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2001 DIGILAW 542 (CAL)

Soumyendra Nath Mazumdar v. State

2001-08-27

HRISHIKESH BANERJI

body2001
JUDGMENT 1. By the present application under Sections 401 & 397 of the Code of Criminal Procedure read with Section 482 of the said Code, the petitioner/appellant challenges the order dated 15th July, 1999 passed by the learned Additional Sessions Judge, Murshidabad. By the said order, the learned Judge set aside the order of conviction of the appellant/petitioner herein passed by the learned Chief Judicial Magistrate, Murshidabad and directed the Chief Judicial Magistrate, Murshidabad to send the case to the Court of Special Judge having jurisdiction for retrial of the case. 2. The impugned order has been challenged by the petitioner on the ground that the order for retrial should not have been passed keeping in view the provisions of Section 386 of the Code of Criminal Procedure, 1973 (the' 1973 Code' for short) which deals with the powers of the Appellate Court. 3. Mr. Sanyal, the learned Counsel for the petitioner contends that the impugned order passed by the Additional Sessions Judge does not come within the purview of any of the provisions of Section 386 of the 1973 Code. The relevant provisions of Section 386 on which Mr. Sanyal argues are as follows :- "386. Powers of the Appellate Court. - After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 of Section 378, the, accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) ………………………. (b) in an appeal from a conviction.- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate of such Appellate Court or committed for trial, or (c) ................................ (d) ................................ (e) make any amendment of any consequential or incidental order that may be just or proper." 4. Mr. Sanyal, the learned Advocate, appearing for the petitioner submits that as the Court of Special Judge is not a Court subordinate to the Court of Additional Sessions Judge, the Court of Additional Sessions Judge could not pass any order under sub-clause (i) of Clause 'b' of Section 386 of the Code. 5. Mr. Sanyal, the learned Advocate, appearing for the petitioner submits that as the Court of Special Judge is not a Court subordinate to the Court of Additional Sessions Judge, the Court of Additional Sessions Judge could not pass any order under sub-clause (i) of Clause 'b' of Section 386 of the Code. 5. He further submits that Clause (e) of Section 386 which enables the Appellate Court to make any amendment or any consequential or incidental order that may be just or proper, also does not authorise the Appellate Court to pass any order after setting aside the conviction directing the Magistrate to send the case to the Court of Special Judge which is the Court of competent jurisdiction for retrial. 6. Mr. Sanyal cites the following decisions in support of his contention :- (1) AIR 2001 SC 2058 , Commandant 20 BN ITB Police v. Sanjoy Binjoa ; (2) AIR 1937 All 305, Mannilal v. Emperor; (3) AIR 1955 AP 55 , Prakasa Reddi v. Jonnala Pitchi Reddi. 7. In AIR 2001 SC 2058 (supra), it has been held by the Supreme Court that the consequential or incidental orders contemplated by Clause (e) of Section 386 of the Code are such orders which, are permissible under law and likely to follow as a result of the main order, i.e., such orders which follow as a main order without which the latter would be incomplete and ineffective. 8. In the case at hand, the order passed by the Appellate Court directing the Chief Judicial Magistrate to send the case for retrial to the Court of Special Judge which is the Court of competent jurisdiction is obviously a consequential order but for which the Sessions Judge's order setting aside the conviction on the ground of lack of jurisdiction of the Magistrate to try the case, would render the order of the Additional Sessions Judge incomplete and ineffective. 9. Therefore, the interpretation of Clause (e) in this Apex Court decision is contrary to what Mr. Sanyal urges regarding non applicability of Clause (e) to the facts of the present case. 10. Keeping in view, the above Supreme Court decision and the order of the Appellate Court setting aside the conviction asking the Magistrate to send the case for retrial to the Court of Special Judge, I accept the contention of Mr. Sanyal urges regarding non applicability of Clause (e) to the facts of the present case. 10. Keeping in view, the above Supreme Court decision and the order of the Appellate Court setting aside the conviction asking the Magistrate to send the case for retrial to the Court of Special Judge, I accept the contention of Mr. Mallik, appearing for the State that the impugned order is squarely covered by Clause (e) of Section 386 of the Code. 11. In view of the above Supreme Court decision, the decisions in AIR 1937 All 305 (supra), and in AIR 1955 AP 55 , under the provisions of the old Code of Criminal Procedure are not required to be considered. Accordingly, I do not find any merit in this application which is dismissed. 12. The Court below is directed to send the case for retrial by a Special Judge within a period of seven days from the date of the communication of this order and the Special Judge shall conclude the trial as expeditiously as possible and preferably within a period of six months. Let a copy of this order be sent to the Court below forthwith.