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2000 DIGILAW 300 (GAU)

SINDHI DAS (DEBBARMA) v. KAIZAR DEBBARMA

2000-09-19

P.G.AGARWAL

body2000
JUDGEMENT Heard Shri P. Roy Barman, learned counsel for the petitioner. Also heard Mr. B. B. Deb, learned Sr. counsel for the respondents. 2. This Criminal Revision is directed against the impugned order dated 11-3-97 passed by the Chief Judicial Magistrate, West Tripura in case No. 1122/96. 3. The facts leading to the present revision in brief are that on a complaint filed by Smt. Sindhi Das (Debbarma) C.R. Case No. 1122 of 96 was registered and after examination of the complainant and witnesses, process was issued against the accused-petitioner under Section 376, 498-A, IPC. During the pendency of the enquiry, a joint application was filed for withdrawal of the case on the plea that the matter has been compromised and the learned Chief Judicial Magistrate, vide impugned order allowed the prayer for withdrawal of the case against all the three accused-petitioners and discharged them. The present revision has been preferred by the complainant stating, inter alia, that the impugned order was passed by misrepresentation and impersonation. The petitioner has also brought certain allegations against the counsel engaged by her in the Court below. 4. In this case, I find that in C.R. 1122 of 96 pending before the Chief Judicial Magistrate, the Court had taken cognizance of the offence under Section 376, IPC which is a sessions trial offence. The only action which the Chief Judicial Magistrate was required to take in the matter was under Sections 208 and 209, Cr. P.C. only, that is, to supply copies of the statements and documents to the accused persons and to commit the case to the Court of sessions. Shri B. B. Deb, learned Sr. Counsel for the respondents has fairly submitted that the offence under Section 376, IPC is non-compoundable in the view of the provisions contained in Section 320, Cr. P.C. and there is no provision empowering the Chief Judicial Magistrate to allow the withdrawal of a sessions case instituted on a private complaint. The trial of Sessions case is provided in Chapter 18 of Cr. P.C. and there is no provision for withdrawal of the case. In the present case as stated above, the trial has not yet started as the case was not committed even. The provision of Section 321, Cr. P.C. is also not attracted as the provisions of Section 225, Cr. P.C. and there is no provision for withdrawal of the case. In the present case as stated above, the trial has not yet started as the case was not committed even. The provision of Section 321, Cr. P.C. is also not attracted as the provisions of Section 225, Cr. P.C. are not applicable at that stage and the application was also not filed by the Public Prosecutor or by the Assistant Public Prosecutor as required under the law. 5. Considering the facts of the case, I find that the Chief Judicial Magistrate had no jurisdiction to pass the impugned order allowing withdrawal of a sessions trial case in absence of any provision to that effect in the Cr. P.C. Hence, the impugned order is incorrect and illegal and therefore liable to be set aside, which I hereby do. 6. Learned counsel for the respondents has submitted that there were sufficient circumstances for withdrawal of the case by the parties and a fresh innings will cause unnecessary hardship to the accused-persons. But, as the impugned order was passed without the provisions of law, the same cannot be maintained. So far the allegations and counter allegations made by the parties are concerned, I do not propose to refer to them or giving a finding on the same. In order to save the accused-persons from unnecessary harassment, it is provided that the accused-persons shall be allowed to go on fresh bail if they desire or remain on bail, in case the bailer agrees to continue. The Chief Judicial Magistrate shall proceed to comply with the provisions under Section 208, Cr. P.C. and commit the case expeditiously. The accused-persons are directed to appear before the Chief Judicial Magistrate, West Tripura district, Agartala on 23-10-2000. 7. Send down the lower Court records immediately along with a copy of this order. 8. The Revision stands disposed of. Order accordingly.