D. N. BHATTACHARJEE v. STATE OF WEST BENGAL — 1969 DIGILAW 2 (CAL)

S. K. DUTTA, J. ( 1 ) THIS rule is directed against the order dated August 21, 1968, passed by Sri K. D. Banerjee, Presidency Magistrate 9th Court, Calcutta in G. R. Case No. 529 of 1966. ( 2 ) THE material facts are as follows: (a) The Additional Registrar of Companies, Calcutta lodged a complaint dated June 2, 1964, with the Additional Inspector General of Police, Special Police Establishment, New Delhi, which was recorded as first information report in this case. After investigation, the Special Police Establishment submitted a charge-sheet against four accused persons, D. N. Bhattacharjee, H. K. Ray, Bonamali Pathak and Kalipada Bhattacharjee, being petitioners in this rule, under Section 409, 467, 468 and 477a of the Indian Penal Code. (b) The prosecution case in brief is that the Bengal Luxmi Cotton Mills Ltd. , a public limited company (hereafter referred as the company), has its registered and head office at Calcutta and factory at Serampore. From 1945 to January 15, 1957, the Bengal Textile Agency Pvt. Ltd. was its managing agents and the accused No. 1 D. N. Bhattacharjee was the Secretary of the managing agent and in that capacity had dominion and control over the funds of the company. After termination of the managing agency arrangement on January 15, 1957, and thereafter the accused No. 1 was appointed the Managing Director of the company for a term of five years, extended for a further term of five years. The other accused persons were the Accountant, Cashier and Asst. Accountant of the Company during 1953 to 1963. During 1954 to 1962 the accused persons with others became parties to a criminal conspiracy to commit or cause to be committed the offence of criminal breach of trust in respect of the funds of the company over which the accused No. 1 has dominion and control. In pursuance thereof a sum of Rs. 2 lacs came to be misappropriated on account of payment for certain machinery while in fact no purchase was made nor there was any existence of the supplier firm. They also misappropriated a sum of Rs. 4,83,000/- belonging to the company in course of these years on account of bonus. Bonus was used to be declared by the accused No. 1 every year and was paid to the factory workers year after year. Requisitions for bonus were made from the factory to the head office. They also misappropriated a sum of Rs. 4,83,000/- belonging to the company in course of these years on account of bonus. Bonus was used to be declared by the accused No. 1 every year and was paid to the factory workers year after year. Requisitions for bonus were made from the factory to the head office. Much heavier amounts were used to be drawn by the company from the bank and other sources and the requisitioned amounts were used to be sent to the factory with money challans while the overdrawn amounts were misappropriated every year. The money challans were returned by the factory which were treated as vouchers by the head office of the company and alterations were made thereon to show falsely that the overdrawn amounts were sent to the factory for distribution to workers. Necessary alterations and falsifications of relevant documents, cash books and ledgers were made at the head office by one or other of the accused persons. (c) On March 25, 1966, the learned Chief Presidency Magistrate, Calcutta, on a consideration of the allegations incorporated in the charge-sheet, took cognizance of offences under Sections 409/477a Indian Penal Code read with the above sections. Subsequently on June 22, 1966, the learned Chief Presidency Magistrate rejected the application filed by the prosecution for taking cognizance of offence under Section 467, Indian Penal Code on the facts stated in the charge sheet. (d) On July 2, 1966, the case was transferred to Sri G. C. Chatterjee, Additional Chief Presidency Magistrate II for disposal. After hearing the parties regarding consideration of charge, the learned Magistrate by order dated March 30, 1967, held that as a transferee Court, he was entitled to proceed to enquire into allegations of offence under Section 467 of the Indian Penal Code and directed that an inquiry under Section 207a Chapter XVIII of the Code of Criminal Procedure should be held. (3) On May 10, 1967, when the case came up for inquiry, the prosecution filed an application stating that there are no witnesses as to the actual commission of the offences and praying that the Court may proceed with the inquiry on the basis of the documents referred to in the report under Section 173 of the Code. (3) On May 10, 1967, when the case came up for inquiry, the prosecution filed an application stating that there are no witnesses as to the actual commission of the offences and praying that the Court may proceed with the inquiry on the basis of the documents referred to in the report under Section 173 of the Code. The defence filed an application praying that in interest of justice the witnesses should be examined in the proposed inquiry under Section 207a (4) and 540 of the Code of Criminal Procedure. (f) By order dated June 1, 1967, the learned Magistrate recorded that he was satisfied, on a perusal of the documents, that in the present case there is no witness to the actual commission of the offences alleged in the charge-sheet. The learned Magistrate was of the opinion that the alleged charge of conspiracy is mainly inferential from the set-up of the administration of the offices of the company and the procedure for purchase of machinery to be evidenced by relevant documents seized, as also the procedure for requisition and payment of bonus to workers to be evidenced by documents. The alleged charges of criminal breach of