Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 117 of 1958

Decision Date: 6 May 1960

Coram: S.K. Das, J.L. Kapur, M. Hidayatullah

In the case titled Vadilal Panchal versus Dattatraya Dulaji Ghadigaonker and another, the matter was decided by a Bench of the Supreme Court of India on 6 May 1960. The Bench consisted of Justice S. K. Das, Justice J. L. Kapur and Justice M. Hidayatullah. The case is reported in the All India Reporter at page 1113 of the 1960 volume and is also cited in several subsequent reports, including the 1962 Supreme Court Reporter and the 1972 Supreme Court Review, among others. The petition was filed by Vadilal Panchal, the petitioner, against Dattatraya Dulaji Ghadigaonker and another respondent. The factual background, as recorded in the headnote, relates to a disturbance that occurred on 3 June 1956 after a public meeting in Bombay concerning the re‑organisation of the State of Bombay was forcibly dispersed. During the ensuing riots, the vehicle in which the appellant was travelling was stopped by a crowd. Several members of the crowd seized the appellant by his neck and hair and attempted to drag him out of the car. In response, the appellant discharged his revolver. One of the bullets struck the respondent’s brother, identified as S, in the chest. S was taken to a hospital but died before medical assistance could be rendered. A police surgeon who performed the post‑mortem examination opined that the shot had been fired from a distance ranging between two and eighteen inches. The Coroner’s jury subsequently returned a verdict stating that S had died from a wound caused by a bullet fired by the appellant under circumstances that rendered the shooting an exercise of the right of private defence and therefore justified. The respondent lodged a complaint in the Court of the Presidency Magistrate, Bombay, alleging that his brother’s death resulted from the appellant’s unlawful firing, which he claimed amounted to an offence punishable under section 302 of the Indian Penal Code, and he prayed that process be issued against the appellant.

The Magistrate referred the complaint to the police for enquiry and report pursuant to section 202 of the Code of Criminal Procedure, 1898. After receiving the police report, the Magistrate examined the statements recorded by the police and the surrounding circumstances, and he arrived at a definitive conclusion that the report, which stated that the shot was fired by the accused in self‑defence, was true. The Magistrate expressly noted that the police surgeon’s statement “conclusively supports the conclusion” that the shooting was justified. He further observed that “the eye witnesses brought by the complainant are not credible witnesses.” The Magistrate expressed the view that issuing any process in the matter would amount to harassment of the accused and would waste public time. Consequently, relying on the provisions of section 203 of the Code of Criminal Procedure, the Magistrate dismissed the complaint. The dismissal was later challenged in revision before the High Court, which set aside the Magistrate’s order and directed that process be issued against the appellant, holding that dismissal under section 203 could not be predicated merely on the police report and that the presumption under section 105 of the Indian Evidence Act remained applicable.

The magistrate dismissed the complaint under section 203 of the Code of Criminal Procedure. The high court, exercising its revisional jurisdiction, set aside that dismissal and ordered the magistrate to issue process against the appellant and to proceed with the case in accordance with the law. The high court based its reversal on three grounds: first, it held that the magistrate was not authorized to dismiss the complaint under section 203; second, it found that the mere police report could not conclusively establish the defence of self‑defence; and third, it concluded that neither section 202 nor section 203 of the Code of Criminal Procedure overrode the presumption established by section 105 of the Indian Evidence Act. In its reasoning, the court explained that under section 203 the magistrate must render a judgment founded upon the statements of the complainant, the testimonies of his witnesses, and the findings of the investigation or inquiry. The magistrate’s judgment should be guided only by judicial considerations, provided that there are satisfactory and reliable materials to determine whether sufficient grounds exist for proceeding on the complaint. The court further clarified that, as long as the magistrate does not misinterpret the scope of an enquiry under section 202 and applies his mind judicially to the material before him, it would be legally erroneous to hold that an exception‑based plea could never be taken into account in forming his judgment. After examining the facts of the present case, the court concluded that the magistrate’s original order was correct, and that the high court’s decision to set aside that order rested on a mistaken view of the scope of section 203. Accordingly, the appellate court set aside the high court’s judgment and restored the magistrate’s dismissal of the complaint.

