Full Judgment Text
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PETITIONER:
CRICKET ASSOCIATION OF BENGAL & ORS.
Vs.
RESPONDENT:
STATE OF WEST BENGAL & ORS.
DATE OF JUDGMENT24/03/1971
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
RAY, A.N.
CITATION:
1971 AIR 1925 1971 SCR 200
1971 SCC (3) 239
ACT:
Practice-High Court-Suo Motu interference with orders of
lower courts under Criminal Procedure Code-Propriety.
Code of Criminal Procedure (Act 5 of 1898), ss. 204(3), 248
and 253(2) Powers of Magistrate under.
HEADNOTE:
A complaint was filed against the first appellant and
others- office bearers of the first appellant-under ss. 337
and 338, I.P.C., read with s. 114, that they were rash and
negligent in the matter of making seating arrangements etc.,
for spectators of a cricket match, with the result that the
spectators became unruly and the police resorted to lathi
charge and the bursting of tear gas shells, causing injuries
to several persons. The Chief Presidency Magistrate
examined the complainant and issued summons to the accused.
Some of the office bearers challenged the order of the Chief
Presidency Magistrate in a criminal revision before the High
Court and the High Court held: (a) that the counsel
appearing for the complainant conceded that no offence was
made out under ss. 337 and 338 read with s. 114 I.P.C., (b)
that in fact, the statements in ,he complaint do not make
out the offences under ss. 337 and 338, and (c) that they
make out only an offence under s. 336, I.P.C and therefore
the prosecution will have to be given a chance to establish
that offence against the accused. When the Chief Presidency
Magistrate started to deal further with the matter, the
complainant filed an application for leave to withdraw the
complaint against 8 accused and the Magistrate discharged
those accused under s. 253(2), Cr. P. C. The complainant
filed another application some time later seeking permission
to withdraw the complaint against the rest of the accused on
the ground that he filed the complaint only to voice the
grievances of bona fide spectators and since the matter was
being inquired into by an Inquiry Commission to find out the
persons responsible, he did not intend to proceed with his
complaint. The complaint as against some of the accused was
dismissed under s. 204(3), Cr. P. C.. on the ground that
the complainant had not deposited the necessary charges for
issue of summons, and as regards others, the Chief
Presidency Magistrate held that he could not allow the
withdrawal of the complaint as the proceedings under s. 338
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I.P.C., were warrant proceedings. He however passed an
order discharging all the remaining accused under s. 253(2),
Cr. P. C., because he held that no useful purpose would be
served by proceeding further with the complaint as the
complainant was absent and no longer serious.
Thereafter, a Division Bench of the High Court issued suo
motu notice to the complainant and all the accused, to show
cause why the order discharging the accused should not be
set aside; and, after hearing the parties the Court set
aside the orders of the Chief Presidency Magistrate on the
grounds that: (a) The discharge of some of the accused under
s. 204(3) on the ground that the complainant had not paid
the process fee for issue of summons was not proper, since
in the relevant rules framed by the High
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Court there was no provision for such payment; and. (b) the
order discharging the remaining accused under s. 253(2), Cr.
P. C. was not justified in a warrant case.
On the question whether the order of the High Court was
justified.
HELD: In a proper case the High Court can take action
suo motu against the orders passed by the subordinate courts
without being moved by any party; but the interference with
the orders of the Chief Presidency Magistrate by the High
Court in the present case was not justified in the
circumstances of the case. [208D]
(1) After the concession of the counsel for the complainant
and the ;categorical finding of the High Court that no
offence under ss. 337 and 338 I.P.C., was made out and that
investigation was to be made only in respect ,of an offence
under s. 336 I.P.C., the Magistrate had to proceed with the
trial only for the offence under s. 336 I.P.C. [206H; 207A]
(2) Assuming that the Chief Presidency Magistrate had still
to proceed with the trial for offences under ss. 337 and 338
I.P.C., and that the discharge under s. 204(3) Cr. P. C.,
was not justified, the Magistrate has got ample jurisdiction
to discharge the accused under s. 253(2), Cr. P. C., land
in the present case, the Magistrate had given good reasons
for discharging the accused. [207B-D]
(3) On the basis that the inquiry had to proceed for an
offence under
s. 336, I.P.C., the position would be that the summons
case procedure would have to be followed and under s. 248,
Cr. P. C., the Magistrate had ample jurisdiction to permit
the complainant to withdraw the complaint, and in fact,
under that section, the Magistrate should acquit the
accused, once he permits the complaint to be withdrawn.
