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2001 DIGILAW 506 (CAL)

RATNA GHOSH MOULIK v. RANJIT KUMAR BISWAS

2001-08-14

AMIT TALUKDAR

body2001
A. TALUKDAR, J. ( 1 ) IF one wrong cannot justify another then it is opposite that both the wrongs should be corrected, even after attracting the wrath of sub-section (3) of section 399 of the Code of Criminal Procedure by applying the ratio of the decision of Jitender Kumar Jain-v-State of Delhi and others reported in (1998) 8 SCC 770 . ( 2 ) THE learned Sub-Divisional Judicial Magistrate, Tamluk on 0410. 96 passed an Order of discharge relying on the ratio of the decision as laid down in Paragraph 2 (b) of "common cause" v. Union of India reported in 1996 C. Cr L. R. (SC) 217. The same was sought to be set at nought by the petitioner which was turned down on 17. 7. 97. ( 3 ) HAVING suffered two wrongs before the learned sub-Divisional Judicial Magistrate, Tamluk she went to the learned Sessions Judge, Midnapore through criminal Revision No. 245 of 1997 for redressal of the said wrongs. She was again wronged. ( 4 ) THIS time she has gone up before this Court with the history of wrongs by invoking the majestic splendour of inherent powers as reserved under section 482 of the Code of Criminal Procedure. ( 5 ) NONE has appeared on behalf on the opposite party notwithstanding being served. ( 6 ) INTERPRETING the malady which has haunted the Petitioner this Court need not probe much deep as the same is so surfacing and so apparent that even a clinical analysis demonstrate the actual wrong having suffered by the petitioner which has been brought before this Court for rectification. ( 7 ) FIRSTLY, the ratio of the decision of "common cause" v. Union of India (supra) was not rightly considered neither by the learned Magistrate nor by the learned Session Judge. ( 7 ) FIRSTLY, the ratio of the decision of "common cause" v. Union of India (supra) was not rightly considered neither by the learned Magistrate nor by the learned Session Judge. The phrase in paragraph 2 (b) of the said decision " after hearing the public prosecutor and other parties represented before it or their advocates???" necessarily also means the defacto complainant irrespective of the fact that the carriage of justice in a criminal trial is always with the State in connection with the case instituted on a Police report as the defacto complainant has a say and she cannot be shut out down by rolling down the shutter on her face; even though technically she may not have been represented in the G. R. Case No. 226 of 1993 before the learned Sub-Divisional Judicial Magistrate yet the fact remains she was the authoress of the first Information report on the basis of which G. R. Case No. 226 of 1993 was set on motion. She would be deemed to have a latent wedge in the prosecution case. After all it was her axe which was to be grinded. ( 8 ) I find such substance in the argument of Shri Bagchi for the petitioner in this regard that the phrase "any other person" would also include the defacto complainant in the present case. It is also correct that although section 325 of the Indian Penal Code is a compoundable offence within the meaning of section 320 of the Indian Penal Code but as Order of compounding can only be done after hearing the defacto complainant. It was also apposite on the part of the learned Magistrate to have heard the defacto complainant she should not have been altogether shut out. ( 9 ) A defacto complainant plays a very vital role in the criminal Justice system even where the prosecution is at the behest of the State and in any event some time pep up an indolent State machinery by providing vital assistance to the Court in order to reach at its just conclusion; just because a case is instituted on the basis of a police report, it does not lie that the Justice Delivery System in contemporary times can shun the otherwise sublime presence of the defacto complainant. He has is much a necessary party as is the State and the accused. He has is much a necessary party as is the State and the accused. Sometimes the said defacto complainant may not have a participatory role by engaging himself in a prosecution wherein he has not been made a party; yet, the Court should never treat the defacto complainant as an unwelcome entrant in the Banquet Hall of the proceeding of a criminal case. He should be treated with equal regard, hospitality which is known to law for the slated guest in the said Banquet i. e. , the accused and the State machinery. ( 10 ) MODERN Criminal Justice system under the New Code gives great recognization to defacto complainant. An order