minal Appeal No 116 of 1958
Appeal from the judgment and order dated February 281957 of the Calcutta High Court in Criminal Revision No 1158 of 1956 arising out of the judgment and order dated June 26 1956 of the Additional Chief Presidency Magistrate Calcutta in G R Case No 284 of 1956
K R Chaudhury for the appellant
B Sen P K Ghose for P IC Bose for the respondent
March 1 1
The Judgment of the Court was delivered by DAS GUPTA J
The question raised in this appeal is whether a Magistrate after making an order of discharge under section 251A2 Cr P C in respect of a charge for an offence triable as a warrant case can still proceed to try the accused for another offence disclosed by the police report and triable as a summons case
247 The case against the appellant was instituted on a police report which charged him with an offence under section 332 of the IPC 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 satisfying himself that the documents referred to in section 173 Cr 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 section 332 IPC could not be sustained
He was however of opinion that there was evidence to establish a prima facie case under section 323 IPC He accordingly charged the accused under section 323 IPC examined him 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 section 2512 Cr P C the accused should have been acquitted altogether and no trial for the offence under section 323 IPC could be proceeded with
The Magistrate rejected this contention and directed that the trial of the accused for an offence under section 323 IPC would proceed under Chapter XX
That procedure was followed and ultimately the accused was convicted under section 323 IPC 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 section 439 Cr
PC for revision of this order was rejected by the High Court
The learned 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
The word  discharge  used in sub section
2 of section 251A Cr
PC 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 against for some other
248 offence say a summons case offence under Chapter XX Cr
PC in spite of the discharge under section 251A2
The present appeal is filed on the strength of a certificate granted by the High Court under article 1341c of the Constitution
The relevant provisions of sections 251 and 251A of the Code of Criminal Procedure are in these words  section 251  In the trial of warrant cases by Magistrates the Magistrates shall ain any case instituted on a police report follow the procedure specified in section 251A and bin any other case follow the procedure specified in the other provisions of this Chapter
section 251 A 1         2 If upon consideration of all the documents referred to in section 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
3If 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
 It is quite clear that in deciding whether action shall be taken by him under sub section
2 or sub section
3 of section 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 offence 249 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 section
2 of section 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 section 251A2 he does so as after having 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 onlyto such offences mentioned in the charge sheet as are triable under Chapter XXI
It very often happens that the facts mentioned in the charge sheet constitute one or more offences triable under Chapter 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 friable 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 section 1901b Cr
PC 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 section 379 IPC as also one under section 426 IPC the Magistrate can take cognizance not only of the offence under section 379 but also of the offence under section 426
In the present case the police report stated facts which constituted an offence under section 332 IPC but these facts necessarily consti
250 tute also a minor offence under section 323 IPC
The Magistrate when he took cognizance under section 1901b Cr
PC of the offence under section 332 IPC cannot but have taken cognizance also of the minor offence under section 323 IPC Consequently even after the order of discharge was made in respect of the offence under section 332 IPC the minor offence under section 323 of which he had also taken cognizance remained for trial as there was no indication to the contrary
That being an offence triable under Chapter XX Cr
CP the Magistrate rightly followed the procedure under Chapter XX
The appeal is accordingly dismissed
Appeal dismissed


Summary:
In 1951 on account of the failure of the monsoon generation of electricity from the Hydro Electric System was affected and it was found necessary to reduce the consumption of electricity
The Government of Bombay passed an order under section 6A1 of the Bombay Electricity Special Powers Act 1946 regulating the use of electrical energy and the respondent Mills were compelled to reduce the working time
For the period during which the short working continued the workers claimed their wages and dearness allowances or compensation in lieu thereof  The Industrial Court to which the matter was referred for arbitration under section 73 Of the Bombay Industrial Relations Act 1946 made an award directing all the respondent Mills to pay compensation to the employees
The Mills pleaded that no compensation was payable because 1 the closure of the Mills was in pursuance of the directions made by the Government under the Bombay Electricity Special Powers Act 1946 and therefore section 111 of that Act barred the reference 2 the Industrial Court had no jurisdiction to entertain the claim for compensation as the matter was covered by Standing Orders 16 and 17 which were determinative of the relations between the workmen and their employers under section 401 of the Bombay Industrial Relations Act 1946 and 3 in any case no compensation was payable in view of the decision in Muir Mills Co Ltd vs Suti Mills Mazdoor Union Kanpur  Held 1 that section 11 1 of the Bombay Electricity Special Powers Act 1946 barred only proceedings arising from the interference with the supply of electric energy and protected those who acted in pursuance of orders passed under that Act the section did not prevent the raising of an industrial dispute
2that Standing Orders 16 and 17 contemplated only cases of compensation in lieu of notice and wages for the period of closure and did not cover cases of compensation for closure  that the provisions of section 73 of the Bombay Industrial Relations Act 1946 were wide enough to cover the reference in the present case and that the claim for compensation was not barred by Standing Orders 16 and 17 read with section 401 of the Act
Digambar Ramachandra vs Khandesh Mills 1949 52 Bom
LR 46 disapproved
232 3that the decision in Muir Mills Co Ltd vs Suti Mills Mazdoor Union Kanpur was concerned only with the award of bonus and was not applicable to the present case