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PETITIONER: RAJINDRA NATH MAHATO

       Vs.

RESPONDENT: T.   GANGULY, DY. SUPERINTENDENT & ANR.

DATE OF JUDGMENT02/12/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. PALEKAR, D.G.

CITATION:  1972 AIR  470            1972 SCR  (2) 671  1972 SCC  (1) 450

ACT: 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.

HEADNOTE: 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. [673 F-G]

JUDGMENT:  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.

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The appellant on 8 March, 1966 filed a petition of complaint against the Block Development Officer Purulia, the  Officer- in  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  con- template  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  the  accused. 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  cogni- zance  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  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

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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 issue process. 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 legal evidence. 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  against  T. Ganguly.  The appeal therefore fails and is dismissed. V.P.S.                           Appeal dismissed. 674