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2002 DIGILAW 581 (CAL)

Md. Sharif v. Kallolini Hazra

2002-09-03

Amit Talukdar

body2002
JUDGMENT Amit Talukdar, J. A pack of recalcitrant and procrastinating accused having taken the court for a ride and being caught on the wrong end have chosen to move this revisional application for setting aside the order directing their appearance and spurning their prayer for personal exemption. 2. The factual matrix leading to the filing of the present application relates to the process issued by the learned Additional Chief Judicial Magistrate, Sealdah on 27.3.2002 directing the accused persons hereinabove to answer the accusation under sections 504, 506 and 114 of the Indian Penal Code. On the fixed date, the accused No. 1 who is the petitioner No. 1 hereinabove, although was present to file a petition against the opposite party hereinabove under section 340 of the Indian Penal Code, chose to stay away from the proceeding of the present case. Neither he took any steps nor had he made any representation before the court effectively answering to the said process. 3. That not having been done the learned Additional Chief Judicial Magistrate by her order dated 3.5.2002 directed the accused persons to be present on 17.5.2002. On the said date, instead of appearing, they took out a petition under section 205 of the Code of Criminal Procedure along with the prayer for personal exemption and they cited a decision of Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. & Ors., reported in 2001 C Cr LR (SC) 481. However, the learned Additional Chief Judicial Magistrate directed the accused persons to appear and fixed 3.6.2002. Hence this application has been made for setting aside the said order. 4. Learned Advocate appearing in support of the application relying upon the said decision of Bhaskar Industries Ltd. (supra) submits that the accused No. 1 is a businessman and has to remain present in the place of his occupation and the petitioner No. 2 is a lady and others are children and accordingly they should be given the benefit under section 205 of the Code of Criminal Procedure. It has also been submitted that in the light of the decision of the Bhaskar Industries Ltd. (supra) the learned Additional Chief Judicial Magistrate should not have insisted on the personal appearance of the petitioners and in stead could have enlarged them on personal exemption. It has also been submitted that in the light of the decision of the Bhaskar Industries Ltd. (supra) the learned Additional Chief Judicial Magistrate should not have insisted on the personal appearance of the petitioners and in stead could have enlarged them on personal exemption. Reference was also made to the decision of Suganthi Suresh Kumar vs. Jagdeeshan, reported in 2002 C CR LR (SC) 716, on the point that the courts in India are bound by the decision of the Hon'ble Apex Court and should act accordingly. Prayer was also made for setting aside the order and for allowing the application. 5. Learned Advocate appearing for the opposite party opposes the said prayer and took this court through the order sheet and submitted that intentionally the accused persons have absented themselves from the court and it is not a fit case where such liberty should be granted. 6. Acceding to the prayer of the learned Counsels for the parties and to have a better grasp over the matter, this court has earlier called for the lower court records and have very closely looked into the same so as to enable this Court to better appreciate as to what steps have been taken by the accused persons on 3.5.2002 themselves to resist the process of the court issued upon them. 7. This Court finds that the accused persons have played with the process of law. The petition dated 3.5.2002 bears the signature of the accused No. 1 with a prayer for time that the other accused persons could not appear before the court and further time was accordingly prayed for. In an ordinary circumstance, the said petition could have been innocuous enough for the learned Additional Chief Judicial Magistrate to accede to such prayer to allow such adjournment. But since as rightly pointed out by her that the accused No.1 was himself present to prosecute the complainant in another case before the same forum yet, chose to stay away from the present proceeding without any rhyme or reason in support of other accused and although he signed on the petition himself, no steps were taken. 8. But since as rightly pointed out by her that the accused No.1 was himself present to prosecute the complainant in another case before the same forum yet, chose to stay away from the present proceeding without any rhyme or reason in support of other accused and although he signed on the petition himself, no steps were taken. 8. If I may say so with due respect to the learned Additional Chief Judicial Magistrate that she had been extremely lenient in such situation where a pack of difficult accused persons had thrown a basic challenge to the Majesty of Law being bent upon violating the due process of the same. That too on the subsequent dates the prayer for exemption under section 205 of the Code of Criminal Procedure, in my view, does not merit any consideration on account of the past conduct of the said accused who dare-dodged the proceeding in such a non-challant and daring manner. 9. While it is the trite position in respect of personal exemption is concerned that the decision of Bhaskar Industries Ltd. (supra) has absolute application and the accused need not at first appear and he can be granted personal exemption in view of such decision. But there cannot be any dispute whatsoever in this respect and this court very reverentially bows down to the ratio of the said decision. There cannot be any qualms with regard to the said proposition. It is also need less to say that the decision in the case of Suganthi Suresh Kumar (supra) is also applicable and the courts are bound by the decision of the Apex Court on account of Article 141 of the Constitution of India. There cannot be any dispute in this regard also. 10. Now what is the correct aspect of the matter which has to be dealt with in this application relates to a group of accused persons who have challenged a system which, if encouraged, will eat into the basic tenor of the concept of justice. The accused persons hereinabove, particularly the accused No. 1 had played a game of hide and seek in the court and if the livery as granted under section 205 of the Code of Criminal Procedure is extended to them on account of their such conduct, then I am very afraid that it will not be justice in the long run. The accused persons hereinabove, particularly the accused No. 1 had played a game of hide and seek in the court and if the livery as granted under section 205 of the Code of Criminal Procedure is extended to them on account of their such conduct, then I am very afraid that it will not be justice in the long run. It is needless to say that justice is not for the accused, but is also for the complainant and on the anvil of the aforesaid position and the conduct of the accused, this court does not find any merit in the Revisional Application and chooses to dismiss the same more particularly when specific direction was given by the learned Additional Chief Judicial Magistrate for appearing personally on 3.6.2002 instead they had rushed before this Court with a prayer which according to this court is not sustainable in the fact situation of the instant case. 11. Accordingly, the revisional application is dismissed. 12. Let a copy of this order be sent down to the court below along with the lower court records. Revisional application dismissed.