, the
appellant, has as already stated, come up in appeal to this Court.
Two main questions arise for determination in
this case namely:- (1) Whether, after submission of the final report by the
police stating therein that there was no sufficient evidence to justify the
forwarding of the respondents to him, it was open to the sub-Divisional
Magistrate, Balangir to add the respondents as accused in the case and issue
process against them.
(2) Whether the High Court was justified in
going into the merits of the case and interfering with the order of the
Sub-Divisional Magistrate impleading the respondents as 352 accused and issuing
process against them in exercise of its powers under section 482 of the Code of
Criminal Procedure 1973.
The first point is no longer res integra. It
is squarely covered by the decision of this Court in Raghubans Dubey v. State
of Bihar(1) where it was held as follows:
``In our opinion, once cognizance has been
taken by the Magistrate, he takes cognizance of an offence and not the
offenders; once he takes cognizance of an offence it is his duty to find out
who the offenders rally are and once he comes to the conclusion that apart from
the persons sent up by the police some other persons are involved, it is his
duty to proceed against those persons. The summoning of the additional accuse is
part of the proceeding initiated by his taking cognizance of an offence."
In Smt. Nagawwa v. Veeranna Shivlingappa Konjalai & ors.(2) this Court
while laying down the categories of the cases in which an order of a Magistrate
issuing process against the accused can be quashed observed "It is well
settled by long catena of decisions of this court that at the stage of issuing
process the Magistrate is mainly concerned with the allegations made in the
complaint or the evidence led in support of the same and he is only to be prima
facie satisfied whether there are sufficient grounds for proceeding against the
accused it is not the province of the Magistrate to enter into a detailed
discussion of the merits or demerits of the case nor can the High Court go into
this matter in its revisional jurisdiction which is a very limited one''.
To the same effect is the decision of this
court in Chandra Deo Singh v. Prokar Chandra Bose(3) where after a full
discussion of the matter it was held that at the time of taking a decision
whether a process should issue against the accused or not what the Magistrate
has to see is whether there is evidence in support of the allegations of the
complainant so as to justify the issue of process and commencement of
proceedings against the accused, and not whether the evidence is sufficient to
warrant his conviction.
(1) [1967) 2 S C.R.423.
(2)  Supp. S.C.R. 123.
(3)  1 S.C.R. 639, 648 353 From the
foregoing it is crystal clear that under section 190 of the Code of Criminal Procedure
the Magistrate takes cognizance of an offence made out in the police report or
in the complaint and there is nothing like taking cognizance of the offenders
at that stage. As to who actually the offenders involved in the case might have
been has to be decided by the Magistrate after taking cognizance of the offence
In the instant case the Sub-Divisional Magistrate took cognizance of the
offence on the police report, after taking cognizance of the offence and
perusal of the record he appears to have satisfied himself that there were
prima facie grounds for issuing process against the respondents.
In so doing the Magistrate did not ill our
Judgment exceed the power vested in him under law.
The first point is accordingly decided in the
affirmative. This second point does not present any difficulty. lt is well
settled that once the Magistrate has after satisfying himself prima facie that
there is sufficient material for proceeding against the accused issued process
against him, the High Court cannot go into the matter in exercise of its
revisional jurisdiction which is very limited. The following observations made
Nagwwa v. Veeranna Shivalingappa Konjalai
& ors (supra) are apposite in this connection:
"It is true that in coming to a decision
as to whether a process would be issued the Magistrate can tale into
consideration inherent improbabilities appearing on the face of the complaint
or in the evidence led by the complainant in support of the allegations but
there appears to be a very thin line of demarcation between a probability of
conviction of the accused and establishment of a prima facie case against him.
The Magistrate has been given an undoubted discretion in the matter and the
discretion has to be judicially exercised by him. Once the Magistrate has
exercised his discretion it is not for the High Court or even this Court to
substitute its own discretion for that of the Magistrate or to examine the case
on merits with-a view to find out whether or not the allegations in the
complaint, if proved, would ultimately end in conviction o the accused. These
considerations, in our opinion. are totally foreign to the scope and ambit of
an inquiry under s. 202 of the Code of Criminal Procedure." Now as the
Magistrate was restricted to finding out whether there was a prima facie case
or not for proceeding against the accused and could not enter into a detailed
discussion of the merits or demerits of 354 the case and the scope of the
revisional jurisdiction very limited the High Court could not in our opinion
launch on a detailed and meticulous examination of the case on merits.
As the High Court has clearly exceeded its
jurisdiction in setting aside the order of the Sub-Divisional Magistrate, we
cannot do otherwise than to allow the appall. In the result the appeal succeeds
and the judgment and order of the High Court is set aside.
Before parting with the case we wish to
observe that the grievance of the respondents that there is no material to
support the faked and cooked up story against them is taken care of (as held in
Sanjay Gandhi v. Union of India(l) to Which one of us Jaswant Singh, J.) was
party by section 27 of the Cod of Crl. Procedure 1973 under which it is open to
the Court of Session on committal o the case to it t(j discharge the accused if
upon consideration of the record of the case and documents submitted therewith
and after hearing the submissions of the parties it considers that there is no
sufficient ground for proceeding against the accused. The respondents would
therefore be at liberty to invoke the provisions of section 227 of the Code on
the case being, committed to the Court of Session.
As the learned counsel appearing for the
respondents has given an undertaking that he will cause the attendance of the
respondents before the Sub-Divisional Magistrate, Balangir, on September 18,
1978, the non-bailable warrants issued against the respondents shall not be
executed till that date.
S.R. Appeal allowed (1)  2 S.C.R 861.