Sk. Adbul Kasem v. State — 1992 DIGILAW 262 (CAL)

Judgment 1. THIS revisional application under Section 482 of the Code of Criminal Procedure is directed against the order dated the 13th September, 1900 passed by the learned Additional sessions Judge, 1st Court, Hooghly in Sessions Trial No. 181 of 1989. Against the present petitioners the police, after completion of investigation started on the basis of an FIR lodged on 11-10-81, submitted charge-sheet under sections 147/148/448/323/325/427/380 Indian Penal Code. Accordingly, charges were framed against the accused persons under Sections 148/380/ 323/325/427 Indian Penal Code and the petitioners / accused persons were facing trial in respect of the said charges in the Court a Judicial Magistrate at Arambagh. During the continuance of the trial, to precise, after 14 P. Ws had been examined, the learned Magistrate felt that the evidence on record also disclosed the ingredience of offences punishable under Sections 307/ 302/304/34 Indian Penal Code which were exclusively triable by the Court of session. Accordingly he committed the case at that stage to the Court of session under Section 323 Criminal Procedure Code by his order dated 8-8-89. After such committal the case went to the First Additional Sessions Judge, hooghly and the learned Additional Sessions Judge in his order dated 18-9-90 passed after perusal of the order of the learned magistrate dated 8-6-89, charge-sheet, evidence so far adduced before the learned Magistrate, the FIR, the post mortem report etc. and after considering the arguments advanced before him by both sides, recorded is opinion that charges under Sections 149/380/325/307/304 Part- I should be framed against the accused persons. Thereafter the petitioners/accused persons have come up before this Court by filing this revisional application challenging the order of the learned additional Sessions Judge for framing charges against the accused persons as stated above and for holding trial in respect of the same. The petitioners now pray for quashing the said order of the learned Additional Sessions Judge and also pray for remand of the case to the Court of the learned Magistrate so that the learned Magistrate could proceed with the trial from the stage it had already reached there. 2. THE allegation against the petitioners is that on 11-10-81 the petitioners being armed with various deadly weapons attacked the house of one Sk. Tahar ali and assaulted him and others as a result of which Tahar Ali and certain others persons were injured. 2. THE allegation against the petitioners is that on 11-10-81 the petitioners being armed with various deadly weapons attacked the house of one Sk. Tahar ali and assaulted him and others as a result of which Tahar Ali and certain others persons were injured. It appears that the injured persons were examined at the Khanakul Primary Health Centre and from there the injured tahar Ali was removed to Arambagh Sub-Divisional Hospital on 11-10-81 and was admitted there. It further appears that Tahar Ali was discharged from the arambagh Sub-Divisional Hospital on 30- 10-81 but he was readmitted to the hospital on 9-11 -81 and was taken back to his house from the hospital on 1 -12-81 by Sk. Tahedar Rahaman at his own risk. Subsequently Tahar Ali died at his home. Post mortem examination was held on his dead-body at arambagh on the 19th December, 1981 and the autopsy doctor recorded in his report that the body was decomposed and the cause of death could not be ascertained from that body. In this broad factual background Mr. Sekhar Basu appearing for the petitioners raised several objections regarding the trial proposed to be held by the Additional Sessions Judge after the committal of the case by the Judicial Magistrate. The first contention canvassed by Mr. Basu is that the learned Additional sessions Judge in considering the question of framing charge against the accused persons must take into consideration the entire stock of the materials on record including the evidence of the witnesses so far recorded in the Court of the learned Magistrate inasmuch as the same also forms part of the record which the learned Additional Sessions Judge is required to consider in coming to a decision whether at all any charge triable by the Court of Session is required to be framed. He attracted my attention to section 323 Cr. P. C. which inter alia provides that the Magistrate may at any stage of the proceedings pending before him commit a case to the Court of Session if it appears to him that the case is one which ought to be tried by such Court and thereupon the provisions of Chapter XVIII shall apply to the commitment so made. P. C. which inter alia provides that the Magistrate may at any stage of the proceedings pending before him commit a case to the Court of Session if it appears to him that the case is one which ought to be tried by such Court and thereupon the provisions of Chapter XVIII shall apply to the commitment so made. He argued that in view of the existing provisions of the Criminal Procedure Code the power given to a Magistrate under section 323 to commit a case to the Court of session where it appears to the Magistrate that the case is one 'which ought to be tried by the Court of Session' is confined only to cases which are exclusively triable by the Court of Session. I however find it difficult to