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2002 DIGILAW 316 (CAL)

Pradip Kr. Sengupta v. State of West Bengal

2002-05-07

Gorachand De

body2002
JUDGMENT Gorachand De, J. Heard the learned Counsel appearing for the petitioner, the opposite party No. 1, State of West Bengal and the opposite party No. 2 Indrajit Sengupta separately at length. 2. The petitioner Pradip Kumar Sengupta on the basis of this application under sections 401 and 482 of the Code of Criminal Procedure has prayed for setting aside the entire proceeding along with the order dated 19.6.2001 passed by the learned Sub-Divisional Judicial Magistrate, Durgapur in G.R. Case No. 347 of 1995 arising out of Coke Oven P.S. Case No. 31 of 1995 under section 420 of the Indian Penal Code. 3. In course of hearing Mr. Bikash Ranjan Bhattacharya, learned Counsel for the petitioner, draw the attention of this court to page 86 of the present application in which a list of documents has been enclosed and contended that before framing of charge it was incumbent upon the learned Magistrate to take into consideration the said documents. It is also argued that if those documents were duly considered, it would have been found that no charge could be framed against the present petitioner. Mr. Bhattacharya also placing reliance on the provisions of sections 239 and 240 of the Code of Criminal Procedure contended that before framing of the charge, it was incumbent upon the Magistrate to make appropriate examination of the accused which was practically not done in this case and the present accused did not get any opportunity to produce or to rely on the documents hereinabove mentioned in course of such examination. 4. Mr. Bhattacharya, learned counsel for the petitioner also placed reliance on a decision of the Apex Court in Satish Mehra vs. Delhi Administration & Anr., reported in 1996 Supreme Court Cases (Cri) 1104, in support of the contention that if the documents in question are duly considered before framing of charge, it would appear that two views are equally possible and in that event if the learned Magistrate is satisfied that the evidence produced before him gives rise to some suspicion but not grave suspicion against the accused, the Magistrate will be fully within his right to discharge the accused. So Mr. So Mr. Bhattacharya appearing for the petitioner made a forceful argument praying for setting aside the impugned order by which a charge was framed against the accused persons under section 420 IPC and prayed for another chance to produce the papers for consideration as to whether charge is to be framed in this case or not. 5. Mr. Ghosh, learned counsel appearing on behalf of the opposite party No. 2, Indrajit Sengupta however supported the order dated 19.6.2001 passed by the learned Magistrate pointing out that there was no infirmity in the order, and after hearing the learned counsel appearing on behalf of the accused persons and on perusal of the materials on record as collected by the Investigating Agency, the charge was framed. It is also contended that the right of examination of the accused contemplated under sections 239 and 240 of the Code of Criminal Procedure was duly exercised by the accused on the basis of his appearance through his learned Counsel. It is contended that the learned Magistrate also duly examined the accused before framing of charge. It is also pertinent to mention here that the documents as indicated at page 86 of the present petition were not produced before the Investigating Agency and no attempt was made to bring those documents on record even before framing of charge. 6. In this connection Mr. Ghosh also pointed out that immediately after starting of the case on the basis of a complaint sent to the police under section 156 (3) of the Code, an application for quashing of the FIR along with the entire proceeding was filed by the present petitioner and the Single Judge of this court by his order dated 14.2.1997 in Criminal Revision No. 1966 of 1996 allowed the application and quashed the entire proceeding coming to a conclusion that no case was made out against the present petitioner. However, the said order was challenged by the present opposite party No. 2 Indrajit Sengupta before the Apex Court which by an order dated 10.11.1997 in Criminal Appeal No. 1040 of 1997 [Arising out of A.L.P. (Crl.) No. 2400 of 1997] set aside the judgment dated 14.2.1997 after coming to a conclusion that on the face of the complaint made against the respondents, a case under section 420 IPC had been made out. The Apex Court also took the view and observed that whether such case was likely to be established by adducing cogent evidence was required to be scrutinised at appropriate stage. 7. So the fact remains that the complaint or the FIR was not quashed mainly on the ground that a case under section 420 IPC was made out in the complaint. It also appears that the present petitioner thereafter moved this court for supplying all the documents that were seized by the Investigating Officer in course of investigation of this case and on the basis of an order passed by this court, the copies of all the documents were supplied to the present petitioner. Those documents along with the statements recorded under section 161 of the Code fell for consideration before the learned Magistrate at the time of consideration of the charge and it appears that the learned Magistrate was satisfied about the prima facie case as made out in the charge and accordingly decided to frame charge under section 420 IPC. It is rightly argued by Mr. Ghosh that there is no illegality in the impugned order. 8. Mr. Ghosh further argued that the documents as indicated at page 86 of the present application cannot be permitted to be produced at this stage of the case in which taking of evidence is in progress. Moreover, there is no scope for accepting these documents at this stage. Mr. Ghosh also placed reliance in the decision of the Apex Court in Satish Mehra (supra) in support of the contention that the Apex Court duly cautioned that a roving enquiry should not be permitted at the stage of framing of charge and there should not be any attempt of weighing the evidence at that stage, as is done in a trial. 