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PETITIONER: VADILAL PANCHAL

       Vs.

RESPONDENT: DATTATRAYA DULAJI GHADIGAONKER  AND ANOTHER.

DATE OF JUDGMENT: 06/05/1960

BENCH: DAS, S.K. BENCH: DAS, S.K. KAPUR, J.L. HIDAYATULLAH, M.

CITATION:  1960 AIR 1113  CITATOR INFO :  R          1962 SC 876  (24,48,59)  RF         1963 SC1430  (7,11)  R          1972 SC2639  (22)  R          1976 SC1947  (3)  F          1977 SC1489  (10)  E          1980 SC 962  (7)  R          1983 SC 595  (8)  F          1992 SC1894  (11)

ACT: Criminal     Procedure--Complaint--Magistrate      referring complaint     to     Police     for     report--Plea      of self-defence--Magistrate dismissing complaint upholding such Plea   on  the  basis  of  Police   report--Legality--Indian Evidence  Act,  1872 (I of 1872), S. 105--Code  of  Criminal Procedure, 1898 (Act 5 of 1898), SS. 200, 202, 203.

HEADNOTE: On June 3, 1956, riots broke out after a public meeting held in  Bombay  in connection with the  re-organisation  of  the State of Bombay was dispersed on account of the disturbances created  therein.   The  car  in  which  the  appellant  was travelling  was stopped by the crowd and some of  those  who surrounded  the car caught hold of him by his neck and  hair and  wanted to drag him out of the car.  The appellant  then opened fire with his revolver.  The respondent’s brother, S, who  was  hit  on the chest by one of the  shots  fired  was removed  to the hospital but died before medical  assistance could  be given.  The police surgeon who made  a  postmortem examination  expressed the opinion that the shot  must  have been  fired  from a distance of 2 to 18  inches  only.   The Coroner’s  jury returned a verdict that S died of the  wound caused  by  a  bullet fired by the appellant  "  under  such circumstances  as  would  render the firing  to  be  in  the exercise  of  the  right  of private  defence  and  as  such justified." The respondent filed a complaint in the court of the  Presi- dency Magistrate, Bombay, on the allegation that his brother died as a result of the firing resorted to by the  appellant who thereby committed an offence punishable under s. 302  of the  Indian  Penal  Code and prayed that  process  might  be

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issued  against him.  The Magistrate referred the  complaint to  the  police for enquiry and report under s. 202  of  the Code of Criminal Procedure and after considering the  report said:  " From the statements recorded by the Police in  this case  and from the surrounding circumstances of the case,  I have come to the definite conclusion that the report of  the Police  stating  that the shot was fired by the  accused  in self-defence  is  true......  The statement  of  the  police surgeon  conclusively supports the conclusion...... The  eye witnesses  brought  by  the  complainant  are  not  credible witnesses.   It will be harassment to the accused and  waste of public time if any process is issued in this case ".  The Magistrate,  accordingly, dismissed the complaint  under  s. 203 of the Code of Criminal 2 Procedure.  The High Court, in revision, set aside the order of  dismissal and directed the Magistrate to  issue  process against  the appellant and deal with the case in  accordance with  law, on the grounds that this was not a case in  which it  was proper for the Magistrate to dismiss  the  complaint under  S. 203 of the Code of Criminal Procedure, that  proof of  the plea of self-defence could not be held to have  been established  from  the mere report of the police,  and  that there  was  nothing  in  s. 202 or S. 203  of  the  Code  of Criminal  Procedure which abrogated the rule as to the  pre- sumption laid down in s. 105 of the Indian Evidence Act. Held,  that under s. 203 of the Code of  Criminal  Procedure the judgment which the Magistrate has to form must be  based on  the statements of the complainant and his witnesses  and the result of the investigation or inquiry, and in  arriving at  his  judgment he is not fettered in any  way  except  by judicial   considerations   ;  provided   that   there   are satisfactory and reliable materials on which he can base his judgment  as  to  whether there  is  sufficient  ground  for proceeding   on  the  complaint  or  not,  if  he  has   not misdirected  himself as to the scope of an enquiry under  s. 202  and  has applied his mind judicially to  the  materials before him, it would be erroneous in law to hold that a plea based  on  an  exception can never be  accepted  by  him  in arriving at his judgment. Held,  further, that on the facts of the present  case,  the order of the Magistrate was correct and that the judgment of the High Court setting aside that order on an erroneous view of  the  scope of S. 203 of the Code of  Criminal  Procedure must be set aside.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 117  of 1958. Appeal  by special leave from the judgment and  order  dated September  13,  1957, of the Bombay High Court  in  Criminal Petition  Application  No. 834 of 1957, arising out  of  the judgment  and order dated April 30, 1957, of the  Presidency Magistrate,  IV Class, Girgaon, Bombay, in Case No. 6/1 &  R of 1956. H.   M.  Choksi,  Rajni  Patel, B. K. B.  Naidu  and  I.  N. Shroff, for the appellant. Janardan Sharma, for respondent No. 1. Purshottam Trikamdas, H. R. Khanna, D. Gupta and R.    H. Dhebar, for respondent No. 2. 1960, May 6. The Judgment of the Court was delivered by 3 S.   K.  DAS,  J.-This  is an unfortunate case  in  which  a

