N. K. Bapna v. India Carbon Ltd. — 1996 DIGILAW 237 (CAL)

JUDGMENT R. Bhattacharyya, J.: This criminal revision is directed against the order of the learned Chief Judicial Magistrate dated 28.2.95 in connection with complaint Case No. 506 of 1993 emanated from s. 630 of the Companies Act, 1956. 2. To follow the points raised in the revision, the chequered history of the litigation warrants a reflection or a reproduction in absence of which, there could be a mess of everything. I am afraid that the boot is likely to be on the other leg, if a brief picture of the case is not demonstrated in detail. 3. It is admitted on all hands that the complainant company is a tenant of the Hemchaya Building under one Mrs. Chabi Bose of Jodhpur Park at a monthly rental of Rs. 900/-. The company hired the flat on rental basis for allotment of the some of its officers and executives for their accommodation during the tenure of their service. The accused petitioner was inducted as honorary adviser to the Chairman and the Managing Director of the Company who was allowed to occupy the said flat for himself and the members of his family. During the currency of the service, the petitioner was fixed with a termination notice with immediate effect demanding vacant possession of the flat in question which triggered off the dispute. 4. It is admitted on all hands that a prosecution was commenced for alleged commission of an offence under s. 630 of the Companies Act, 1956. In view of the allegations and counter allegations, the question which is still pending decision as to whether the complainant or 'the petitioner accused lands on the wrong shore of law is a matter for further probing which, I am not required to answer for the reasons indicated above. In view of the complaint filed by the complainant, an application under s. 205 of the Cr.P.C. was geared into action by the accused en 22.7.95 which, however, was• allowed by the learned Trial Court according permission or leave to the learned Counsel of the accused to be represented. It is needless to repeat the substance of the accusation was stated to the accused who pleaded not guilty and claimed to be tried. The case was adjourned from time to time for which reflect of the dates are essential. 5. On 10.3.94, the complainant was examined who was cross-examined on 24.5.94. It is needless to repeat the substance of the accusation was stated to the accused who pleaded not guilty and claimed to be tried. The case was adjourned from time to time for which reflect of the dates are essential. 5. On 10.3.94, the complainant was examined who was cross-examined on 24.5.94. The hearing was again adjourned on the prayer of the complainant. On 11.7.94, the complainant was absent, although the accused was duly represented by his Advocate. The evidence, accordingly, however, stood closed fixed 11.8.94 for examination of the accused under s. 313 of the Cr.P.C. refusing the prayer of the complainant to the adduction of further evidence. 6. On 24.8.94, the learned Chief Judicial Magistrate fixed 7.9.94 for argument. The argument between the parties was concluded on 14.9.94 fixing 30.9.94 for delivery of judgement. The delivery of judgement was adjourned to 30.9.94, 7.10.94 & 15.11.94. On 24.11.94, an application was initiated by the complainant presumably under s. 311 of the Cr.P.C. for adduction of evidence which, however, was allowed by the learned Court below fixing 21.9.94 for further taking evidence of the complainant. The date of examination of witness was deferred till 17.1.95. On 17.1.95., PW 2 Swapan Kumar Das was examined and cross examined fixing 17.2.95 for examination of the accused under s. 313 of the Cr.P.C. On 8.2.95, the petitioner revisionist filed an application for dropping of a proceeding for the case not being maintainable. Thereafter, the impugned order was passed which is under challenge before this Court. 7. In upholding the order, the learned Court below is influenced by the concept that necessary hath no law. Criminal proceedings, Trial and judicial actions are always to go through a medium of procedure prescribed by law. Ends of justice is not the panacea to cure all disease in the litigation when the statute is still alive for relief where remedy could be duly excavated. The law does not encompass any ends of justice dehors the statute. It postulates the basic concept of criminal jurisprudence that an accused is allowed to champion the cause of his innocence liabling the prosecution to prove the offence to the court. This is not a theory but a concept which has not been stormed by any law of the land. However, there are certain exceptions one of which is the acquisition of assets by abuse of official position. This is not a theory but a concept which has not been stormed by any law of the land. However, there are certain exceptions one of which is the acquisition of assets by abuse of official position. But this case does not verge on the prevention of Corruption Act or any other economic offence save the offence alleged to have been committed under s. 630 of the Companies Act, 1956. 8. Though the legal weather was really incompatible yet an unduly lenient approach was resorted to when the scope of summoning witness for examination under s. 311 of the Cr.P.C. was over-stretched, in particular, long after the date fixed for delivery of judgment, where all intermediate steps were over. It is a mechanical order passed by the learned Court below, which is a travesty of justice about which Mr. Roy appearing for the revisionist has raised his finger of protest. 