subscribe to this view. Section 209 Cr. P. C. empowers a Magistrate to commit a case to the Court of Session where the offence is triable exclusively by the court of Session'. Had it been the intention of the legislature that the power to commit as conferred on a Magistrate by section 323 also should be confined only to cases 'triable exclusively by the Court of Session', the legislature could have very well used that expression as has been done in Section 209 instead of using the expression 'the case is one which ought to be tried by the Court of Session' in section 323. The power to commit under section 323 no doubt includes within its ambit the power to commit a case which appears triable exclusively by the Court of Session, but this power is even wider than that and includes also the power to commit to the Court of Session a case even though such case may not be exclusively triable by such Court provided the Magistrate, for some valid reason considers that the case ought to be tried by such court. The question as to what case can be committed by the Magistrate to the court of Session under section 323 even when such case is not triable exclusively by the Court of Session has been dealt with in various judicial decisions and I need not advert my attention to this aspect in this case because in this case the commitment has been made by the learned Magistrate under section 323 on the ground that some of the offences disclosed during the trial which was going on before him are exclusively triable by the Court of Session. The committal order has not been directly challenged in this revisional application. But the said aspect of the matter was tangentially raised by Mr. Basu when he argued that on consideration of the relevant materials on record including the evidence so far adduced before the learned Magistrate, the learned Additional Session Judge, should have found that there was no ground for framing any charge against the accused persons in respect of any offence which is exclusively triable by the Court of Session and that being so the learned Additional Sessions Judge should have referred the case back to the learned Magistrate under section 228 (1) (a) Cr. P. C. for completion of the trial there in respect of the charges on which the trial was earlier proceeding before the learned Magistrate. 3. IT has been argued by Mr. Basu that even in a case which has been committed to the Court of Session under section 323 Cr. P. C. the Court of session will be governed by the provisions of section 228 which appertains to chapter XVIII of the Code of Criminal Procedure inasmuch as section 323 itself provides that on a commitment made to the Court of Session under the said section 'the provision of Chapter XVIII shall apply to the commitment so made'. There is no doubt that this argument is quite sound. Mr. Basu next argued that under section 228 (l) (a) the Court of Session, even in a case committed under section 323, is required to transfer the case for trial to the Chief Judicial magistrate if the Court, on consideration of record of the case and the documents submitted therewith holds the opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Session. On the other hand, he argued, if a Court of session, on such consideration, is of the opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by such Court in that case charge shall be framed by that Court under section 228 (l) (b) and then trial will proceed to that Court in accordance with the relevant provisions for such trial. Mr. Basu's contention is that where the court of Session is of opinion that the concerned offence is not exclusively triable by such Court, the Court has no option or power to retain it for trial by itself but has to send it to the Chief Judicial Magistrate under sub-section (1) (a)of Section 228 for trial there, While I accept the argument of Mr. Basu that even in a case committed under Section 323 Cr. P. C. the Court of Session has to consider the materials on record for deciding whether framing of any charge is warranted and if so, whether the proposed charge is exclusively triable by the Court of Session or not, I however find it difficult to accept his contention that where the proposed charge is not exclusively triable by the Court of session the case will have to be necessarily transferred to the Chief Judicial magistrate under sub-section (1) (a) of Section 228 Cr. P. C. and such Court has no power to try such a charge which is not exclusively triable by the Court of session. Sub-section (1) (a) of Section 228 provides that in a case covered there under the Court of Session 'may frame a charge against the accused and by order, transfer the case for trial to the Chief Judicial Magistrate. The word 'may' as used in the said clause (a) rather gives a discretion to the Court of Session and the said word refers to two actions of the Court of Session, namely, framing of charge and transfer of the case. It is, therefore, implicit in the provision of clause (a) that even in a caste relating to a charge which is not exclusively triable by the Court of Session, the said Court has a discretion under sub-section (1) (a) of Section 228 either to transfer the case to the Chief judicial Magistrate for trial or to try the case itself. It is, therefore, implicit in the provision of clause (a) that even in a caste relating to a charge which is not exclusively triable by the Court of Session, the said Court has a discretion under sub-section (1) (a) of Section 228 either to transfer the case to the Chief judicial Magistrate for trial or to try the case itself. This interpretation, apart from the irresistible merit of its own, is also sustained toy the decision of this court in The State vs. P. J. Job, 1980 (11) CHN 189. 