minal Appeal No 117 of 1958
Appeal by special leave from the judgment and order dated September 13 1957 of the Bombay High Court in Criminal Petition Application No 834 of 1957 arising out of the judgment and order dated April 30 1957 of the Presidency Magistrate IV Class Girgaon Bombay in Case No 61  R of 1956
H M Choksi Rajni Patel B K B Naidu and I N Shroff for the appellant
Janardan Sharma for respondent No 1
Purshottam Trikamdas H R Khanna D Gupta and R H Dhebar for respondent No 2 1960 May 6
The Judgment of the Court was delivered by 3 section K DAS J
This is an unfortunate case in which a complaint filed in the Court of the Presidency Magistrate Bombay on October 31 1956 by one Dattatraya Dulaji Ghadigaonkar respondent herein has to be finally disposed of in the year 1960 in circumstances which we shall state at once
On June 3 1956 in the evening a public meeting was held at a place called Chowpatty in Bombay which was to be addressed by the Prime Minister of India
The meeting was called in connexion with an agitation which was then going on for the reorganisation of the State of Bombay
There was considerable disturbance at the meeting as a result whereof it had to be dispersed and large crowds of people began to wander about in various localities around Chowpatty including an area round Charni Road Station
The case of the complaining respondent was that at about 8 p m his younger brother Sitaram was crossing Queen s Road Dear a building called Laud Mansion
At that time there was a large crowd on the road and members of that crowd were stopping vehicles passing by that road
One taxi cab which had come from the direction of the Opera House and was going towards Churchgate was already stopped
Sitaram was then accompanied by Sashikant Kamtekar and Nand Kumar Vagal
When these three had crossed the road they heard the reports of revolver shots and on looking back they found that a person called Bhayya was injured by one of the shots and fell down on the footpath
Sitaram and his friends went to help Bhayya at this stage another shot was fired by one of the occupants of a blue car which was near the taxi cab referred to earlier
Sitaram was hit on his chest and the bullet having entered the chest cavity injured the right ventricle of the heart
Sitaram was removed to the G T Hospital but died before medical assistance could be given
Dr H section Metha Police Surgeon who made a postmortem examination of the dead body opined that Sitaram died of shock and hemorrhage as a result of the gun shot wound he had received
The doctor further said that the charring round the wound indicated that the shot had been fired from a distance of 2 to 18 inches only 4 The case of the respondent was that Vadilal Panchal appellant before us fired the shot from the blue car
The occupants of the car were K K Shah advocate his son Vinay and one Ratilal Sanghvi on the back seat and the appellant and chauffeur Mohiddin on the front seat
K K Shah was mentioned in the complaint as one of the complainant s witnesses
He was examined and said that after the meeting was over he and his companions were returning in his car to his house
Because of the trouble the car travelled by a longer route and when it reached Queen s Road there were large crowds on that road who were pelting stones
shouting slogans and committing other acts of violence a public bus was burnt and a taxi cab which was proceeding ahead of K K Shah s car was stopped
Some three or four hundred people surrounded his car pelted stones and shouted  maro  maro
Some of them attempted to drag out Ratilal Sanghvi who occupied a corner seat some caught hold of the appellant by his neck and hair and wanted to drag him out of the car
The appellant then opened fire with his revolver
The rioters then held back and the way was clear for the car to pass
The car then drove away and after some time K K Shah and the appellant went to Gamdevi Police Station where the latter made a report of what had happened
The appellant was sent to Nair Hospital where he was medically treated and allowed to go
The Coroner of Bombay held an inquest into the death of Sitaram at which K K Shah Sashikant Kamtekar and several other witnesses were examined
The Coroner s Jury returned a verdict that Sitaram died of the gunshot wound caused by a bullet fired by the appellant  under such circumstances as would render the firing to be in exercise of the right of private defence and as such justified 
This verdict was returned on October 16 1956
Sometime earlier on July 3 1956 to be precise the complaining respondent had made an enquiry through his advocate from the Commissioner of Police Bombay as to whether the appellant had been arrested the reply received was that the enquiries made by the police did not 5 reveal any offence having been committed by the appellant and the police proposed to take no action
On October 31 1956 the respondent filed his complaint
The learned Presidency Magistrate to whom the complaint was made referred it to the Superintendent of Police C 1 D for enquiry and report
Presumably he acted under section 202 of the Code of Criminal Procedure
On November 15 1956 the Superintendent of Police submitted the report of his Inspector in which it was stated From the exhaustive enquiries made immediately after the incident it was disclosed that Shri Vadilal Panchal was justified in resorting to firearms in self defence of himself and the other occupants of the motor car 
On January 17 1957 the learned Magistrate gave the respondent another opportunity to examine his witnesses before the enquiring officer because by reason of a revision application made to the High Court earlier against the order referring the case to the police for enquiry the respondent did not produce his witnesses before the enquiring officer
The enquiring officer then examined all the witnesses and submitted his report on March 12 1957
This time also the enquiring officer said   From their statements and other evidence on record it is clear that Shri Wadilal Panchal opened fire in the exercise of his right of private defence which verdict the learned Coroner s Jury also brought after a protracted hearing of the Inquest Proceedings
