LexRAJINDRA NATH MAHATO versus T. GANGULY, DY. SUPERINTENDENT & ANR.
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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 ques-
tion 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.
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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 judg-
ment 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-in-
Chargc 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 dis-
missed 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 ac-
cused 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 Magis-
trate who took cognizance. ThereforExcerpt shown. Read the full judgment & AI analysis in Lexace.