of discharge on the basis of a police report without notifying the defacto complainant has been deprecated by the Supreme Court in AIR 1985 SC 1285 in the case of Bhagwant Singh v. Commissioner of Police and Another. ( 11 ) THE defacto complainant even has been recognised and who can also file a NARAJI against such final report. The defacto complainant's right has been recognized for even setting aside an order of acquittal passed in a criminal trial. The defacto complainant in the present Code can also participate in the Sessions trial by assisting the learned Public Prosecutor provided in section 301 (2) of the Code of Criminal Procedure. The Supreme Court in the decision of J. K. International v. State (Government of N. C. L. Delhi and Ors) reported in (2001)3 SCC 462 has also held that the defacto complainant can not be debarred an audience in connexing with a case instituted on police report before the High Court at the stage of quashing of the FIR. Further in Bhagwant Singh v. Commissioner of Police and Anr ( AIR 1985 SC 1285 ) the Supreme Court has held that before accepting the prayer for discharge the Court has to notify the complainant. ( 12 ) AS such, apart from the misinterpretation of the ratio of the decision of "common clause" v. Union of India (supra) I am of the view that the learned Magistrate acted in hot haste in discharging the accused without thinking it fit and proper to give audience to the petitioner. ( 13 ) THERE is also another aspect of the matter which very much perturbe the minds of this Court. ( 13 ) THERE is also another aspect of the matter which very much perturbe the minds of this Court. From a plain reading of the Lower Court Records of G. R. Case No. 226 of 1993 it appears that the Charge Sheet was submitted on 30. 7. 93 and the then learned Sub-Divisional Judicial Magistrate, Tamluk took cognizence on 8. 9. 93. Thereafter, for all these years till 1977 it appears that the Copy could not be supplied to the accused persons. The cognizence was taken on 8. 9. 93 and the next date was fixed on 20. 9. 93 for appearance and copy and on 20. 9. 93 copy was not ready. As such, the next date was fixed on 7. 2. 94. On 7. 2. 94 the learned Magistrate fixed 17. 11 94 for appearance and Copy. On 17. 11. 94 the learned Magistrate fixed 25. 8. 95 and thereafter, again on 25. 8. 95 he fixed 2. 7. 96 for appearance and copy. ( 14 ) FROM the order dated 10. 4. 96 it appears that the Record was put up by petition on the prayer of the accused and it was directed to be fixed on 18. 4. 96 and on 18. 4. 96 the accused was communicated by a advocate's letter that on 10. 4. 96 the Hon'ble High Court was pleased to direct the learned Magistrate to complete the Trial preferably within six months from the date of communication of the order. However, the learned Magistrate found that as already 2. 7. 96 has been fixed; on the next date the defence was directed to file certified copy. On 2. 7. 96 time was prayed on behalf of the accused to file the certified copy and accordingly 20. 9. 96 was fixed for bringing the said copy. On 20. 9. 96 since the certified copy was not available the next date was fixed on 1. 10. 96. On 1. 10. 96. 4. 10. 96 was fixed for hearing on which date the order of discharge was passed by the then learned Magistrate. 9. 96 was fixed for bringing the said copy. On 20. 9. 96 since the certified copy was not available the next date was fixed on 1. 10. 96. On 1. 10. 96. 4. 10. 96 was fixed for hearing on which date the order of discharge was passed by the then learned Magistrate. ( 15 ) APART from the fact that the ratio of the Supreme Court decision, in my humble view, was not correctly appreciated, the fact remains when date was fixed for bringing the certified copy of the High Court's Order it was proper for the learned Magistrate to have awaited the same before rushing to pass the impugned order. ( 16 ) THE learned sessions Judge, with due respect, I find, was also not alive to the pith and substance of the matter. Firstly, he erred with regard to the question of limitation. ( 17 ) THE learned lawyer appearing for the petitioner is again right when he submits that the Court of revision can set suo motu to set at right an error of the lower Court. The order of the learned Magistrate had suffered from a part; non-compliance of the ratio of the decision of paragraph 2 (b) of the "common Cause" v. Union of India (supra) the petitioner having come to know ever after much delay about the said order could not be thrown out of the Court by the learned Additional Sessions Judge. ( 18 ) IN the Second Order the learned Magistrate was right that his hands were tied within the shackles of section 362 of the Code of Criminal Procedure and in my humble view the original order dated 4. 