4. IT may be mentioned in this connection that the power of the Court of session to try offences under the Indian Penal Code is not confined only to such offences as are exclusively triable by the Court of Session. Section 193 of the code of Criminal Procedure provides that except as otherwise expressly provided by the Code or by any other law for the time being in force no Court of Session shall take cognizance of an offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Therefore where a case is committed by a Magistrate under the Code to the court of Session, the said Court gets jurisdiction to take cognizance of the concerned offence and once the Court of Session gets jurisdiction to take cognizance there is no impediment for the Court to hold trial provided of course there is no other legal bar in the matter. In this connection, section 26 of Code of Criminal Procedure is very relevant. , Clause (a) the said section provides that subject to the other provisions of the Code any offence under the Indian Penal code may be tried by (i) the High Court, or (if) the Court of Session or (iii) any other Court by which such offence is shown in the First Schedule to be triable. The power of 'any other Court' under clause (a) (iii) of section 26 to try ah offence under the Indian Penal Code is limited only to such offences as are shown in the First Schedule to be triable by such Court. The power of 'any other Court' under clause (a) (iii) of section 26 to try ah offence under the Indian Penal Code is limited only to such offences as are shown in the First Schedule to be triable by such Court. Therefore a Court other than the High Court and the Court of Session can only try such offences under the indian Penal Code as are shown to be triable by such Court in the First schedule, but in the case of the Court of Session that power is not so circumscribed as the language of section 26 clearly shows. The expression 'exclusively triable by the Court of Session' as used in section 228 as well as in section 209 (commitment of case to Court of Session when offence is triable exclusively by it) also indicates that the Court of Session also has power to try other cases, which may not be exclusively triable by it. Section 323 by using the expression 'ought to be tried by the Court of Session', as I have already mentioned, also covers the cases which though not exclusively triable by it can yet be tried by it. Therefore the jurisdiction of the Court of Session to hold trial in respect of offences under the Indian Penal Code, whether or not exclusively triable by it cannot be disputed and the Court of Session has power to take cognizance of such offence or offences if the case is committed to it under the provisions of the code and there is no other legal bar. In this connection, the provision of clause (b) of section 26 Cr. P. C. may be looked into. It is provided in the said clause (b) that subject to other provisions of the Code any offence under any other law (i. e. other than the Indian Penal Code) shall be tried by the Court mentioned in that behalf in such law and where no Court Is so mentioned the same may be tried by (i) the High Court or (ii) any other Court by which such offence is shown in the First Schedule to be tried. Part II of the first Schedule to the Code of Criminal Procedure relates to offences against other laws i.e., against any law other than the Indian Penal Code. Part II of the first Schedule to the Code of Criminal Procedure relates to offences against other laws i.e., against any law other than the Indian Penal Code. In that Part, it is provided that if an offence is punishable under any such 'other law' with death, imprisonment for life or imprisonment for more than 7 years, then the same will be triable by the Court of Session, but where such offence is punishable with imprisonment for 3 years and upward but not more than 7 years it will be triable by a Magistrate of the first class and where it is punishable with imprisonment for less than 3 years or with fine only it will be triable by any Magistrate. In view oil Clause (b) of section 26 in which, unlike the provision of clause (a), there is no specific mention of Court of Session, it is evident that where an offence is punishable under any law other than the Indian Penal Code the same cannot be tried by the Court of Session if such law mentions a Court not being the Court of Session to be empowered to try the same. Where however such 'other law' does not mention the Court by which the offence under the same can be tried, in that case the Court of Session can try only such cases which are punishable with death, imprisonment for life or imprisonment for more than 7 years as provided in Part II of the First Schedule to the Code. Where however such offence is punishable with imprisonment for 7 years or less or with fine only the same cannot be tried by the Court of Session and the same will have to be tried by a competent Magistrate only as provided in Part II