{"id":82687,"date":"1960-05-06T00:00:00","date_gmt":"1960-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vadilal-panchal-vs-dattatraya-dulaji-ghadigaonker-on-6-may-1960"},"modified":"2018-10-27T22:00:01","modified_gmt":"2018-10-27T16:30:01","slug":"vadilal-panchal-vs-dattatraya-dulaji-ghadigaonker-on-6-may-1960","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vadilal-panchal-vs-dattatraya-dulaji-ghadigaonker-on-6-may-1960","title":{"rendered":"Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker … on 6 May, 1960"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker … on 6 May, 1960<\/div>\n
Equivalent citations: 1960 AIR 1113<\/div>\n
Author: S Das<\/div>\n
Bench: Das, S.K.<\/div>\n
           PETITIONER:\nVADILAL PANCHAL\n\n\tVs.\n\nRESPONDENT:\nDATTATRAYA DULAJI GHADIGAONKER\tAND ANOTHER.\n\nDATE OF JUDGMENT:\n06\/05\/1960\n\nBENCH:\nDAS, S.K.\nBENCH:\nDAS, S.K.\nKAPUR, J.L.\nHIDAYATULLAH, M.\n\nCITATION:\n 1960 AIR 1113\n CITATOR INFO :\n R\t    1962 SC 876\t (24,48,59)\n RF\t    1963 SC1430\t (7,11)\n R\t    1972 SC2639\t (22)\n R\t    1976 SC1947\t (3)\n F\t    1977 SC1489\t (10)\n E\t    1980 SC 962\t (7)\n R\t    1983 SC 595\t (8)\n F\t    1992 SC1894\t (11)\n\n\nACT:\nCriminal     Procedure--Complaint--Magistrate\t   referring\ncomplaint     to     Police\tfor\treport--Plea\t  of\nself-defence--Magistrate dismissing complaint upholding such\nPlea   on  the\tbasis  of  Police   report--Legality--Indian\nEvidence  Act,\t1872 (I of 1872), S. 105--Code\tof  Criminal\nProcedure, 1898 (Act 5 of 1898), SS. 200, 202, 203.\n\n\n\nHEADNOTE:\nOn June 3, 1956, riots broke out after a public meeting held\nin  Bombay  in connection with the  re-organisation  of\t the\nState of Bombay was dispersed on account of the disturbances\ncreated\t therein.   The\t car  in  which\t the  appellant\t was\ntravelling  was stopped by the crowd and some of  those\t who\nsurrounded  the car caught hold of him by his neck and\thair\nand  wanted to drag him out of the car.\t The appellant\tthen\nopened fire with his revolver.\tThe respondent's brother, S,\nwho  was  hit  on the chest by one of the  shots  fired\t was\nremoved\t to the hospital but died before medical  assistance\ncould  be given.  The police surgeon who made  a  postmortem\nexamination  expressed the opinion that the shot  must\thave\nbeen  fired  from a distance of 2 to 18\t inches\t only.\t The\nCoroner's  jury returned a verdict that S died of the  wound\ncaused\tby  a  bullet fired by the appellant  \"\t under\tsuch\ncircumstances  as  would  render the firing  to\t be  in\t the\nexercise  of  the  right  of private  defence  and  as\tsuch\njustified.\"\nThe respondent filed a complaint in the court of the  Presi-\ndency Magistrate, Bombay, on the allegation that his brother\ndied as a result of the firing resorted to by the  appellant\nwho thereby committed an offence punishable under s. 302  of\nthe  Indian  Penal  Code and prayed that  process  might  be\nissued\tagainst him.  The Magistrate referred the  complaint\nto  the\t police for enquiry and report under s. 202  of\t the\nCode of Criminal Procedure and after considering the  report\nsaid:  \" From the statements recorded by the Police in\tthis\ncase  and from the surrounding circumstances of the case,  I\nhave come to the definite conclusion that the report of\t the\nPolice\tstating\t that the shot was fired by the\t accused  in\nself-defence  is  true......  The statement  of\t the  police\nsurgeon\t conclusively supports the conclusion...... The\t eye\nwitnesses  brought  by\tthe  complainant  are  not  credible\nwitnesses.   It will be harassment to the accused and  waste\nof public time if any process is issued in this case \".\t The\nMagistrate,  accordingly, dismissed the complaint  under  s.\n203 of the Code of Criminal\n2\nProcedure.  