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complaint  filed in the Court of the Presidency  Magistrate, Bombay,  on  October  31, 1956,  by  one  Dattatraya  Dulaji Ghadigaonkar, respondent herein, has to be finally  disposed of in the year 1960 in circumstances which we shall state at once.  On June 3, 1956, in the evening, a public meeting was held  at a place called Chowpatty in Bombay which was to  be addressed  by the Prime Minister of India.  The meeting  was called  in connexion with an agitation which was then  going on for the reorganisation of the State of Bombay.  There was considerable disturbance at the meeting as a result  whereof it had to be dispersed, and large crowds of people began  to wander   about  in  various  localities   around   Chowpatty including  an area round Charni Road Station.  The  case  of the  complaining  respondent was that at about 8 p.  m.  his younger  brother  Sitaram was crossing Queen’s Road  Dear  a building  called  Laud Mansion.  At that time  there  was  a large  crowd  on  the road and members of  that  crowd  were stopping vehicles passing by that road.  One taxi cab  which had come from the direction of the Opera House and was going towards  Churchgate was already stopped.  Sitaram  was  then accompanied  by  Sashikant Kamtekar and  Nand  Kumar  Vagal. When  these  three  had crossed the  road,  they  heard  the reports  of  revolver shots and on looking back  they  found that a person called Bhayya was injured by one of the  shots and fell down on the footpath.  Sitaram and his friends went to help Bhayya; at this stage, another shot was fired by one of  the occupants of a blue car which was near the taxi  cab referred to earlier.  Sitaram was hit on his chest, and  the bullet  having  entered the chest cavity injured  the  right ventricle  of the heart.  Sitaram was removed to the  G.  T. Hospital but died before medical assistance could be  given. Dr.  H.  S.  Metha, Police Surgeon, who  made  a  postmortem examination  of the dead body, opined that Sitaram  died  of shock  and hemorrhage as a result of the gun shot  wound  he had  received.   The doctor further said that  the  charring round the wound indicated that the shot had been fired  from a distance of 2 to 18 inches only. 4 The  case  of  the  respondent  was  that  Vadilal  Panchal, appellant before us, fired the shot from the blue car.   The occupants  of  the car were K. K. Shah,  advocate,  his  son Vinay,  and  one Ratilal Sanghvi on the back seat,  and  the appellant  and chauffeur Mohiddin on the front seat.  K.  K. Shah   was  mentioned  in  the  complaint  as  one  of   the complainant’s  witnesses.   He was examined  and  said  that after  the  meeting  was over, he and  his  companions  were returning in his car to his house.  Because of the  trouble, the  car  travelled by a longer route and  when  it  reached Queen’s Road, there were large crowds on that road who  were pelting  stones. shouting slogans and committing other  acts of  violence; a public bus was burnt, and a taxi  cab  which was proceeding ahead of K. K. Shah’s car was stopped.   Some three  or  four hundred people surrounded  his  car,  pelted stones and shouted " maro " "maro".  Some of them  attempted to drag out Ratilal Sanghvi who occupied a corner seat; some caught hold of the appellant by his neck and hair and wanted to drag him out of the car.  The appellant then opened  fire with his revolver.  The rioters then held back, and the  way was clear for the car to pass.  The car then drove away  and after some time K. K. Shah and the appellant went to Gamdevi Police  Station where the latter made a report of  what  had happened.  The appellant was sent to Nair Hospital where  he was medically treated and allowed to go. The  Coroner  of Bombay held an inquest into  the  death  of Sitaram at which K. K. Shah, Sashikant Kamtekar and  several