The matter arose as criminal appeal number 117 of 1958, pursued by special leave from a judgment and order dated 13 September 1957 of the Bombay high court in criminal petition application number 834 of 1957. That high‑court order itself stemmed from a judgment and order dated 30 April 1957 of the Presidency Magistrate, IV Class, Girgaon, Bombay, in case number 6/1 & R of 1956. Counsel representing the appellant included H. M. Choksi, Rajni Patel, B. K. B. Naidu, and I. N. Shroff, while the respondent’s representation was by Janardan Sharma. Additional counsel for the second respondent comprised Purshottam Trikamdas, H. R. Khanna, D. Gupta, and R. H. Dhebar. The judgment was pronounced on 6 May 1960 by Justice S. K. Das. In his introductory remarks, the justice described the case as an unfortunate one, noting that a complaint had been filed in the Court of the Presidency Magistrate, Bombay, on 31 October 1956 by Dattatraya Dulaji Ghadigaonkar, the respondent, and that the matter was finally being resolved in the year 1960. The justice then proceeded to recount the factual background, beginning with an evening public meeting held on 3 June 1956 at a location known as Chowpatty in Bombay, which had been convened for an address by the Prime Minister of India in connection with the agitation for the reorganisation of the State of Bombay.

In Bombay a public gathering was scheduled to be addressed by the Prime Minister of India. The meeting had been called in connexion with an agitation that was then proceeding for the reorganisation of the State of Bombay. At the venue considerable disturbance broke out, forcing the authorities to disperse the assembly, after which large crowds began to wander through various localities surrounding Chowpatty, including the area around Charni Road Station. The complainant later recounted that at about eight o’clock in the evening his younger brother, Sitaram, was attempting to cross Queen’s Road near a building identified as Laud Mansion. At that moment a large crowd occupied the road, and members of that crowd were stopping vehicles that were passing along the same route. A taxi cab that had come from the direction of the Opera House and was proceeding toward Churchgate had already been halted by the crowd. Sitaram was accompanied at the time by two friends, Sashikant Kamtekar and Nand Kumar Vagal. After the three of them had managed to cross the road, they heard the report of revolver shots and, on turning around, discovered a man named Bhayya lying injured on the footpath, having been struck by one of the bullets. The three young men rushed to render assistance to Bhayya; at that instant another shot was discharged by one of the occupants of a blue car that was parked near the previously stopped taxi. The bullet struck Sitaram in the chest, entered the chest cavity and damaged the right ventricle of his heart. Sitaram was immediately taken to the G. T. Hospital, but he died before any medical assistance could be administered. Dr. H. S. Metha, the police surgeon who performed the post‑mortem examination, opined that Sitaram had died from shock and haemorrhage resulting from the gun‑shot wound. The doctor further observed that the charring surrounding the wound indicated that the shot had been fired from a distance of only two to eighteen inches. According to the respondent, the shot that killed Sitaram was fired by Vadilal Panchal, the appellant, from the blue car. The occupants of that car were identified as K. K. Shah, an advocate, his son Vinay, and a man named Ratilal Sanghvi occupying the back seat, while the appellant and his chauffeur, Mohiddin, occupied the front seats. K. K. Shah was mentioned in the complaint as one of the complainant’s witnesses and was examined. He stated that after the Prime Minister’s meeting had concluded, he and his companions were returning home in his car. Because of the trouble, the car had taken a longer route and, upon reaching Queen’s Road, encountered a very large crowd that was pelting stones, shouting slogans and committing other acts of violence; a public bus was set alight, and the taxi that had been proceeding ahead of Shah’s car was stopped. Roughly three to four hundred people gathered around Shah’s car, pelting stones and shouting “maro, maro”. Some of the rioters attempted to drag out Ratilal Sanghvi, who was seated at a corner, and others seized the appellant by the neck and hair in an effort to pull him from the vehicle.

