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1991 DIGILAW 82 (CAL)

Shibsankar Choudhury v. State

1991-02-15

JYOTIRINDRA NATH HORE

body1991
ORDER This is an application under Article 227 of the Constitution of India read with ss. 401 and 482 of the Code of Criminal Procedure for setting aside the order of conviction and sentence of the petitioner under s. 29 of the Police Act and the sentence of fine of Rs.1,000/- in default to suffer rigorous imprisonment for one month passed by the learned Sub-Divisional Magistrate, Uluberia on 19.9.90 and for quashing the entire proceeding under s. 29 of the Police Act arising out of Shyampur P.S. Case No. 68 dated 23.8.75 under ss.143/341/470/379, Indian Code. 2. The petitioner is an Inspector of Police who was posted as Circle Inspector, Uluberia at the material time. Charge-sheet along with cafe diary was submitted before the court on 5.579 in connection with P.S. Case No. 68 dated 23.8.75 under ss. 143/343/470/373, Indian Penal Code. Copy was not made ready as the case diary was not available and as a result G.R.O. was directed by the learned Magistrate to search out the case diary and produce it positively by 295.90. The G.R.O. submitted before the learned Magistrate that the case diary was not traceable and the learned Magistrate directed the Circle Inspector i.e. the present petitioner to produce the duplicate case diary positively by 20.6.90. The case of the petitioner is that Uluberia Court D.R. No. 4257 dated 21.6.90 shows that the message was received by A.S.I, B.Guha of C.I. Office on 25.6.90 and the Circle Inspector, Uluberia instructed his reader to produce the case diary before the learned court. In his order dated 10.8.90, the learned Magistrate observed that no duplicate case diary was produced by the Circle Inspector, Uluberia in spite of repeated reminders and the learned Magistrate further observed in his order that the Circle Inspector has disobeyed the order of the court intentionally, and as such he was directed to show cause by 28.8.90 as to why a proceeding under s.29 of the Police Act would not be started against him. The petitioner's case is that the Uluberia Court D.R. No. 5823(2) dated 21.8.90 shows that the copy of the order-sheet was not sent to Circle Inspector, Uluberia and it further appears from the police records vide CC. No. 2459 dated 17.9.90 that the order-sheet was received by the Circle Inspector, Uluberia on 17.9.90. The petitioner's case is that the Uluberia Court D.R. No. 5823(2) dated 21.8.90 shows that the copy of the order-sheet was not sent to Circle Inspector, Uluberia and it further appears from the police records vide CC. No. 2459 dated 17.9.90 that the order-sheet was received by the Circle Inspector, Uluberia on 17.9.90. As the case diary was not produced on 10.9.90 the learned Magistrate observed that the C.I. was reluctant to comply with the order of the court and he took cognizance under s. 29 of the Police Act against the Circle Inspector fixing 19.9.90 for appearance and for production of duplicate case diary. On receipt of the message on 17.9.90 vide C.C. No. 2459 dated 17.9.90 the petitioner appeared personally before the court on 19.990 and filed a petition stating that the reminders were misplaced and were not put lip to him that duplicate case diary was searched in the office but the same was not available. The petitioner further stated in his petition that he has instructed his office for conducting a thorough search. He also begged to be excused. Xerox copy of the said application dated 19.9.90 is marked annexure 'B' to petition. 3. The learned Magistrate on 19.9.90 recorded his plea under s. 25t of the Criminal Procedure Code and directed The petitioner to ask for apology in writing. The petitioner submitted before the learned court that as a police officer it was not possible for him to ask for mercy in writing as he had already submitted a petition stating the facts. The learned Magistrate took exception to his prayer, and after making some remarks by his order dated 19.9.90 convicted the petitioner under s. 29 of the Police Act and sentenced him to pay a fine of Rs. 1,000/- in default to suffer R.I. for one month. 