TMI Blog1960 (5) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not 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 enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 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. 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 ascertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 this section may, if he thinks fit, take evidence of witnesses on oath. (3) This section applies also to the police in the towns of Calcutta and Bombay. S. 203. The Magistrate b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, (1932) 34 Bom. L.R. 910 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, A.I.R. 1927 Lah 30. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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