ROMESH KUMAR CHURIWALLA v. STATE OF WEST BENGAL — 1997 DIGILAW 222 (CAL)

DIBYENDU BHUSAN DUTTA, J. ( 1 ) THE instant revisional application under Sections 401 and 432 Cr. P. C. is directed against the order dated 25th April, 1991 passed in Case No. C/435 of 1984 in the Court of 13 Metropolitan Magistrate, Calcutta. ( 2 ) THE said case arose out of a petition of complaint filed against six accused persons in the Court of Additional Chief Metropolitan Magistrate, Calcutta by the present petitioner on the allegations which may, in substance, bc stated as follows. The premises No. 117 Cotton Street, Calcutta-7 is jointly owned by the petitioner's father and uncle. There is one room each on the northern and western portion on the ground floor of the said premises. In the northern room, the switch box of the water pump is fixed. The petitioner has been running his proprietary business styled as Arkay Steel Enterprises in the said two rooms. The said rooms were also being used as the office of Ispat Vikash, a partnership firm of the petitioner's brothers. The accused Nos. 1-4 are resident of premises No. 115, Cotton Street. The accused No. 1 had served in the premises No. 117, Cotton Street as servant and caretaker few years back and was allowed to stay in the northern portion room. The accused No. 1 left the service and vacated the room a few years back. The accused Nos. 2-4 are the relatives of the accused No. 1. Accused Nos. 5 and 6 are the tenants in respect of two separate rooms on the first floor of the premises No. 117 Cotton Street under the petitioner's father and uncle. All the accused persons entered into a criminal conspiracy to illegally trespass into the premises No. 117, Cotton Street and did forcibly snatch the possession of the northern and western portion room of the premises. In pursuance of such conspiracy on or about 26th November, 1984 at about 12-30 p. m. , Accused Nos. 1-3 along with some other outsiders approached the petitioner and his uncle for allowing them to stay temporarily in the said two rooms on the ground floor. The petitioner and his uncle refused to allow them to stay there. On such refusal, the said accused persons and their associates became furious and left the place threatening to arrive again with more man power. The petitioner and his uncle refused to allow them to stay there. On such refusal, the said accused persons and their associates became furious and left the place threatening to arrive again with more man power. Thereafter, at about 7 p. m. the said accused along with some other outsiders and anti-socials reappeared in the premises No. 117, Cotton Street and broke open the padlock of the said two rooms on the ground floor, ransacked them, threw out various papers and furniture etc. belonging to the petitioner and then put a padlock on the door of the northern portion room and left the place. On or about 4th December, 1984 at about 7 a. m. , the accused persons being emboldened with such illegal success to forcibly possess the said northern portion room disconnected the switch box of the water pump causing disruption of the water supply in the room of the petitioner. The accused persons had also threatened to disconnect the electricity in the said premises from the said room and to make the life of the inhabitants of the said premises miserable and to compel the petitioner by force to surrender the possession of the room. The accused Nos. 5 and 6 had pasted posters in the walls of the entire premises using most abusive and filthy languages against the petitioner, his parents and uncle and thereby had seriously disfigured the walls. The accused persons have thus committed offences punishable under Sections 147, 149, 448, 380, 430 read with Sections 120b and 34 of the Indian Penal Code and also under Section 4 of the W. B. Prevention of Defacement of the Property Act, 1976. ( 3 ) THE ld. Magistrate took cognizance and issued process against the accused persons under Sections 147, 448, 427 and 430 of the I. P. C. and also under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976. The case was subsequently transferred to the 13th Court of Metropolitan Magistrate for disposal. ( 4 ) THE complainant petitioner examined three witnesses and the ld. Magistrate by his impugned order framed charges jointly against the opposite parties Nos. 1-5 under Sections 147, 448, 504 and 34 of the I. P. C. and discharged them from the offence punishable under Section 3 of the W. B. Prevention of Defacement of the Property Act. 1976. ( 4 ) THE complainant petitioner examined three witnesses and the ld. Magistrate by his impugned order framed charges jointly against the opposite parties Nos. 1-5 under Sections 147, 448, 504 and 34 of the I. P. C. and discharged them from the offence punishable under Section 3 of the W. B. Prevention of Defacement of the Property Act. 1976. The said