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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

On 17-10-1947 the petitioner filed a complaint alleging offences of assault, criminal trespass and related acts against two persons: Mr. S.K. Misra (Assistant District Supply Officer of Dinapore) and his peon. The Sub-divisional Magistrate (SDM) examined the petitioner on 17-10-1947 and directed an enquiry by Mr. P. Sarkar, a Magistrate exercising first class powers at Dinapore (presumably under Section 202 of the Criminal Procedure Code). Mr. Sarkar issued notices, held a local enquiry on 25-10-1947, examined several witnesses (for and against the complaint) and on 5-11-1947 submitted a report recommending the issue of process.

On 15-11-1947 the SDM recorded that the report was in his confidential file; on 17-11-1947 he perused the report and sent the record to the District Magistrate for what he thought might be sanction under Section 197 CrPC. The District Magistrate on 19-11-1947 held that no sanction was necessary but made additional observations about the accused's opportunity to be heard. In response the SDM, by order dated 20-11-1947, directed that he would hold a fresh enquiry on the spot at Paliganj on 6-12-1947 and ordered both parties to be informed. The present application challenges the SDM's order directing a fresh enquiry by himself.

Legal Issues Presented

  1. Whether the SDM's order directing a fresh enquiry by himself (after a subordinate magistrate had already conducted an enquiry and submitted a report under Section 202 CrPC) was lawful or an irregularity in violation of Section 202 of the CrPC.
  2. Whether the procedure of sending the record to the District Magistrate for sanction under Section 197 CrPC (instead of the SDM deciding the matter himself) was proper.
  3. Whether the District Magistrate's observations that the person complained against should be given an opportunity to be heard before a prima facie case could be said to exist were appropriate at the complaint/enquiry stage.

Arguments of the Parties

Petitioner's Arguments

  • The SDM's order for a fresh enquiry violated Section 202 CrPC because Section 202 provides two alternatives: (a) the SDM may enquire into the case himself, or (b) he may direct an enquiry or investigation to be made by a subordinate magistrate, police officer, or other person. Having adopted the second alternative (by sending the matter to Mr. P. Sarkar), it was irregular for the SDM later to direct a fresh enquiry by himself.

Opposite Party's Arguments

  • Counsel for the opposite party contended that the language of Section 202 does not forbid the SDM from holding an enquiry himself after a subordinate magistrate has conducted one; if the SDM felt a second enquiry was necessary to ascertain the truth or falsehood of the complaint, he was entitled to order it.
  • The opposite party pointed to a petition filed by the Assistant District Supply Officer on 20-11-1947 indicating grievances (including that the prior enquiry had been held "behind his back") and argued that a searching confidential enquiry might be required; counsel relied on earlier decisions to show circumstances where hearing the accused in order to make an enquiry complete is permissible or desirable (e.g., when the accused is a public servant).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Emperor v. Durga Prasad, 44 ALL. 550 : A.I.R. (9) 1922 ALL. 211 : 23 Cr. L.J. 279 The interpretation of Section 202 CrPC: a Magistrate has only two alternatives under S.202 — either to enquire into the case himself or to direct a local investigation; there is nothing in S.202 empowering the Magistrate to adopt both alternatives. The court relied on this authority to support the conclusion that a second enquiry by the SDM, when a subordinate magistrate had already conducted a local enquiry and reported, would be irregular.
Tyab Ali Yusuf Ali v. Husain Ali Yusuf Ali, A.I.R. (24) 1937 Nag. 389 : 39 Cr. L.J. 80 In a similar factual situation (a complaint sent to a subordinate magistrate who made a careful enquiry and reported in favour of issuing process), it was held that a further enquiry by the magistrate himself was irregular. The court noted the factual similarity and relied on this Nagpur decision to hold that the SDM's direction for a fresh enquiry in the present case was irregular and violated Section 202.
Ram Saran Singh v. Mahommad Jan Khan, 7 P.L.T. 36 : A.I.R. (13) 1926 Pat. 34 : 26 Cr. L.J. 1394 Authority commenting that enquiries under Section 202 should not be converted into full-dress trials; practices such as automatically issuing notice to accused and allowing accused to cross-examine complainant's witnesses at that stage are undesirable. The court invoked this decision (and the next) to emphasize that, although a magistrate may in order to make an enquiry complete hear the accused (especially if a public servant), converting the enquiry into a trial is condemned; absence of the accused at the prior enquiry did not justify directing a fresh enquiry by the SDM.
Mahabir Baitha… v. Emperor…Opposite Party., 12 P.L.T. 710 : A.I.R. (18) 1931 Pat. 802 : 32 Cr. L.J. 1023 Same principle as Ram Saran Singh: the enquiry under Section 202 should not become a full-dress trial; limited circumstances exist where hearing the accused may be permissible to complete the enquiry. Used by the court to show that even when hearing the accused is permissible, it does not authorise discarding the prior enquiry report or converting the process-stage enquiry into a trial; therefore absence of the accused at the prior enquiry did not justify the SDM's fresh enquiry.

