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2001 DIGILAW 636 (CAL)

Arup Kumar Das v. State

2001-09-28

Pradip Kumar Biswas

body2001
JUDGMENT Pradip Kumar Biswas, J.: The common question of law and facts being involved in both the matters, those are being taken up for disposal by this common judgement. 2. This is an application under section 482 of the Code of Criminal Procedure filed by the accused petitioners Arup Kumar Das, Amar Nath Paul and Kanak Probha Paul seeking to quash the present criminal proceeding being G. R. No.741-A of 1988 pending before the Chief Judicial Magistrate. Hooghly. The facts leading to present criminal proceeding may be summarized as follows :- 3. Chandernagore P.S. Case No.6 dated 13.8.88 under section 498-A of the Indian Penal Code was started against the present petitioners on the basis of the written complaint submitted by one Smt. Sulata Paul wife of Sri Amar Nath Paul. The aforesaid case ultimately ended in filing the charge-sheet bearing No.21 dated 28.3.89 under section 498-A of I.P.C and the said charge-sheet was received by the learned S.D.J.M., Chandernagore on 16.9.89. On 14.9.88, the petitioner and the two co-accused were produced before the Court below under arrest and subsequently they were released on bail. 4. On 22.11.96, a petition was filed on behalf of the present petitioner and Smt. Kanak Prova Paul, praying, inter alia, for their discharge from the case on the ground that this being a case under section 498-A of I.P.C, and the maximum period of punishment prescribed is three years and although a chargesheet had already been filed, but since 13.9.88 the case was pending and no charge was framed against the accused persons till then and that in view of the decision of the Apex Court in the case of ("Common Cause" A registered society through its Director vs. Union of India and Ors.) rendered on 1.5.96 in writ petition (C) No.1128 of1986, the accused persons were entitled to be discharged as the case was pending for more than seven years. 5. By an order dated 22.1.97, the ld. C.J.M., Hooghly allowed the said petition dated 22.11.96 on contest relying upon the decision of the Apex Court and Amar Nath Paul alongwith others were discharged from the case. 6. 5. By an order dated 22.1.97, the ld. C.J.M., Hooghly allowed the said petition dated 22.11.96 on contest relying upon the decision of the Apex Court and Amar Nath Paul alongwith others were discharged from the case. 6. On 23.4.97, the prosecution filed a petition before the learned C.J.M., Hooghly praying, inter alia, for calling for the record of the disposed of case and also for restoration of the case and also for issuance of summons to all the accused persons who were discharged on 22.11.97, inter alia, on the ground that subsequently the Apex Court reconsidered its aforesaid judgement and/or decisions and passed a clarificatory order, directing that the time limit of the pendency of the criminal trial shall not apply to the matrimonial offences under the Indian Penal Code including the section 498-A of the Indian Penal Code or under any other law for the time being in force and that in criminal cases pertaining to offences where there is no time limit for pendency of criminal trial and wherein an accused is already discharged or acquitted pursuant to the judgement dated 1.5.96 of the Supreme Court the concerned criminal court shall suo motu or upon an application by the aggrieved parties shall issue summons or warrant. 7. By an order dated 23.4.97. the learned C.J.M., Hooghly allowed the said prayer of the prosecution and the case was restored and the prayer of the prosecution for issuance of summons against the accused persons was allowed for being proceeded further in accordance with law. Order regarding issuance of summons was directed to be issued fixing 9.6.97 for service return of the said summons and appearance of the accused persons. The concerned Bench Clerk No.II attached to the Court of the C.J.M. was asked to issue summons as per the said order dated 23.4.97 at once. On 9.6.97, an order was recorded that the service return of summons was not received and it transpired that the summons was not issued to the accused persons, and, therefore, direction was again issued for issuance of summons to the accused persons fixing 9.9.97 for service return and for appearance of the accused persons. Although summonses were directed to be issued against the accused persons by the learned C.J.M., Hooghly by order dated 23.4.97 and 9.6.97, yet, no service return was received by the court below even thereafter. 8. Although summonses were directed to be issued against the accused persons by the learned C.J.M., Hooghly by order dated 23.4.97 and 9.6.97, yet, no service return was received by the court below even thereafter. 8. However, summonses were issued against Amarnath Paul and Kanak Prabha Paul on 15.6.97 i.e., 3 days after the expiry of the period of limitation on 11.6.97 and on 2.9.98 summonses were issued to Arup Kumar Das. On 2.9.98, summons was issued to Arup Kr. Das by the learned C.J.M., Hooghly asking him to appear in person or by pleader before the Court below on 1.12.98 to answer a charge under section 498-A, I.P.C., and from the affidavit of the process server submitted on 25.11.98, it was seen that the said summons was duly served upon the petitioner on 25.11.98. On 11.2.99 Arup Kr. Das appeared in the court below by filing a Vokalatnama and prayed for the bail and his prayer was allowed and he was released on bail by the learned C.J.M, Hooghly by his order dated 11.2.99. 