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2002 DIGILAW 540 (CAL)

RANJIT KR. BHATTACHARYA v. TILAK DHARI SINGH

2002-08-14

GORACHAND DE

body2002
G. C. DE, J. ( 1 ) AFTER hearing the learned counsel for the petitioner and the opposite party No. 2, the State of West Bengal, and on perusal of the materials on records, it transpires that though the learned Magistrate frames charge under Section 120b, Sections 467, 419 and 420 of the IPC. , he did not give any particular of the persons with whom the accused persons conspired to do some illegal act viz. , forgery. Similarly, in the formal charge, the description of valuable document is also not indicated. These particulars are wanting in the charge head No. 1, framed under Section 120b of the IPC. ( 2 ) BUT in the subsequent heads of the charge, the gist of the particulars of the offence is indicated. So, I do not agree with the learned counsel for the petitioner that the charges are not properly framed with regard to the charge-head Nos. 2, 3 and 4. In fact in these heads, materials are sufficient to indicate actually what offence was committed and in which manner. ( 3 ) AS regards charge No. 1, there are certain gaps which are required to be corrected. True it is, as also argued by the learned counsel for the State, that the court in appropriate stage can amend the charge. But the fact remains that when charge has been framed and prosecution witnesses have not been examined as yet, it would be proper to frame charge appropriately before commencement of oral evidence so that there is no allegation of framing of proper charge or prejudice at a subsequent stage. Moreover, amendment of charge after taking of evidence may require further production of the witnesses already examined which will cause unnecessary delay in the proceeding. So, for the sake of shortening the litigation and to save time and cost, charge should be framed in the manner as indicted in the Code of Criminal Procedure after taking into consideration the details of the offence and indicating the same into the formal charge as far as practicable. Keeping in view this aspect of the matter, I feel that the court below once again should reconsider and reform the charges as far as practicable before starting of the evidence. Keeping in view this aspect of the matter, I feel that the court below once again should reconsider and reform the charges as far as practicable before starting of the evidence. ( 4 ) AS regards disallowing the de facto-complainant to take part in the proceeding it is rightly pointed out by the learned counsel for both sides that the de facto-complainant can help the Public Prosecutor in a fit and proper case. At the same time, it is also contended by the learned counsel for the petitioner that there has been certain change in the law after the decision of the Apex Court in the case of J. K. International v. State of Delhi and Ors. , in which the Apex Court while analysing the provision of Sections 301 and 302 Cr. P. C. , took the view that in a Session Case, the provision under Section 301 Cr. P. C. is applicable and the de facto-complainant in such cases will have to act only with the direction of the Public Prosecutor and may file written argument after the evidence is closed. As regards trial before the Magistrate, the Apex Court took the view that proper opportunity is to be given to the de facto-complainant following the provision of Section 302 Cr. P. C. as far as practicable in a fit and proper case. ( 5 ) IN the present case, it appears that the de facto-complainant wanted to make his submission through the Public Prosecutor before framing charge and also after the framing of charge for necessary action. But it appears that the Public Prosecutor did not co-operate with the de facto-complainant and accordingly, did not help the de facto-complainant in placing his case before the learned Magistrate. The above cited decision comes in aid of the de facto-complainant in such cases. So, keeping in view the law settled by the Apex Court, I hold and conclude that the learned Magistrate was not correct in disallowing the de facto-complainant to submit his prayer in the manner done in the case. The above cited decision comes in aid of the de facto-complainant in such cases. So, keeping in view the law settled by the Apex Court, I hold and conclude that the learned Magistrate was not correct in disallowing the de facto-complainant to submit his prayer in the manner done in the case. In a case of this nature it is incumbent upon the learned Magistrate to ensure that the views of the de facto -complainant are properly ventilated by the Public Prosecutor, and if it is found that the Public Prosecutor is not taking any interest with the de facto -complainant, he shall be at liberty to give ample opportunity to the de facto-complainant to proceed with his case in the manner indicated in Section 302 Cr. P. C. ( 6 ) IN view of the above discussions, I deem it proper to set aside the impugned order, and direct the learned Magistrate to reform the charge after giving opportunity to the de facto-complainant of being heard through the Public Prosecutor in the manner indicated hereinabove and thereafter to reframe the charge as far as practicable, specially, keeping in view the annexure "b" to the application filed before the trial court by the de facto-complainant. ( 7 ) TILL refraining of the charge as indicated above, further proceeding of the case before the trial court shall stand stayed. It is made clear that such framing of the charge must be completed within eight weeks from the date of communication of this order. ( 8 ) WITH this comment, this application is disposed of.