The High Court, in revision, set aside the order\nof  dismissal and directed the Magistrate to  issue  process\nagainst\t the appellant and deal with the case in  accordance\nwith  law, on the grounds that this was not a case in  which\nit  was proper for the Magistrate to dismiss  the  complaint\nunder  S. 203 of the Code of Criminal Procedure, that  proof\nof  the plea of self-defence could not be held to have\tbeen\nestablished  from  the mere report of the police,  and\tthat\nthere  was  nothing  in\t s. 202 or S. 203  of  the  Code  of\nCriminal  Procedure which abrogated the rule as to the\tpre-\nsumption laid down in s. 105 of the Indian Evidence Act.\nHeld,  that under s. 203 of the Code of\t Criminal  Procedure\nthe judgment which the Magistrate has to form must be  based\non  the statements of the complainant and his witnesses\t and\nthe result of the investigation or inquiry, and in  arriving\nat  his\t judgment he is not fettered in any  way  except  by\njudicial   considerations   ;  provided\t  that\t there\t are\nsatisfactory and reliable materials on which he can base his\njudgment  as  to  whether there\t is  sufficient\t ground\t for\nproceeding   on\t the  complaint\t or  not,  if  he  has\t not\nmisdirected  himself as to the scope of an enquiry under  s.\n202  and  has applied his mind judicially to  the  materials\nbefore him, it would be erroneous in law to hold that a plea\nbased  on  an  exception can never be  accepted\t by  him  in\narriving at his judgment.\nHeld,  further, that on the facts of the present  case,\t the\norder of the Magistrate was correct and that the judgment of\nthe High Court setting aside that order on an erroneous view\nof  the\t scope of S. 203 of the Code of\t Criminal  Procedure\nmust be set aside.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 117  of
\n1958.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nSeptember  13,\t1957, of the Bombay High Court\tin  Criminal
\nPetition  Application  No. 834 of 1957, arising out  of\t the
\njudgment  and order dated April 30, 1957, of the  Presidency
\nMagistrate,  IV Class, Girgaon, Bombay, in Case No. 6\/1 &  R
\nof 1956.\n<\/p>\n
H.   M.\t Choksi,  Rajni\t Patel, B. K. B.  Naidu\t and  I.  N.
\nShroff, for the appellant.\n<\/p>\n
Janardan Sharma, for respondent No. 1.\n<\/p>\n
Purshottam Trikamdas, H. R. Khanna, D. Gupta and R.    H.
\nDhebar, for respondent No. 2.\n<\/p>\n
1960, May 6. The Judgment of the Court was delivered by
\n3<\/span>
\nS.   K.\t DAS,  J.-This\tis an unfortunate case\tin  which  a
\ncomplaint  filed in the Court of the Presidency\t Magistrate,
\nBombay,\t on  October  31, 1956,\t by  one  Dattatraya  Dulaji
\nGhadigaonkar, respondent herein, has to be finally  disposed
\nof in the year 1960 in circumstances which we shall state at
\nonce.  On June 3, 1956, in the evening, a public meeting was
\nheld  at a place called Chowpatty in Bombay which was to  be
\naddressed  by the Prime Minister of India.  The meeting\t was
\ncalled\tin connexion with an agitation which was then  going
\non for the reorganisation of the State of Bombay.  There was
\nconsiderable disturbance at the meeting as a result  whereof
\nit had to be dispersed, and large crowds of people began  to
\nwander\t about\tin  various  localities\t  around   Chowpatty
\nincluding  an area round Charni Road Station.  The  case  of
\nthe  complaining  respondent was that at about 8 p.  m.\t his
\nyounger\t brother  Sitaram was crossing Queen’s Road  Dear  a
\nbuilding  called  Laud Mansion.\t At that time  there  was  a
\nlarge  crowd  on  the road and members of  that\t crowd\twere
\nstopping vehicles passing by that road.\t One taxi cab  which
\nhad come from the direction of the Opera House and was going
\ntowards\t Churchgate was already stopped.  Sitaram  was\tthen
\naccompanied  by\t Sashikant Kamtekar and\t Nand  Kumar  Vagal.
