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PETITIONER: HARERAM SATPATHY

       Vs.

RESPONDENT: TIKARAM AGAR W ALA AND 3 OTHERS

DATE OF JUDGMENT24/08/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KAILASAM, P.S.

CITATION:  1978 AIR 1568            1979 SCR  (1) 349  1978 SCC  (4)  58

ACT:       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.

HEADNOTE:       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 Court ^        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, [1967] 2 SCR 423

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Smt. Nagawwa  v. Veetamma  Shivalingappa Konjalai  and ors., [1976] Supp.  S.C.R. 123  and Chandra  Deo Singh  v.  Prokar Chandra Bose, [1964] 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., [1976] 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 [1778] 2 S.C.R. 861 referred to.

JUDGMENT:        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

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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  Puruseth. 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

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cases in  which an  order of  a Magistrate  issuing  process against the accused can be quash ed 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) [1976] Supp. S.C.R. 123. (3) [1964] 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 in  Smt. 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

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    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 appal. 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) [1978] 2 S.C.R 861. 355