Copies of all statements recorded by me are attached for reference 
On April 30 1957 the learned Presidency Magistrate considered the report of the enquiring officer in great detail with reference to the statements of all the witnesses and said  The Police have recorded in detail the statements of all witnesses produced by the complainant as well as of all the occupants of the car
There is therefore material on record showing fully whether the circumstances existed making out the right of private defence available to the accused
The fact 6 whether the case falls within one of exceptions or not can be established on the evidence of the witnesses produced by the prosecution itself though of course the burden of proof lies on the accused
From the statements recorded by the Police in this case and from the surrounding circumstances of the case I have come to the definite conclusion that the report of the police stating that the shot was fired by the accused in self defence is true
As I have stated the statement of the police surgeon conclusively supports the conclusion
I have come to the conclusion that the state ments of the four eye witnesses brought by the complainant are false
These eye witnesses are not credible witnesses
It will be harassment to the accused and waste of public time if any process is issued in this case 
Accordingly he dismissed the complaint under section 203 Code of Criminal Procedure
Against this order of dismissal the respondent complainant moved the High Court
The High Court set aside the order of dismissal and directed the learned Presidency Magistrate to issue process against the appellant and deal with the case in accordance with law on a ground which the High Court expressed in the following words  Now in the case before us causing of the death of Sitaram being indisputable if it was found as the petitioner alleges that it was the shot fired by the res pondent that caused the death of Sitaram the accused would have to establish the necessary ingredients of the right of private defence as laid down in section 96 and onwards of the Penal Code
We do not find anything in any of the sections in Chapter XVI to show that such an exception can be held to be established from the mere report of the police
That in our view is contrary to the provisions of section 105 of the Indian Evidence Act which are mandatory provisions
There is nothing in section 202 or section 203 of the Criminal Procedure Code which abrogates the rule as to the presumption laid down in section 105 of the Evidence Act and the mode of proof of exception laid down in imperative language in that section
7 In these circumstances and for the reasons aforesaid we find that this was not a case in which it was proper for the learned Magistrate to dismiss the complaint under section 203 there being no evidence before the learned Magistrate as and by way of proof to establish the exception of the right of private defence pleaded by the respondent The appellant then moved this Court and obtained special leave to appeal from the order of the High Court dated September 131957
The short question before us is was the High Court right in its view that when a Magistrate directs an enquiry under section 202 of the Code of Criminal Procedure for ascertaining the truth or falsehood of a complaint and receives a report from the enquiring officer supporting a plea of self defence made by the person complained against it is not open to him to hold that the plea is correct on the basis of the report and the statements of witnesses recorded by the enquiring officer  Must he as a matter of law issue process in such a case and leave the person complained against to establish his plea of self defence at the trial  It may be pointed out here that the High Court itself recognised that it would not be correct to lay down a proposition in absolute terms that whenever a defence under any of the exceptions in the Indian Penal Code is pleaded by the person complained against the Magistrate would not be justified in dismissing the complaint and must issue process
Said the High Court  As we have already observed if there is a complaint which itself discloses a complete defence under any of the exceptions it might be a case where a Magistrate would be justified in dismissing such a complaint finding that there was no sufficient ground to proceed with the case
 We are of the view that the High Court was in error in holding in this case that as a matter of law it was not open to the learned Presidency Magistrate to come to the conclusion that on the materials before him no offence had been made out and there was no sufficient ground for proceeding further on the complaint
8 The relevant sections bearing on the question are sections 200 202 and 203
 section 200
A Magistrate taking cognizance of an Offence on complaint shall at once examine the complainant and the witnesses present if any upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate Provided as follows a      aa      b where the Magistrate is a Presidency Magistrate such examination may be on oath or not as the Magistrate in each case thinks fit and where the complaint is made in writing need not be reduced to writing but the Magistrate may if he thinks fit before the matter of the complaint is brought before him require it to be reduced to writing  c       section 2021
Any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been transferred to him under section 192 may if he thinks fit for reasons to be recorded in writing postpone the issue of process for compelling the attendance of the person complained against and either inquire into the case himself or if he is a Magistrate other that a Magistrate of the third class direct an inquiry 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
Provided that    it is unnecessary to read the proviso