9. In Satish Mehra's case the Apex Court while considering the question of framing of charge as done by a Sessions Judge analysed the earlier decision in Alamohan Das vs. State of West Bengal, reported in AIR 1970 SC 863 , and another case reported in 1979 Cri. 9. In Satish Mehra's case the Apex Court while considering the question of framing of charge as done by a Sessions Judge analysed the earlier decision in Alamohan Das vs. State of West Bengal, reported in AIR 1970 SC 863 , and another case reported in 1979 Cri. L.J. 154 (Union of India vs. Prafulla Kumar Samal) and viewed that the court in a proper case is competent to weigh the total effect of the evidence and the documents produced to check out whether there is any basic infirmity, but such an exercise was nothing but finding our a prima facie case against the accused. The Apex Court also viewed that section 226 and 227 of the Code enjoined the steps to be taken by the Sessions Judge while considering a particular case for the purpose of framing of charge. I deem it fit and proper to quote paragraphs 12 and 13 of the said judgment : "12: An incidental question which emerges in this context is whether the Sessions Judge can look into any material other than those produced by the prosecution. Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The next provision enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions ? Should it be confined to hearing oral arguments alone? 13. Similar situation arises under section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the Code enjoins on the court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. At these two stages the Code enjoins on the court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very susceptibility of the case, it is unjust to suggest that no material shall be looked into by the court at that stage. Here the 'ground' may be any valid ground including insufficiency of evidence to prove the charge." 10. So, it is to be noted that in a fit and proper case the learned Magistrate is competent to give the accused an opportunity of being heard besides the documents sent by the police along with the police report. It appears from the instant case that such an opportunity was duly given to the accused, and elaborate arguments were made before the learned Magistrate before framing of charge. At the risk of repetition it is reiterated that the documents tried to be relied upon was not produced either before the Investigating Officer or before the Court before framing of charge and accordingly, it cannot be said that no opportunity was given to the accused of being heard before consideration of charge. So I do not think that only on this ground, the impugned order can be assailed. 11. Mr. Pachhal, learned counsel appearing on behalf of the State in this connection placed reliance on another decision of the Apex Court in S.M. Datta vs. State of Gujarat, reported in AIR 2001 SC 3253 , in support of the contention that the documents collected by the Investigating Officer were correct or not cannot be examined with mathematical nicety or accuracy at the stage of consideration of charge, but it would be sufficient if the documents communicated indicate or disclose an offence as a whole. In the cited decision of course the Apex Court took such a view while considering the question of quashing of an FIR. But the observation made therein is equally applicable in respect of the documents which was collected by the Investigating Officer in course of investigation and which was duly considered by the learned Magistrate before framing of charge. 12. In the cited decision of course the Apex Court took such a view while considering the question of quashing of an FIR. But the observation made therein is equally applicable in respect of the documents which was collected by the Investigating Officer in course of investigation and which was duly considered by the learned Magistrate before framing of charge. 12. So in view of the discussions hereinabove made, I do not think that there was any illegality or irregularity in framing of charge against the accused persons namely the present petitioner and as such, I do not find any reason to interfere with the impugned order, not to speak of quashing the entire proceeding. 13. Of course the learned counsel appearing for the present petitioner did not pray for quashing of the entire proceeding but his modest prayer was to allow the present petitioner to produce the relevant documents before the trial court. Mr. Bhattacharya further contended that one forged document was relied upon by the de facto complainant in the present case and as such, an opportunity should be given to ascertain the real state of affairs. It is also pointed out that several opportunities were given to the present petitioner and the de facto complainant to settle the matter out of court but the de facto complainant in blatant disregard to the desire expressed by this court moved the company court against the present petitioner and the suit is still pending. But at this stage of this case, I do not like to make any comment on those issues and the present petitioner shall be at liberty to raise these points at an appropriate stage of the proceedings before the learned Magistrate. As regards production of these documents, the law is quite clear on the point and the present petitioner will be at liberty to produce the documents indicated at page 86 of the present application, along with other documents, at an appropriate stage of the trial. As regards the production of a forged document before the court of law, the law is also quite certain for which I do not like to make any comment thereon. The petitioner shall be at liberty to agitate this point also at an appropriate stage of the trial. 14. As regards the production of a forged document before the court of law, the law is also quite certain for which I do not like to make any comment thereon. The petitioner shall be at liberty to agitate this point also at an appropriate stage of the trial. 14. Since the matter is long pending, the learned Magistrate is directed to dispose of this case as expeditiously as possible, preferably within a period of six months from the date of communication of this order. 15. With these comments this petition is disposed of. 16. If urgent xerox certified copy of this order is applied for by the parties, the same should be given expeditiously. Appeal disposed of with direction.