\nWhen  these  three  had crossed the  road,  they  heard\t the
\nreports\t of  revolver shots and on looking back\t they  found
\nthat a person called Bhayya was injured by one of the  shots
\nand fell down on the footpath.\tSitaram and his friends went
\nto help Bhayya; at this stage, another shot was fired by one
\nof  the occupants of a blue car which was near the taxi\t cab
\nreferred to earlier.  Sitaram was hit on his chest, and\t the
\nbullet\thaving\tentered the chest cavity injured  the  right
\nventricle  of the heart.  Sitaram was removed to the  G.  T.
\nHospital but died before medical assistance could be  given.
\nDr.  H.\t S.  Metha, Police Surgeon, who\t made  a  postmortem
\nexamination  of the dead body, opined that Sitaram  died  of
\nshock  and hemorrhage as a result of the gun shot  wound  he
\nhad  received.\t The doctor further said that  the  charring
\nround the wound indicated that the shot had been fired\tfrom
\na distance of 2 to 18 inches only.\n<\/p>\n
4<\/span><\/p>\n
The  case  of  the  respondent\twas  that  Vadilal  Panchal,
\nappellant before us, fired the shot from the blue car.\t The
\noccupants  of  the car were K. K. Shah,\t advocate,  his\t son
\nVinay,\tand  one Ratilal Sanghvi on the back seat,  and\t the
\nappellant  and chauffeur Mohiddin on the front seat.  K.  K.
\nShah   was  mentioned  in  the\tcomplaint  as  one  of\t the
\ncomplainant’s  witnesses.   He was examined  and  said\tthat
\nafter  the  meeting  was over, he and  his  companions\twere
\nreturning in his car to his house.  Because of the  trouble,
\nthe  car  travelled by a longer route and  when\t it  reached
\nQueen’s Road, there were large crowds on that road who\twere
\npelting\t stones. shouting slogans and committing other\tacts
\nof  violence; a public bus was burnt, and a taxi  cab  which
\nwas proceeding ahead of K. K. Shah’s car was stopped.\tSome
\nthree  or  four hundred people surrounded  his\tcar,  pelted
\nstones and shouted ” maro ” “maro”.  Some of them  attempted
\nto drag out Ratilal Sanghvi who occupied a corner seat; some
\ncaught hold of the appellant by his neck and hair and wanted
\nto drag him out of the car.  The appellant then opened\tfire
\nwith his revolver.  The rioters then held back, and the\t way
\nwas clear for the car to pass.\tThe car then drove away\t and
\nafter some time K. K. Shah and the appellant went to Gamdevi
\nPolice\tStation where the latter made a report of  what\t had
\nhappened.  The appellant was sent to Nair Hospital where  he
\nwas medically treated and allowed to go.\n<\/p>\n
The  Coroner  of Bombay held an inquest into  the  death  of
\nSitaram at which K. K. Shah, Sashikant Kamtekar and  several
\nother witnesses were examined.\tThe Coroner’s Jury  returned
\na verdict that Sitaram died of the gunshot wound caused by a
\nbullet fired by the appellant ” under such circumstances  as
\nwould  render the firing to be in exercise of the  right  of
\nprivate\t defence and as such justified “. This\tverdict\t was
\nreturned on October 16, 1956.  Sometime earlier, on July  3,
\n1956, to be precise, the complaining respondent had made  an
\nenquiry\t through  his  advocate\t from  the  Commissioner  of
\nPolice,\t Bombay,  as  to  whether  the\tappellant  had\tbeen
\narrested: the reply received was that the enquiries made  by
\nthe police did not
\n5<\/span>
\nreveal\tany offence having been committed by  the  appellant
\nand the police proposed to take no action.\n<\/p>\n
On  October  31, 1956, the respondent filed  his  complaint.
\nThe  learned Presidency Magistrate to whom,,  the  complaint
\nwas made referred it to the Superintendent of Police, C.  1.
\nD.,  for enquiry and report.  Presumably, he acted under  s.
