PRAMATHA NATH MUKHERJEE versus THE STATE OF WEST BENGAL

DAS GUPTA, J.-The question raised in this appeal is whetller a Magistrate after making an order of charge under s. 251A(2), Cr. P. C., in respect of a charge for an offence triable as a warrant case can still procc0d to try the accused for another offence disclosed by the police report and triable as a summons The case against the appellant was instituted on a police report which charged him with an offence under s. 332 of the I.P.C. for "voluntarily causing hurt by means of a piece of wood to the complainant, Sisir Kumar Bose, Bailiff of Calcutta Corporation and Chandra Sekhar Bhattacharjee, an employee of Calcutta Corporation with the intent to prevent or deter those persons from discharging their duties as public servants." The Magistrate after satif'\fying himself that the documents referred to ins. 173 Or. P. C. had been furnished to the accused examined the documents and was of opinion after hearing counsel of both parties that the charge under s. 332 I.P.C. could not be sustained. He_ was however of opinion that there was evidence to establish a prima facie case under s. 323 I.P.C. He accordingly charged· the accused under s. 323 I.P.C. examined h.im and when he pleaded not guilty and claimed to be tried posted the case for the examination of prosecution witnesses. On the next hearing date a submission was made on behalf of the accused that in view of the provisions of s. 251(2) Cr. P. 0. the accused should have . been acquitted altogether and no trial for the offence under s. 323 I.P.C. could be proceeded with. The Magistrate rejected this contention and directed that the trial of the accused for an offence under s. 323 I.P.C. would proceed under Chapter XX. That procedure was followed and ultimately the accused was convicted under ~· 323 I.P.C. and sentenced to pay a fine of rupees fifty only and in default to undergo rigorous imprisonment for one month. The appellant's application· under s. 439 Cr. P.O. for revision of this order was rejected by the High Court. The lear11ed Judge was of opinion that "if the Magistrate finds on the materials before him that a summons case offence has been committed by the accused, he has, the right and duty to proceed in accordance with the provisions of Chapter XX of the Cr. P.O. The word "discharge" used in sub-s. (2) of s. 251A Cr. P.'O. must be read as having reference to a discharge in relation to the specific offence upon which the accused has. been charge-sheeted. It does not necessarily mean that the accused cannot be proceeded agai:rist for some other offence, say a summons case offence, under Chapter XX Cr. P.C." in spite of the discharge under s. 251A(2). The present appeal is filed on the strength of a certificate granted by the High Court under A1t. 134(l)(c) of the Constitution.

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The relevant provisions of ss. 251 and 251A of the Code of Criminal Procedure are in these words :-

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" S. 251 :-In the trial of warrant-cases by Magistrates, the. Magistrates shall:- .

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(a) in any case instituted on a police-report, follow the procedure specified in s. 251A; and

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(b) in any other case, follow the procedure specified in the other provisions of this Chapter.

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S. 251A. (1) .................................................. .

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(2) If, upon consideration of all the documents referred to in s. 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.

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(3) If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused."

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It is quite clear that in deciding w hetber action shall be taken by him under sub-s. (2) or sub-s. (3) of s. 251A the Magistrate has to form an opinion whether there is any ground for presuming that an accused has committed an offence triable under Chapter XXI or there is no such ground. When his opinion is that there is ground for a presumption that the accused has committed an offence punishable under Chapter XXI which the Magistrate is competent to try and which could be adequately punished by him he shall proceed with the trial. But when he forms the opinion that there is no ground for presuming that an offeuce punishable under Chapter XXI has been committed by the accused his duty is to discharge the accused. The real question is, when an order of discharge is made by the Magistrate in exercise of the powers under sub-s. (2) of s. 251A is the discharge in respect of all the offences which the facts mentioned in the - police report would make out ? The answer must be in the negative. When the Magistrate makes an order under s. 251A(2) he does so as, after ha;.ing considered whether the charge made in the police report of the offences triable under Chapter XXI is groundless he is of opinion that the charge in respect of such offence is groundless ; but the order of discharge has reference only -to such offences mentioned in the charge-sheet as are triable under Chapter XXL It very often happens that the facts mentioned in the charge-sheet constitute one or more offences triable under <'.Jhapter XXI as warrant cases and also one or more other offences triable under Chapter XX. The order of discharge being only in respect of the offences triable under .Chapter XXI does not affect in any way the position that charges of offences triable under Chapter XX also are contained in the police report . . But, says the learned counsel for the appellant, the Magistrate cannot proceed with · the trial of these other offences triable under Chapter XX because no cognizance has been taken of such other offences. He contends that only after a fresh complaint has been made in respect of these offences triable under Chapter XX that the Magistrate can take cognizance and then proceed to ·try them after following the procedure prescribed by law. This argument ignores the fact that when a Magistrate takes cognizance of offences under s. 190(l)(b) Cr. P.C., he takes cognizance of all offences constituted by the facts reported by the police officer and not only-of some of such offences. For example, if the facts mentioned_ in the police report constitute an offence under s. 379 I.P.C. as also one under s. 426 I.P.C. the Magistrate can take cognizance not only of the offence under s. 379 but also of the offence under s. 426. In the present case the police report stated facts which constituted an offence under s. 332 I.P.C. but these facts necessarily constitute also a minor offence under s. 323 I.P.C. The Magistrate when he took cognizance under s. 190(l)(b) Cr. P.O. of the offence under s. 332 I.P.C. cannot but have taken cognizance alHo ofthe minor offence under s. 323 I.P.C. Consequently, even after the order of discharge was made in respect of the offence under s. 332 I.P.C. the minor offence under s. 323 of which he had also taken cognizance remained for trial as there was no itfdication to the contrary. That being an offence triable under Chapter XX Cr. C.P. the Magistrate rightly followed the procedure under Chapter XX.

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The appeal is accordingly dismissed.

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Appeal dismissed. IN RE: THE BERUBARI UNION AND

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EXCHANGE OF ENOLA VES REFERENCE UNDER ARTICLE 143(1) OF

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THE CONSTITUTION OF INDIA (B. P. SINHA, 0. J., s. K. DAS, P. B. GAJENDRA- GADKAR, A. K. SARKAR, K. SuBBA RAo, 'l\L HIDAYATULLAH, K. 0. DAS

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GUPTA and J. C. SHAH, JJ.)

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President's Reference-Inda-Pakistan Agreement, r958-Division of Berubari Union and exchange of Cooch-Behar Enclaves-If involve cession of territory-Implementation-Amendment of Constitution-Constitution of India, Arts. 3, 368.

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As a result of the Radcliffe Award dated August 12, 1947, Berubari Union No. 12 fell within West.Bengal and was treated as such by the Constitution which came into force on January 26, 1950, and has since been governed on that basis. Certain disputes arose between India and Pakistan subsequent to the Rad- .cJiffe Award but Berubari was not in issue before the Bagge Commission set up by agreement between the parties to decide

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That its award January 1950. Pakistan raised the question of Berubari for the first time in 1952 alleging that under the Radcliffe Award it should form part of East Bengal and was wrongly included in West Bengal. On August 28, 1949, the Ruler the State of Cooch-Behar

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