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other witnesses were examined.  The Coroner’s Jury  returned a verdict that Sitaram died of the gunshot wound caused by a bullet fired by the appellant " under such circumstances  as would  render the firing to be in exercise of the  right  of private  defence and as such justified ". This  verdict  was returned on October 16, 1956.  Sometime earlier, on July  3, 1956, to be precise, the complaining respondent had made  an enquiry  through  his  advocate  from  the  Commissioner  of Police,  Bombay,  as  to  whether  the  appellant  had  been arrested: the reply received was that the enquiries made  by the police did not 5 reveal  any offence having been committed by  the  appellant and the police proposed to take no action. On  October  31, 1956, the respondent filed  his  complaint. The  learned Presidency Magistrate to whom,,  the  complaint was made referred it to the Superintendent of Police, C.  1. D.,  for enquiry and report.  Presumably, he acted under  s. 202  of  the Code of Criminal Procedure.   On  November  15, 1956,  the Superintendent of Police submitted the report  of his Inspector in which it was stated:  "From  the exhaustive enquiries made immediately after  the incident  it  was disclosed that Shri  Vadilal  Panchal  was justified  in  resorting  to firearms  in  self  defence  of himself and the other occupants of the motor car ". On  January  17,  1957,  the  learned  Magistrate  gave  the respondent  another  opportunity to  examine  his  witnesses before  the  enquiring  officer,  because  by  reason  of  a revision application made to the High Court earlier  against the order referring the case to the police for enquiry,  the respondent   did  not  produce  his  witnesses  before   the enquiring officer.  The enquiring officer then examined  all the  witnesses and submitted his report on March  12,  1957. This time also the enquiring officer said : " From their statements and other evidence on record, it  is clear that Shri Wadilal Panchal opened fire in the  exercise of his, right of private defence, which verdict the  learned Coroner’s  Jury also brought after a protracted  hearing  of the Inquest Proceedings.  Copies of all statements  recorded by me, are attached for reference ". On  April  30,  1957,  the  learned  Presidency   Magistrate considered  the  report of the enquiring  officer  in  great detail with reference to the statements of all the witnesses and said: "  The Police have recorded in detail the statements of  all witnesses produced by the complainant as well as of all  the occupants  of  the car.  There is,  therefore,  material  on record  showing  fully  whether  the  circumstances  existed making  out  the right of private defence available  to  the accused.  The fact 6 whether  the case falls within one of exceptions or not  can be established on the evidence of the witnesses produced  by the prosecution itself though of course the  burden of proof lies  on the accused.  From the statements, recorded by  the Police  in this case and from the surrounding  circumstances of the case, I have come to the definite conclusion that the report of the police stating that the shot was fired by  the accused  in  self-defence  is true.  As I  have  stated  the statement  of the police surgeon conclusively  supports  the conclusion.   I have come to the conclusion that the  state- ments  of the four eye witnesses brought by the  complainant are false.  These eye witnesses are not credible  witnesses. It  will  be harassment to the accused and waste  of  public time if any process is issued in this case ".