[208A-C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 270 of
1968.
Appeal by special leave from the judgment and order dated
January 14, 17, 1968 of the Calcutta High Court in Criminal
Revision No. 475 of 1967.
C. K. Daphtary, Nalin Chandra Banerjee, D. N. Mukherjee and
Mukul Gopal Mukherjee, for the appellants.
The respondent did not appear.
The Judgment of the Court was delivered by
Vaidialingam, J--This appeal, by special leave is, directed
against the judgment and order dated 14/17 June, 1968 of the
Calcutta High Court in Criminal Revision No. 475 of 1967
reversing the orders passed by the Court of the Chief
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Presidency Magistrate, Calcutta, discharging the accused-
appellants.
The circumstances leading up to the order of the High Court
may be indicated : The second respondent filed a, complaint
on January 3, 1967 before the Court of the Chief Presidency
Magistrate, Calcutta,. in respect of the incident which took
place, on the
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second day (January 1, 1967) of the Second Cricket Test
Match between India and West Indies at the Eden Gardens.
The Test match was to be played under the control,
management and supervision of the Cricket Association of
Bengal, which had sold tickets of various denominations for
the game.There were tickets sold for all. days of the Match
andthere were arrangements made for the sale of daily
tickets.The game started as scheduled on December 31,
1966.The play was interrupted by a number of spectators
scaling over the fencing erected around the play ground and
entering the cricket field. However, nothing untoward
happened on that day.
According to the prosecution, the first appellant started.
selling tickets announcing that arrangements had been made
for the accommodation of about 60,000 spectators, while as a
matter of fact nearly a lakh of spectators were admitted
into the enclosure. The sitting arrangement was most
inconvenient and,, highly unsatisfactory. The arrangements
made by the first appellant for accommodating the persons
inside the enclosure were so grossly inadequate that it
tended to endanger the personal safety of the spectators.
On the day in question, the complainant, who was a holder of
a season ticket for Rs. 45 /- went to attend’ the game and
found all the stands jampacked. Notwithstanding, this the
people with tickets were being pushed into different en-
closures with the result that the spectators within the
enclosures started jumping over the fence and occupied the
space between the lines of the field and the fencing. The
police, unable to control’ the rush and confusion caused by
the behaviour of the crowd,suddenly started a lathi-charge
followed by the bursting of tear gas shells, which resulted
in causing injuries to various persons. This; infuriated
the crowd, which retaliated by acts of arson. The
arrangements for going out of the enclosures were also
grossly inadequate with the result that some of the
spectators who wanted to clear out quickly in panic
sustained injuries. The Match had to be abandoned for the
day. On these facts the complainant alleged that the first
appellant who acted most rashly and negligently in
overselling the tickets and admitting a large number of
people than could be conveniently accommodated inside the
ground and thereby endangered human lives and the personal
safety of thousands of spectators. It was further alleged
that as, a matter of fact the rash and negligent act of the
first appellant also resulted in hurt being caused to a
number of persons, who, bad come to witness the Match.
Apart from the Cricket Association of Bengal, which was the
first accused, he made 33 persons accused in his complaint
petition. Those persons were the President, the Vice-
President and other office bearers and Members of the
Working Committee of the Cricket Association of Bengal. The
complainant prayed for issuing summons against the 34
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accused persons under ss. 337 and 338 read with s. 114 of
the Indian Penal Code and to proceed against them according
to law.
On January 3, 1967 the Chief Presidency Magistrate examined
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the complainant and heard his counsel. As the Chief
Presidency Magistrate was prima facie satisfied there was a
case, he issued summons to the, persons shown as accused
under ss. 337 and 338 read with s. 114 of the Indian Penal
Code, fixing February 13, 1967 for appearance. The
complainant bad also made a prayer for issue of search
warrants and for seizure of the account books and other
relevant papers in the custody of the first accused
appellant and search warrants were issued on January 6,
1967.
