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2000 DIGILAW 354 (CAL)

Ismile Seikh @ Khayapa v. State of West Bengal

2000-07-19

Nure Alam Chowdhury, P.K.Sen

body2000
Judgment Nure Alam Chowdhury, J. This appeal on behalf of the appellant Ismile Seikh @ Khayapa is directed against the judgment and order dated 22nd September, 1999, passed by a Ld. Additional Sessions Judge, 2nd Court, Nadia, Krishnagar in Sessions Trial No. III (July) 99, [Sessions Case No. 6(12) 98], convicting the appellant under section 302 I.P.C. and sentencing him to death and directing under section 354(5) of the Cr. PC that the appellant be hanged by the neck till he is dead as also to pay a fine of Rs.2000/- in default to undergo rigorous imprisonment for two years. Ld. Additional Sessions Judge also submitted the proceedings before the Hon'ble High Court for confirmation of the sentence of death which has' been registered as Death Reference No.5 of 1999. 2. The aforesaid appeal registered as C.R.A. No. 355 of 1999, on a petition of appeal by the appellant through the Superintendent Dumdum Central Jail was admitted by order dated 2nd December, 1999 and directed to be heard along with the aforesaid Death Reference and the realisation of sentence .of fine was stayed and the Learned Public Prosecutor was directed to engage a senior lawyer as a Defence Lawyer at the cost of the Government. 3. It appears that the appellant was defended at the trial by a Ld. Advocate appointed by the Ld. Trial Judge at the cost of the State. In this court also we did not find any Ld. Advocate appearing on behalf of the appellant at the cost of the State when the appeal was taken up for hearing and as such Mr. Rashbehari Mahato, Ld. Advocate, with a junior of his choice has been appointed by this court to appear on behalf of the appellant at the cost of the State and accordingly Mr. Rashbehari Mahato, Ld. Advocate with his junior Mr. Sushil Kumar Mahato is appearing on behalf of the appellant at the cost of the State. 4. Mr. Rashbehari Mahato, Ld. Advocate appearing on behalf of the appellant narrated briefly the prosecution case, the defence case and the nature of the evidence and materials on record adduced in support of the prosecution and the findings of the Ld. Trial Judge on the basis of the evidence and the materials on record as well as the conclusion of the Ld. Trial Judge for awarding the sentence of death to the appellant. 5. Mr. Trial Judge on the basis of the evidence and the materials on record as well as the conclusion of the Ld. Trial Judge for awarding the sentence of death to the appellant. 5. Mr. Mahato next submitted that before making his submission in detail, he wants to raise a preliminary point regarding the defect in the charge vitiating the entire trial and necessitating a fresh trial on framing proper charge in accordance with law. 6. Mr. Mahato, ld. Advocate then placed the "charge" as framed by the Ld. Trial Judge which reads as follows :- Charges With Three Heads (No. XXVIII (II), Schedule V, Act V. 1898) (Sections 221, 222, 223, Code of Criminal Procedure) 1. A. Saha, Additional Sessions Judge, Nadia, 2nd Court, Krishnagar, hereby charge you as follows:- 1. Ismile Sheikh @ Khayapa First: That you, on or about the 7th day of August, 1998 at Dakshin Bahirgachi under Nakashipara P.S. within District Nadia committed murder by intentionally causing the death of Ahatan Bibi (65). And thereby committed an offence punishable under section 302 of the Indian Penal Code, and within the cognizance of this court. Secondly :- That you, on or about the 7th day of August, 1998 at Dakshin Bahirgachi under Nakashipara P.S. within Dist. Nadia committed murder by intentionally causing the death of Hasan Sheikh (8). And thereby committed an offence punishable under section 302 of the Indian Penal Code, and within the cognizance of this court. Thirdly:- That you on or about the 7th day of August, 1998 at Dakshin Bahirgachi under Nakashipara P.S. within Dist. Nadia committed murder by intentionally causing the death of Tahamina Khatoon (10). And thereby committed an offence punishable under section 302 of the Indian Penal Code and within the cognizance of this court. And I hereby direct that you be tried by the said court on the said charge. The charges are read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. Sd/- A. Saha, Additional Sessions Judge, 2nd Court, Krishnagar. Addl. Sess. Judge, 2nd Court, Nadia. 7. Placing the aforesaid "charge" it is submitted by Mr. The charges are read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. Sd/- A. Saha, Additional Sessions Judge, 2nd Court, Krishnagar. Addl. Sess. Judge, 2nd Court, Nadia. 7. Placing the aforesaid "charge" it is submitted by Mr. Mahato that no time and place of occurrence being mentioned in• the charge which is mandatory under section 212 of the Code of Criminal Procedure, the charge is bad in law and the appellant has been seriously prejudiced for non-mentioning of time and place of occurrence in the charge and the case being a case of capital punishment, this court should be very cautious and give serious consideration that no slightest prejudice be caused to the appellant in any way in the trial. 