TMI Blog1963 (1) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... osh, were arrested by the local people and produced in the police station. On the basis of the first information report, the police undertook investigation, but ultimately they submitted a final report as late as on September 17, 1958. On November 3, 1958, one Mahendra Singh who claimed to be a distant relative of the deceased darwan, but which fact is denied by the widow of the deceased filed a complaint before Mr. C. L. Choudhry, the Sub-Divisional Magistrate of 24 Parganas Alipore, against the final report of the police and asked for processes to be issued against certain other persons on the allegation that those persons had murdered Nageswar Singh. The complaint further contained a statement to the effect that the first information report lodged by Panchanan Roy with the police on December 25, 1957, was false and that he had done so at the instance of his Master Bidhu Bhusan Sarkar who was an enemy of respondent No. 1. After examining Mahendra Singh on oath and looking into the police papers, the learned Sub-Divisional Magistrate asked Mr. N. M. Chowdhry, Magistrate, First Class, to hold a judicial enquiry into the allegations made by Mahendra Singh and to submit a report to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as that of Upendra Neogy. 'We are informed by learned counsel for respondent No.1 that eventually two of the three persons against whom summonses were ordered to be issued by the Sub-Divisional Magistrate were committed for trial before the Court of Sessions. But he was unable to say definitely whether they were actually tried and if so, what the result of the trial was. Aggrieved by the order of the learned single judge, the appellant Chandra Deo Singh made an application under Art. 134 of the Constitution for the grant of a certificate of fitness for appeal to this court which as already stated, was granted by the High Court. The certificate was sought by the appellant on four grounds. The first ground was that respondent No. 1 had no locus standi to appear and contest a criminal case before the issue of process. The second ground was that the test propounded by the learned single judge for determining the question whether any process should be issued by the court was erroneous. The third ground was that a Magistrate making an enquiry under s. 202 of the Code of Criminal Procedure had no jurisdiction to weigh the evidence in golden scales as was done in the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under s. 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be issued or not and to remove from his mind any hesitation that be may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether +,here is evidence in support of the allegations, of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned judges in some of these cases have been at pains to observe that an enquiry under s. 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-s. (1) of s. 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality, of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant. This brings us to the third ground. Section 203 of the Code of Criminal Procedure whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clear from the following passage in its judgment : The version of these two witnesses (Pannalal Saha and Sankar Ghose) is supported by the fact that the police when they went to the locality found a dead bird and a pair of shoes and a pair of black half pants in wet condition. This find of the dead bird and the pair of shoes etc. has not explained on the version given by Panchanan Roy, Upendra Mondal and Tarapado Naru. Mr. Ajit Kumar Dutt stated that the inquiring Magistrate was not right in examining Pannalal Saha and Shankar Ghose at the suggestion of an advocate for the accused Chabbi Bose and that the latter should not have been allowed at the inquiry. When however there had already been 'a full investigation into the case by the officers under the supervision of the' Superintendent of Police, it was desirable and proper for the inquiring magistrate to make a careful inquiry and not merely an one sided inquiry by examining such witnesses as might be produced by an interested party. Moreover, in this case, the learned magistrate was inquiring into both the complaints simultaneously and necessarily be could look at the evidence as a whole. In fact, two separate cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under s. 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this. By evidence of other witnesses the learned judges had apparently in mind the statements of persons examined by the police during investigation under s. 202. It is permissible under s. 203 of the Code to consider such evidence along with the statements of the complainant recorded by the Magistrate and decide whether to issue process or dismiss the complaint. The investigation in that case was made by the police under s. 202, Cr. P.C. at the instance of the Presidency Magistrate. Apparently, the statement of the various witnesses questioned by the police were self-contradictory. That being the case, it was open to the Presidency Magistrate to consider which of them to accept and which to reject. The enquiring Magistrate has not stated nor has the High Court found in the case before us that the evidence adduced on behalf of the complainant and his own evidence were self-contradictory and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which it has done, has in effect sanctioned the usurpation by the Magistrate of the functions of a jury which the Magistrate was wholly incompetent to do. In view of what we have stated above, it is not necessary to say very much about the last ground. Section 203 of the Code of Criminal Procedure provides that where the Magistrate dismisses a complaint because in his judgment there 'is no sufficient ground for proceeding with the trial, he shall record his reasons for doing so. Here, as already stated, the Magistrate perused the report of the enquiring Magistrate and then proceeded to dismiss the complaint. It is stated on behalf of respondent No. 1 that this is at best an error in his order and, therefore, it is curable under s. 537(a) of the Code of Criminal Procedure. In support of this view, reliance is placed upon the decision of this court in Willie (William) Slaney v. The State of Madhya Pradesh [1955] 2 S.C.R. 1140. Here, the error is of a kind which goes to the root of the matter. It is possible to say that giving of reasons is a pre-requisite for making an order of dismissal of a complaint and absence of the reasons would make the order a nullity. Even assu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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