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Accordingly, he dismissed the complaint under s.  203,  Code of Criminal Procedure. Against  this order of dismissal the  respondent-complainant moved the High Court.  The High Court set aside the order of dismissal and directed the learned Presidency Magistrate  to issue  process against the appellant and deal with the  case in  accordance  with law, on a ground which the  High  Court expressed in the following words: "  Now,  in  the case before us, causing  of  the  death  of Sitaram   being  indisputable,  if  it  was  found  as   the petitioner  alleges that it was the shot fired by  the  res- pondent that caused the death of Sitaram, the accused ,would have to establish the necessary ingredients of the right  of private  defence as laid down in section 96 and  onwards  of the  Penal  Code.   We do not find anything in  any  of  the sections  in Chapter XVI to show that such an exception  can be  held  to  be established from the  mere  report  of  the police.  That, in our view, is contrary to the provisions of s.  105  of  the Indian Evidence  Act  which  are  mandatory provisions.   There  is nothing in s. 202 or s. 203  of  the Criminal  Procedure Code which abrogates the rule as to  the presumption laid down in s. 105 of the Evidence Act and  the mode of proof of exception laid down in imperative  language in that section. 7 In  these  circumstances and for the reasons  aforesaid,  we find that this was not a case in which it was proper for the learned  Magistrate to dismiss the complaint under  s.  203, there being no evidence before the learned Magistrate as and by  way of proof to establish the exception of the right  of private defence pleaded by the respondent The  appellant  then moved this Court and  obtained  special leave  to  appeal  from the order of the  High  Court  dated September 13,1957. The short question before us is-was the High Court right  in its view that when a Magistrate directs an enquiry under  s. 202  of the Code of Criminal Procedure for ascertaining  the truth or falsehood of a complaint and receives a report from the enquiring officer supporting a plea of self-defence made by  the person complained against, it is not open to him  to hold that the plea is correct on the basis of the report and the  statements  of  witnesses  recorded  by  the  enquiring officer ? Must he, as a matter of law, issue process in such a case and leave the person complained against to  establish his  plea of self-defence at the trial ? It may  be  pointed out here that the High Court itself recognised that it would not  be correct to lay down a proposition in absolute  terms that  whenever a defence under any of the exceptions in  the Indian  Penal  Code  is pleaded  by  the  person  complained against, the Magistrate would not be justified in dismissing the complaint and must issue process.  Said the High  Court: "  As  we have already observed, if there  is  a  complaint, which  itself discloses a complete defence under any of  the exceptions,  it might be a case where a Magistrate would  be justified in dismissing such a complaint finding that  there was no sufficient ground to proceed with the case." We  are  of  the view that the High Court was  in  error  in holding  in  this case that as a matter of law, it  was  not open  to  the learned Presidency Magistrate to come  to  the conclusion  that on the materials before him no offence  had been  made  out  and  there was  no  sufficient  ground  for proceeding further on the complaint. 8 The  relevant sections bearing on the question are ss.  200, 202 and 203.

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"  S. 200.  A Magistrate taking cognizance of an Offence  on complaint  shall  at once examine the  complainant  and  the witnesses  present, if any, upon oath, and the substance  of the  examination  shall be reduced to writing and  shall  be signed by the complainant and the witnesses, and also by the Magistrate:               Provided as follows:-               (a) ...........................               (aa) ............................ (b)  where  the Magistrate is a Presidency Magistrate,  such examination may be on oath or not as the Magistrate in  each case thinks fit, and where the complaint is made in  writing need  not be reduced to writing; but the Magistrate may,  if he thinks fit, before the matter of the complaint is brought before him, require it to be reduced to writing ; (c)      ................................ S.   202(1).   Any Magistrate, on receipt of a complaint  of an offence of which he is authorised to take cognizance,  or which has been transferred to him under section 192, may, if he  thinks  fit,  for reasons to  be  recorded  in  writing, postpone the issue of process for compelling the  attendance of  the person complained against, and either  inquire  into the  case  himself or, if he is a Magistrate  other  that  a Magistrate  of  the  third  class,  direct  an  inquiry   or investigation  to be made by any Magistrate  subordinate  to him,  or by a police officer, or by such other person as  he thinks  fit,  for the purpose of ascertaining the  truth  or falsehood of the complaint. Provided  that ..................(it is unnecessary to  read the proviso. (2)  If  any inquiry or investigation under this section  is made by a person not being a Magistrate or a police-officer, such person shall exercise all the powers conferred by  this Code  on  an officer in charge of a  police-station,  except that he shall not have power to arrest without warrant. (2A) Any Magistrate inquiring into a case under 9 this  section may, if he thinks fit, take evidence  of  wit- nesses on oath. (3)  This section applies also to the police in the towns of Calcutta and Bombay. S.   203.  The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the  complaint, if, after considering the statement on oath (if any) of  the complainant  and  the  witnesses  and  the  result  of   the investigation  or inquiry (if any) under section 202,  there is in his judgment no sufficient ground for proceeding.   In such cases he shall briefly record his reasons for so  doing ". The general scheme of the aforesaid sections is quite clear. Section  200  says  inter  alia  what  a  Magistrate  taking cognisance of an offence on complaint shall do on receipt of such a complaint.  Section 202 says that the Magistrate may, if  he  thinks fit, for reasons to be recorded  in  writing, postpone the issue of process for compelling the  attendance of  the person complained against and direct an inquiry  for the  purpose of ascertaining the truth or falsehood  of  the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood  of the  complaint  in order, to determine the question  of  the issue  of  process.   The  inquiry is  for  the  purpose  of ascertaining  the truth or falsehood of the complaint;  that is, for ascertaining whether there is evidence in support of the  complaint  so as to justify the issue  of  process  and commencement  of proceedings against the  person  concerned.

