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Calcutta High Court · body

2000 DIGILAW 592 (CAL)

Dilip Kr. Roy v. State

2000-11-29

RANJAN KUMAR MAZUMDAR

body2000
Judgment The instant Criminal revisional application under Sections 401 and 482 of the Code of Criminal, Procedure is at the instance of the convict petitioner Shri Dilip Kumar Roy and this is directed against the judgment and order passed by the learned Additional Sessions Judge, 6th Court, Alipore on 4.11.97 in Criminal Appeal No. 15 of 1997 confirming the order of conviction and modifying the order of sentence passed by the learned Judicial Magistrate, 3rd Court, Sealdah in Complaint Case No. 673/86 (T.R. No. 9/92) on 31.1.97. 2. The case of the convict-petitioner Shri Dilip Kumar Roy. a Constable of Police, was in brief that his father was a tenant under the father of the de facto-complainant-informant in respect of premises No 12/A/21, Chaulpatti Road, Beliaghata, Calcutta and that both the landlord being the father of the complainant and also the tenant being father of the convict-petitioner lived in the same house. Unfortunately, the relationship between the parties was a strained one. According to the petitioner, the de facto-complainant-informant lodged a false complaint with the Police on 7.8.86 to the effect that on that date at about 4 p.m., the petitioner tried to assault him in his dwelling place but due to the intervention of the neighbours, such an attempt ended in a smoke. According to the petitioner, it was further alleged by the de facto-complainant-informant that on that date itself (7.8.86) at about 4-45 p. m. when the complainant and his uncle went to the local P. S. for lodging a diary over the incident of attempt to assault, the petitioner followed them. At the Police Station when the complainant and his uncle were waiting for lodging the diary, the petitioner appeared there all of a sudden and started assaulting the complainant with fists and blows. But, this time too the complainant's uncle saved him. There-upon, the Complainant's uncle met the Duty Officer at the P. S. and appraised him of everything. The Duty Officer then called for the petitioner. It has been alleged that thereafter the petitioner appeared there and threatened that he would break the hands and legs of the complainant and his uncle. At that time the petitioner struck the complainant with fists and blows in front of the Duty Officer Shri A. K. Mitra. Over the incident, the Police suo motu made a G. D. entry against the petitioner. At that time the petitioner struck the complainant with fists and blows in front of the Duty Officer Shri A. K. Mitra. Over the incident, the Police suo motu made a G. D. entry against the petitioner. Simultaneously, the complainant also lodged a G. D. with the P. S. against the petitioner. According to the petitioner there was no such incident as alleged and that he has been falsely implicated in this case and hence the order of conviction and sentence passed by both the learned Courts below were illegal and without jurisdiction and hence the said order should be set aside. 3. I have had the opportunity of hearing learned Counsels for all the parties in the matter at length. 4. The only question requiring consideration in this case was whether the order of conviction as confirmed by the learned Additional Sessions Judge, 6th Court, Alipore and the order of sentence as to imposition of fine only in place of both simple imprisonment for two months and also fine of Rs. 500/- as modified by the said first Appellate Court should be set aside or not. 5. At the time of hearing learned Counsel for the petitioner Shri Utpal Kanti Mondal vehemently submitted that his client has been falsely implicated in this case following the strained relationship between the parties, who lived in the same premises as landlord and tenant. It was further submitted by him that' in a ease of simple hurt under Section 323 I. P. C., the learned trial Court below ought to have insisted upon the production of medical document to show that the complainant was actually beaten by fists and blows, but this was not done. According to him, the learned trial Court ought not to have convicted his. client merely on the basis of oral evidence adduced by the prosecution witnesses and hence there was a gross injustice. It was further submitted by him that the first Appellate Court, viz., the Court of learned Additional Sessions Judge, 6th Court, Alipore also committed grave injustice by way of confirming the order of the learned trial Court below regarding imposition of fine to the tune of Rs. 500/-. He, therefore, urged upon this Court for quashing the order passed by the learned, Additional Sessions Judge, 6th, Court, Alipore whereby the said Court confirmed the order as to imposition of fine of Rs. 500/-. He, therefore, urged upon this Court for quashing the order passed by the learned, Additional Sessions Judge, 6th, Court, Alipore whereby the said Court confirmed the order as to imposition of fine of Rs. 500/- only on his client by the said Court. 