Court's Reasoning and Analysis

The court proceeded through the following reasoning, based strictly on the materials before it:

  1. There had already been a local enquiry by Mr. P. Sarkar who held a spot enquiry, examined several witnesses for and against the complaint and, on 5-11-1947, submitted a report recommending issuance of process. The SDM, when he first considered the report on 17-11-1947, did not regard the report as defective.
  2. The SDM then sent the record to the District Magistrate thinking Section 197 CrPC might bar cognizance. The court held this procedure was not warranted by law: if the SDM considered Section 197 a bar to taking cognizance, the proper course was to dismiss the petition of complaint on that ground; the judicial determination of whether sanction was necessary was for the SDM and could not be shifted to the District Magistrate.
  3. The District Magistrate, having concluded no sanction under Section 197 was necessary, nevertheless made observations suggesting the accused should be given an opportunity to be heard before cognizance — observations which the court found uncalled for and showing a possible misunderstanding of what constitutes a "prima facie case". The court emphasised that at the complaint stage the accused has no right to be heard and that whether a prima facie case exists depends on the complainant's evidence, not on whether the accused has been given an opportunity to state his case.
  4. In reaction to the District Magistrate's observations the SDM directed a fresh enquiry by himself. The court analysed Section 202 CrPC and the sequence of events and concluded that, in the circumstances of this case (where the second alternative of Section 202 had already been adopted and a subordinate magistrate had made a careful local enquiry and report), it was irregular for the SDM to order a second enquiry by himself.
  5. The court relied on precedents (Emperor v. Durga Prasad and Tyab Ali Yusuf Ali) establishing that Section 202 gives a magistrate only two alternatives and that recourse to both alternatives (i.e., both a subordinate local enquiry and then a fresh enquiry by the same magistrate) in the same case is improper.
  6. The court considered the petition filed by the Assistant District Supply Officer (noting its informal form and objectionable language) and his grievance that the prior enquiry had been held "behind his back." The court held that the mere absence of the accused at the prior enquiry is not a sufficient ground to set aside or ignore the prior enquiry report and direct a fresh enquiry by the SDM; to displace the complainant's witnesses' evidence based only on statements of the accused would require converting the enquiry into a full trial — a practice condemned by the cited Patna decisions.
  7. On balance, the court concluded the SDM erred in directing a fresh enquiry by himself in violation of Section 202 CrPC, and the SDM's order of 20-11-1947 (to the extent it directed the SDM to hold a fresh enquiry on the spot) ought to be set aside.

Holding and Implications

Holding: The court set aside the order of the learned Sub-divisional Magistrate dated 20-11-1947 so far as it related to the holding of a fresh enquiry by himself on the spot.

Implications and immediate consequences:

  • The SDM's direction for a fresh enquiry by himself is declared irregular and is quashed in that limited respect.
  • The SDM is directed to apply his mind to the petition of complaint, the report of the enquiring Magistrate (Mr. P. Sarkar) and other materials on the record, and to decide whether to (a) issue process or (b) proceed under Section 203 of the CrPC.
  • The court observed that if the accused later appears and raises a plea based on Section 197 CrPC, the Magistrate must decide that question at the appropriate stage — but it was improper to shift that burden to the District Magistrate in the manner done here.
  • The petition for transfer of the case (initially mentioned by the petitioner's counsel) was not pressed and the court found no case made out for transfer.
  • No broader novel principle of law was announced; the court applied existing authorities to the facts and confined relief to setting aside the SDM's order for a fresh self-conducted enquiry and remitting the matter for proper consideration under Sections 202/203 (and, if raised later, 197) of the CrPC.