opposite parties pleaded not guilty and claimed to be tried. ( 5 ) BEING aggrieved by and dissatisfied with the omission to frame charges against all the said opposite parties under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976, the complainant petitioner has preferred the instant revision. ( 6 ) MR. Bhattacharyya the ld. Counsel appearing for the petitioner assailed the legality of the impugned order on two grounds. First, it was urged that by the impugned order the ld. Magistrate virtually discharged the accused persons from the case so far as it related to the offence punishable under Section 3 of the W. B. Prevention of Defacement of the Property Act. 1976 and since it was by implication an order of discharge to the extent aforesaid, the Magistrate was bound to record its reason for such discharge. But the ld. Magistrate failed to record any reason whatsoever in the impugned order in framing charges for some offences and in not framing charge under Section 3 W. B. Prevention of Defacement of the Property Act. 1976. Such failure, according to Mr. Bhattacharyya, vitiated the order which is liable to be set side on that score alone. Secondly, it was urged that the evidence already adduced by the prosecution was sufficient to make out a prima facie case under Section 3 of the W. B. Prevention of Defacement of the Property Act. 1976 against all the six accused persons against whom the processes were issued except the accused No. 4 and as such, the ld. Magistrate was not justified in omitting to frame the said charge against them for the said offence. ( 7 ) MR. Sanyal, the ld. Counsel appearing for the opposite parties no 1-5, on the other hand, submitted that there being no formal order of any discharge either absolute or partial, the impugned order did not suffer from any legal infirmity by reason of the ld. Magistrates, omission to record and reason therein. According to Mr. ( 7 ) MR. Sanyal, the ld. Counsel appearing for the opposite parties no 1-5, on the other hand, submitted that there being no formal order of any discharge either absolute or partial, the impugned order did not suffer from any legal infirmity by reason of the ld. Magistrates, omission to record and reason therein. According to Mr. Sanyal, the Magistrate is to record his reason only when he discharges an accused under Sub-Section (1) of Section 245 Cr. P. C. on the ground that no case against him has been made out which if unrebutted, would warrant his conviction. But in the instant case, it was not a case of total discharge of the accused persons within the meaning of Section 245 (1) and as such, the ld. Magistrate was not required to record any reason and no fault can be found with the impugned order on that score. Mr. Sanyal submitted that in the instant case, the ld. Magistrate having framed some charges against some of the accused persons Sub-Section (1) of Section 246 of the Cr. P. C. would be applicable and the said Sub-Section (1) of Section 246 of the Cr. P. C. would be applicable and said Sub-Section does not mandate recording of any reason by the Magistrate and as such, no exception can be taken to the impugned order on this score. Mr. Sanyal further submitted that it is very likely that the ld. Magistrate did not frame any charge under Section 3 of the W. B. Prevention of Defacement of the property Act, 1976 because of the fact that there is some discrepancy between the testimonies of PWs. 1-3 on one hand and the case made out in the petition of complaint. It is further submitted by Mr. Sanyal that the offence under Section 3 of the W. B. Prevention of Defacement of the property Act, 1976 were distinct and did not form part of the series of the Acts, in which the accused are alleged to be involved, as to form part of the same transaction and as such, it is very likely that the ld. Magistrate did not frame any charge against the accused persons under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976 with a view to avoiding mis-joinder of charges. ( 8 ) MR. Magistrate did not frame any charge against the accused persons under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976 with a view to avoiding mis-joinder of charges. ( 8 ) MR. Bhattacharyya, in reply, submitted that since there is no reason recorded in the impugned order itself, there is no scope for any specification about the reason or reasons that might have weighed with the ld. Magistratein passing the impugned order. Even if it be assumed for the sake of argument that the ld. Magistrate was not satisfied as to the existence of the prime facie case for framing of charge under Section 3 of the W. B. Prevention of Defacement of the property Act, 1976 he ought to have spelt out the reasons for scrutiny in revision and the mere failure to record reasons would, therefore, go to the root of the case and would vitiate the order itself. Mr. Bhattacharyya