BISHNU PADA SAHA v. STATE — 1997 DIGILAW 185 (CAL)

DIBYENDU BHUSAN DUTTA, J. ( 1 ) ONE of the accused of G. R. Case No. 228/76 pending in the Court of Judicial Magistrate, 2nd Court, Tamlul, arising out of Paskura P. S. Case No. 27 dated 24-2-76 under Sections 406/465/4671468/471/120b of the Indian Penal Code has filed the instant revisional application under Sections 397/401 read with Section 482, Cr. P. C. for quashing the proceeding in the said G. R. case. ( 2 ) THE facts and circumstances leading to the instant application may be stated as follows :the accused-petitioner surrendered before the Court in connection with the aforesaid G. R. case arising out of Paskura P. S. Case No. 27 dated 24-2-76 on 8-4-76. A charge-sheet was submitted on 2-8-78. The charges were framed by the learned Magistrate against the present petitioner under Sections 406/465/467/468/471/120b of the Indian Penal Code on 29-4-81. Since the trial was being delayed, the petitioner moved this Court in Criminal Revisional Case No. 75 of 1991 on 15th May, 1991 for quashing the trial and J. N. Hore, J. (as His Lordship then was) by His order dated 15-1-91 disposed of the said application on the very date on which the application was moved, without issuing any direction for service of notice upon the Opposite Party. By the said order His Lordship directed the learned Magistrate to dispose of the case as expeditiously as possible, not exceeding in any case six months from the date of the order, in view of inordinate delay in disposing of the case. By the said order His Lordship also directed that a copy of the said order be communicated to the learned Magistrate at once. The said order was communicated through Assistant Registrar of this Court on 14-3-91. The case was already fixed on 7-5-91 for filing certified copy of the stay order of this Court by the accused persons, in default for recording of prosecution evidence. Although the said date was fixed for recording prosecution evidence of only two witnesses for prosecution, the learned Magistrate, on receipt of the copy of the order dated 15-1-1991 of this Court in the aforesaid criminal revision case, fixed that date for examination of all the witnesses for prosecution and issued summons for appearance of all the remaining witnesses for prosecution. Thereafter, prosecution evidence was recorded on 7-5-81, 8-5-91, 10-5-91, 11-5-91, 14-5-91, 16-5-91, 28-5-91, 29-5-91 and 13-6-91. Thereafter, prosecution evidence was recorded on 7-5-81, 8-5-91, 10-5-91, 11-5-91, 14-5-91, 16-5-91, 28-5-91, 29-5-91 and 13-6-91. The case was fixed on 28-6-91 for recording further evidence but the learned Trying Magistrate met with an accident on 26-6-91 and was forced to be on leave till 6-7-91. On 28-6-91, in absence of the learned Trying Magistrate, the P. O. incharge had no other alternative but to adjourn the case. He, however, adjourned it till 17-7-91. On that date, on behalf of the petitioner a petition was filed praying for an appropriate order in view of this Court's order dated 15-1-91 in Criminal Revision Case No. 75 of 1991 fixing a deadline for conclusion of the trial which expired on 15-7-91, while on the side of the prosecution a prayer was made for adjournment for examination of the I. O. The learned A. P. P. filed a copy of the message that was sent to the I. O. along with the prayer for adjournment. The learned Magistrate heard both the applications on that date i. e. 17-7-91 and disposed of the same by his order passed on that date. ( 3 ) IN view of the gravity of the offences involved in this case and in view of the fact that in spite of his best efforts, the trial could not be concluded within the stipulated period, the learned Magistrate by his order fixed 31-7-91 for evidence of I. O. for examination of the accused persons under Section 313, Cr. P. C. and also for recording evidence of defence witnesses, if any. On 31-7-91, the learned Magistrate received a message stating that the I. O. was dead. The prosecution produced one witness for examination. On behalf of the accused petitioner, a written objection was filed against the proposed examination of the said witness for prosecution and, upon consideration of the submissions made by the parties, the learned Magistrate allowed the said witness to be examined for the ends of justice. After his examination on behalf of the prosecution, a petition was filed on that very date for admitting certain seizure lists into evidence under Section 32 of the Evidence Act in view of the fact that the I. O. who prepared those seizure lists was dead. The defence again raised an objection against the said prayer for prosecution and the learned Magistrate fixed 2-8-91 as the date of hearing. The defence again raised an objection against the said prayer for prosecution and the learned Magistrate fixed 2-8-91 as the date of hearing. The matter was heard on 2-8-91 and order was reserved till 5-8-91. The learned Magistrate fixed 5-8-91 as the date not only for passing his order on the question of admissibility of the seizure lists but also for examination of the accused under Section 313, Cr. P. C. and also for D. Ws. , if any. The said question was finally decided by the learned Magistrate by his order dated 5-8-91 and the documents were admitted in evidence as prayed for by the prosecution. The learned Magistrate asked the accused persons to get ready on that very date for their examination under Section 313, Cr. P. C. for the purpose of expeditious disposal of the case. At that stage, the petitioner moved an application before