6. Learned Counsel for the State submitted, on the other band, that it was a clear case of voluntarily causing simple hurt to the complainant as punishable under Section 323 I. P. C. and there was plethora of evidence to show that on the date of occurrence the complainant was beaten by fists and blows by the petitioner out of enmity between the parties and that such a finding of fact was also affirmed in appeal by the learned Additional Sessions Judge, 6th Court, Alipore. In that connection, it was submitted by him that for proving the case under Section 323 I.P.C., it was not mandatory on that part of the prosecution to examine a doctor or to prove an injury report prepared by the doctor. It was also submitted by him that when both the learned Courts below came to the concurrent finding that on the date of occurrence the complainant was beaten by the petitioner in the thana premises in front of the thana Officers who gave trustworthy evidence, there was no question of interferring with the said concurrent finding of fact by this Court. But, in the facts and circumstances of the present case and with an eye to the fact that the petitioner was a Constable of Police and also having due regard to the fact that it was a case of simple hurt as punishable under Section 323 I.P.C., the Court could certainly invoke the provisions contained in Section 360 of the Code of Criminal Procedure or the provisions of Probation of Offenders Act and pass an order directing the learned trial Court below to release the petitioner on probation of good conduct. 7. Learned Counsel for the de facto-complainant-informant, however, made submissions in favour of retaining the sentence of both imprisonment and fine of Rs. 500/- as imposed by the learned trial Court, Alipore. 8. Needless to mention that the object of Criminal revisional jurisdiction is to confer on the superior Criminal Court a kind of supervisory jurisdiction. 7. Learned Counsel for the de facto-complainant-informant, however, made submissions in favour of retaining the sentence of both imprisonment and fine of Rs. 500/- as imposed by the learned trial Court, Alipore. 8. Needless to mention that the object of Criminal revisional jurisdiction is to confer on the superior Criminal Court a kind of supervisory jurisdiction. The idea behind incorporation of such revisional powers is mainly to prevent the miscarriage of Justice, which may arise from various causes like misconception of law, irregularity of procedure, apparent and undeserved hardship to individuals etc. A reading of both Sections 397 and 401 of the Code together made it amply clear that the High Court can certainly interfere in all cases of incorrectness, impropriety or illegality or perversity of any finding or as to any illegal order of conviction and sentence. The powers of the High Court under these two Sections read with Section 482 of the Code are very wide. But, at the same time it is well-settled that such powers should be exercised only in exceptional cases when there is glaring defect in the procedure or there is manifest error, which resulted in flagrant miscarriage of Justice, In other words, in exercise of the Criminal revisional powers, the High Court can certainly interfere for preventing the abuse of the process of law or for securing the ends of Justice. But, such powers should be exercised only judicially and not arbitrarily, and in the rarest of rare cases. 9. It appears that there is plethora of oral evidence on the side of the prosecution to show that on the date of occurrence the. petitioner caused voluntarily simple hurt to the complainant by way of striking him with fists and blows Inside the thana premises and in front of the police personnel present at that time there. Such a finding of fact has also been affirmed by the learned Additional Sessions Judge, 6th Court, Alipore. How can the said concurrent finding of fact be interfered with in this revision? I have carefully gone through .the impugned Judgment and order passed by both the learned Courts below. As a matter of fact, I find no wrong, no material irregularity, no jurisdictional error and no illegality therein. I am, therefore, of the clear view that on the question of conviction of the petitioner, there is no scope for interference. I have carefully gone through .the impugned Judgment and order passed by both the learned Courts below. As a matter of fact, I find no wrong, no material irregularity, no jurisdictional error and no illegality therein. I am, therefore, of the clear view that on the question of conviction of the petitioner, there is no scope for interference. But, on the