\n202  of\t the Code of Criminal Procedure.   On  November\t 15,
\n1956,  the Superintendent of Police submitted the report  of
\nhis Inspector in which it was stated:\n<\/p>\n
 “From\tthe exhaustive enquiries made immediately after\t the
\nincident  it  was disclosed that Shri  Vadilal\tPanchal\t was
\njustified  in  resorting  to firearms  in  self\t defence  of
\nhimself and the other occupants of the motor car “.
\nOn  January  17,  1957,\t the  learned  Magistrate  gave\t the
\nrespondent  another  opportunity to  examine  his  witnesses
\nbefore\tthe  enquiring\tofficer,  because  by  reason  of  a
\nrevision application made to the High Court earlier  against
\nthe order referring the case to the police for enquiry,\t the
\nrespondent   did  not  produce\this  witnesses\tbefore\t the
\nenquiring officer.  The enquiring officer then examined\t all
\nthe  witnesses and submitted his report on March  12,  1957.
\nThis time also the enquiring officer said :
\n” From their statements and other evidence on record, it  is
\nclear that Shri Wadilal Panchal opened fire in the  exercise
\nof his, right of private defence, which verdict the  learned
\nCoroner’s  Jury also brought after a protracted\t hearing  of
\nthe Inquest Proceedings.  Copies of all statements  recorded
\nby me, are attached for reference “.\n<\/p>\n
On  April  30,\t1957,  the  learned  Presidency\t  Magistrate
\nconsidered  the\t report of the enquiring  officer  in  great
\ndetail with reference to the statements of all the witnesses
\nand said:\n<\/p>\n
”  The Police have recorded in detail the statements of\t all
\nwitnesses produced by the complainant as well as of all\t the
\noccupants  of  the car.\t There is,  therefore,\tmaterial  on
\nrecord\tshowing\t fully\twhether\t the  circumstances  existed
\nmaking\tout  the right of private defence available  to\t the
\naccused.  The fact
\n6<\/span>
\nwhether\t the case falls within one of exceptions or not\t can
\nbe established on the evidence of the witnesses produced  by
\nthe prosecution itself though of course the  burden of proof
\nlies  on the accused.  From the statements, recorded by\t the
\nPolice\tin this case and from the surrounding  circumstances
\nof the case, I have come to the definite conclusion that the
\nreport of the police stating that the shot was fired by\t the
\naccused\t in  self-defence  is true.  As I  have\t stated\t the
\nstatement  of the police surgeon conclusively  supports\t the
\nconclusion.   I have come to the conclusion that the  state-
\nments  of the four eye witnesses brought by the\t complainant
\nare false.  These eye witnesses are not credible  witnesses.
\nIt  will  be harassment to the accused and waste  of  public
\ntime if any process is issued in this case “.
\nAccordingly, he dismissed the complaint under s.  203,\tCode
\nof Criminal Procedure.\n<\/p>\n
Against\t this order of dismissal the  respondent-complainant
\nmoved the High Court.  The High Court set aside the order of
\ndismissal and directed the learned Presidency Magistrate  to
\nissue  process against the appellant and deal with the\tcase
\nin  accordance\twith law, on a ground which the\t High  Court
\nexpressed in the following words:\n<\/p>\n
”  Now,\t in  the case before us, causing  of  the  death  of
\nSitaram\t  being\t indisputable,\tif  it\twas  found  as\t the
\npetitioner  alleges that it was the shot fired by  the\tres-
\npondent that caused the death of Sitaram, the accused ,would
\nhave to establish the necessary ingredients of the right  of
\nprivate\t defence as laid down in section 96 and\t onwards  of
\nthe  Penal  Code.   We do not find anything in\tany  of\t the
\nsections  in Chapter XVI to show that such an exception\t can
\nbe  held  to  be established from the  mere  report  of\t the
\npolice.\t That, in our view, is contrary to the provisions of
\ns.  105\t of  the Indian Evidence  Act  which  are  mandatory
\nprovisions.   There  is nothing in s. 202 or s. 203  of\t the
\nCriminal  Procedure Code which abrogates the rule as to\t the
\npresumption laid down in s. 105 of the Evidence Act and\t the
\nmode of proof of exception laid down in imperative  language
\nin that section.\n<\/p>\n
7<\/span><\/p>\n
In  these  circumstances and for the reasons  aforesaid,  we
\nfind that this was not a case in which it was proper for the
\nlearned\t Magistrate to dismiss the complaint under  s.\t203,
\nthere being no evidence before the learned Magistrate as and
\nby  way of proof to establish the exception of the right  of
\nprivate defence pleaded by the respondent
\nThe  appellant\tthen moved this Court and  obtained  special
\nleave  to  appeal  from the order of the  High\tCourt  dated
\nSeptember 13,1957.\n<\/p>\n
The short question before us is-was the High Court right  in
\nits view that when a Magistrate directs an enquiry under  s.