8. Mr. Mahato placed section 212 of the Code of Criminal Procedure which reads as follows:- (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219. Provided that the time included between the first and last of such dates shall not exceed one year. 9. It is further submitted that the time and place are very important aspects of the charge since an accused can adduce evidence that he was at different place at the time wherefrom it was impossible to reach the alleged place of occurrence at the alleged time of occurrence and that is why it has been stated specifically under section 212(1) of the Cr. P.C. that the charge shall contain such particulars as to the time and place of the alleged offence. 10. P.C. that the charge shall contain such particulars as to the time and place of the alleged offence. 10. It is further submitted that although the alleged place of occurrence has been described in the charge as "at Dakshin Bahirgachi" it is a village and the alleged eye-witnesses who are chance witnesses describe the alleged place of occurrence as "Bambooush, market place" etc. and as such in the interest of justice and for the ends of justice the case should be remanded for fresh trial after reframing the charge in accordance with law. 11. Mr. Kazi Safiullah, Ld. Public Prosecutor appearing on behalf of the State of West Bengal submitted that the "time of occurrence" need not be stated in the charge under section 302 I.P.C. and he placed the relevant portion in Form No. 32 in the Second Schedule of the Code of Criminal Procedure which reads as follows:- "That you, on or about the ..... day of ...... at committed murder by causing the death of and thereby committed an offence punishable under section 302 of the Indian Penal Code, and within the cognizance of the court of Session." 12. The Ld. Public Prosecutor further submitted that in view of the provision under section 464 (1) of the Code of Criminal Procedure, the finding, sentence or order by a court of competent jurisdiction shall not be deemed to be invalid merely on the ground of any error, omission or irregularity in the charge and in this connection he drew the attention of this court to section 464(1) of the Code of Criminal Procedure which reads as follows:- No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. 13. In conclusion it is submitted by the Ld. Public Prosecutor that in view of the aforesaid provisions under section 464(1) of the Cr. P.C. the preliminary submission on behalf of the appellant should be rejected and the appeal should be heard by this Hon'ble Court on merits. 14. In reply, Mr. Mahato, Ld. 13. In conclusion it is submitted by the Ld. Public Prosecutor that in view of the aforesaid provisions under section 464(1) of the Cr. P.C. the preliminary submission on behalf of the appellant should be rejected and the appeal should be heard by this Hon'ble Court on merits. 14. In reply, Mr. Mahato, Ld. Advocate, on behalf of the appellant submitted that the contents of the Form of charge in the 2nd Schedule of the Code of Criminal Procedure cannot override the provision of section 212 of the Code of Criminal Procedure which is mandatory. 15. Mr. Mahato also drew the attention of this court to the provision of section 464(2) of the Code of Criminal Procedure which reads as follows :- If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned it may- (a) In case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. 16. It is thereafter submitted that in this case there has been a failure of justice in framing the aforesaid charge and as such under the provision of section 464(2) of the Code of Criminal Procedure, this court should direct a new trial to be had upon a charge framed in accordance with law. 17. After considering the respective submission on behalf of the appellant and the State and the provisions of the Code of Criminal Procedure mentioned above we have no hesitation in holding that the charge as framed by the Ld. Trial Court has not been framed in accordance with law for non-mentioning of the time and place of occurrence in the "charge" as framed by the Ld. Trial Judge which is mandatory under section 212 of the Code of Criminal Procedure and a failure of justice has been caused in respect of the appellant vitiating the entire trial. 18. Trial Court has not been framed in accordance with law for non-mentioning of the time and place of occurrence in the "charge" as framed by the Ld. Trial Judge which is mandatory under section 212 of the Code of Criminal Procedure and a failure of justice has been caused in respect of the appellant vitiating the entire trial. 18. The appeal is therefore allowed and the conviction and sentence of the appellant is set aside and the reference for confirmation of the sentence of death is rejected. 19. The case is therefore remanded back to the Ld. Sessions Judge, Nadia, Krishnagar for de novo trial after framing charge in accordance with law by the ld. Sessions Judge himself or by some other Ld. Judge selected by him having jurisdiction to hold the trial. We further direct that the de novo trial shall commence from the stage of framing the charge and be concluded as expeditiously as possible. 20. Regarding the prayer for bail of the appellant during the de novo trial, Mr. Mahato left it to the discretion of this court. 21. This court, is however, in view of the nature and seriousness of the allegation against the appellant is not inclined to exercise discretion in favour of the appellant and the prayer for bail of the appellant during de novo trial is rejected. P.K. Sen, J.: I agree. Prayer for bail rejected.