of the First Schedule. Where however such offence is punishable with imprisonment for 7 years or less or with fine only the same cannot be tried by the Court of Session and the same will have to be tried by a competent Magistrate only as provided in Part II of the First Schedule. This distinction between the provisions relating to forum of trial of cases by a competent Court in respect of an offence punishable under the Indian Penal Code and an offence punishable under any other law also clearly indicates that while a Court of Session does not have the power to try any offence under any other law unless such law empowers such court to try the same or unless the said offence according to Part II of the First schedule is triable by the Court of Session where such law does not designate any court for holding trial, any offence under Indian Penal Code is however triable by a Court of Session by virtue of the provision of section 26 (a) Cr. P. C. in spite of the fact that the same may be triable also by a Court of Magistrate in view of the entries to that effect in the First Schedule. It is because of this power that a Court of Session, for example, while trying a case under section 302 I. P. C. also tries a charge, say, under section 379 I. P. C. although section 379 I. P. C. is also triable by a Magistrate. Mr. Basu attracted my attention to the decision reported in A. I. R. 1977 s. C. 1489 (State of Karnataka vs. L. Muniswamy) where it has been held that it is clear from section 227 of the new Code that the Session Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. It has been further held that for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if un rebutted, is such on the basis of which a conviction can be said reasonably to be possible. He has also drawn my attention to a decision reported in A. I. R 1972 S. C. 545 (C. S. and Mfg, Co. vs. State of maharashtra) where it has been held that it cannot be said that the Court at the stage of framing the charges has mot to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. It has, been further held that without fully adverting to the materials on the record it must not blindly adopt the decision of the prosecution in the matter of framing charge. He has also relied upon a decision reported in A I R 1990 S. C. 1962 (Niranjan vs. Jitendra) where it has been observed that even at the Sections 227-228 stage the Court is required to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence and that the court may for this limited purpose sit the evidence and that the Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states a gospel truth even if it is opposed to common sense or the broad probabilities of the case. 5. THE propositions enunciated by the apex court in the decisions noted above are indeed salutary. Bearing the said propositions in mind let us see whether the materials on record would justify an opinion whether there is ground for presuming that the accused persons have committed offence exclusively triable by the Court of Session so as to justify the impugned order of the Additional Sessions Judge regarding framing of charge. As I have already mentioned the learned Additional Sessions Judge expressed his opinion alter consideration of the materials on record that charge should be framed against the accused persons under Sections 149/380/325/307/304 Part I. As we have seen the accused persons were facing trial before the learned Magistrate in respect of charges under Sections 148/380/323/325/427 I. P. C. The impugned order of the learned Additional Sessions Judge virtually brings in two new sections, namely. Sections 307/304 Part I Indian Penal Code for framing, so to say, additional charges there under against the accused persons. Sections 307/304 Part I Indian Penal Code for framing, so to say, additional charges there under against the accused persons. Section 304 Indian Penal Code has been invoked in the matter of framing charge obviously in the background of the death of one of the injured persons, namely, sk. Tahar Ali. The injury of the other two injured persons, namely. Sahela khatoon and Sk. Mansur Ali, it seems from the injury reports, were simple in nature and neither their injuries nor the materials on record would prima facie justify the framing of any charge under Section 307 Indian Penal Code. The question therefore boils down to this, namely, whether the materials on record would in the background of the dearth of Tahar Ali warrant or justify the framing of any charge under Section 304 Indian Penal Code. It is true that at the time of post mortem examination on the dead-body of Tahar Ali the body was found decomposed and autopsy doctor could not ascertain the cause of death from that body. But then there find, other prima facie materials on record which would justify the framing of charge under section 304 Indian Penal code. It is true that Tahar Ali died quite sometime after he sustained the injuries on the date of the occurrence. It is also true that he was once discharged from the hospital after receiving treatment there as indoor patient for sometime and was thereafter readmitted to the hospital a few days later. He was brought from the hospital on the second occasion on personal risk and after a few days he died while at home. There is prima facie evidence that during the incident Tahar Ali was assaulted with deadly