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2003 DIGILAW 496 (CAL)

BINOY TALUKDAR v. AMIT DUTTA

2003-09-19

RAJENDRA NATH SINHA

body2003
RAJENDRA NATH SINHA, J. ( 1 ) THE Judgment of the Court was as follows : this is to consider an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 wherein five petitioners impleaded as accused in Sessions Case No. 35 (5) of 2002 arising out of GR case No. 1700 of 2002 pending before the learned Sessions Judge arising out of Bizpur P. S. Case No. 82/2002 dated 27. 6. 2002 under sections 147/148/448/325/326/307/506 of the Indian Penal Code. ( 2 ) THE petitioner has sought to quash the proceedings on the grounds stated hereunder : The Petitioner No. 1 is a railway employee, Petitioner No. 2 is the son, Petitioner No. 3 is the wife, Petitioner No. 4 is the sister-in-law and Petitioner No. 5 is the neighbour of the Petitioner No. 1. The Opposite Party No. 1 Amit Dutta lodged a petition before the Learned SDJM and the same was sent to Barrackpore P. S. on 5. 6. 2002 under Section 156 (3) of the Criminal Procedure Code. The allegation contained therein in short is that on 31. 5. 2002 at about 8 P. M. all the petitioners jointly, forcefully and criminally trespassed inside the house of the complainant with lathi, iron rod, sword etc. , and started to assault him and his mother. It has further been alleged that the accused petitioners thrown some liquid acid aiming the mouth of the mother of the petitioner Smt. Swaraswati Dutta, as a result, she sustained severe burn injury. However, the local residents rushed to the spot and separated both the sides. One G. D. E. No. 831 dated 31. 5. 2002 was lodged with the Bizpur Police station wherefrom they sent the mother of the complainant, the Opposite party No. 1 to Kancharapara Railway Hospital for medical treatment from where she was further shifted to Howrah Railway Orthopaedic Hospital. ( 3 ) THE police started the aforesaid P. S. case and on completion of investigation submitted charge-sheet under the aforesaid sections and the learned SDJM, Barrackpore was pleased to transfer the case to the learned judicial Magistrate, 3rd Court at Barrackpore for commitment. Learned judicial Magistrate, 3rd Court on 20. 3. 2003 was pleased to commit the present case to the Court of the learned Sessions Judge, at Barasat after compliance of Section 207 of the Cr. P. C. for trial. Learned judicial Magistrate, 3rd Court on 20. 3. 2003 was pleased to commit the present case to the Court of the learned Sessions Judge, at Barasat after compliance of Section 207 of the Cr. P. C. for trial. ( 4 ) THE learned Sessions Judge at Barasat by an order dated 17. 5. 2003 was pleased to register the same and on perusal of the LCR and the order of commitment, took cognizance of the same and the petitioners were allowed to continue on the same bail. Being aggrieved the present petition has been filed. ( 5 ) MR. Mukherjee, learned Counsel for the petitioner, has submitted that in course of the proceeding Smt. Swaraswati Dutta one of the injured has sworn affidavit stating that the de facto complainant Opposite Party No. 1 amit Dutta who happened to be her son filed the complaint against the petitioners. She has stated that as the accused/petitioners are the next door neighbour and over a family dispute on 31. 5. 2002 an altercation took place in between both the sides and Lily Talukdar, accused/petitioner No. 3, who was holding a hot cup of water was spread over on her body, thus, she sustained simple injury and was admitted in the Orthopaedic Department, howrah Hospital, Eastern Railway and was there from 1. 6. 2002 to 3. 6. 2002. She stated in the affidavit that she was not willing to proceed with the case and matter settled amicably. ( 6 ) ON the aforesaid learned Counsel Mr. Mukherjee has submitted that as the case has been compromised by the parties wherefrom it appears that the injured Swaraswati Dutta has filed affidavit and that Amit Dutta, the de facto complainant/opposite party No. 1 authorising Sri Jayanta Banerjee, learned Advocate to amicably settle and compromise the present case and he categorically stated on oath that he was not willing to proceed before the learned Court below, ( 7 ) LEARNED Counsel has contended that non-consideration of the affidavit by the injured Saraswati Dutta has caused miscarriage of justice. ( 8 ) IT has been contended on behalf of the petitioners that it is the settled proposition