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PETITIONER: PRAMATHA NATH MUKHERJEE

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT: 11/03/1960

BENCH: GUPTA, K.C. DAS BENCH: 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

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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.

JUDGMENT: 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

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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

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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 consti. 250 tute 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.