2 If any inquiry or investigation under this section is made by a person not being a Magistrate or a police officer such person shall exercise all the powers conferred by this Code on an officer in charge of a police station except that he shall not have power to arrest without warrant
2A Any Magistrate inquiring into a case under 9 this section may if he thinks fit take evidence of wit nesses on oath
3 This section applies also to the police in the towns of Calcutta and Bombay
section 203
The Magistrate before whom a complaint is made or to whom it has been transferred may dismiss the complaint if after considering the statement on oath if any of the complainant and the witnesses and the result of the investigation or inquiry if any under section 202 there is in his judgment no sufficient ground for proceeding
In such cases he shall briefly record his reasons for so doing 
The general scheme of the aforesaid sections is quite clear
Section 200 says inter alia what a Magistrate taking cognisance of an offence on complaint shall do on receipt of such a complaint
Section 202 says that the Magistrate may if he thinks fit for reasons to be recorded in writing postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint in other words the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process
The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint that is for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned
The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial
Section 203 be it noted consists of two parts the first part indicates what are the materials which the Magistrate must consider and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding he may dismiss the complaint
Section 204 says that if 10 in the opinion of the Magistrate there is sufficient ground for proceeding he shall take steps for the issue of necessary process
Now in the case before us it is not contended that the learned Presidency Magistrate failed to consider the materials which he had to consider before passing his order under section 203 of the Code of Criminal Procedure
As a matter of fact the learned Magistrate fully fairly and impartially considered these materials
What is contended on behalf of the respondent complainant is that as a matter of law it was not open to the learned Magistrate to accept the plea of right of self defence at a stage when all that he had to determine was whether a process should issue or not against the appellant
We are unable to accept this contention as correct
It is manifestly clear from the provisions of section 203 that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry
The section itself makes that clear and it is not necessary to refer to authorities in support thereof
But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding
This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against
The Magistrate must apply his judicial mind to the materials on which he has to form his judgment
In arriving at his judgment he is not fettered in any way except by judicial considerations he is not bound to accept what the inquiring officer says nor is he precluded from accepting a plea based on an exception provided always there are satis factory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not
If the Magistrate has not misdirected himself as to the scope of an enquiry under section 202 and has applied his mind judicially to the materials before him we think that it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in 11 arriving at his judgment
What bearing such a plea has on the case of the complainant and his witnesses to what extent they are falsified by the evidence of other witnesses all these are questions which must be answered with reference to the facts of each case
No universal rule can be laid in respect of such questions
In support of its view the High Court has relied on some of its earlier decisions Emperor vs Dhondu Bapu 1 Emperor vs Finan 2 and Tulsidas vs Billimoria 3
We do not think that any of the aforesaid decisions lays down any such proposition in absolute terms as is contended for on behalf of the respondent
In Emperor vs Dhondu Bapu 1 a complaint charging defamation was dismissed by the Magistrate under section 203 without taking any evidence on the ground that the accused was protected by section 499 exception 8
It was held that the order of dismissal was bad
Patkar J significantly observed  If the Magistrate in this case had taken evidence on behalf of the prosecution and on behalf of the accused and passed a proper order for discharge the order of the District Magistrate ordering a further enquiry without giving reasons might have stood on a different footing
We do not think that under the circumstances of this case there are adequate grounds for interfering with the order of the District Magistrate
 In Emperor vs Finan 2 the accused did not dispute the correctness of the statements made by the complainant but in justification pleaded the order passed by his superior officer and claimed protection under sections 76 and 79 of the Indian Penal Code
It is worthy of note that the order of the superior officer was not produced but that officer very improperly wrote a letter to the Magistrate saying that he bad given such an order
In these circumstances the same learned Judge who decided the earlier case observed It was therefore incumbent on the Magistrate to investigate the complaint and to find out whether 1 715
2 1931 33 Bom
LR 1182
3 12 the allegation of the accused that he was protected by sections 76 and 79 of the Indian Penal Code was made out by legal evidence before him
 The facts in Tulsidas vs Billimoria 1 were different and the question there considered was whether a member of the Bar in India had absolute privilege
That decision has very little bearing on the question now before us
Our attention has also been drawn to a decision of the Lahore High Court where the facts were somewhat similar Gulab Khan deceased through Karam Khan vs Gulam Muhammad Khan and Others 2
In that case also the person complained against took the plea of self defence which was accepted
In the High Court an objection was taken to the procedure adopted and it was argued that the order of discharge should be set aside