further submitted that the question of mis-joinder of charges could not have arisen in case the Magistrate found the accused liable to be charged for the offence for which he omitted to frame charge under Section 3 of the W. B. Prevention of Defacement of the property Act. 1976 inasmuch as the series of Acts constituting the different offences were so connected with one another that they formed part of the same transaction. Lastly, Mr. Bhattacharyya argued that even if it be assumed for the sake of argument that there would have been mis-joinder of charges, it could not legally stand in the way of framing of the charge for which the omission was made because the Id. Magistrate in that case could have ordered separate trial for that charge. In any view of the matter, Mr. Bhattacharyya submitted that the impugned order cannot be sustainable in law. ( 9 ) AS per copy of the petition of complaint annexed with the revisional application, it would appear that in all six persons were complained against. They were accused Nos. 1-6 of whom accused Nos. 1-5 have been impleaded in the present case as O. Ps. Nos. 1-5 respectively, the offences complained of are punishable under Sections 147, 448, 380, 120b and 34 of the I. P. C. and Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976. They were accused Nos. 1-6 of whom accused Nos. 1-5 have been impleaded in the present case as O. Ps. Nos. 1-5 respectively, the offences complained of are punishable under Sections 147, 448, 380, 120b and 34 of the I. P. C. and Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976. In paragraph 7 of the revisional application, it has been alleged that the Id. Magistrate after taking cognizance issued process against all the accused persons under Sections 147, 448, 427 and 430 of the I. P. C. and Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976. The case, therefore, was a warrant case instituted otherwise than on police report, making the provisions of Sections 224 to 250 of Cr. P. C. applicable for its trial. ( 10 ) UNDER Sub-Section (1) of Section 244, the Magistrate is supposed to take all such evidence as may be produced in support of the prosecution and admittedly, the Magistrate took all the evidence that was produced in support of the prosecution. ( 11 ) THE evidence was both oral and documentary. The oral evidence comprised the testimonies of the complainant (PW 1) and his uncle (PW 3) and also a photographer (PW 2) who is said to have visited the disputed premises No. 117 Cotton Street on 8-12-84 and taken snap shots, while the documentary evidence comprised the enlarged prints of the photographs as well as their negatives marked Exts. I and II collectively. None of the P. Ws. appears to have been cross-examined on behalf of the accused persons before charge. The evidence of P. Ws. 1 and 3 is to the effect that all the accused persons except the accused No. 4 pasted posters bearing abusive languages on the walls of the concerned premises. ( 12 ) SINCE all the evidence referred to in Section 244 was already taken by the Magistrate, he was to follow the procedure laid down by the provisions of Sub-Section (1) of Section 245 and Sub-Section (1) of Section 246. Under Sub-Section (1) of Section 245, the Magistrate was to consider the evidence recorded so as to find out whether the evidence recorded would go to make out no case against the accused which, if unrebutted, would warrant his conviction. Under Sub-Section (1) of Section 245, the Magistrate was to consider the evidence recorded so as to find out whether the evidence recorded would go to make out no case against the accused which, if unrebutted, would warrant his conviction. If his finding is in the affirmative, he would have no option but to discharge the accused. If, on the other hand, his finding is in the negative he will proceed to deal with the case in accordance with the provisions of Sub-Section (1) of Section 246 Cr. P. C. According to this Sub-Section of Section 246, he is to consider the same evidence recorded under Sec. 244 so as to form an opinion whether there is ground for presuming that the accused has committed an offence which he is competent to try and adequately punish. If he can form such an opinion, then only he shall have to frame in writing a charge against the accused. ( 13 ) SUB-SECTION (1) of Sec. 245 expressly contains the words "for reasons to be recorded" requiring for the Magistrate to record the reasons when he discharges an accused while Sub-Section (1) of Sec. 246 does not expressly contain the words "for reasons to be recorded". The question is whether the absence of the said words in Sub-Section (1) of Sec. 246 is meant to dispense with the necessity for the Magistrate to record reasons when he does not discharge the accused and frames charge against him. ( 14 ) NOW, Sub-Section (1) of Section 245 uses the words "no case