4. Mr. Sengupta, learned Advocate appearing for the petitioner bas firstly contended that the entire proceeding is totally illegal, whimsical, arbitrary and without jurisdiction and the alleged act does not attract the provision of s. 29 of the Police Act. The second contention raised by Mr. Sengupta, is that the learned Magistrate has acted both as a prosecutor and a Judge and the salutary and mandatory provision of s. 191, Cr. P C. was not complied with, and as 'Such the entire trial including the order of conviction and sentence is illegal. The second contention raised by Mr. Sengupta, is that the learned Magistrate has acted both as a prosecutor and a Judge and the salutary and mandatory provision of s. 191, Cr. P C. was not complied with, and as 'Such the entire trial including the order of conviction and sentence is illegal. Lastly, it has been contended that the learned Magistrate did not give the petitioner a reasonable opportunity of hearing and has not considered the petitioner's case that the previous orders of the learned Magistrate were not communicated to the petitioner and that as soon as the petitioner came to know about the order of the court to produce the case diary, he instructed the staff to make a thorough search and produce the diary in court if found put. It has been contended that the learned Magistrate has acted with a pre-conceived notion and bas gone to the extent of extorting admission of guilt and a written apology from the petitioner. 5. The second point raised by Mr. Sengupta may be taken up first. In this case the learned Magistrate has taken cognizance of the offence upon his own knowledge under clause (c) of sub-s. (1) of s.190 of the Code of Criminal Procedure. Section 191 lays down that when a Magistrate takes cognizance of an offence under clause (c) of sub-so (1) of s.190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, if the accused or any of the accused, if then be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such further Magistrate as may be specified by the Chief Judicial Magistrate in this behalf. The principle of this Section is that no man ought to be a judge in his own case. If a Magistrate proceeds against a person upon his own personal knowledge, he is interested in the prosecution and thereby he would practically make himself a judge in his own case and his preconceived notion as to the guilt of the accused person is likely to bias his mind against that person. 6. If a Magistrate proceeds against a person upon his own personal knowledge, he is interested in the prosecution and thereby he would practically make himself a judge in his own case and his preconceived notion as to the guilt of the accused person is likely to bias his mind against that person. 6. The provisions of S.191 are mandatory and non compliance with the provisions is an illegality vitiating the trial and not a mere irregularity curable under S. 465, In Nilamuni Singh Tanu Singh v. The Stole reported in AIR 1970 Tripura 72 it has been held that where the Magistrate who has taken cognizance on his own knowledge does not inform the accused of his right to be tried by another Magistrate, his conviction is illegal and liable to be set aside. Even when the offence is under s.112 of the Motor Vehicles Act where the Deputy Commissioner, Garo Hills detected the offence and took cognizance, it has been held by the High Court of Assam in Duli Chand Botra & anr. v. The State (AIR 1971 Assam 14) that irrespective of whether section itself would apply or its principles, the accused must be informed of their right to be tried in another court and the failure of the Commissioner to inform about it to the accused is sufficient to quash the entire proceeding. In this case the learned Magistrate ordered prosecution and tried the case himself in contravention of s. 191. The trial is, therefore, vitiated. 7. The last contention of Mr. Sengupta, has also substance. On a perusal of the impugned order, I am of the opinion that the procedure adopted by the learned Magistrate is not fair and opposed to the principle of natural justice. The present petitioner filed a written explanation in answer to the show-cause notice but he was not allowed to adduce evidence in support of the same. Mere issue of the reminder as per despatch register is not enough to show that it was served on the petitioner. The petitioner ought to have been given an opportunity to adduce evidence in support of his plea. The order of the learned Magistrate disclose that he has a preconceived idea about the deliberate disobedience of the order of the court. The learned Magistrate has gone to the extent of insisting on a written apology admitting the guilt. The petitioner ought to have been given an opportunity to adduce evidence in support of his plea. The order of the learned Magistrate disclose that he has a preconceived idea about the deliberate disobedience of the order of the court. The learned Magistrate has gone to the extent of insisting on a written apology admitting the guilt. This almost amounts to coercing or extorting a confession from the petitioner. The impugned order of conviction and sentence is liable to be set aside on these two grounds alone and I need not consider the first point urged by Me. Sengupta. 8. In the result, the revisional application is allowed and the impugned order of conviction and sentence is set aside. Application allowed; impugned order set aside.