Some of the office bearers of the first appellant on receipt
of summons challenged before the High Court in Criminal
Revision No. 19 of 1967 the orders of the Chief Presidency
Magistrate issuing summons and search warrants. They also
prayed for quashing the complaint on the ground that the
allegations even if fully established will not establish an
offence under s. 337 and/or s. 338 read with s. 114 or any
other section of the Indian Penal Code, and that the
complaint was misconceived and constitutes an abuse of the
process of the Court.
The learned Single Judge stayed further proceedings before
the Chief Presidency Magistrate and issued summons to the
State and the complainant. After hearing all parties, the
learned Single Judge ultimately, by his order dated February
24, 1967, dismissed the Criminal Revision No. 19 of 1967.
There were three points to be noted in the order of the
learned Judge, namely, (1) Mr. Dutt, counsel appearing for
the complainant conceded before the High Court that the
process issued by the Chief Presidency Magistrate under ss.
337 and 338 read with s. 114 of the Indian Penal Code is
misconceived (2) the High Court has given a finding that the
statements made in the petition of complaint do not
constitute the essential elements to make out offences under
ss. 337 and 338 I.P.C., and (3) nevertheless, prime facie it
cannot be stated tht the elements of an offence under s.
336 I.P.C. are not contained in the complaint, and therefore
the prosecution ,will have to be given a chance to
establish, if they can, that an offence under s. 336 I.P.C.
has been committed. Though ultimately the criminal revision
was dismissed, it will be seen from the aspects mentioned
above that the complainant has conceded that the allegations
in the complaint will not make out an offence under ss. 337
and 338 I.P.C. Apart from this concession, the learned
Single Judge after independently considering the averments
in the complaint has also held that no offence under s. 337
and 338 is disclosed in the complaint and that the issue of
204
summons in respect of those offences cannot be upheld. But
the ,High Court was prepared to give an opportunity to the
prosecution to establish, if they can, that an offence under
s. 336 I.P.C., at any rate, has been committed by the
accused. It is needless to state that the Chief Presidency
Magistrate was bound to have due regard to these directions
contained in the order of the High Court when the case was
to be proceeded with again in his court
After the disposal of Criminal Revision No. 19 of 1967 by
the High Court on February 24, 1967 and in consequence of
the stay of proceedings being vacated, the Chief Presidency
Magistrate proceeded to deal further with the complaint. On
March 2, 1967 the complainant filed an application before
the Chief Presidency Magistrate for leave to withdraw the
complaint against eight accused, namely, accused Nos. 8, 10,
11, 22, 26, 31, 32 and 33. The reason given by the
complainant was that the said accused persons had ceased to
act as members of the Working Committee at the material
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time. On March 20, 1967 the Chief Presidency Magistrate
discharged under s. 253(2) Cr. P.C. the eight accused as
prayed for by the, complainant in his application dated
March 2, 1967, after accepting the reasons given therein.
The accused so discharged were Nos. 8, 10, 11, 22, 26, 31,
32 and 33. On May 31, 1967, the complainant filed another
application before the Chief Presidency Magistrate seeking
permission to withdraw the complaint against the rest of the
accused. In that application he stated that he had filed
the complaint to voice the grievances of the bona fide
spectators, who had purchased tickets for witnessing the
Cricket Test Match. He had further mentioned that an
Inquiry Commission called the "Sen Commission" was already
inquiring into the events connected with the incident that
took place on January 2, 1967 in order to find out the
persons responsible for the same. Under these
circumstances, the complainant stated that he does not
intend to continue the complaint instituted by him.
On June 8, 1967, the Chief Presidency Magistrate dismissed
the complaint as against accused Nos. 16, 17, 18, 19, 23,
27, 30 land 34, under s. 204(3) Cr. P.C. on the ground that
the complainant had not deposited the necessary charges for
issue of summons. It was noted by the Chief Presidency
Magistrate that the complainant though called was absent.