According to the evidence, a group of rioters seized the appellant by his neck and hair and attempted to pull him out of the vehicle. In response, the appellant discharged his revolver, after which the rioters withdrew and a clear path was created for the car to continue its movement. The car then proceeded away from the crowd, and after a short interval K. K. Shah together with the appellant reached the Gamdevi Police Station, where the appellant submitted a formal report describing the incident. Subsequently, the appellant was taken to Nair Hospital, where he received medical treatment and was later discharged. An inquest into the death of Sitaram was conducted by the Coroner of Bombay, during which K. K. Shah, Sashikant Kamtekar and several other witnesses were examined. The Coroner’s Jury returned a verdict on 16 October 1956, finding that Sitaram had died from a gun‑shot wound inflicted by a bullet fired by the appellant and that the firing occurred under circumstances that rendered it an act of private defence, thus justifying it. Earlier, on 3 July 1956, the respondent had inquired, through his counsel, with the Commissioner of Police, Bombay, whether the appellant had been arrested. The reply indicated that police investigations had not uncovered any offence by the appellant and that no action was proposed. On 31 October 1956, the respondent lodged a formal complaint. The Presidency Magistrate who received the complaint referred the matter to the Superintendent of Police, C‑1‑D, for investigation and report, apparently exercising his authority under section 202 of the Code of Criminal Procedure. On 15 November 1956, the Superintendent submitted the report of his Inspector, which stated that exhaustive enquiries made immediately after the incident 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 17 January 1957, the Magistrate afforded the respondent another opportunity to examine his witnesses before the enquiring officer because, owing to a revision application filed earlier in the High Court against the order directing the case to the police for enquiry, the respondent had not been able to present his witnesses before the officer. The enquiring officer then examined all the witnesses and submitted a further report on 12 March 1957, again concluding that, based on the statements and other evidence on record, Shri Vadilal Panchal had opened fire in the exercise of his right of private defence, a conclusion that was also supported by the Coroner’s Jury after a prolonged hearing of the inquest. On 30 April 1957, the Presidency Magistrate reviewed the enquiring officer’s report in detail, considering the statements of all witnesses, and acknowledged that the police had recorded comprehensive statements of both the complainant’s witnesses and those of all occupants of the car, thereby establishing a substantial record to determine whether the circumstances justified the appellant’s claim of private defence.

The Magistrate examined the statements of every witness that had been produced by the complainant together with the statements of all the occupants of the automobile. Accordingly, the record contained material that fully disclosed whether the factual circumstances necessary to invoke the right of private defence existed in favour of the accused. The Magistrate observed that the question of whether the incident fell within any of the statutory exceptions could be determined on the basis of the testimony offered by the prosecution, although the ultimate burden of proving the defence rested upon the accused. After reviewing the police statements and considering the surrounding facts, the Magistrate reached a firm conclusion that the police report, which asserted that the shot had been fired by the accused in self‑defence, was accurate. He further noted that the report of the police surgeon unequivocally corroborated this conclusion. In the same vein, the Magistrate determined that the statements of the four eyewitnesses presented by the complainant were false and that those eyewitnesses lacked credibility. He expressed that proceeding with any legal process on the basis of such testimony would amount to harassment of the accused and would waste public resources. On that basis, the Magistrate dismissed the complaint pursuant to section 203 of the Code of Criminal Procedure.

The complainant, dissatisfied with the dismissal, appealed to the High Court. The High Court set aside the magistrate’s order and directed the Presidency Magistrate to issue process against the appellant and to conduct the trial in accordance with law. In its reasoning the High Court stated that the death of Sitaram was undisputed, and that if, as alleged by the petitioner, the fatal shot had been fired by the respondent, the accused would be required to establish all the elements of the right of private defence as provided in section 96 and the following sections of the Penal Code. The Court observed that none of the provisions in Chapter XVI of the Penal Code permitted an exception to be established merely on the basis of a police report. It held that such a conclusion would conflict with the mandatory provisions of section 105 of the Indian Evidence Act. Moreover, the Court found no authority in sections 202 or 203 of the Criminal Procedure Code that could supersede the presumption created by section 105 of the Evidence Act, nor did those sections prescribe a different mode of proving an exception as mandated by section 105. Consequently, the High Court concluded that the magistrate had not been justified in dismissing the complaint under section 203 because there was no admissible evidence before him capable of proving the defence of private defence. Following this judgment, the appellant obtained special leave to appeal the High Court’s order dated 13 September 1957, and the principal issue before this Court was whether the High Court’s view was correct.