9. On 9.9.97, the other co-accused Amar Nath Paul and Kanak Prabha Paul filed an application in the Court of the learned C.J.M., Hooghly, inter alia, praying for dropping of case No. G. R. 741-A of 1988 pointing out before the Court that the issuance of summons was made on the expiry of 11.6.97 ,and as such it was barred by limitation as per the clarificatory order of the Apex Court to the court below, and such clarificatory order of the Apex Court was communicated on 13.3.97. It has also been alleged that the learned C.J.M., Hooghly had restored the G; R. Case No. 741-A of 1988 by his order dated 23.4.97 in gross violation of the said clarified decision of the Hon'ble Apex Court, long before issuing summons or warrants against the accused persons of this case. It has. therefore, been submitted on behalf of the petitioners that the clarificatory decision of the Apex Court having been received by the court below on 13.3.97, the issuance of summons after expiry of 3 months against the petitioners was clearly in utter violation of the mandate of the said clarificatory order of the Supreme Court. It has. therefore, been submitted on behalf of the petitioners that the clarificatory decision of the Apex Court having been received by the court below on 13.3.97, the issuance of summons after expiry of 3 months against the petitioners was clearly in utter violation of the mandate of the said clarificatory order of the Supreme Court. Accordingly, the continuance of the proceeding of the G.R. Case No.7 41-A of 1988 is misconceived and barred by limitation and the same cannot be allowed to be proceeded with any further being in gross violation of the mandate of the Apex Court. Hence, this prayer. 10. In connection with the above matter, I have heard the learned counsel of both sides at length. The learned counsel appearing for the petitioner, Sri Dilip Dutta has drawn my attention to the judgement of the Apex Court regarding "Common Cause" reported in 1996 (2) Crimes 114( SC) and clarificatory judgement in 1997 C. Cr. L. R. (SC) l. He has specially drawn my attention to Paragraph III and Paragraph IV reported in 1997 C.Cr.L.R.(SC) and those are re-produced below for appreciation of the present matter in hand. "III: In paragraph IV of our judgement in the list of offences to which directions contained in paragraphs I and II shall not apply, the following additions shall be made: (n) matrimonial offences under Indian Penal Code including section 498-A or under any other law for the time being in force; (o) offences under the Negotiable Instruments Act including offences under section 138 thereof; (p) offences relating to criminal misappropriation of property of the complainant as well as offences relating to criminal breach of trust under Indian Penal Code or under any other law for the time being in force; (q) offences under section 304-A of the Indian Penal Code or any offence pertaining to rash and negligent acts which are made punishable under any other law for the time being in force (r) offences affecting the public health, safety, convenience, decency and morals as listed in Chapter XIV of the Indian Penal Code or such offences under any other law for the time being in force. It is further directed that in criminal cases pertaining to offences mentioned under the above additional categories (n) to (r) wherein accused are already discharged or acquitted pursuant to our judgement dated 1st May, 1996 and they are liable to be proceeded against for offences pursuant to the present order and are not entitled to be discharged or acquitted as aforesaid, the concerned criminal court shall suo motu or on application by the concerned aggrieved parties shall issue within three months of the receipt of this clarificatory order at their end, summons or warrants, as the case may be, to such discharged or acquitted accused and shall restore the criminal cases against them for being proceeded further in accordance with law. It is however made clear that in trials regarding other offences which are covered by the time limit specified in our earlier order dated 1st May, 1996 wherein the concerned accused are already acquitted or discharged pursuant to the said order, such acquitted or discharged accused shall not be liable to be recalled for facing such trials pursuant to the present clarificatory order which qua such offences will be treated to be purely prospective and no such cases which are already closed shall be reopened pursuant to the present order. IV. Copies of this clarificatory order shall be communicated by the office of this Court to all the High Courts, Chief Secretaries of all the States and the concerned administrative Heads of all the Union Territories. Registrars of the High Courts shall be requested by the office to communicate copies of this clarificatory order all the criminal courts under the control and superintendence of the respective High Courts with direction to send Compliance Reports to the High Court concerned within three months from the date of the receipt of communication of this clarificatory order at their end". 11. 11. In connection with the above, it has been submitted by Sri Dutta that it was directed by the Apex Court that in criminal cases, pertaining to offences mentioned under above additional categories (n) to (r) wherein the persons have already been discharged or acquitted, pursuant to the present judgement of the Apex Court, they are liable to be proceeded against such offences pursuant to the present order of the Apex Court, and are not entitled to be discharged or acquitted as aforesaid and the concerned criminal court, either suo motu or upon an application by the aggrieved parties shall issue within three months of the receipt of this clarificatory order at their end, summons or warrants, as the case may be, to such discharged or acquitted accused and shall restore the criminal case against them for being proceeded further in accordance with law. 12. Sri Dutta has further submitted that in connection with the present case it is also an admitted position that the learned District Judge-in-Charge, Hooghly communicated the copy of the order of the Apex Court passed in second "Common Cause" case to the learned C.J.M., Hooghly on 13.3.97 and the prosecution filed an application before the learned C.J.M., Hooghly praying for restoration of the case in view of the aforesaid clarificatory/modified order passed by the Apex Court in second "Common Cause" case on November 28, 1996. 