Dealing with the application dated May 31, 1967 filed by the
complainant for permission to withdraw the complaint, the
Chief Presidency Magistrate has stated that he cannot accord
permission to withdraw the complaint as the proceedings
under s. 338 I.P.C. are warrant procedure proceedings. But
the Chief Presidency Magistrate has further stated that no
useful. purpose will be served by
205
proceeding further with the complaint as the complainant was
not present and was also not serious to proceed with the
complaint as is evident from his conduct in comitting
several defaults. For these reasons the Chief Presidency
Magistrate passed an order discharging all the other
remaining accused under s. 253(2) Cr. P.C. Therefore, it
will be seen that by the two orders dated March 20, and June
8, 1967, referred to above, the Chief Presidency Magistrate
discharged all the accused and terminated the proceedings
initiated by the second respondent.
The news regarding the termination of these proceedings
appeared in some of the Dailies in Calcutta on June 10,
1967. On seeing the said news item, the High Court by its
order dated June 13, 1967 called for the record pertaining
to the case from the court of the Chief Presidency
Magistrate, Calcutta. On August 1, 1967 a Division Bench of
the Calcutta High Court issued suo moto a Rule (Criminal
Revision No. 475 of 1967) to the complainant and the 34
accused persons to show cause why the orders discharging the
accused persons passed on March 20, and June 8, 1967 should
not be set aside.
The learned Judges after hearing all the parties, by the
impugned judgment set aside the two orders of the Chief
Presidency Magistrate discharging the accused. The Chief
Presidency Magistrate was directed to proceed with the
complaint and dispose it of according to law. But the
learned Judges directed that the proceedings need be
continued only against the 14 accused, namely, Nos. 1, 2, 3,
4, 5, 6, 7, 9, 10, 12, 13, 14, 15 and 26. The learned
Judges have held the discharge of some of the accused under
s. 204(3) Cr. P.C. on June 8, 1967 on the ground that the
complainant has not paid the process for issue of summons is
not proper. According to the High Court there is no
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provision under the relevant rules framed by the High Court
for payment of any process for issue of summons in respect
of cognizable offences whether the case is instituted on a
complaint or not. Similarly the High Court held that the
orders discharging, under s. 253(2) Cr. P.C. some of the
accused on March 20, 1967 and the remaining accused on June
8, 1967 are also not justified as the proceeding under s.
338 I.P.C. was that of a warrant case.
Mr. C. K. Daphtary, learned counsel for the appellants, in
attacking the order of the High Court has pointed out that
there was no justification for the High Court, to interfere
suo moto with the orders passed by the Chief Presidency
Magistrate discharging the accused, in the circumstances
mentioned by him’ The counsel also pointed out that the
Division Bench has not properly appreciated and given effect
to the directions given in
206
the judgment of the learned Single Judge in Criminal
Revision No. 19 of 1961. After the order of the learned
Single Judge, the counsel pointed out, that the proceedings
have to be continued by the Magistrate only to inquire if an
offence under s. 336 I.P.C. has been made out. In such a
trial the summons case procedure has to be adopted and the
Magistrate has got ample jurisdiction to permit the
complainant, under s. 248 Cr. P.C. to withdraw the
complaint. Even on the basis that the charges under ss. 337
and 338 survive and the warrant case procedure is to be
adopted, Magistrate has jurisdiction under s. 253(2) to
discharge the accused. Considering the matter from any
point of view, the interference by the High Court is not
justified.
Neither the State nor the complainant has appeared before
’us to support the order of the High Court. We have already
referred in great detail to the circumstances under which
the ’impugned order was passed as they give a clear and
complete picture of the whole matter. We have gone through
the reasoning of the learned Judges and we are satisfied
that the interference with the orders of the Chief
Presidency Magistrate by the High Court was not justified
and was not warranted in the circumstances of the case.
The fundamental error committed by the Division Bench is that
it has proceeded on the basis that the learned Single
Judge on the former occasion in Criminal Revision No. 19 of
1967 has not held that the prosecution under ss. 337 and 338
is not made out. We have already referred to the fact that
during the hearing of Criminal Revision No. 19 of, 1967, Mr.