against the accused", while Sub-Section (1) of Section 246 uses the words "the accused" and "an offence". A case may he instituted against one accused or more than one accused. Similarly, it may involve one offence or more than one offence. One or more accused may be concerned in one or more of the offences. In the instant case, six accused persons were summoned by the Magistrate for different offences punishable under I. P. C. as well as under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976. ( 15 ) ON a plain reading of the provisions of Sections 245 (1) and 246 (1), it is clear that these two provisions should be read together as counterparts of each other. ( 15 ) ON a plain reading of the provisions of Sections 245 (1) and 246 (1), it is clear that these two provisions should be read together as counterparts of each other. It is true that there is some difference in the expressions used in the said two Sub-Sections. In Sub-Section (1) of Section 245, the expression reads as "no case against the accused has been made out which, if unrebutted, would warrant his conviction", while that in Sub-Section (1) of Section 246 reads as "there is ground for presuming that the accused has committed an offence". The expression in Sub-Section (1) of Section 245 is used in the negative sense, while in Sub-Section (1) of Section 246, it is used in the positive sense. But they lead to the same result because if no case on the basis of the evidence recorded could be considered by the Magistrate to have been made out which, if unrebutted, would warrant the conviction of an accused, can the Magistrate at the same time and on the basis of the same evidence, be of the opinion that there is ground for presuming that the same accused has committed an offence ? The question of framing of charge against an accused under Sub-Section (1) of Section 246 will arise only after the Magistrate does not find a case for discharging that accused under Sub-Section (1) of Section 245 and it is only the evidence that has been recorded within the meaning of Section 244 that constitutes the basis for consideration by the Magistrate whether he is to discharge a particular accused under Sub-Section (1) of Section 245 or he should frame charge against that accused under Sub-Section (1) of Section 246. ( 16 ) LET us now look to the impugned order which was passed by the Id. Magistrate upon taking all the evidence referred to in Section 244 and Find out its real import. Apparently, it does not contain any formal order discharging any of the accused persons from the case itself. By this order, the ld. Magistrate appears to have framed charges under different Sections of the I. P. C. against only five out of the six accused persons against whom process was initially issued. No charge for offence under the W. B. Prevention of Defacement of the Property Act, 1976 was at all framed against any of the accused persons. By this order, the ld. Magistrate appears to have framed charges under different Sections of the I. P. C. against only five out of the six accused persons against whom process was initially issued. No charge for offence under the W. B. Prevention of Defacement of the Property Act, 1976 was at all framed against any of the accused persons. Omission to frame any charge against any particular accused virtually tantamount to discharge of that accused from the case altogether. Expressly, the impugned order is only an order framing charge but impliedly, it is also an order discharging one of the accused persons from the case itself as well as discharging each of the five accused persons (against whom the charges were framed for offences under I. P. C.) from the case so far as it relates to the offence of defacement of which cognizance was taken earlier. The impugned order, if scrutinised in its proper perspective, can be termed as a composite order under both the Sub-Sections (1) of Sections 245 and 246 and not an order under Sec. 246 (1) simpliciter. Looked at from this angle, there will be no escape from the conclusion that recording of reasons for such an order would be necessary. ( 17 ) ASSUMING for the sake of argument that the impugned order was out and out an order under Sec. 246 (1) and not one under Section 245 (1), even then the necessity for assigning reasons in such an order cannot be dispensed with. Both the orders are judicial orders and are subject to revision and as such, are supposed to be speaking orders. Incidentally, I may usefully quote here the observations of a Division Bench of Andhra Pradesh High Court in the case of Penumatcha Laxmi Narayanraju v. Padala Chellareddy, reported is 1961 (1) Cri LJ 363 : ( AIR 1961 AP 117 ). "the reasons for insisting that every judicial order should be of a speaking type are that to a Court passing such an order arbitrariness should not be ascribed and that the revisional Court will always