Research › Browse › Judgment

Calcutta High Court · body

1995 DIGILAW 202 (CAL)

HARMINDER SINGH ATWAL v. D. P. MAJUMDER

1995-06-21

N.K.BHATTACHARYYA

body1995
NRIPENDRA KUMAR BHATTACHARYYA, J. ( 1 ) HEARD the submissions of the learned Senior Advocate Mr. Balai Chandra Ray appearing with the learned Advocate, Mr. Milon Mukherjee and the learned Advocate for the State, Mrs. Alokananda Bhose. None of the learned Advocates for the accused opposite parties is appearing. Considered the materials on record. ( 2 ) FROM the record it evinces that the accused opposite parties Nos. 1 to 10 herein were committed to the Court of Session on an allegation of an offence under Section 395 of the Indian Penal Code and the learned Assistant Sessions Judge, Asansol, by order dated 8th December, 1980, in Sessions Case No. 111 of 1980 directed issuance of summons on the witnesses of the de facto complainant, who were not examined. At that stage the said order was challenged and also the proceeding derived from the order of commitment of the learned Magistrate were also challenged in this Court in revision being Criminal Revision No. 22 of 1981 under Section 482 of the Code of Criminal Procedure. A single Judge of this Court after hearing the learned Advocate for the parties dismissed the petition made under Section 482 of the Code of Criminal Procedure and found that the order of the learned Assistant Sessions Judge is an interlocutory order and the learned single Judge of this Court also did not find any fault in the committal order. In ultimate analysis the learned Single Judge dismissed the revisional application. Against that the opposite party No. I herein moved the Hon'ble Supreme Court in appeal being Appeal No. Special Leave to Appeal (Criminal) No. (S) 1655 of 1984. The Supreme Court by its order dated 17th January, 1990, inter alia, directed the learned Sessions Judge to expedite the trial since the matter is pending for a long time and the trial be held from day to day. The matter went back to the Court of the learned Assistant Sessions Judge, Asansol, for commencement of the trial again and at that stage the case was transferred to the ld. The matter went back to the Court of the learned Assistant Sessions Judge, Asansol, for commencement of the trial again and at that stage the case was transferred to the ld. Court of Special Judge (under E. C. Act) - Cum Additional Sessions Judge and the matter came to the Court of the learned Additional Sessions Judge and at that stage a revision was taken out before the learned Sessions Judge, Burdwan, at the instance of the State challenging the order dated 31st March, 1980 and 10th April, 1980 passed by the learned Sub-divisional Judicial Magistrate, Asansol, in C. R. Case No. 287 of 1980. The order dated 31st March, 1980 relates to taking cognizance of offence complained of, by the learned Sub-divisional Judicial Magistrate and the order dated 10th April, 1980 relates to the sanction as contemplated under Section 197 of the Code of Criminal Procedure on the ground that the accused Nos. 8 and 9 were the process-servers and are public servants and to launch a criminal proceeding against them sanction is required. The learned Sessions Judge after hearing the parties and considering the materials on record overruled the contention of the State so far as the order dated 10-4-80 is concerned and the learned Judge held that the order of the learned Sub-divisional Magistrate, dated 31-3-80 by which the learned Magistrate took cognizance is bad as no cognizance was taken. This has been held by the learned Sessions Judge by his order dated 16th March, 1993 in Criminal Motion No. 123 of 1992. This revisional order is the subject matter of challenge before this Court in revision. ( 3 ) THE question for decision before this Court is whether that revisional order of the learned Sessions Judge is sustainable in law or is illegal. ( 4 ) MR. Balai Chandra Ray, learned Senior Advocate, contended on behalf of the petitioner that the order of the learned Sessions Judge is illegal, incorrect and improper inasmuch as the High Court in Criminal Revision No. 22 of 1981 has already found that committal order as passed by the learned Sub-divisional Judicial Magistrate is a valid order. ( 4 ) MR. Balai Chandra Ray, learned Senior Advocate, contended on behalf of the petitioner that the order of the learned Sessions Judge is illegal, incorrect and improper inasmuch as the High Court in Criminal Revision No. 22 of 1981 has already found that committal order as passed by the learned Sub-divisional Judicial Magistrate is a valid order. It is also seen from the judgement of that criminal revision as reported in (1994) (1) Cal 146 (D. P. Majumdar v. Haminder) that all subsequent orders subsequent to committal order were also assailed in that revision and the said orders have been found to be legal orders by the learned Single Judge of this Court. The judgement of the Single bench of this Court was also challenged before the Hon'ble Supreme Court and the Apex Court refused to interfere and directed the learned Sessions Judge to expedite the trial as much delay has already been caused. According