Dutt, learned counsel appearing for the complainant conceded
that the issue of process under ss. 337 and 338 I.P.C. was
misconceived. On the other band, the Division Bench
proceeds on the basis that no such concession has been made,
which is erroneous as a fact. Again even apart from the
concession, the learned Single Judge after discussing the
essential ingredients of an offence under ss. 337 and 338
I.P.C. has categorically held in his order that the
statements made in the complaint petition do not go to make
,up the essential ingredients for an offence under ss. 337
and 338. The learned Single Judge has also found that it is
not possible at that stage to say that no offence even under
s. 336 I.P.C. has been committed. It is on this reasoning
that the learned Judge, though technically did not quash the
proceedings, gave a clear indication that the prosecution is
given a chance to establish, if they can, that the accused
have committed an offence under s. 336 I.P.C. After the
concession of the counsel for the complainant and the
categorical finding of the learned ,Judge that no offence
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under ss. 337 and 338 I.P.C. is made out ;and that an
investigation is to be made only in respect of an
207
offence under s. 336 I.P.C., it is idle to expect the
Magistrate to ignore these clear directions and proceed with
the trial again for an offence under ss. 337 and 338 I.P.C.
as if nothing had happened. That is exactly what
unfortunately the Division Bench has done. It has ignored
the concession of the counsel. It has ignored the clear
finding of the learned Single Judge as also the directions
given by him. It is this serious mistake committed by the
Division Bench that has resulted in the passing of the order
under attack. The legality of the orders passed by the
Chief Presidency Magistrate can be considered from two
points ,of view. Assuming that the Chief Presidency
Magistrate has still to proceed with the trial for offences
under ss. 337 and 338, I.P.C. it is no doubt true that he
has to follow the warrant case procedure. Even under such
circumstances, the Magistrate has got ample jurisdiction to
discharge the accused under s. 253(2) P.C. Section 253 deals
with the discharge of accused. Subsection (1) deals with
the discharge of an accused when the Magistrate after taking
all evidence referred to in s. 252 Cr. P.C. and making such
examination of the accused, if any, as may be found
necessary, finds that no case against the accused has been
made out, which if unrebutted, would warrant his conviction.
Subsection (2) of s. 253 is to the following effect :
"253(2) Nothing in this section shall be
deemed to prevent a Magistrate from
discharging the accused at any previous stage
of the case if, for reasons to be recorded by
such Magistrate, he considers the charge to be
groundless."
This sub-section gives ample jurisdiction to the Magistrate
to discharge an accused in the circumstances mentioned
therein and ,the order of discharge can be passed at any
previous stage of the case. Sub-section (1) under those
circumstances will not operate as a bar to the exercise of
jurisdiction by the Magistrate under sub-section (2). It is
under sub-section (2) of s. 253 that the Magistrate has
discharged the accused. He has given good reasons in the
order for discharging the accused.
Assuming that the Division Bench is right in holding that
the discharge under s. 204(3) Cr P.C. is not justified, we
will proceed on the basis that the said order is one of
discharge under s. 253(2). We have already referred earlier
to the reasons given by the complainant in his application
seeking permission to withdraw the complaint as well as to
the reasons given by the Magistrate for discharging the
accused. There is no controversy that at the material time,
the Sen Commission was inquiring into the identical matter
which was the subject of the criminal complaint. Under
those circumstances, it cannot be said that
208
the discharge of the accused by the Magistrate is
either illegal or not justified.
Even on the basis that the inquiry has to proceed for an
offence under S. 336 I.P.C.-, the position will be that the
summons case procedure will have to be followed.
Even then, under S. 248 Cr. P.C. the Magistrate has ample
jurisdiction to permit the complainant to withdraw the
complaint. In fact under S. 248 Cr. P.C. the Magistrate
should acquit the accused, once he permits the complaint to
be withdrawn. Even if the order of discharge is to be
treated as passed in a case where summons case procedure is
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to be followed, it was within the jurisdiction of the
Magistrate and hence it cannot be characterized as either
illegal or not justified.
We accordingly hold that the Division Bench was not
justified in interfering with the orders dated March 20, and
June 8, 1967 passed by the Chief Presidency Magistrate, in
the circumstances of this case. We, however, make it clear
that we have no doubt that in proper cases the High Court
can take action suo moto against the orders passed by the
subordinate courts-without being moved by any party.
In the result the appeal is allowed. The judgment and order
of the High Court in Criminal Revision No. 475 of 1967 are
set aside and the orders of the Chief Presidency Magistrate
dated March 20, and June 8, 1967 will stand restored.
V.P.S, Appeal allowed.
209