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The section does not say that a regular trial for  adjudging the  guilt  or otherwise of the  person  complained  against should  take place at that stage; for the person  complained against can be legally called upon to answer the  accusation made  against him only when a process has issued and  he  is put  on  trial.  Section 203, be it noted, consists  of  two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says  that if  after  considering  those  materials  there  is  in  his judgment no sufficient ground for proceeding, he may dismiss the complaint.  Section 204 says that if 10 in the opinion of the Magistrate there is sufficient  ground for  proceeding,  he  shall  take steps  for  the  issue  of necessary process. Now,  in  the case before us it is not  contended  that  the learned   Presidency  Magistrate  failed  to  consider   the materials which he had to consider, before passing his order under s. 203 of the Code of Criminal Procedure.  As a matter of fact the learned Magistrate fully, fairly and impartially considered these materials.  What is contended on behalf  of the respondent-complainant is that as a matter of law it was not  open  to the learned Magistrate to accept the  plea  of right  of  self-defence at a stage when all that he  had  to determine was whether a process should issue or not  against the  appellant.  We are unable to accept this contention  as correct.   It is manifestly clear from the provisions of  s. 203 that the judgment which the Magistrate has to form  must be  based  on  the statements of  the  complainant  and  his witnesses  and the result of the investigation  or  inquiry. The section itself makes that clear, and it is not necessary to  refer  to  authorities  in  support  thereof.   But  the judgment which the Magistrate has to form is whether or  not there  is sufficient ground for proceeding.  This  does  not mean  that the Magistrate is bound to accept the  result  of the inquiry or investigation or that he must accept any plea that  is set up on behalf of the person complained  against. The Magistrate must apply his judicial mind to the materials on  which he has to form his judgment.  In arriving  at  his judgment  he is not fettered in any way except  by  judicial considerations; he is not bound to accept what the inquiring officer  says,  nor is he precluded from  accepting  a  plea based  on  an exception, provided always  there  are  satis- factory  and  reliable materials on which he  can  base  his judgment  as  to  whether there  is  sufficient  ground  for proceeding  on the complaint or not.  If the Magistrate  has not misdirected himself as to the scope of an enquiry  under s. 202 and has applied his mind judicially to the  materials before  him, we think that it would be erroneous in  law  to hold that a plea based on an exception can never be accepted by him in 11 arriving  at his judgment.  What bearing such a plea has  on the  case  of  the complainant and his  witnesses,  to  what extent   they  are  falsified  by  the  evidence  of   other witnesses-all  these  are questions which must  be  answered with reference to the facts of each case.  No universal rule can be laid in respect of such questions. In support of its view the High Court has relied on some  of its  earlier decisions: Emperor v. Dhondu Bapu (1);  Emperor v.  Finan  (2) and Tulsidas v. Billimoria (3).   We  do  not think that any of the aforesaid decisions lays down any such proposition in absolute terms as is contended for on  behalf of  the  respondent.   In  Emperor  v.  Dhondu  Bapu  (1)  a complaint   charging   defamation  was  dismissed   by   the