to Mr. Ray, by the order impugned the learned Sessions Judge has not only set aside the order dated 31-3-80 passed by the learned Sub-divisional Judicial Magistrate but in a way has interfered with all the subsequent orders passed thereafter, though those subsequent orders have been found to be legal and valid by this Court and also by the Apex Court. He also pointed out another incongruity in the order of the learned Sessions Judge, where the learned Sessions Judge found that the order dated 10-4-80 passed by the learned Magistrate, Asansol, is a valid one but at the same breath he found that the order dated 31-3-80 passed by the learned Sub-divisional Judicial Magistrate is bad. If that be so, then the order dated 10-4-80 passed by the learned magistrate cannot be sustained in law but by queer reason he found that the said order is a valid order. ( 5 ) MRS. Alokananda Bhose, learned Advocate, for the State, on the other hand, in her submission could not assail the submission of Mr. Ray and she also agreed that the order of the learned Sessions Judge cannot be sustained in law. ( 6 ) HAVING heard the submissions of the learned Advocates for the parties and considering the materials on record, I am also of the opinion that the order impugned cannot be sustained in law. Ray and she also agreed that the order of the learned Sessions Judge cannot be sustained in law. ( 6 ) HAVING heard the submissions of the learned Advocates for the parties and considering the materials on record, I am also of the opinion that the order impugned cannot be sustained in law. ( 7 ) THIS High Court and also the Apex Court found all orders from 10-12-80 in Sessions Case No. 111 of 1980 and all orders from the stage of committal order being valid orders, the learned Sessions Judge by the impugned order invalidates the order dated 31-3-80 and in circuitous way interfered with the orders of this Court and also of the Apex Court. Not only that, in his own order he found that the order 10-4-80 passed by the learned Sub-divisional Judicial Magistrate is a valid order. If that be so; then how the order dated 31-3-80 can be an invalid order ? An order which has been passed on the foundation of the order of commitment is a valid order, then how the order of commitment can be an invalid order ? There is another aspect of the matter. The learned Additional Sessions Judge is in session of the matter and the matter could have been agitated before the said Additional Session Judge. In the instant case, it is strange to note that by passing the said Court where the said points could be agitated in course of trial the State has taken out a revision before the Sessions Court and the learned Sessions Judge passed the impugned order by interfering with the order of the learned Assistant Sessions Judge and also of the order passed by the learned Sub-divisional Judicial Magistrate. That is not permissible under the law. No doubt, in one session division there is one Sessions Judge but the business of the Sessions Judge has been distributed. In this way that when a case is transferred to the Court of the Additional Sessions Judge the said transferee Court holds the same power regarding that case so far as the Sessions power is concerned of the Sessions Judge and once a charge is framed the case cannot be withdrawn by the Sessions Judge. In this way that when a case is transferred to the Court of the Additional Sessions Judge the said transferee Court holds the same power regarding that case so far as the Sessions power is concerned of the Sessions Judge and once a charge is framed the case cannot be withdrawn by the Sessions Judge. In the instant case, the charge has already been framed and the case is pending trial, rather the case was in the process of continuing trial before the Court of the Additional Sessions Judge and during that time by this queer process or revision the learned Sessions Judge interfered with the sessions trial in a circuitous way. I have already pointed out that this is not permissible under the law and as such the order impugned is not sustainable. Moreover, as by the impugned order the learned Sessions Judge interfered with the subsequent orders subsequent to committal order which has been found legal by this Court and also by the Apex Court, the order of the learned Sessions Judge cannot be sustained in law. ( 8 ) FOR the reasons stated above, I find merit in this revisional application and I allow the same. The impugned order is hereby set aside. ( 9 ) THE learned Sessions Judge is directed to act in terms of the order passed by the Hon'ble Apex Court in Petition (S) for Special Leave to Appeal (Criminal) No. (S) 1655 of 1984, dated 17th January, 1990. ( 10 ) LET a copy of this judgement be sent down to the Court of the learned Additional Sessions Judge or the Trial Judge, as the case may be, by a special Messenger at the cost of the petitioner. Such cost be put in by tomorrow. ( 11 ) LIBERTY is also given to the petitioner to communicate the gist of this judgement and the learned Additional Sessions Judge or the Trial Judge, as the case may be, is directed to act on such communication. Petition allowed.