The Court examined whether the High Court was correct in holding that, when a Magistrate orders an inquiry under section 202 of the Code of Criminal Procedure to determine the truth or falsehood of a complaint, and the investigating officer submits a report that supports a claim of self‑defence raised by the accused, the Magistrate may rely on that report and the statements of witnesses recorded by the investigating officer to conclude that the defence is valid. The Court asked whether, as a matter of law, the Magistrate must instead issue process and allow the accused to prove the claim of self‑defence at trial. The Court noted that the High Court itself had recognized that it would be inaccurate to declare in absolute terms that whenever a defence based on any exception in the Indian Penal Code is asserted by the person complained against, the Magistrate is prohibited from dismissing the complaint and is required to issue process. The High Court had 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.” The Court expressed the view that the High Court erred in holding, in this case, that the learned Presidency Magistrate was not legally permitted to determine, on the basis of the material before him, that no offence had been made out and that there was no sufficient ground to continue with the complaint. The Court identified sections 200, 202 and 203 as the statutory provisions governing the issue. Section 200 requires a Magistrate taking cognizance of an offence on complaint to examine the complainant and any present witnesses on oath, to record the substance of the examination in writing, and to have it signed by the complainant, the witnesses and the Magistrate. The provision further allows, where the Magistrate is a Presidency Magistrate, the examination to be conducted with or without oath at the Magistrate’s discretion, and it stipulates that a written complaint need not be reduced to writing, although the Magistrate may require it to be so reduced before the matter is brought before him. Section 202(1) empowers any Magistrate who receives a complaint of an offence within his jurisdiction, or a complaint transferred to him under section 192, to postpone issuing process for compelling the attendance of the accused, provided that the reasons for postponement are recorded in writing, and to either inquire into the case himself or, if he is a Magistrate other than a Presidency Magistrate, to direct an inquiry or investigation to be carried out by a subordinate Magistrate, a police officer or any other person he deems appropriate for ascertaining the truth or falsehood of the complaint.

Section 202 of the Code of Criminal Procedure authorises a Magistrate, after receiving a complaint, to either postpone the issuance of a process for summoning the accused or to direct an inquiry or investigation to be carried out by any subordinate Magistrate, a police officer, or any other person that the Magistrate considers appropriate, with the purpose of determining whether the complaint is true or false. The provision also contains a proviso, the substance of which is not necessary to reproduce in full. Sub‑section (2) provides that when an inquiry or investigation is conducted by a person who is neither a Magistrate nor a police officer, that individual shall be entitled to exercise all the powers that the Code confers upon a police‑station officer, except that such a person shall not be granted the power to make an arrest without a warrant. Sub‑section (2A) further allows any Magistrate who is conducting an inquiry under this section to, if he deems it appropriate, record the testimony of witnesses on oath. Sub‑section (3) extends the operation of this section to the police forces in the cities of Calcutta and Bombay. Section 203 states that the Magistrate before whom a complaint is presented, or to whom it has been transferred, may dismiss the complaint provided that, after considering the complainant’s statement on oath (if any), the statements of any witnesses, and the outcome of any investigation or inquiry conducted under section 202, he finds that there is no sufficient ground for proceeding; the Magistrate must briefly record the reasons for such dismissal. The overall scheme of these provisions is clear: Section 200 outlines the duties of a Magistrate taking cognizance of an offence based on a complaint. Section 202 permits the Magistrate, for reasons recorded in writing, to postpone the issuance of process and to order an inquiry limited to ascertaining the truth or falsehood of the complaint, thereby determining whether there is sufficient evidence to justify proceeding. The inquiry is not intended to constitute a full trial on the guilt of the accused; the accused can only be called upon to answer the charge after a process has been issued and trial commenced. Section 203 comprises two parts: the first part enumerates the materials the Magistrate must consider, and the second part empowers him to dismiss the complaint if, after evaluating those materials, he concludes that there is no sufficient ground for proceeding. Finally, Section 204 provides that if the Magistrate is of the opinion that sufficient ground exists, he shall take the necessary steps to issue the appropriate process.

In the matter before the Court, it was not alleged that the learned Presidency Magistrate had failed to consider the material required for his decision under section 203 of the Code of Criminal Procedure. The Court observed that the magistrate had, in fact, examined the material fully, fairly and impartially before issuing his order. The respondent‑complainant argued, however, that the magistrate could not, as a matter of law, entertain a plea of self‑defence at the stage where the only issue was whether a process should be issued against the appellant. The Court disagreed with that contention and held that the statutory language of section 203 makes it clear that the magistrate’s judgment must be based on the complainant’s statements, the testimony of his witnesses and the findings of the investigation or inquiry. The purpose of the magistrate’s decision is to determine whether sufficient grounds exist for proceeding, not to accept automatically the result of the inquiry nor to reject any defence raised by the accused.

The Court explained that the magistrate is required to apply his judicial mind to the material before him and is not bound to adopt the conclusions of the investigating officer or to exclude a plea based on an exception, provided reliable and satisfactory material supports such a plea. The magistrate may consider an exception if the evidence shows that the complainant’s case is weakened or contradicted by other testimony. No single rule governs the effect of such pleas; each case must be assessed on its own facts. While the High Court relied on earlier authorities – Emperor v. Dhondu Bapu, Emperor v. Finan and Tulsidas v. Billimoria – the Court found that none of those decisions established an absolute principle that a plea based on an exception could never be accepted. In Emperor v. Dhondu Bapu, a defamation complaint was dismissed under section 203 on the ground of protection under section 499, exception 8, and the Court noted that the dismissal order was held to be erroneous. Accordingly, the present Court concluded that the magistrate’s acceptance of a self‑defence plea at the stage of deciding whether to issue process was within his lawful discretion.

