1971 AIR 1925          1971 SCR  200
 1971 SCC  (3) 239


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.


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 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 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]


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 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 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 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 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 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 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 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 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 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 under  ss.  337 and 338 I.P.C. is made out  ;and  that  an investigation is to be made only in respect of an 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

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 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 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.




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