\n202  of the Code of Criminal Procedure for ascertaining\t the
\ntruth or falsehood of a complaint and receives a report from
\nthe enquiring officer supporting a plea of self-defence made
\nby  the person complained against, it is not open to him  to
\nhold that the plea is correct on the basis of the report and
\nthe  statements\t of  witnesses\trecorded  by  the  enquiring
\nofficer ? Must he, as a matter of law, issue process in such
\na case and leave the person complained against to  establish
\nhis  plea of self-defence at the trial ? It may\t be  pointed
\nout here that the High Court itself recognised that it would
\nnot  be correct to lay down a proposition in absolute  terms
\nthat  whenever a defence under any of the exceptions in\t the
\nIndian\tPenal  Code  is pleaded\t by  the  person  complained
\nagainst, the Magistrate would not be justified in dismissing
\nthe complaint and must issue process.  Said the High  Court:
\n”  As  we have already observed, if there  is  a  complaint,
\nwhich  itself discloses a complete defence under any of\t the
\nexceptions,  it might be a case where a Magistrate would  be
\njustified in dismissing such a complaint finding that  there
\nwas no sufficient ground to proceed with the case.”
\nWe  are\t of  the view that the High Court was  in  error  in
\nholding\t in  this case that as a matter of law, it  was\t not
\nopen  to  the learned Presidency Magistrate to come  to\t the
\nconclusion  that on the materials before him no offence\t had
\nbeen  made  out\t and  there was\t no  sufficient\t ground\t for
\nproceeding further on the complaint.\n<\/p>\n
8<\/span><\/p>\n
The  relevant sections bearing on the question are ss.\t200,
\n202 and 203.\n<\/p>\n
”  S. 200.  A Magistrate taking cognizance of an Offence  on
\ncomplaint  shall  at once examine the  complainant  and\t the
\nwitnesses  present, if any, upon oath, and the substance  of
\nthe  examination  shall be reduced to writing and  shall  be
\nsigned by the complainant and the witnesses, and also by the
\nMagistrate:\n<\/p>\n
\t      Provided as follows:-\n<\/p><\/blockquote>\n
\t      (a) ………………………
\n\t      (aa) ……………………….\n<\/p><\/blockquote>\n
(b)  where  the Magistrate is a Presidency Magistrate,\tsuch
\nexamination may be on oath or not as the Magistrate in\teach
\ncase thinks fit, and where the complaint is made in  writing
\nneed  not be reduced to writing; but the Magistrate may,  if
\nhe thinks fit, before the matter of the complaint is brought
\nbefore him, require it to be reduced to writing ;\n<\/p>\n
(c)\t …………………………..\n<\/p>\n
S.   202(1).   Any Magistrate, on receipt of a complaint  of
\nan offence of which he is authorised to take cognizance,  or
\nwhich has been transferred to him under section 192, may, if
\nhe  thinks  fit,  for reasons to  be  recorded\tin  writing,
\npostpone the issue of process for compelling the  attendance
\nof  the person complained against, and either  inquire\tinto
\nthe  case  himself or, if he is a Magistrate  other  that  a
\nMagistrate  of\tthe  third  class,  direct  an\tinquiry\t  or
\ninvestigation  to be made by any Magistrate  subordinate  to
\nhim,  or by a police officer, or by such other person as  he
\nthinks\tfit,  for the purpose of ascertaining the  truth  or
\nfalsehood of the complaint.\n<\/p>\n
Provided  that ………………(it is unnecessary to\tread
\nthe proviso.\n<\/p>\n
(2)  If\t any inquiry or investigation under this section  is
\nmade by a person not being a Magistrate or a police-officer,
\nsuch person shall exercise all the powers conferred by\tthis
\nCode  on  an officer in charge of a  police-station,  except
\nthat he shall not have power to arrest without warrant.