the learned Magistrate praying for adjournment of the examination under Section 313, Cr. P. C. on the ground that he would file a criminal revision case before this Court against the order passed on that date. Accordingly, the learned Magistrate granted the adjournment so as to enable the accused persons to obtain the stay order, if any, from this Court. The accused petitioner, however, filed the instant revisional application on 20-8-91 praying for quashing of the criminal proceeding and did not keep it confined to the order dated 5-8-91 whereby the learned Magistrate negatived his objection against the admissibility of certain documents under Section 32 of the Evidence Act. ( 4 ) MR. Ghosal, the learned Counsel for the petitioner assails the very foundation of the trial on two grounds : In the first place, it is urged that the learned Magistrate did not ever take any cognizance in the instant case and as such the entire trial is vitiated and is liable to be quashed. Secondly, it is urged on behalf of the petitioner that the learned Magistrate acted illegally and in excess of his jurisdiction in carrying on with the trial beyond 14-7-91, the deadline that was fixed by this Court by the order dated 15-1-91 in Cr. Rev. Case No. 75 of 1991 for disposal of the case. Secondly, it is urged on behalf of the petitioner that the learned Magistrate acted illegally and in excess of his jurisdiction in carrying on with the trial beyond 14-7-91, the deadline that was fixed by this Court by the order dated 15-1-91 in Cr. Rev. Case No. 75 of 1991 for disposal of the case. It is submitted that the trial that was continuing beyond that date was in clear violation of the order of this Court and as such the learned Magistrate was not entitled to take into account any material that was brought into evidence during the trial that followed 14-7-91. It is submitted on behalf of the petitioner that in any view of the matter, the deadline fixed by this Court in Criminal Revision Case No. 75 of 1991 having expired on 14-7-91 and the learned Magistrate not having solicited extension of the deadline from this Court, there would be no legal scope for continuation of the trial and in such circumstances the criminal proceeding should be quashed by this Court at this stage. In the alternative, it is also submitted by the learned Counsel for the petitioner that in case this Court is not inclined to quash the proceeding altogether, the learned Magistrate is to be directed to dispose of the case only on the basis of the materials that had been brought into evidence during the period preceding 14-7-71 the deadline fixed by order dated 15-1-91 passed in Criminal Revision Case No. 75 of 1991. ( 5 ) IN repelling the contention of the learned Advocate for the petitioner, the learned Counsel for the State Opposite Party submitted that the petitioner cannot be permitted to urge at this stage, the grounds regarding want of taking of cognizance by the learned Magistrate in the case concerned particularly in view of the fact that he did not raise this question in the earlier Criminal Revision Case No. 75 of 1991 and especially when he did not approach the appropriate forum to have the order dated 15-1-91 of J. N. Hore, J. (as His Lordship then was) directing the Magistrate to proceed with the case reversed. ( 6 ) IN other words, it is contended on behalf of the State Opposite Party that the plea of want of taking of cognisance is hit by the mischief of principles of constructive res judicata. ( 6 ) IN other words, it is contended on behalf of the State Opposite Party that the plea of want of taking of cognisance is hit by the mischief of principles of constructive res judicata. Secondly, it is contended on behalf of the State that the order of J. N. Hore, J. (as His Lordship then was) fixing a time limit for conclusion of the trial could be deemed to be only directory and not mandatory so as to oust the jurisdiction of the learned Magistrate to proceed with the trial after the expiry of the said time limit, particularly, when His Lordship did not specify the consequences that were actually to ensue in case the trial was not concluded within that deadline. It is submitted on behalf of the State that in disposing of the earlier criminal revision case this Court was only concerned with the early disposal of the case in view of the fact that inordinate delay had already been occasioned in disposing of the case and in his anxiety to arrest further delay in disposal of the case. His Lordship stipulated a particular time limit for conclusion of the trial so that the disposal could not be unnecessarily delayed any further. It is further submitted on behalf of the State that the directive of a Court can be complied with by any Authority for whom the direction is made only when that direction is communicated to the concerned Authority. J. N. Hore, J. (as His Lordship then was) might have fixed the deadline with reference to the date of his order itself but then the concluding part of the order makes it amply clear that the order was meant to be carried out only after the order was communicated to the Magistrate concerned. The fact remains that the accused petitioner did not at least take any steps in appraising that order of this Court to the Magistrate concerned and the Magistrate received the copy of the order only on 14-3-91 when two months out of the total period, during which this Court wanted this particular case to be disposed of by the Magistrate, had already run out and only four months were then available to the Magistrate