trust of a number of amounts at different times, of falsification of accounts of many account papers over a wide period and of forgery in respect of several documents are also expected to be evidenced by documents. He was of the opinion that the statements of witnesses examined during investigation do not reveal anything entitling the Court to the view that examination of any of them is necessary in interest of justice. On a consideration of the decisions in (1) Sri Ram v. State of Maharastra, AIR 1961 SC 674 and (2) Kripal Singh v. State of Uttar Pradesh, AIR 1965 SC 712 , the learned Magistrate held that there are no eye-witnesses to the offences alleged and it is not necessary in interest of justice to take evidence of one or some of the other witnesses for the prosecution, under second part of sub-section (4) of Section 207a or under Section 540 of the Code and accordingly by order dated June 1, 1967, he rejected the prayer of defence for examination of witnesses. The learned Magistrate thereupon recorded that stage was then set for proceeding with the inquiry under sub-sections (6) and (7) of Section 207a of the Code. The learned Magistrate thereupon recorded that stage was then set for proceeding with the inquiry under sub-sections (6) and (7) of Section 207a of the Code. (g) It appears that the defence moved this Court in revision against the said order, but the application was summarily rejected. (h) On the transfer of Sri G. C. Chatterjee, Additional Chief Presidency Magistrate II, Calcutta, the Chief Presidency Magistrate, Calcutta, withdrew the case to his own file and transferred the case to Sri K. D. Banerjee, Presidency Magistrate, 9th Court, Calcutta for disposal. (i) It appears that thereafter during November 16, 1967, to August 1, 1968, three were elaborate arguments by the parties on the prosecution case with reference to the police papers under Section 173 of the Code when the defence against challenged the propriety of non-examination of any witness in the inquiry. (j) On August 2, 1968, the defence filed two petitions, one for examining certain persons named therein as witnesses, and the other for summoning one Satish Chandra Choudhury who is alleged to have been firstly the Managing Director of the Managing Agents and lastly as the Chairman of the Company, as accused. The defence also prayed for a comprehensive order after hearing prosecution reply and upon considering the entire matter. The petitions were accordingly directed to be kept with the record to be considered at a later suitable stage. (k) On August 17, 1968, the defence filed an application for summoning one Dulal Chandra Ghosal alleged to be a witness to entrustment and misappropriation of Rs. 2 lakhs and Rs. 1 lakh by the accused No. 1 and also one Shib Bhusan Mukherjee alleged to be a witness to the falsification of documents. By another application the defence stated that Satish Chandra Choudhury was in the same position as accused No. 1 or at least an accomplice while some others named therein are not only partisan witnesses but accomplices in the offences alleged. It was accordingly prayed that unless they are made accused and thereafter granted pardon and then examined as witnesses, their statements under Section 161 of the Code of Criminal Procedure cannot be considered as materials available under Section 207a (6) of the Code. It was accordingly prayed that unless they are made accused and thereafter granted pardon and then examined as witnesses, their statements under Section 161 of the Code of Criminal Procedure cannot be considered as materials available under Section 207a (6) of the Code. (1) Regarding the examination of the witnesses, the learned Magistrate was of opinion that his predecessor in his order No. 45 dated June 1, 1967, upon hearing both sides, came to the decision that there are no eye-witnesses to the offences alleged and it was not necessary in interest of justice to summon and examine any witness for prosecution under the second part of sub-section (4) of Section 207a or under sec. 540 of the Code. After rejecting the contentions of the defence, it was recorded in the said order of June 1, 1967, that the stage then was set for proceeding with inquiry for commitment under Section 207a (6) and (7) of the Code. In view of the Police papers under Section 173 of the Code, which appears to him to be sufficient to lead him to a decision in this inquiry, the learned Magistrate Sri K. D. Banerjee did not think it necessary to reopen the stages prior to Section 207a (6) of the Code. The prayer for examination of witnesses was accordingly rejected by Order No. 83 dated August 21, 1968. (m) as to the other petition, the learned Magistrate by the same order reserved his decision till his final order in the inquiry. (n) Against the said order dated August 21, 1968, the accused persons have moved this Court on which the instant rule has been issued. ( 3 ) MR. Priti Bhusan Burman appearing for State raised a preliminary objection, contending that as the accused petitioners moved a petition for examination of alleged eye-witnesses to the offences under provisions of Sections 207a (4) and 540 of the Code and the same was rejected by the learned Additional chief Presidency Magistrate on June 1, 1967, and was not interfered with by this Court in revision, the petitioners are not entitled in law to move successive application for the identical relief. Mr. Mr. Burman relying on the principles of issue estoppel, argued that in view of previous order dated June 1, 1967, the accused persons must be precluded from reagitating an issue which has already been decided against them and there must be a finality in respect of orders passed at different stages of inquiry. ( 4 ) IN (3) Manipur Administration v. Thokchom Bira Singh, AIR 1965 SC 87 , though the Supreme Court expressed no opinion as to whether the principle of issue estoppel would be available against an accused, it is held that issue estoppel does not prevent the trial of any offence as does autrefois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction. ( 5 ) IN the decision in (4) Pritam Singh v. State of Punjab, AIR 1956 SC 415 , the Supreme Court following the decision in (5) Sambasivam v. Public Prosecutor, Federation of Malaya, 54 Calwn 695 ruled that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by term of Section 403 (2 ). ( 6 ) HOWEVER, in the view I am taking on merits whether the principle of issue estoppel is attracted to the case does not fail to be determined in this rule. ( 7 ) MR. Burman next argued that the principles of res judicata have been held to be applicable to criminal trials and a decision on an issue in a criminal proceeding for committal must be effected and binding on the defence in course of such proceeding on the principles of res judicata. ( 7 ) MR. Burman next argued that the principles of res judicata have been held to be applicable to criminal trials and a decision on an issue in a criminal proceeding for committal must be effected and binding on the defence in course of such proceeding on the principles of res judicata. As the learned Additional Chief Presidency Magistrate by his order No. 45 dated June 1, 1967, upon consideration of the materials on record, dismissed the application for examination of the alleged eye-witnesses to the commission of offences, he contended that the defence is not competent in law to reagitate the matter over again in such proceedings for committal. Mr. Prasun Chandra Ghosh, the learned counsel for defence contended that the principle of res judicata is confined to cases of autrefois acquit or autrefois convict and can have no application to the facts of the case when the trial is pending. ( 8 ) IN (6) Satyadhan Ghosal and ors. V. Sm. Deorajin Debi and anr. , AIR 1960 SC 941 , it was held by the Supreme Court while discussing Section 11 of the Code of Civil Procedure, that the principle of res judicata applies also as between two stages in the same litigation to this extent that a Court whether the trial Court or a higher Court having at a earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings. ( 9 ) THE principles of res judicata is applicable to criminal trials. It may, therefore, be said that there is no reason for non-extension of the said principle to different stages in a criminal trial, though there appears to be no authority deciding just so. But, in the view I am taking on merits, it is not necessary to express any opinion on the point. ( 10 ) IT has been contended by Mr. Sankardas Banerjee and Mr. Prasun Chandra Ghosh, both of whom addressed me on behalf of the petitioners, that the order No. 83 dated 21. 8. But, in the view I am taking on merits, it is not necessary to express any opinion on the point. ( 10 ) IT has been contended by Mr. Sankardas Banerjee and Mr. Prasun Chandra Ghosh, both of whom addressed me on behalf of the petitioners, that the order No. 83 dated 21. 8. 68 passed by the learned Magistrate is untenable in law inter alia in so far as compliance with Section 207a (4) of the Code is concerned as the learned Magistrate erred in thinking that the stage for such examination is over in view of the order No. 45 dated June 1, 1967. It was further contended that the exercise of the discretion conferred upon the Magistrate for examining witnesses to the actual commission of offences not produced by the prosecution of offences not produced by the prosecution is judicial and he has not only the power but a duty in interest of the accused as also in larger interest of the public to examine such witness. Mr. Ghosh took me over the statements of Dulal Chandra Ghoshal and of Shib Bhusan Mukherjee under Section 161 of the Code and contended that as such persons are witnesses to the actual commission of the alleged offences as appearing from the said statements, it was incumbent and a statutory duty on the learned Magistrate to examine them under Section 207a (4) of the Code in interest of justice. In support Mr. Ghosh relied on the decisions in (1) Sri ram v. State of Maharastra, AIR 1961 SC 674 (678-9) and (2) Kripal Singh v. State of Uttar Pradesh, AIR 1965 SC 712 (715 ). Mr. Ghosh further contended that the learned Magistrate's reading and appreciation of the police papers was purely mechanical and he has not properly exercised the judicial discretion vested in him thus resulting in his failure to discharge his duties and causing miscarriage of justice in rejecting the prayer of the defence for examination of witnesses. ( 11 ) MR. Burman appearing for the State has contended that the learned Magistrate on perusal of the police papers came to the conclusion that there were no witnesses to the actual commission of the offences and that in rejecting the defence prayer there was no failure of the exercise of the judicial discretion vested in him. ( 11 ) MR. Burman appearing for the State has contended that the learned Magistrate on perusal of the police papers came to the conclusion that there were no witnesses to the actual commission of the offences and that in rejecting the defence prayer there was no failure of the exercise of the judicial discretion vested in him. He further contended that the learned Magistrate's finding that the stage under Section 207a (4) of the Code was already over was a correct appreciation of the course of the proceeding and the application of the defence for examination of the witnesses in the premises was rightly rejected. ( 12 ) ON the