Order disposed. Judgment signed "D.S." and followed by the directive "Order accordingly." (As recorded in the provided opinion.)

Show full summary ...

    Radha Kishun Sao v. S.K Misra And Another Opposite-Party.

    1. This application is directed against an order of the learned Sub-divisional Magistrate of Dinapore, dated 20-11-1947, by which the learned Sub-divisional Magistrate has directed a fresh enquiry by himself into a complaint preferred by the petitioner against two persona, Mr. S.K Misra, Assistant District Supply Officer of Dinapore and his peon. To appreciate the points urged before me, it is necessary to state some relevant facts. On 17-10-1947, the petitioner filed a complaint against the aforesaid two persons alleging that they had committed the offences of assault, criminal trespass, etc., against the petitioner, his son and certain other persons. The petitioner was examined on oath by the learned Sub-divisional Magistrate on 17-10-1947, and the learned Sub-divisional Magistrate then directed an enquiry into the complaint by Mr. P. Sarkar, a Magistrate exercising first class powers at Dinapore. Presumably, the enquiry was directed under the provisions of Section 202 of the Cr PC. Mr. Sarkar directed the issue of notices and held a local enquiry on 25-10-1947. He examined several witnesses, and on 5-11-1947, he submitted a report in favour of the issue of process. On 15-11-1947, the learned Sub-divisional Magistrate recorded an order to the effect that the report which had been handed over to him by his predecessor in office was in his confidential file. On 17-11-1947, the learned Sub-divisional Officer perused the report and then passed an order directing the submission of the record to the District Magistrate for obtaining the sanction of Government for the prosecution of the accused persons. The learned Sub-divisional Magistrate apparently thought that sanction might be necessary under the provisions of Section 197 of the Cr PC. The record then went to the learned District Magistrate who by his order dated 19-11-1947, held that no sanction was necessary. After having said that no sanction was necessary, the learned District Magistrate went to make certain observations which, in my opinion, were uncalled for. The observations were to the following effect:

    “It is true that a person complained against has no locus standi till cognizance is taken of the complaint against him and processes are ordered to be issued and the inquiring officer cannot enforce his attendance; but, at the same time, it is only proper that he should be given an opportunity to have his say before he is actually put on trial, especially when an enquiry has been ordered to be held. I do not see how even a prima facie case could be said to have been established till the person complained against is given an opportunity to give his version of the incident.”

    2. When the learned Sub-divisional Magistrate received back the record with the aforesaid observations of the learned District Magistrate, he passed an order on 20-11-1947, to the effect:

    “Received record from the District Magistrate Patna. Protest petition filed by A.D.S.O I shall hold fresh enquiry on the spot at Paliganj on 6-12-1947, at 10 A.M Inform both parties to be present on the spot on the date and time fixed.”

    3. This is the order against which the present application is primarily directed.

    4. The point which has been urged before me on behalf of the petitioner is that the order of the learned Sub-divisional Magistrate to the effect that he will hold a fresh enquiry is in violation of the provisions of Section 202 of the Cr PC, and, therefore, irregular. It is contended that Section 202 of the Cr PC, talks of two alternatives: one alternative is that the Sub-divisional Magistrate may enquire into the case himself; the other alternative is that the learned Sub-divisional Magistrate may direct an enquiry 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. Having availed himself of the second alternative, it was irregular for the Sub-divisional Magistrate to direct that a fresh enquiry will be held by him-self at the spot. Learned counsel for the opposite party has contended before me that the terms in which Section 202 of the Cr PC, is couched do not warrant the view that an enquiry by the learned Sub-divisional Magistrate himself will be without jurisdiction, and that if the learned Magistrate felt that a second enquiry was necessary for ascertaining the truth or falsehood of the complaint, it was open to him to order a second enquiry.