9. Mr. Roy has overwhelmingly assailed and assaulted the impugned order on the ground that invocation of s. 311 at the instance of a litigant has not been conceived of by the court or the Code. The same can never be a bravural legal stunt. The same should not be conveniently explored at the pleasure of a party who was in deep slumber as found from the record. The delivery of judgment was adjourned to several dates and that he was caught up with sleep which missed the attention of the learned court below. 10. The prayer for examination of witness or witnesses long after the date fixed for delivery of judgment cannot and shall not add any flavour to the case of the prosecution in the instant case. The witness was examined on behalf of the complainant but, no circumstance generated or created by any material worthy of credit where s. 311 of the Cr.P.C. could be readily availed of by a party. The petition preferred under s. 311 Cr.P.C., a copy of which has been produced by the revisionist on record does not show for a moment that the examination of the other witnesses sought for under s. 311 of the Cr.P.C. fulfilled the requirements consistent with the claim of the complainant. There is a gulf of difference between a court witness and a witness of a party. 11. Mr. There is a gulf of difference between a court witness and a witness of a party. 11. Mr. Dey appearing for the respondent opposite party to snuff out the legal challenge is vociferous in his submission that the examination of the witnesses was concluded on the basis of consent and admission of the learned Counsel for the accused in the court below which, according to Mr. Dey, snatched away the right of the revisionist to assault the impugned order. If one does it will inflict serious casualty having made some innumerable holes in the sphere of administration of criminal justice. The wisdom and the power of the court, according to Mr. Dey cannot be circumscribed to retard justice. It attributes to garner Justice. Justice is all pervading where procedure cannot be exculded nor the technicalities could be an accessory to deny substantial justice. But Mr. Dey has been derailed when the transaction of judicial business for dispensation of justice over-stepped the limit of law. 12. In refuting the claim of Mr. Dey, Mr. Roy has relied on Govt. of West Bengal vs. Upendra Krishna Ghosh 6 Cr.L.J. 434, Notobar Ghosh vs. Adaitya Nath Biswas 24 Cr.L.J. 957, S.C. Mitter vs. State AIR 1950 Cal 435 and Jamataraj Tiwalji vs. State of Maharashtra AIR J968 SC 178, where the approach while courts is all in favour of the accused. The courts are always emphatic that the prisoner on his trial can consent to nothing. The procedure prescribed by law must be achieved than frustrated. It is within the reach and power of the court to exercise discretion when the case requires a just decision and the power of the court cannot be reduced to the prejudice of any party. According to the wisdom of the court, it can exercise jurisdiction to do a complete justice between the parties. It is really preposterous to find from the record the examination of the witnesses was allowed long after the date fixed for delivery of judgment of having recourse to s. 311 of the Cr.P.C. creating a battle ground for operation of the same. It cannot be cured though argued by Mr. Dey by admission of a learned counsel for the parties, in particular, when the parties to the litigation are wading through the criminal jurisprudence. 13. It cannot be cured though argued by Mr. Dey by admission of a learned counsel for the parties, in particular, when the parties to the litigation are wading through the criminal jurisprudence. 13. In my view, it has certainly caused enough prejudice not to speak of irregularities curable by s. 465 of the Cr.P.C. to the petitioner revisionist. It has undoubtedly resulted in miscarriage of justice. Merely for production of documents without anything more, the invocation of s. 311 of the Cr.P.C. contrary to law by the learned court below attributes to travesty of justice in the background of the factual exposure of the case. Undoubtedly it is a dilatory tactic sought to have been explored of having recourse to S. 311 of the Cr.P.C. 14. Before I depart, I am tempted to cite a decision of our own High Court where the court in Niranjan Ghosh vs. Ananda Mondal 1996 (1) All India Criminal Reporter 196 held that invocation of s. 311 of the Cr.P.C. is impermissible to any prosecution on dilatory tactics. I do not see any reason to differ from the view taken by his Lordship. However, agreeing with the view after taking into consideration, the citations made by the learned Advocate, the order dated 28.2.95, is hereby set aside with a direction on the court to proceed in accordance with law from the stage, it has committed illegality (dated 24.11.94) after affording opportunities to the parties and dispose of the case in accordance with law as expeditiously as possible preferably within six weeks. 15. With the above observations, the revision -application is allowed and the Order dated 28.2.95 is hereby set aside. Revision application allowed. Direction given to Court below to Proceed in accordance with law.