\n(2A) Any Magistrate inquiring into a case under
\n9<\/span>
\nthis  section may, if he thinks fit, take evidence  of\twit-
\nnesses on oath.\n<\/p>\n
(3)  This section applies also to the police in the towns of
\nCalcutta and Bombay.\n<\/p>\n
S.   203.  The Magistrate before whom a complaint is made or
\nto whom it has been transferred, may dismiss the  complaint,
\nif, after considering the statement on oath (if any) of\t the
\ncomplainant  and  the  witnesses  and  the  result  of\t the
\ninvestigation  or inquiry (if any) under section 202,  there
\nis in his judgment no sufficient ground for proceeding.\t  In
\nsuch cases he shall briefly record his reasons for so  doing
\n“.\n<\/p>\n
The general scheme of the aforesaid sections is quite clear.
\nSection\t 200  says  inter  alia\t what  a  Magistrate  taking
\ncognisance of an offence on complaint shall do on receipt of
\nsuch a complaint.  Section 202 says that the Magistrate may,
\nif  he\tthinks fit, for reasons to be recorded\tin  writing,
\npostpone the issue of process for compelling the  attendance
\nof  the person complained against and direct an inquiry\t for
\nthe  purpose of ascertaining the truth or falsehood  of\t the
\ncomplaint; in other words, the scope of an inquiry under the
\nsection is limited to finding out the truth or falsehood  of
\nthe  complaint\tin order, to determine the question  of\t the
\nissue  of  process.   The  inquiry is  for  the\t purpose  of
\nascertaining  the truth or falsehood of the complaint;\tthat
\nis, for ascertaining whether there is evidence in support of
\nthe  complaint\tso as to justify the issue  of\tprocess\t and
\ncommencement  of proceedings against the  person  concerned.
\nThe section does not say that a regular trial for  adjudging
\nthe  guilt  or otherwise of the\t person\t complained  against
\nshould\ttake place at that stage; for the person  complained
\nagainst can be legally called upon to answer the  accusation
\nmade  against him only when a process has issued and  he  is
\nput  on\t trial.\t Section 203, be it noted, consists  of\t two
\nparts: the first part indicates what are the materials which
\nthe Magistrate must consider, and the second part says\tthat
\nif  after  considering\tthose  materials  there\t is  in\t his
\njudgment no sufficient ground for proceeding, he may dismiss
\nthe complaint.\tSection 204 says that if
\n10<\/span>
\nin the opinion of the Magistrate there is sufficient  ground
\nfor  proceeding,  he  shall  take steps\t for  the  issue  of
\nnecessary process.\n<\/p>\n
Now,  in  the case before us it is not\tcontended  that\t the
\nlearned\t  Presidency  Magistrate  failed  to  consider\t the
\nmaterials which he had to consider, before passing his order
\nunder s. 203 of the Code of Criminal Procedure.\t As a matter
\nof fact the learned Magistrate fully, fairly and impartially
\nconsidered these materials.  What is contended on behalf  of
\nthe respondent-complainant is that as a matter of law it was
\nnot  open  to the learned Magistrate to accept the  plea  of
\nright  of  self-defence at a stage when all that he  had  to
\ndetermine was whether a process should issue or not  against
\nthe  appellant.\t We are unable to accept this contention  as
\ncorrect.   It is manifestly clear from the provisions of  s.
\n203 that the judgment which the Magistrate has to form\tmust
\nbe  based  on  the statements of  the  complainant  and\t his
\nwitnesses  and the result of the investigation\tor  inquiry.
\nThe section itself makes that clear, and it is not necessary
\nto  refer  to  authorities  in\tsupport\t thereof.   But\t the
\njudgment which the Magistrate has to form is whether or\t not
\nthere  is sufficient ground for proceeding.  This  does\t not
\nmean  that the Magistrate is bound to accept the  result  of
\nthe inquiry or investigation or that he must accept any plea
\nthat  is set up on behalf of the person complained  against.