    5. I do not think it is necessary, at least in the present case, to go to the length of saying that a second enquiry by the learned Sub-divisional Magistrate himself would be with, out jurisdiction. All that need be said in this case is that in the circumstances of this case, it would be irregular to hold a second enquiry. I shall explain why I consider that a second enquiry in the circumstances of this case will be in violation of the provisions of Section 202 of the Cr PC, and, therefore, irregular. I have already stated that Mr. Sarkar held an enquiry at the spot and examined several witnesses including some who spoke in support of the petition of complaint and others who did not support the petition of complaint. Mr. Sarkar gave reasons for holding that a prima facie case had been made out, and that the accused persons should be put on trial. This report was considered by the learned Sub-divisional Magistrate on 17-11-1947. The learned Sub-divisional Magistrate did not then think that the report of the enquiring Magistrate was defective in any way. Apparently he was satisfied with the report and thought that the only bar to taking cognizance was Section 197 of the Cr PC. He then sent the record to the District Magistrate for obtaining sanction under the provisions of Section 197 of the Cr PC. It is a little difficult to understand why the learned Sub-divisional Magistrate thought that the record should be sent to the District Magistrate for obtaining sanction under Section 197 of the Cr PC. Such a procedure is not warranted by law, and I can find no explanation for such a procedure except on the ground of lack of experience of the learned Magistrate. If the learned Magistrate thought that Section 197 of the Cr PC, was a bar to taking cognizance, the proper procedure would have been to dismiss the petition of complaint on that ground. Whether sanction was or was not necessary was a matter which had to be judicially determined by the learned Magistrate, and the burden of deciding that matter could not be shifted to the learned District Magistrate. I may here observe that it would still be open to the accused persons when they appear to plead that Section 197 of the Cr PC, is a bar, and if such a plea is raised, it would then be necessary for the Magistrate to decide it. I do not, therefore, wish to say anything more on that question at this stage. It is still more surprising to me why the learned District Magistrate went out of his way to make the observations which I have quoted above, when he was of the opinion that no sanction under Section 197 of the Cr PC, was necessary in this case. It was not the duty of the learned District Magistrate to decide whether a prima facie case had or had not been made out. That was a matter which was for the decision of the learned Sub-divisional Magistrate. I am also far from satisfied that the learned District Magistrate has properly understood what is meant by the expression “prima facie case”. Here was a case in which a Magistrate had held an enquiry at the spot and had examined several witnesses who supported the allegations made in the petition of complaint. The evidence of those witnesses makes out a prima facie case, and I do not understand what the learned District Magistrate means when he says that no prima facie case can be said to have been made out till the person complained against is given an opportunity to give his version of the incident. This Court has laid down in several decisions that the accused has no right to be heard at the stage when the complaint is under consideration. Whether a prima facie case has or has not been made out does not depend on whether the accused has been heard or not it depends on the kind of evidence which is given by the complainant in support of his petition of complaint. The learned Sub-divisional Magistrate probably thought that he was bound by the observations made by the learned District Magistrate, and, therefore, made an order to the effect that he himself would enquire into the petition of complaint. The learned Sub-divisional Magistrate forgot, however, that under the provisions of Section 202 of the Cr PC, two alternatives were open to him. One of the alternatives was to hold the enquiry himself, and the other was to send the case for enquiry by some other Magistrate subordinate to him. The second alternative had already been adopted in this case, and the learned Sub-divisional Magistrate had before him the report of the enquiring Magistrate. Unless that report showed some defect, I do not understand why the learned Sub-divisional Magistrate thought it necessary to hold a fresh enquiry himself. Learned counsel for the petitioner has placed before me two decisions where, in similar circumstances, the holding of a second enquiry has been held to be irregular: Emperor v. Durga Prasad, 44 ALL. 550 : (A.I.R (9) 1922 ALL. 211 : 23 Cr. L.J 279) and Tyab Ali Yusuf Ali v. Husain Ali Yusuf Ali, A.I.R (24) 1937 Nag. 389 : (39 Cr. L.J 80). In the Allahabad case the learned Magistrate having partially enquired into a case directed a local investigation. It was held that under Section 202 of the Cr PC, the learned Magistrate had the option of only two alternatives, namely, either to enquire into the case himself, or direct a previous local investigation. It was further observed that assuming that was a fit case for local investigation, there was nothing in S. 202 which empowered the learned Magistrate to have recourse to both the alternatives. The facts of the Nagpur case are more similar to the case under my consideration. In the Nagpur case a complaint was made which was sent to a second class Magistrate for enquiry. That Magistrate after a careful and detailed enquiry submitted a report to the Magistrate in favour of the issue of process. The Magistrate instead of issuing process or dismissing the complaint under Section 203 of the Cr PC, proceeded to make a further enquiry himself. It was held that the further enquiry held by the learned Magistrate was irregular. For the same reason, I am of the view that the further enquiry directed to be held in this case by the learned Magistrate is irregular and is in violation of the terms of Section 202 of the Cr PC.