13. Learned C.J.M., Hooghly, however, allowed the said application of the prosecution and restored the case directing issuance of summons against the petitioners. It is also quite admitted position that on 9.6.97 since no summons was issued in connection with the above matter, summons was again directed to be issued by the learned C.J.M., Hooghly and in fact summonses were issued only on 15.6.97, a few days after the expiry of three months' time, as mentioned in the decision of the Apex Court in the second "Common Cause" judgement, rendered on 28th November, 1996. Sri Dutta, learned senior counsel, appearing for the petitioners has forcefully contended before me that as per the direction of the Apex Court, the summons has to be issued to the present accused persons within 11.6.97, but patently that has not been in the instant case and it has only-been issued on 15.6.97 as per the available materials. 14. Sri Dutta, learned senior counsel, appearing for the petitioners has forcefully contended before me that as per the direction of the Apex Court, the summons has to be issued to the present accused persons within 11.6.97, but patently that has not been in the instant case and it has only-been issued on 15.6.97 as per the available materials. 14. He was, however, very much candid in his submission when it was contended by him that if the summons in this particular case would have been issued in terms of section 61 of the Criminal Procedure Code, prior to the expiry of three months' period as mandated by the Apex Court, it would have been surely of no consequence as to when such summons was actually served upon the concerned accused persons. But, in the instant case, although the order was passed by the concerned court, well within the three months' period of time, as mandated by the Apex Court, yet, the same cannot be regarded as 'Issuance of summons" as envisaged in section 61 of the Criminal Procedure Code read with section 68 of C.P.C. 15. In support of his contention, he has drawn my attention to a decision reported in the case of State vs. Driuer Md. Valli and Ors. (1961 Gujrat Law Reporter, Vol. 2 at page 222) and relying upon the ratio of the above decision, he has further submitted that mere making of an order for issue of summons is quite different from the issuance of summons and summons as per the Criminal Procedure Code, should be in Form No. 1 of the Second Schedule of the Code of Criminal Procedure of 1973. 16. It was further contended by him that in this case, prosecution, however, could not show that the summons was sealed and signed by the Presiding Officer of the Court i.e., learned C.J.M., Hooghly, prior to the expiry of the aforesaid three months' time limit as mandated by the Apex Court in the aforesaid "Common Cause" judgement and thus being the position, there is absolutely no scope for continuance of the present proceeding and it should be treated to be mere abuse of the process of court as there has been gross violation of the mandate of the Apex Court, which has utmost binding effect on all the subordinate courts. He has, therefore, contended that the instant criminal proceeding, against the present petitioners, should be quashed to prevent the abuse of the process of court and to meet the ends of justice. 17. In opposing the prayer of the petitioners, the learned counsel appearing for the Opposite Party/State has made two-fold submissions contending, inter alia ;- "that by using the 'word shall issue summons and warrants, as the case may be' in the judgement of the Apex Court, it was meant that the Court should take initiative to proceed with the case/ proceeding and as a visible manifestation of the same, order was recorded by the concerned court for issuance of summons and restoration of the case which meant that the accused persons were called upon to appear before the court, no matter whether such summons have been actually received by them or not, and; that the court should protect the oppressed and punish the oppressors/ offenders as in a case under section 498-A of I.P.C., the wife will invariably be oppressed, having been subjected to cruelty by the husband and the in-laws, and it would be therefore, appropriate for the court to construe liberally that by recording the order for issuance of summons by the concerned court, there has been sufficient compliance with the order of the Apex Court in connection with the present case against these petitioners and as such on such grounds, there is, however, no justification for quashing the present proceeding against the present petitioners." 18. Now, upon hearing the rival contentions of the parties and after giving my anxious consideration over these matters, I am of the clear view that simply by recording the order in the order-sheet by the court below for issuance of summons within the three months' time fixed by the Apex Court, it could not have been said that there has been due compliance with the order of the Apex Court for issue of summons upon the present petitioners inasmuch as section 68 of the Criminal Procedure Code provides that every summons issued by a court under this Code shall be in writing in duplicate, signed and sealed by the Presiding Officer of such court. But, in the instant case the prosecution/opposite party having failed to satisfy, that such steps were taken within the time framed by the Apex Court in connection with the present matter, hardly it can be accepted that there has been issue of summons or warrants upon the present petitioners as per directions of the Apex Court. 19. That being the position, upon overall assessment of the submissions made by the parties and in view of my findings, in the preceding paragraphs, I am of the clear opinion that it would be a mere abuse of the process of court to allow the present proceeding to be continued against the present petitioners inasmuch as it has clearly violated the mandate of the Apex Court. 20. For the reasons stated above, the revisional application be allowed. Consequently, the criminal proceeding being G.R. Case No.741-A of 1988 pending before the Court of Chief Judicial Magistrate, Hooghly, Chinsurah against the present petitioners be quashed. 21. Let a copy of this order be sent down to the ld. Court below for favour of information and necessary compliance. This disposes of both the revisional applications. 22. Urgent xerox certified copy of the order, if applied for, be furnished to the parties as expeditiously as possible. Revisional application allowed.