for disposing of the case. The intention of this Court was obviously to make the entire time limit of six months available to the Magistrate for disposal of the case. It is submitted on behalf of the State that the order sheets, the certified copies of which have been annexed with the revisional application, do unambiguously reveal that on receipt of the order of this Court, the learned Magistrate proceeded to deal with the matter expeditiously and virtually did whatever he could do in adhering to the deadline fixed by this Court in concluding the trial and that it was only because of unavoidable circumstances beyond the control of the learned Magistrate that he had to carry forward the trial even beyond the deadline. It is submitted on behalf of the State that if the time of six months is reckoned from the date on which the learned Magistrate received the copy of the order of this Court, the time limit was supposed to expire on 14-9-91 and that the trial could not be concluded within that date only because of the stay that was obtained on 20-8-91 by the petitioner in the instant revisional case. ( 7 ) ACCORDING to the learned Advocate for the State absolutely no fault can be found with the learned Magistrate in continuing the trial beyond 14-7-91 and the instant revisional application is devoid of any merits. ( 8 ) THE point for my determination would be whether the criminal proceeding is liable to be quashed at this stage in exercise of revisional jurisdiction of this Court. ( 9 ) COGNIZANCE is supposed to be taken only after the submission of the charge-sheet and whether cognizance was or was not taken in the instant proceeding by the learned Magistrate is to be ascertained only from the relevant magisterial order-sheet. The order sheet of the lower Court record of the relevant period is not before this Court for ascertaining whether the learned Magistrate did or did not formally record the order to the effect that he took cognisance of the case. The fact remains that the learned Magistrate framed the charges against the accused persons and recorded the evidence that was produced on behalf of the prosecution. It is, therefore, not understood how it could be argued on behalf of the petitioner that the learned Magistrate did not in fact or in law take any cognizance in the instant case. The fact remains that the learned Magistrate framed the charges against the accused persons and recorded the evidence that was produced on behalf of the prosecution. It is, therefore, not understood how it could be argued on behalf of the petitioner that the learned Magistrate did not in fact or in law take any cognizance in the instant case. Even if it be assumed for the sake of argument that the learned Magistrate did not ever record any formal order to the effect that cognizance was taken, the said omission cannot be urged by the petitioner as a ground of attack in the instant revisional case after he had already accepted this Court's order passed at his instance in his earlier revisional application directing the learned Magistrate to proceed with the case. It is, therefore, futile to suggest at this stage that the trial was vitiated only by reason of the fact that there was an omission on the part of the learned Magistrate for recording the formal order in support of his having taken cognizance of the case. This ground is really devoid of any merit and does not deserve any consideration. ( 10 ) I have carefully considered the rival contention advanced on behalf of the parties in the light of the order of J. P. Hore, J. (as His Lordship then was) and the orders that were passed by the learned Magistrate on and from 17-7-91 till 5-8-91 and I am unable to persuade myself to accept the contention on behalf of the petitioner that the deadline specified by the order passed in the earlier revisional case expired on 14-7-91. Moreover, on n careful scrutiny of the magisterial orders referred to above, I am satisfied that the Magistrate did whatever he could do in the matter of expeditious disposal of the case, on receipt of the copy of the order dated 15-1-91 passed in Criminal Revision Case No. 75 of 1991 and I find absolutely no cogent reason to find any fault or lapse on his part in this behalf. The order of J. N. Hore, J. (as His Lordship then was) must be construed as an order which is directory and not mandatory. The order of J. N. Hore, J. (as His Lordship then was) must be construed as an order which is directory and not mandatory. The period of six months fixed by that order, in my view, should be reckoned from the date of communication of the order of the learned Magistrate and not from the date of the order itself. Even if it be assumed for the sake of argument that the deadline fixed by the order of J. N. Hore, J. (as His Lordship then was) expired on 14-7-91 and not on 14-9-91, it cannot be argued that continuation of the trial by the Id. Magistrate beyond 14-7-91 was without jurisdiction. ( 11 ) INDEED, giving the matter my anxious consideration, I do not find any illegality or impropriety or any irregularity in the continuation of the trial so as to call for any interference by this Court at this stage in exercise of its revisional or inherent jurisdiction. ( 12 ) IN such view of the matter, I have no other alternative than to dismiss the revisional application. The application is, accordingly, dismissed. The stay that was granted on 20-8-91 is hereby vacated. The learned Magistrate shall proceed with the trial in accordance with law as expeditiously as possible. Revision dismissed.