In dealing with that argument Broadway J said   Now a Magistrate is empowered to hold an enquiry into a complaint of an offence in order to ascertain whether there is sufficient foundation for it to issue process against the person or persons complained against
In the present case the Magistrate clearly acted in the exercise of these powers under section 202 Criminal Procedure Code
He allowed the complainant to produce such evidence in support of his com plaint as he wished to produce and after a consideration of that evidence came to the conclusion that that evidence was so wholly worthy unworthy  of credence as to warrant his taking no further action in the matter Therefore none of the aforesaid decisions lay down as an absolute proposition that a plea of self defence can in no event be considered by the Magistrate in dealing with a complaint under the provisions of sections 200 202 and 203 of the Code of Criminal Procedure
On the facts there is very little to be said
Learned Counsel for the State of Bombay supported the order of the learned Magistrate and pointed out that even on the narrow view taken by the High Court a view 1 2 AIR 1927 Lah 30 13 to which he did not however subscribe the learned Magistrate rightly held that there was no sufficient ground for proceeding because the earlier version of some of the witnesses for the complainant itself showed that there was a riotous mob on the road which attacked cars burnt a public bus pelted stones etc which was quite inconsistent with their later version that Sitaram and his companions were quietly crossing the road and a shot was fired from a passing or moving car
There was overwhelming material to show Chat K K Shah s car was surrounded by the mob and some of the rioters tried to drag out and attack the appellant
K K Shah was one of the witnesses mentioned by the complainant and so also two of the Inspectors of Police
Their evidence clearly supported the plea of the appellant and in any case showed that the witnesses examined on behalf of the respondent were totally unworthy of credence as to the circumstances in which the shots were fired
We cannot therefore say that the learned Magistrate was wrong in his judgment that there was no sufficient ground for proceeding further on the complaint
We accordingly hold that the High Court set aside the order of the learned Magistrate on an erroneous view of the scope of section 203 of the Code of Criminal Procedure
We allow the appeal set aside the order of the High Court dated September 13 1957 and restore that of the learned Presidency Magistrate dated April 30 1957
Appeal allowed


Summary:
Messrs Shivnarayan Surajmal Nomani were the managing agents of the New Swadeshi Mills of Ahmedabad Ltd The Nemani group and the appellant company which is the assesses 811 held a substantial number of shares of the said mills
Sometime in 1944 some difference arose between them and it was decided that the Nemani group should sell its block of shares to the appellant company at an agreed price and then the appellant company would become the managing agents of the mills company on payment of Rs 500000 to the Nemani group and would be entitled to the emoluments of the managing agents as from April 1 1944
The relevant portion of the Managing Agency Agreement ran thus  2 The remuneration of the agents as such agents of the company as aforesaid shall be as follows A commission at the rate of three and a half per cent
on the gross proceeds of all sales of the yarn cloth waste and other articles manufactured by the company earned in any year or other period for which the accounts of the company are made up and laid before the General Meeting  3 The said commission shall become due to the Managing Agents at the end of each financial year or other period for which the accounts of the company are to be laid before the General Meeting and shall be payable and paid immediately after such accounts have been passed by the General Meeting
 The assessment year was 1946 47 and the year ending with Diwali 1945 October 18 1944 to November 4 1945 was the accounting year
The managing agency commission from April 1 1944 to December 31 1944 amounted to Rs 220433 and from January 1 1945 to March 31 1945 to Rs 67959
The case of the appellant company was that for the assessment year 1946 47 it was liable to pay tax only on the commission of Rs 67959 which it had earned by working as managing agent of the Mills company and it was not liable to pay tax on the sum of Rs 220433
On a difference of opinion having arisen between the departmental taxing authorities and the Tribunal the following question was referred to the High Court for decision   Whether on the facts and circumstances of the case the managing agency commission of 3 12 on sales made by the New Swadeshi Mills of Ahmedabad Ltd between April 1 1944 and December 31 1944 accrued to Shivnarayan Surajmal Nemani or to the assessee   The High Court following the decision of the Supreme Court in E D Sassoon and Company Ltd V Commissioner of Income tax Bombay City held that the appellant company was liable to pay tax on the whole of the commission as the commission accrued due on March 31 1945 and they became entitled to receive it at the end of the year it also held that no debt was created in favour of the agents when the goods were sold
On appeal by the assessee company on a certificate of the High Court Held that the view of the High Court was correct
The commission of the managing agents accrued and became due at the end of the financial year and that neither any debt nor any right to receive payment arose in favour of the agents when each 812 transaction of sale took place
No income arose or accrued on the sale proceeds at the time of each sale
E D Sassoon and Company Ltd vs Commissioner of Income tax Bombay   referred to
Lakshminarayan Ram Gopal and Sons vs The Government of Hyderabad   followed
Commissioners of Inland Revenue vs Gardner Mountain  D Ambrumenil Ltd and Turner Morrison  Co Ltd vs Commissioner of Income tax West Bengal  distinguished