The magistrate dismissed the complaint without taking any evidence, relying on section 499, exception eight, which purportedly protected the accused. The Court held that this order of dismissal was erroneous. Patkar, J. made a significant observation, stating that if the magistrate had taken evidence both for the prosecution and for the accused and had then passed a proper discharge order, the District Magistrate’s subsequent order for a further enquiry without providing reasons might have been viewed differently. The Court further expressed that, given the circumstances of the case, there were no adequate grounds to interfere with the District Magistrate’s order. In the earlier decision of Emperor v. Finan (2), the accused did not contest the correctness of the complainant’s statements but, in justification, pleaded that a superior officer had issued an order protecting him under sections 76 and 79 of the Indian Penal Code. It was noted that the alleged order of the superior officer was never produced; instead, the officer improperly wrote a letter to the magistrate claiming that such an order had been given. Under those circumstances, the same learned Judge who decided that case observed that it was incumbent upon the magistrate to investigate the complaint and to determine whether the accusation that the accused was protected by sections 76 and 79 of the Indian Penal Code was supported by legal evidence before him. The facts in Tulsidas v. Billimoria (1) differed, as that case concerned whether a member of the Bar in India enjoyed absolute privilege; consequently, that decision has little bearing on the question presently before the Court. The Court also considered a decision of the Lahore High Court, Gulab Khan deceased, through Karam Khan v. Gulam Muhammad Khan and Others (2), where the facts were somewhat similar. In that case, the person complained against pleaded self‑defence, and the High Court accepted that plea. An objection was later raised to the procedure adopted, arguing that the order of discharge should be set aside. Broadway, J. addressed this argument, explaining that a magistrate is empowered to hold an enquiry into a complaint of an offence to ascertain whether there is sufficient foundation to issue process against the complained‑against persons. He further noted that, in the present case, the magistrate exercised his powers under section 202 of the Criminal Procedure Code, permitting the complainant to produce any evidence he wished. After considering that evidence, the magistrate concluded that the evidence was so wholly unworthy of credence that no further action was warranted. Accordingly, none of the cited decisions establishes an absolute rule that a plea of self‑defence, or any similar defence, cannot be considered by a magistrate when dealing with a complaint under sections 200, 202 and 203 of the Code of Criminal Procedure.

In this case, the Court observed that a claim of self‑defence could not be taken into account by a Magistrate while examining a complaint filed under sections 200, 202 and 203 of the Code of Criminal Procedure. On the material before it, the Court found that there was very little to discuss. Counsel for the State of Bombay defended the order issued by the learned Magistrate and emphasized that, even if the narrow approach adopted by the High Court were applied – an approach that was referenced in (1) (1932) 34 Bom. L.R. 910 and (2) A.I.R. 1927 Lah 30, a view to which the Court did not subscribe – the learned Magistrate was correct in concluding that there were no sufficient grounds to proceed. The Court explained that the earlier statements of certain witnesses supporting the complainant indicated the presence of a violent mob on the road that attacked vehicles, set fire to a public bus and hurled stones. These earlier accounts conflicted with the later version offered by the same witnesses, which described Sitaram and his companions as passing peacefully across the road when a shot was allegedly fired from a moving car. The Court noted that the record contained overwhelming evidence showing that the vehicle belonging to Chat K. K. Shah had become surrounded by the mob, and that some of the rioters attempted to seize and assault the appellant. K. K. Shah himself had been listed as a witness by the complainant, and two police inspectors had also been mentioned in the same context. Their testimonies, according to the Court, clearly bolstered the appellant’s claim and, in any event, demonstrated that the witnesses examined on behalf of the respondent were wholly unreliable regarding the circumstances in which the gunshots were fired. Consequently, the Court could not say that the learned Magistrate erred in his judgment that the complaint lacked sufficient foundation for further action. The Court therefore held that the High Court had set aside the Magistrate’s order on an incorrect interpretation of the scope of section 203 of the Code of Criminal Procedure. Accordingly, the appeal was allowed, the order of the High Court dated 13 September 1957 was set aside, and the order of the learned Presidency Magistrate dated 30 April 1957 was restored. The appeal was thus allowed.