10. 96 should have been assailed before the learned Sessions Judge. ( 19 ) HOWEVER, as there cannot be any estoppel against law, the learned sessions judge could have interfered. The learned Sessions Judge was perfectly right that:" The order dated 4. 10. 96 can not be regarded as illegal as the learned. SDJM acted on the basis of principle laid down by the Hon'ble Supreme Court reported in 1996 C Cr LR (SC)-217. " ( 20 ) HOWEVER, the interpretation offered by him to the effect;"as there is no direction of the Hon'ble Supreme Court to hear the defacto-complainant while exercising the power of Court to follow the direction of the Supreme Court reported in 1996 C Cr. " ( 20 ) HOWEVER, the interpretation offered by him to the effect;"as there is no direction of the Hon'ble Supreme Court to hear the defacto-complainant while exercising the power of Court to follow the direction of the Supreme Court reported in 1996 C Cr. LR (SC) 217. It was not laid down by the Supreme Court that while following the direction of the Hon'ble Supreme Court or in discharging the accused learned Magistrate must hear the defecto-complainant and the injured. Therefore, the argument advanced on behalf of the petitioner are not acceptable. " ( 21 ) HEREIN, in my view the learned Sessions Judge went wrong. ( 22 ) BEFORE ringing down the curtain, I find that the submission of the learned lawyer appearing for the Petitioner that there were elements of section 326 of the Indian Penal Code and the investigation was performed in a hamstrung manner cannot altogether be washed out from the consideration. I have perused the Injury Report. It supports his stand. The injuries were indeed very serious. ( 23 ) SINCE the clock of G. R. Case No. 226 of 1993 which has been stopped since 04. 10. 96 is again sent to motion after being rewinded by this Order the petitioner who shall have audience before the learned trial Court to ventilate her grievance in this regard, the said point is kept open. ( 24 ) ALTHOUGH, I wish to clarify that the learned Magistrate was absolutely within his bounds to have passed the said Order on 04. 10. 96 and it was totally in line with the ratio of the decision laid down by the Supreme Court in "common Cause" v. Union of India (supra) I have found that interference is necessary in view of the discussions held hereinabove with the said order particularly as the phrase "and other parties" would also include the de facto complainant. Since even at the cost of repetition, I find that the offence punishable under section 325 is compoundable within the meaning of section 320 (2) of the Code of Criminal Procedure with the permission of the Court but the compounding can be done by the person to whom the hurt has been caused or by any person on his behalf. Since even at the cost of repetition, I find that the offence punishable under section 325 is compoundable within the meaning of section 320 (2) of the Code of Criminal Procedure with the permission of the Court but the compounding can be done by the person to whom the hurt has been caused or by any person on his behalf. It necessarily implies that the de facto complainant is not altogether an ostraeised perform and of course, the phrase public prosecutor "and other parties" in Paragraph 2 (b) in the case of a "common Cause" (supra) also contains in its sweep the de facto complainant. It is this conceptual driving force which has persuaded this Court to arrive at the present finding. The word 'and' sandwiched between the first layer of the word-"public Prosecutor" and the second layer of the word-'other parties' denotes that the Court is obligated to hear the other Party (read the De facto Complainant in this case ). The word-'and' is not disjunctive but is conjunctive. ( 25 ) I much appreciate the forensic dissection of the point made by Shri Bagchi with all sincerely and find that is the correct view and accordingly upheld the same. ( 26 ) ACCORDINGLY, both the orders passed by the learned Additional Sessions and the then learned Sub-Divisional Judicial Magistrate on 04. 10. 96 is set aside and G. R. Case No. 226 of 1993 is restored to File the learned Magistrate will notify the Petitioner and reconsider the prayer for discharge in terms with the decision of "common Cause" (supra ). Revisional Application is accordingly allowed. No. Order as to costs. Let a copy of this Order be forthwith sent down to the learned Sub-Divisional Judicial Magistrate, Tamluk along with lower Court Records. Application allowed.