be able to judge the reasonableness of the order without having to find its own reasons to uphold the order of the Magistrate. There is no justification whatsoever for Magistrate while discharging accused to depart from this salutary principle. There is no justification whatsoever for Magistrate while discharging accused to depart from this salutary principle. In the aforesaid case, the effect of the absence of the words "for reasons to be recorded by such Magistrate" in Sub-Section (2) of Sections 251 A and 253 (1) of the old Code of Criminal Procedure (1898) came up for consideration. It may be pointed out here that Section 253 (1) of the old Code corresponds to Section 245 (1) of the present Code. The Division Bench of the Andhra Pradesh High Court in that case held that assigning of reasons by the Magistrate was not meant to be dispensed with when the Magistrate discharges sole accused for some of the accused while acting under Sub-Section (1) of Section 253 or Sub-Section (2) of Section 251a of the old Code. It also held that the order of discharge under Section 251a (2) of the old Code which on its face does not show reasons is a bad order susceptible of being corrected by the Court of revision. ( 18 ) THEN again, it may be pointed out that the Law Commission suggested insertion of the words "for reasons to he recorded" in Section 245 (1) of the new Code which initially did not expressly contain the said words and accepting the suggestion of the Law Commission, the legislature has since incorporated the said words by amending Section 245 (1) of the new Code. ( 19 ) IN 1977 Cri LJ 2038 Kaliappan v. Munisamy, the Magistrate, after examining witnessed in a case instituted otherwise than on a police report, framed charges only against some of the accused and did not frame charge against the others. The complainant applied for the copy of the order of discharge and the application was returned on the ground that no formal order had been passed by the Magistrate. The petitioner then came forward before the Madras High Court to direct the Magistrate to frame charges against the accused persons against whom the charges were not framed. The complainant applied for the copy of the order of discharge and the application was returned on the ground that no formal order had been passed by the Magistrate. The petitioner then came forward before the Madras High Court to direct the Magistrate to frame charges against the accused persons against whom the charges were not framed. In the absence of a formal order of discharge in that case, a criminal miscellaneous petition (and not a revision application) was, however, filed and the Madras High Court allowed the special miscellaneous petition by bringing it to the Magistrate's notice its statutory liability to record its reasons for not framing charges against some of the accused persons under Section 245 (2) Cr. P. C. with the observation that after the Magistrate records its reasons for discharge in a formal order if the petitioners still feel aggrieved with that order, he could then prefer a revision petition. It is true that the reasons which are required to be recorded by the Magistrate in any order which virtually tantamount to an order of discharge accusedwise or offencewise from a case need not be recorded in any particular form and it is enough if the reasons can be gathered from the order itself. ( 20 ) IT is also true that the Magistrate is not to express a definite opinion about the credibility or otherwise of the witnesses examined or to consider the entire pros and cons of the evidence as if he is conducting a trial. ( 21 ) THE impugned order does not contain any reason whatsoever as to why one of the accused persons was totally discharged from the case and why no charge under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976 was at all framed against any of the accused persona against whom charges for offences only under I. P. C. were framed. There is, indeed, absolutely nothing in the impugned order to indicate how the mind of the Magistrate worked in discharging some of the accused from the case altogether or from discharging all the accused persons vis-a-vis the offence under Section 3 of the Act. The evidence to be considered by the Magistrate remained unrebutted at the material stage and in the absence of reasons it is difficult to appreciate if the Id. The evidence to be considered by the Magistrate remained unrebutted at the material stage and in the absence of reasons it is difficult to appreciate if the Id. Magistrate had at all considered the evidence that remains on the record in support of the charge under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976 against some of the accused persons. ( 22 ) NOW, the trial had already commenced with the framing of charge and taking of the plea in the instant case and the witnesses already