weapons. PW-10 has stated that Tahar Ali died due to injuries sustained by him. It is of course true that he is not a medical man but the medical materials on record also may be taken into consideration along with the other materials. PW-14 who is a medical officer who first examined Tahar Ali said in his evidence that the injury nos. 9 and 4 were aggravated injuries. Of course he said that he did not mention in his report that those injuries were such. But he added that for those injuries he referred the patient to the Arambagh Sub-Divisional Hospital injury no. PW-14 who is a medical officer who first examined Tahar Ali said in his evidence that the injury nos. 9 and 4 were aggravated injuries. Of course he said that he did not mention in his report that those injuries were such. But he added that for those injuries he referred the patient to the Arambagh Sub-Divisional Hospital injury no. 4, as recorded by him, is fracture of nasal bone and injury no 9 is 'ill-defined contusion of lower left chest front'. PW-11 is an Orthopaedic Surgeon. He said that Tahar Ali came to Sub-Divisional Hospital. 11-10-81being referred by the Medical Officer. Khana Health Centre. His evidence is that the patient came with surgical emphysema on the left side of the chest and Nasal injury was also there. He further said that on x-ray 5th and 6th ribs of the left side of the chest were found fractured. He testified that the injuries found on the person of Tahar Ali were caused by violent hurt by weapons like ballam, iron-rod, lathi. His evidence is that surgical emphysema of the chest wall is caused by the injury of the lung and it was of course on vital parts of the body, the type of injury being serious. 6. IT has been submitted by Mr. Basu that the x-ray report has not been exhibited and the exhibits 7 and 8 series have not been properly proved. At the stage of framing of charge of course it is not necessary that all the evidence must have been proved. It will suffice if prima facie materials are there for the purpose of justifying framing of charge. The question whether all the documents have been formally proved according to the provisions of law can better be decided at the time of considering whether the charge has been proved beyond reasonable doubt and whether any conviction is warranted on the basis of evidence adduced in the case. PW-11 says that at the time of re-admission the patient was complaining of chest pain, giddiness, weakness and inability to walk for 10 days. The discharge certificate which was issued on 30-10-81 advised the patient, as it seems, to report to physician at O.P.D. after 15 days for review of emphysema] and also advised the patient to attend E.N.T., O.P.D after one month for consideration of nasal correction. Some medicines, it seems, were also prescribed at that time. The discharge certificate which was issued on 30-10-81 advised the patient, as it seems, to report to physician at O.P.D. after 15 days for review of emphysema] and also advised the patient to attend E.N.T., O.P.D after one month for consideration of nasal correction. Some medicines, it seems, were also prescribed at that time. This indicates that although the patient was discharged from the hospital he was not yet fully cured and therefore he was advised further treatment and also for attending the O.P.D. after specified periods. On the second occasion also while he was taken back from the hospital on own risk he had obviously not yet been cured. In the circumstances, and in view of true materials which are on record it cannot be said that there is no prima facie material to justify the framing of charge under section 304 Indian Penal Code. It is also seen that some of the doctors such as Dr. B. R. Hazra, Dr. S. P. Bera, who are charge-sheet witnesses were not yet examined before the learned Magistrate when the learned Magistrate committed the case to the Court of session. Having regard to the materials on record, it is however considered proper that instead of framing charge under Section 304 Part I it should be framed under Section 304 Part II I. P. C. In the result, it is held that no charge under section 307 I. P. C. shall be framed as no such charge is warranted, and instead of framing charge under Section. 304 Part I Indian Penal Code, the charge shall be framed under Section 304 Part II. The other charges proposed in the impugned order may be framed. Subject to above modification no interference with the impugned order of the learned Additional Sessions Judge regarding framing of charge under different sections of the Indian Penal Code is warranted. The revisional application is disposed of accordingly subject to what is stated above. It is however made clear that nothing in this order shall be construed as any opinion as to whether the prosecution will be able to prove the charges beyond reasonable doubt. That will be a matter for the trial court to decide on the basis of the evidence that may be adduced at the trial. The rule stands discharged accordingly. The lower court records be sent down immediately. That will be a matter for the trial court to decide on the basis of the evidence that may be adduced at the trial. The rule stands discharged accordingly. The lower court records be sent down immediately. The Department will supply certified copy (urgent) if applied for Revisional application disposed of.