\nThe Magistrate must apply his judicial mind to the materials
\non  which he has to form his judgment.\tIn arriving  at\t his
\njudgment  he is not fettered in any way except\tby  judicial
\nconsiderations; he is not bound to accept what the inquiring
\nofficer\t says,\tnor is he precluded from  accepting  a\tplea
\nbased  on  an exception, provided always  there\t are  satis-
\nfactory\t and  reliable materials on which he  can  base\t his
\njudgment  as  to  whether there\t is  sufficient\t ground\t for
\nproceeding  on the complaint or not.  If the Magistrate\t has
\nnot misdirected himself as to the scope of an enquiry  under
\ns. 202 and has applied his mind judicially to the  materials
\nbefore\thim, we think that it would be erroneous in  law  to
\nhold that a plea based on an exception can never be accepted
\nby him in
\n11<\/span>
\narriving  at his judgment.  What bearing such a plea has  on
\nthe  case  of  the complainant and his\twitnesses,  to\twhat
\nextent\t they  are  falsified  by  the\tevidence  of   other
\nwitnesses-all  these  are questions which must\tbe  answered
\nwith reference to the facts of each case.  No universal rule
\ncan be laid in respect of such questions.\n<\/p>\n
In support of its view the High Court has relied on some  of
\nits  earlier decisions: Emperor v. Dhondu Bapu (1);  Emperor
\nv.  Finan  (2) and Tulsidas v. Billimoria (3).\t We  do\t not
\nthink that any of the aforesaid decisions lays down any such
\nproposition in absolute terms as is contended for on  behalf
\nof  the\t respondent.   In  Emperor  v.\tDhondu\tBapu  (1)  a
\ncomplaint   charging   defamation  was\tdismissed   by\t the
\nMagistrate under s. 203 without taking any evidence, on\t the
\nground\tthat the accused was protected by s. 499,  exception\n<\/p>\n
8. It was held that the order of dismissal was bad.
\nPatkar, J., significantly observed:\n<\/p>\n
”  If  the  Magistrate in this case had\t taken\tevidence  on
\nbehalf of the prosecution and on behalf of the accused,\t and
\npassed\ta  proper  order for discharge,\t the  order  of\t the
\nDistrict  Magistrate  ordering\ta  further  enquiry  without
\ngiving reasons might have stood on a different footing.\t  We
\ndo  not\t think that, under the circumstances of\t this  case,
\nthere are adequate grounds for interfering with the order of
\nthe District Magistrate.”\n<\/p>\n
In  Emperor  v. Finan (2) the accused did  not\tdispute\t the
\ncorrectness  of the statements made by the complainant,\t but
\nin  justification pleaded the order passed by  his  superior
\nofficer\t and claimed protection under ss. 76 and 79  of\t the
\nIndian\tPenal Code.  It is worthy of note that the order  of
\nthe superior officer was not produced, but that officer very
\nimproperly  wrote a letter to the Magistrate saying that  he
\nbad  given such an order.  In these circumstances, the\tsame
\nlearned Judge who decided the earlier case observed:
\n“It   was,  therefore,\tincumbent  on  the   Magistrate\t  to
\ninvestigate the complaint and to find out whether
\n(1) (1927) 29 Bom.  L.R. 713,715.  (2) (1931) 33 Bom.\tL.R.
\n1182.\n<\/p>\n
(3) (1932) 34 Bom.  L.R. 910
\n12<\/span>
\nthe  allegation of the accused that he was protected by\t ss.
\n76  and\t 79 of the Indian Penal Code was made out  by  legal
\nevidence before him.”\n<\/p>\n
The facts in Tulsidas v. Billimoria (1) were different,\t and
\nthe  question there considered was whether a member  of\t the
\nBar in India had absolute privilege.  That decision has very
\nlittle bearing on the question now before us.