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Magistrate under s. 203 without taking any evidence, on  the ground  that the accused was protected by s. 499,  exception 8. It was held that the order of dismissal was bad. Patkar, J., significantly observed: "  If  the  Magistrate in this case had  taken  evidence  on behalf of the prosecution and on behalf of the accused,  and passed  a  proper  order for discharge,  the  order  of  the District  Magistrate  ordering  a  further  enquiry  without giving reasons might have stood on a different footing.   We do  not  think that, under the circumstances of  this  case, there are adequate grounds for interfering with the order of the District Magistrate." In  Emperor  v. Finan (2) the accused did  not  dispute  the correctness  of the statements made by the complainant,  but in  justification pleaded the order passed by  his  superior officer  and claimed protection under ss. 76 and 79  of  the Indian  Penal Code.  It is worthy of note that the order  of the superior officer was not produced, but that officer very improperly  wrote a letter to the Magistrate saying that  he bad  given such an order.  In these circumstances, the  same learned Judge who decided the earlier case observed: "It   was,  therefore,  incumbent  on  the   Magistrate   to investigate the complaint and to find out whether (1) (1927) 29 Bom.  L.R. 713,715.  (2) (1931) 33 Bom.   L.R. 1182. (3) (1932) 34 Bom.  L.R. 910 12 the  allegation of the accused that he was protected by  ss. 76  and  79 of the Indian Penal Code was made out  by  legal evidence before him." The facts in Tulsidas v. Billimoria (1) were different,  and the  question there considered was whether a member  of  the Bar in India had absolute privilege.  That decision has very little bearing on the question now before us. Our  attention  has  also been drawn to a  decision  of  the Lahore  High  Court where the facts were  somewhat  similar: Gulab  Khan, deceased, through Karam Khan v. Gulam  Muhammad Khan  and  Others  (2).   In  that  case  also  the   person complained against took the plea of self-defence, which  was accepted.   In the High Court an objection was taken to  the procedure  adopted  and  it was argued  that  the  order  of discharge  should  be  set  aside.   In  dealing  with  that argument Broadway, J., said : "  Now a Magistrate is empowered to hold an enquiry  into  a complaint of an offence in order to ascertain whether  there is sufficient foundation for it to issue process against the person  or persons complained against.  In the present  case the Magistrate clearly acted in the exercise of these powers under  s.  202,  Criminal Procedure Code.   He  allowed  the complainant to produce such evidence in support of his  com- plaint as he wished to produce, and after a consideration of that evidence came to the conclusion that that evidence  was so wholly worthy (unworthy ?) of credence as to warrant  his taking no further action in the matter." Therefore,  none of the aforesaid decisions lay down  as  an absolute  proposition that a plea of self-defence can in  no event  be  considered by the Magistrate in  dealing  with  a complaint  under the provisions of ss. 200, 202 and  203  of the Code of Criminal Procedure. On  the  facts, there is very little to  be  said.   Learned Counsel  for the State of Bombay supported the order of  the learned  Magistrate and pointed out that even on the  narrow view taken by the High Court, a view (1) (1932) 34 Bom.  L.R. 910. (2) A.I.R. 1927 Lah 30

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13 to  which  he  did  not,  however,  subscribe,  the  learned Magistrate rightly held that there was no sufficient  ground for  proceeding; because the earlier version of some of  the witnesses for the complainant itself showed that there was a riotous mob on the road which attacked cars, burnt a  public bus, pelted stones, etc., which was quite inconsistent  with their  later  version that Sitaram and his  companions  were quietly  crossing  the  road and a shot  was  fired  from  a passing  or moving car.  There was overwhelming material  to show  Chat  K. K. Shah’s car was surrounded by the  mob  and some  of  the  rioters  tried to drag  out  and  attack  the appellant.  K. K. Shah was one of the witnesses mentioned by the complainant and so also two of the Inspectors of Police. Their  evidence clearly supported the plea of the  appellant and  in  any  case, showed that the  witnesses  examined  on behalf  of the respondent were totally unworthy of  credence as  to the circumstances in which the shots were fired.   We cannot  therefore say that the learned Magistrate was  wrong in  his  judgment that there was no  sufficient  ground  for proceeding further on the complaint. We accordingly hold that the High Court set aside the  order of the learned Magistrate on an erroneous view of the  scope of  s. 203 of the Code of Criminal Procedure.  We allow  the appeal,  set  aside  the  order  of  the  High  Court  dated September  13,  1957,  and  restore  that  of  the   learned Presidency Magistrate dated April 30, 1957.                                  Appeal allowed. 14