examined by the prosecution would, now, be recalled at the instance of the accused persons for their cross-examination within the meaning of Sub-Section (5) of Section 246. After the discharge of the witnesses already examined before charge, the evidence of 'any remaining witnesses' for the prosecution will next be taken under Sub-Section (6) of Section 246. The remaining witnesses are likely to give evidence in support of the prosecution in relation to the charges on which the trial is to be proceeded with and no further evidence is likely to be adduced on behalf of the prosecution in support of a charge which has not been framed. ( 23 ) THERE is also hardly any scope for the provisions of Section 319 Cr. P. C. being attracted for an offence under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976 against five of the accused persons who are already facing this trial. ( 24 ) THUS for all practical purposes, the order of discharge, which is in effect operative against all the accused persons summoned by the Magistrate from the case so far as it involves the offence punishable under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976, can be said to be final so far as the Magistrate is concerned and as such, unless this Court intervenes at this stage, the petitioner is likely to (be) prejudiced. ( 25 ) THUS, giving the matter my anxious considerations, I feel impelled to hold that the impugned order is vitiated by reason of the omission on the part of the Id. Magistrate in assigning reasons for discharging the accused persons from the case so far as it related to the offence punishable under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976. Magistrate in assigning reasons for discharging the accused persons from the case so far as it related to the offence punishable under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976. ( 26 ) SECTION 218 of the Criminal Procedure Code embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should be separate charge and every such charge should be tried separately. Its object is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in Ss. 219 to 221 and 223 of the Code. According to Section 223 (d) of Cr. P. C. , different accused may be charged and tried together in case they are accused of different offences committed in the course of the same transaction. Section 223 is an enabling Section and even if a joint trial is permissible within the meaning of Section 223 (d), the Court order a separate trial in a case where prejudice to an accused in a joint trial is apprehended. ( 27 ) CONTROVERSY was raised on behalf of the parties during the hearing of this revisional application as to whether or not the acts constituting the alleged offence under Section 3 of W. B. prevention of Deface of the Property Act, 1976 are so connected with the series of acts constituting the other offences under I. P. C. as to form part of the transaction within the meaning of Sec. 223 (d ). But this controversy will be of no moment. In the absence of sameness of the transaction only the joinder or joint trial will be impermissible under Section 223 (d) but for that reason the Magistrate could not be incompetent to frame charge under Section 3 of W. B. Prevention of Defacement of the Property Act, 1976 and order a separate trial for that charge. ( 28 ) THE impugned order does not suggest that the Id. Magistrate omitted to frame charge under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976 in order to save misjoinder of charges. It can, therefore, be said that the apprehension of any mis-joinder could not legally deter the ld. ( 28 ) THE impugned order does not suggest that the Id. Magistrate omitted to frame charge under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976 in order to save misjoinder of charges. It can, therefore, be said that the apprehension of any mis-joinder could not legally deter the ld. Magistrate from framing charge under Section 3 of the W. B. Prevention of Defacement of the Property Act, 1976 as suggested on behalf of the O. P. s. ( 29 ) THUS, for the reasons stated above, it would necessarily follow that the impugned order is liable to be set aside in the interest of justice and is hereby set aside. The ld. Magistrate is directed to proceed with the case from the stage it had arrived at after he took all the evidence referred to in Section 244 Cr. P. C. He shall pass an appropriate order assigning reasons within a period of one month from the date of communication of this order. In case the petitioner feels aggrieved even after the ld. Magistrate considers afresh the evidence on record and passes appropriate order in accordance with law, the petitioner shall be at liberty to move this Court in revision. The revisional application thus stands disposed of. Let this order be communicated to the learned Magistrate at once. Order accordingly.