High CourtDivision Bench1971-12-02Appeal dismissed.

Rajindra Nath Mahato v. T. Ganguly, Deputy Superintendent & Anr.

Case / Petition Number:Criminal Appeal No. 291 of 1968.

Neutral Citation:1972 SCR 671

Case Details & Bench

Court: High Court
Hon'ble Judges: A. N. Ray
D. G. Palekar
Judgment Date: 1971-12-02
Court Decision / Holding: Appeal dismissed; High Court's order quashing the process against the three accused is upheld.
Final Disposition: Appeal dismissed.

Parties to the Case

Appellants / Petitioners

Rajindra Nath Mahato

Respondents

Block Development Officer, Purulia
Officer-in-Charge, Purulia Police Station
T. Ganguly, Deputy Superintendent of Police, Purulia

Legal Representation & Advocates

Counsels for Petitioners

• P. K. Chatterjee

Counsels for Respondents

• P. K. Chakravarty

Case Synopsis & Summary

Rajindra Nath Mahato v. T. Ganguly concerns whether a magistrate who has not taken cognizance or a magistrate to whom a case has not been transferred can issue process under the Code of Criminal Procedure. The complainant, Rajindra Nath Mahato, filed a petition of complaint under section 395 IPC alleging dacoity against the Block Development Officer of Purulia, the Officer-in-Charge of the local Police Station, and T. Ganguly. The Calcutta High Court quashed the processes on two grounds: that the Sub-Divisional Magistrate who issued them had not taken cognizance, and that the evidence relied on came from tainted sources. The Magistrate who actually took cognizance was different from the one who issued the process, and under section 204 CrPC, the cognizant magistrate may issue process; under section 202 CrPC, a case transferred to another magistrate may be proceeded. The Supreme Court held that the power to issue process is not confined to the terms of section 204 when no transfer order exists; a transferee may issue process under section 202, but only if there is a valid transfer. In the present case there was no order transferring; therefore the High Court’s quashing was not improper. The Court held that there are two permissible routes to issue process, and the question of the tainted evidence was left to the normal evaluation in later stages. The appeal was dismissed, upholding the High Court’s action.

Provisions of Law Cited

Section 202, CrPCSection 204, CrPCSection 561A, CrPCSection 200, CrPCSection 191, CrPCSection 192, CrPCSection 203, CrPCSection 395, IPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the scheme of CrPC provides two independent routes for issuing process: (i) section 204, by the magistrate who has taken cognizance, and (ii) section 202, by a magistrate to whom a case has been transferred. Since no valid transfer order existed in this case, the cognizant magistrate or the appropriate transferee route should govern. The tainted-sources argument raised by the High Court goes to the weight of evidence rather than the admissibility of the process at this stage; the court should not strike down the process solely on the basis of evidentiary taint, which is a matter for later assessment during trial. The appellant submits that the High Court erred by treating lack of a formal transfer as fatal and by treating tainted evidence as a bar to issuing process. The remedy lies in proper legal procedure, not automatic quashing of process.

Contentions of Respondents

The respondents submit that the High Court correctly quashed the process since the magistrate who issued process had not taken cognizance of the offence, and there was no valid order transferring the case to the magistrate who issued the process. They argue that section 204 permits only the cognizant magistrate to issue process, while section 202 applies only on valid transfer under which a transferee may issue process. In the absence of a transfer order, the procedure adopted by the magistrate was illegitimate. The evidence cited by the prosecution was said to be tainted, and the High Court was justified in examining the legal sufficiency of the evidence under section 561A CrPC to determine whether there is a prima facie case to proceed. They contend that the appeal should be dismissed as the lower court’s conclusions were correct and the process should remain quashed to prevent improper proceedings based on tainted evidence.

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Extracted Judgment Text

Exact text extracted from official judgment records.

) A B D F G H 671 RAJINDRA NATH MAHATO _y._ T. GANGULY, DY. SUPERINTENDENT & ANR. _December_ 2, 1971 (A.°N. RAY AND D. G. PALEKAR, JJ.J _Code of Cri111i11al-Procedure_ _(Act_ _5_ _of_ 1898), _ss._ 202, 204 _<111d_ _561A-_ _Pcn1'£'r_ _to_ i.~s11e _proces.-;-W/io· has-Right of Hif{h_ _Couri_ _fo,_ _go into_ _weight_ _of evide1l<'<' 11flder_ ~- _56_ lA. After taking cognizance of an offence against the rcsponc.J.~n.t. the }(fagistratc enquired into it and submitted a report to the Sub-D1v1swnal Magistrate that a _pri111n_ _facie_ case \\'as n1ac!c out against the respondents. The Sub-Dhisional Magistrate directed the issue of process. The High Court in a petition to quash the issue of process held that under s. 204. the Sub-Divisional ?\1agistrate had no right to issue process since he was not the ~fagistratc \vho had taken cognizance of the offence. and also observed that the evidence in the case came fron1 tainted sources. Disn1issing the appcul to this Court. HELD : I I) Under >. 20~. Cr. P.C. 1hc Magistrate who takes cognizanci.: could issue prOCt!Ss and undt!r s. 202. Cr. P .C .. a Magistrate to whon1 :i case had been transferred could issue process. Since, in the present cas..:. the 1nagistratc \\'ho issued process had not taken cognizance of the offence and there \Vas no order transferring the case to him, the High Cotfrt '.\';1s right in quashing the is::iuc _oi_ process. L673 C-F] (2) Under s. 561A. Cr. P.C.. tho High Court could go into the question as lo \\'h\.·th .. :r thcre·,\'as :i_nv legal C\idcncc. [673 F-Gl CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 291 of 1968. Appeal by special leave from the j11dgment and order dated March 28. 1968 _of_ the Calcutta Hi!!h Court in Criminal Revision No. 159 of 1968. _P._ _K. Chatrerj<'<'._ for the appellant. _P._ _·K. Chakravarty._ for respondent No. I. The- Judgment of the Court was delivered by Ray, J. This i> an appeal by special leave from the judgment dated 28 M;irch. 1968 of the High Coun at Calcutta quashing the processes issued against the three accused persons. Th~ appellant on 8 March, 1966 filed a petition of complaint against the Block Development Officer Purulia, the Officer-inChargc of the local Police Station and T. Ganguly, the Deputy Superintendent of Police, Purulia under section 395 of the fridian Penal Code on th~ allegatio.n ~at during searc)l of the appellant's house they comn11tted dac01ty m the house. The Magistrate dismissed lhe complaint under section 203 of the Code of Crimim~J 672 SUPREME COURT REPORTS [1972) 2 S.C.R. 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, 1967 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 quashirtg 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 contemplate transfer of cases by a Magistrate, who has taken cognizance of an offence. Section 191 of the Code of Criminal Pro## cedure speaks 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. A B # c D E F G H A B # c D F G R. N. MAHATO _V._ T. GANGULY, DY. SUPDT. _(Ray,_ J.) 673 In these cases where either the Magistrate has taken cognizance and is in seisin of the case or where a case is transferred by a Magistrate who has taken cognizance to another Magistrate subordinate to him th1: 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 present appeal. The relevant section which confers power on the Magistrate to whcm 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 Magistrate may, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance 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 Magi~ trate 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 correC'lly 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 _prlma_ _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 nc,t reliable the High Court meant what can be described as 'no ca!:e 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._