    6. Learned counsel for the opposite party has drawn my attention to a petition filed by the Assistant District Supply Officer on 20-11-1947. The petition is not on stamped paper, nor is it of the kind which is usually filed in a Court of justice. The petition is couched in language which is hardly appropriate for a Court of Justice. One of the statements in the petition is to the following effect:

    “A bird whispered to me that he (the previous S.D.O) called Mr. Sarkar in the evening of 2nd November and directed him to report against me. I am afraid Mr. Sarkar is too weak to stand his threat.”

    7. Apart, however, from this, the grievance made by the Assistant District Supply Officer was that the enquiry by Mr. Sarkar had been held behind his back. The Assistant District Supply Officer wanted a searching confidential enquiry which would, according to him, reveal the truth. Learned counsel for the opposite party has drawn my attention to the decisions of this Court in Ram Saran Singh v. Mahommad Jan Khan, 7 P.L.T 36 : (A.I.R (13) 1926 Pat. 34 : 26 Cr. L.J 1394) and Mahabir Baitha… v. Emperor…Opposite Party., 12 P.L.T 710 : (A.I.R (18) 1931 Pat. 802 : 32 Cr. L.J 1023). In both those cases it was observed that it was undesirable that the enquiry under Section 202 of the Cr PC, should be converted into a full-dress trial. The practice of automatically issuing notice on the accused, and the practice of allowing the accused person to cross-examine the witnesses for the complainant were condemned. Certain observations, however, were made in those cases which show that if the Magistrate in order to make an enquiry complete allows the accused to appear and hears his statement, such a procedure is not illegal. It was also observed that it might be desirable to-hear the accused, particularly in a case where the accused is a public servant holding a responsible position. In the case before me the accused stated that he was not present when Mr. Sarkar held his enquiry, though the report of Mr. Sarkar shows that witnesses of both sides were examined. I do not wish to say anything at this stage which may prejudice either party at the trial; nor is it necessary for me to say anything on the merits of the allegations made against the Assistant District Supply Officer and his peon. All that I need say is that the absence of the accused persons at the time when Mr. Sarkar held the enquiry cannot be accepted as a good ground for directing a fresh enquiry by the learned Sub-divisional Magistrate himself in violation of the provisions of Section 202 of the Cr PC. Assuming that the accused person makes certain statements in his defence, I do not see how the learned Sub-divisional Magistrate can hold that the witnesses who support the petition of complaint should be disbelieved, unless the learned Sub-divisional Magistrate is prepared to convert his enquiry into a full-dress trial. If the accused person is not to be permitted to cross-examine the witnesses who support the petition of complaint, their evidence cannot be thrown out merely on the statements of the accused. Their evidence can be thrown out only if the enquiry is converted into a trial; but that is a practice which has been condemned by this Court on more than one occasion.

    8. For these reasons, I am satisfied that the learned Sub-divisional Magistrate was in error, and violated the provisions of Section 202 of the Cr PC, when he directed a fresh enquiry to be held by himself in this case. The order of the learn, ad Sub-divisional Magistrate dated 20-11-1947, must, therefore, be set aside, so far as it relates to the holding of a fresh enquiry by himself on the spot. The learned Sub-divisional Magistrate must now apply his mind to the petition of complaint, the report of the enquiring Magistrate and other materials on the record for deciding whether this is a case in which he should either issue process or proceed under Section 203 of the Cr PC.

    9. Learned counsel for the petitioner had at the beginning of his argument prayed for a transfer of the case as well. Subsequently, however, he did not press that prayer. I need only say that I do not find that any case for a transfer has been made out.

    10. The rule is disposed of accordingly.

    D.S

    11. Order accordingly.

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    Comments

    Radha Kishun Sao v. S.K Misra And Another Opposite-Party.
    (Jan 27, 1948)