consideration of the arguments of the parties and in view of the decisions of the Supreme Court cited above, it is clear that the discretion by the learned Magistrate must be exercised judicially and has to be adjusted in the light of circumstances of the case as such discretion cannot be guided by any set rules or standards nor by the attitude of the prosecutor. If the witnesses cited by the defence are witnesses to the actual commission of the alleged offences, then it would be incumbent or proper on the part of the learned Magistrate to examine such witnesses who would throw light upon the prosecution case. Even if there are no such witnesses, the Magistrate may take evidence of such other witnesses as he may consider necessary in interest justice. The learned Magistrate after hearing of the parties did not propose to vary the order of his predecessor passed on June 1, 1967, wherein the Additional Chief Presidency Magistrate upon a consideration of all materials before him did not think it necessary in interest of justice to take evidence of one or some other witnesses under second part of Section 207a (4) of the Code and when according to him there are no witnesses to the actual commission of offences. The said order has not been set aside by any superior court and is of full force and effect, the more so as the revisional application in this Court against the aforesaid order was summarily rejected. The said order has not been set aside by any superior court and is of full force and effect, the more so as the revisional application in this Court against the aforesaid order was summarily rejected. The grievance made by the defence before me is that the persons named in its application dated August 17, 1968, were witnesses to the actual commission of the offences alleged and they should have been examined before consideration of the committal of the accused persons. On perusal of the statements made by the persons under Section 161 of the Code referred to by Mr. Ghosh, I am of the opinion that such statements by themselves do not disclose or reveal to have been committed by the accused persons and none of them can be said to be witnesses to the actual commission of the alleged offences. It was thus not incumbent nor necessary on the part of the learned Magistrate to examine such persons as prayed for by the defence, in the interest of the accused persons and in the interest of justice. I am accordingly of opinion of the defence witnesses was rightly rejected by the learned Magistrate. ( 13 ) I also find much substance in the conclusion of the learned Magistrate that the inquiry after rejection of defence prayer for examination of witness on June 1, 1967, passed over to the stage of Section 207a (6) of the Code and it should not be reopened to go back to any earlier stage. The procedure to be adopted in proceeding instituted in police report has been laid down to Section 207a of the Code. The sub-sections of Section 207a contemplate successive stages of inquiry for committal and after one stage is completed, the inquiry passes on to the next successive stage. After a particular stage is reached, it will be improper and even contrary to the procedure laid down in section, to reopen the inquiry and to go back to any earlier stage. Unless the procedure as laid down is observed, there will be no finality of orders as may be passed in the difference stages of inquiry, and the proceeding and the entire trial be at the mercy of either party who may elect at any time to reopen the inquiry to return to the earlier stages concluded already. Unless the procedure as laid down is observed, there will be no finality of orders as may be passed in the difference stages of inquiry, and the proceeding and the entire trial be at the mercy of either party who may elect at any time to reopen the inquiry to return to the earlier stages concluded already. I am, therefore, of the opinion that the applications of the accused persons for examination of witnesses filed after the order of June 1, 1967, are not maintainable in law. ( 14 ) MR. Ghosh next submitted that the defence's contention in the other application filed on August 17, 1968, was (i) Satis Chandra Choudhury is in the same position as the accused No. 1 (ii) at the least he is an accomplice (iii) the other persons named therein are also accomplices to the offences alleged. As the statements made under Section 161 of the Code are fictionally evidence, the same cannot be taken into consideration unless such persons are made co-accused and granted pardon under Section 337 of the Code. In support thereof, the learned counsel relied on the decision in (7) Laximipat Choraria v. State of Maharastra, AIR 1968 SC 938 . Mr. Burman for the State contended that under Section 133 of the Evidence Act, 1872, assuming the persons named are accomplices, their evidence would be admissible in law. Mr. Burman further pointed out that no order has been passed on the said application by the learned Magistrate as he proposed to decide this prayer of making the said persons co-accused in his final order. ( 15 ) IT appears that the learned Magistrate has not dealt with the said application of the petitioner but has deferred his consideration thereto until his final order in the inquiry. In view of the aforesaid position, I feel that it will be improper to express any opinion or to pass any order at this stage on the prayer of the petitioners for making the persons named in the application as co-accused. ( 16 ) IN the result, the rule must be, and is, hereby, discharged and the interim order passed on September 17, 1968, is vacated. ( 17 ) LET the records be sent down immediately and let the matter be heard out with utmost expedition. Rule discharged.