of law citing the case reported in 2003 C Cr LR (Supreme court) 498 (B. S. Josi and Ors. v. State of Haryana and Anr.), that Section 320, cr. ( 8 ) IT has been contended on behalf of the petitioners that it is the settled proposition of law citing the case reported in 2003 C Cr LR (Supreme court) 498 (B. S. Josi and Ors. v. State of Haryana and Anr.), that Section 320, cr. P. C. do not stand in the way in compounding the offence in non-com- poundable offences, and that provisions under Section 482, Cr. P. C. may be invoked. ( 9 ) THE moot question is as to whether in the stated facts the provision under Section 482 can be invoked in the present case ? ( 10 ) LET me now consider the contention as has been advanced by Mr. Mukherjee, learned Counsel for the petitioner, that the Apex Court in the above noted case has held that Section 320 of Cr. P. C. 1973 does not limit or affect the powers under Section 482 of Cr. P. C. However, in the aforesaid case which was in between the parties where one of the spouses (wife) filed a case under Section 498a together with 406, I. P. C. not only against the husband but also against other members of the family. The matters were resolved either by wife agreeing to join the matrimonial home or mutual separation of husband and wife and also mutual settlement of other pending disputes, as a result whereof both the sides approached the High Court and jointly pressed for quashing the criminal proceeding or the FIR in the afore- said case under Section 498a and 406, I. PC. but the relief was declined as the offences were not compoundable under the aforesaid Sections. The afore- said matter was allowed to be compounded with a view to shorten and encourage the need of matrimonial litigation lest the parties were supposed to fight in and out it out in a Court of law where it takes years and years to conclude and in that process the parties lost their "young days" in chasing their cases in different Courts. Such hyper technical view was held to be counter productive and would go against the interest of women and against the object for which the provisions under Chapter XX (A) of the I. PC. were added. ( 11 ) IT appears that the aforesaid decision has no manner of application here in this instant case. Such hyper technical view was held to be counter productive and would go against the interest of women and against the object for which the provisions under Chapter XX (A) of the I. PC. were added. ( 11 ) IT appears that the aforesaid decision has no manner of application here in this instant case. Here the machinery of law is set in motion and after investigation charge-sheet has been filed and in course of the same the case was committed to the Court of Sessions. Now at this stage the de facto complainant or any of the injured victims may come forward to settle the same and get the proceeding quashed cannot be encouraged as that will jeopardise the criminal administration of justice as we have come across that by sheer lapse of time the parties are sometime coerced/cajoled/bargained in between the parties. All these loopholes in compounding offences cannot be ruled out. ( 12 ) THE said sworn affidavit of Smt. Saraswati Dutta, the injured victim was considered at the time of hearing bail applications of the accused/ petitioner. ( 13 ) ON consideration of the materials I am of the view that the provision under Section 482 cannot be invoked in the stated circumstances as because the other efficacious alternative remedy is available to the petitioner by filing such petition before the learned Sessions Judge after serving copy through the learned Public Prosecutor of the State on whom the code itself has vested quite a large discretionary power under Section 321 of the Code. He will exercise the appropriate discretion and that such withdrawal cannot be without the leave of the Court. Learned P. P/app in-charge as the case may be, may make such a prayer of withdrawal being satisfied that the object of administration of Justice would not be advanced or furthered by going on with the prosecution. . ( 14 ) THUS, keeping in view of the above discussion I do not consider it a fit case to invoke the provision under Section 482 of the Code of Criminal procedure and that the commitment order and the order of the learned sessions Judge do not suffer from any infirmities. ( 15 ) ACCORDINGLY, the petition stands dismissed. ( 16 ) THERE will, however, be no order to costs. .