question of sentence as passed by the learned First Appellate Court, I consider that interference by this Court in revision is absolutely necessary. The learned trial Court below sentenced the petitioner to suffer simple imprisonment for two months and also to pay a fine of Rs. 500/- in default to suffer simple imprisonment for one month for committing the offence punishable under Section 323 I.P.C. It also appears that the learned First Appellate Court, viz., the Court of learned Additional Sessions Judge, 6th Court, Alipore set aside the sentence of simple imprisonment for two months, but confirmed the sentence of the petitioner regarding payment of fine of Rs. 500/- and accordingly directed the petitioner to pay the said fine of Rs. 500/- for committing the offence of simple hurt punishable under Section 323 I.P.C. 10. It transpires from a copy of the Admit Card issued by the West Bengal Board of Secondary Education in favour of the petitioner that the date of birth of the petitioner was 5.1.1964. The date of occurrence of this case was 7.8.86, Hence, according to the mathematical calculation the petitioner was about 221 years. He was, therefore, a very young man on the date of occurrence. Again it appears that the petitioner was working as a Constable of Police at the relevant time. Besides it appears that nature of offence committed by the petitioner was a trifling one, i.e., simple hurt caused by fists and blows. There is no medical report to show any bleeding injury caused to the victim. Again there is nothing on record to show any previous conviction of the petitioner by any Court of law. These are all material factors which ought to have weighed with both the learned Courts below while they passed the sentence against the petitioner. In my view, the learned Courts below ought to have, in the facts and circumstances of the case, invoked the benevolent provisions contained in the Probation of Offenders Act, 1958. These are all material factors which ought to have weighed with both the learned Courts below while they passed the sentence against the petitioner. In my view, the learned Courts below ought to have, in the facts and circumstances of the case, invoked the benevolent provisions contained in the Probation of Offenders Act, 1958. This Court is, therefore, constrained to interfere in this case on the crucial question of punishment awarded by the learned First Additional Sessions Judge, 6th Court, Alipore on 4.11.97. 11. It has been held by the Hon'ble Supreme Court in the case (1) Dalbir Singh v. State of Haryana & Ors. as reported in 2000 Cr LJ 2283, that the provisions of Section 4 of the Probation of Offenders Act can be resorted to when the Court, after considering the circumstances of the case, particularly the nature of the offence, forms an opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct. In the instant case, the nature of the offence is simple hurt. As already stated, the petitioner was a young man of about 22t years of age. He is in active service under the Police department as a Constable of Police with no previous conviction in his career. 12. Having due regard to the facts and circumstances of the case, including the nature of the offence and other factors mentioned above, I consider that it will be "expedient" to release the petitioner on probation of good conduct on his entering into a bond with one surety for a period of one year as provided for in Section 4 of the Probation of Offenders Act, 1958. I, therefore, direct the learned trial Court to release the petitioner on probation of good conduct under the said provision of law. Accordingly, I set aside the sentence of fine of Rs. 500/- as awarded by the learned First Appellate Court against the petitioner. The petitioner is directed to keep peace and be of good behaviour during the period of probation for one year for which learned trial Court below will pass necessary orders in accordance with the provisions contained in Section 4 and other relevant provisions of the Probation of Offenders Act. 13. The petitioner is directed to keep peace and be of good behaviour during the period of probation for one year for which learned trial Court below will pass necessary orders in accordance with the provisions contained in Section 4 and other relevant provisions of the Probation of Offenders Act. 13. This order as to release of the petitioner on probation of good conduct shall not be treated as a stigma provided the petitioner behaves well and keeps peace during the entire period of probation for one year. 14. Let the order of stay passed by this Court is hereby vacated. 15. Let a copy of this order be sent to the learned trial Court, Sealdah and learned First Appellate Court, Alipore, 24-Parganas (South) immediately for necessary action. The Criminal revisional application is thus disposed of. S. K. G.