\nOur  attention\thas  also been drawn to a  decision  of\t the
\nLahore\tHigh  Court where the facts were  somewhat  similar:
\nGulab  Khan, deceased, through Karam Khan v. Gulam  Muhammad
\nKhan  and  Others  (2).\t  In  that  case  also\tthe   person
\ncomplained against took the plea of self-defence, which\t was
\naccepted.   In the High Court an objection was taken to\t the
\nprocedure  adopted  and\t it was argued\tthat  the  order  of
\ndischarge  should  be  set  aside.   In\t dealing  with\tthat
\nargument Broadway, J., said :\n<\/p>\n
”  Now a Magistrate is empowered to hold an enquiry  into  a
\ncomplaint of an offence in order to ascertain whether  there
\nis sufficient foundation for it to issue process against the
\nperson\tor persons complained against.\tIn the present\tcase
\nthe Magistrate clearly acted in the exercise of these powers
\nunder  s.  202,\t Criminal Procedure Code.   He\tallowed\t the
\ncomplainant to produce such evidence in support of his\tcom-
\nplaint as he wished to produce, and after a consideration of
\nthat evidence came to the conclusion that that evidence\t was
\nso wholly worthy (unworthy ?) of credence as to warrant\t his
\ntaking no further action in the matter.”\n<\/p>\n
Therefore,  none of the aforesaid decisions lay down  as  an
\nabsolute  proposition that a plea of self-defence can in  no
\nevent  be  considered by the Magistrate in  dealing  with  a
\ncomplaint  under the provisions of ss. 200, 202 and  203  of
\nthe Code of Criminal Procedure.\n<\/p>\n
On  the\t facts, there is very little to\t be  said.   Learned
\nCounsel\t for the State of Bombay supported the order of\t the
\nlearned\t Magistrate and pointed out that even on the  narrow
\nview taken by the High Court, a view
\n(1) (1932) 34 Bom.  L.R. 910.\n<\/p>\n
(2) A.I.R. 1927 Lah 30
\n13<\/span>
\nto  which  he  did  not,  however,  subscribe,\tthe  learned
\nMagistrate rightly held that there was no sufficient  ground
\nfor  proceeding; because the earlier version of some of\t the
\nwitnesses for the complainant itself showed that there was a
\nriotous mob on the road which attacked cars, burnt a  public
\nbus, pelted stones, etc., which was quite inconsistent\twith
\ntheir  later  version that Sitaram and his  companions\twere
\nquietly\t crossing  the\troad and a shot\t was  fired  from  a
\npassing\t or moving car.\t There was overwhelming material  to
\nshow  Chat  K. K. Shah’s car was surrounded by the  mob\t and
\nsome  of  the  rioters\ttried to drag  out  and\t attack\t the
\nappellant.  K. K. Shah was one of the witnesses mentioned by
\nthe complainant and so also two of the Inspectors of Police.
\nTheir  evidence clearly supported the plea of the  appellant
\nand  in\t any  case, showed that the  witnesses\texamined  on
\nbehalf\tof the respondent were totally unworthy of  credence
\nas  to the circumstances in which the shots were fired.\t  We
\ncannot\ttherefore say that the learned Magistrate was  wrong
\nin  his\t judgment that there was no  sufficient\t ground\t for
\nproceeding further on the complaint.\n<\/p>\n
We accordingly hold that the High Court set aside the  order
\nof the learned Magistrate on an erroneous view of the  scope
\nof  s. 203 of the Code of Criminal Procedure.  We allow\t the
\nappeal,\t set  aside  the  order\t of  the  High\tCourt  dated
\nSeptember  13,\t1957,  and  restore  that  of  the   learned
\nPresidency Magistrate dated April 30, 1957.\n<\/p>\n
\t\t\t\t Appeal allowed.\n<\/p>\n
14<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker … on 6 May, 1960 Equivalent citations: 1960 AIR 1113 Author: S Das Bench: Das, S.K. PETITIONER: VADILAL PANCHAL Vs. RESPONDENT: DATTATRAYA DULAJI GHADIGAONKER AND ANOTHER. DATE OF JUDGMENT: 06\/05\/1960 BENCH: DAS, S.K. BENCH: DAS, S.K. KAPUR, J.L. HIDAYATULLAH, M. CITATION: 1960 AIR 1113 CITATOR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-82687","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nVadilal Panchal vs Dattatraya Dulaji Ghadigaonker ... on 6 May, 1960 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vadilal-panchal-vs-dattatraya-dulaji-ghadigaonker-on-6-may-1960\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker ... on 6 May, 1960 - 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