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2005 DIGILAW 769 (CAL)

GANGADHARAN MOHAN DAS v. STATE

2005-12-19

SADHAN KUMAR GUPTA

body2005
Sadhan Kumar Gupta ( 1 ) THESE four revisional applications have been filed by the accused/ petitioner as per provisions of Section 401 read with Section 482 Cr. P. C. against the order dated 11. 4. 2000 passed by the Chief Judicial Magistrate. Port Blair in G. R. Case No. 338 of 1996, G. R. Case No. 638 of 1996, G. R. Case No. 1112 of 1996 and G. R. Case No. 639 of 1996 under Sections 420, 467, 468 read with Section 120b I. P. C. All those revisional applications were directed to be heard together and as such those revisional applications were heard analogously by this Court and are taken up together for passing order. ( 2 ) IT appears that those four cases were started against the accused/ petitioner under Sections 420, 467, 468 read with Section 120b I. P. C. On the basis of the complaint made by the Deputy Commissioner, Andaman, the Central Bureau of Investigation started all those four cases against the accused/petitioner and those were pending before the learned Chief Judicial magistrate, Port Blair. The accused/petitioner appeared in all those cases and was released on bail. The cases were investigated and after completion of the investigation charge sheets were filed against the accused petitioner in all those four cases. Charges could not be framed against the accused/ petitioner as the prosecution failed to comply with the provisions of Section 207 Cr. P. C. properly. After the documents were supplied to the petitioner, he submitted applications in all those cases before the learned Magistrate stating therein that the documents/papers as relied upon by the prosecution and as supplied to the petitioner, were written in English and as such the petitioner submitted a petition before the learned Magistrate praying for translating those papers into Malayalam language which is the mother tongue of the petitioner so that he can defend his case or instruct his counsel properly. It was further stated in those applications that the petitioner was selected for attending a conference at Osaka, Japan from 3. 5. 2000 to 22. 5. 2000 and for that purpose in all those four cases he prayed before the learned Magistrate for granting him necessary permission to visit Japan. The prayers of the petitioner in all those four cases were taken up for hearing on 11. 4. 5. 2000 to 22. 5. 2000 and for that purpose in all those four cases he prayed before the learned Magistrate for granting him necessary permission to visit Japan. The prayers of the petitioner in all those four cases were taken up for hearing on 11. 4. 2000 and the learned Magistrate by his impugned order was pleased to reject those prayers. The learned Magistrate observed that there was nothing wrong in supplying those documents which were in English language, which was the language of the Court and according to the learned Magistrate there was no provision in Section 207 Cr. P. C. that copies of the papers relied upon by the prosecution should be supplied in the mother language of the petitioner. Being aggrieved and dissatisfied with the said orders of the learned Magistrate the petitioner has preferred these revisional applications claiming that the learned Magistrate failed to consider the actual purport of Section 207 Cr. P. C. According to the petitioner, learned Magistrate failed to consider that although there was no such provision in the Cr. P. C. , still in order to give proper opportunity to the accused to defend his case effectively it was absolutely necessary that copies of those documents, as relied upon by the prosecution, should be supplied to the accused/petitioner in his mother language. The object of Section 207 Cr. P. C. is to ensure fair justice to an accused and that object cannot be fulfilled unless those documents are translated in Malayalam language and handed over to the accused/petitioner in order to defend his case properly. Non-supply of those documents in the mother language of the accused/petitioner, is certainly a violation of the fundamental rights of the accused/petitioner to get fair justice in a Court of law. The impugned orders, as passed by the learned Magistrate in rejecting the prayers of the petitioner, certainly caused violation of the principle of the fair justice and as such by filing these revisional applications, the accused/ petitioner has prayed for setting aside those orders by passing appropriate direction. ( 3 ) I have heard the submissions of the learned Advocates for both the sides. ( 3 ) I have heard the submissions of the learned Advocates for both the sides. Although the revisional applications have been filed mainly on two grounds i. e. non-supply of the relevant documents in the mother language of the accused and not granting permission to the accused in attending a conference at Osaka, Japan, still at the time of hearing the learned Advocate for the petitioner confined his argument only on the point of non-supply of the relevant documents in the mother language of the accused/petitioner. So I am to confine myself in considering the question as to whether the accused/ petitioner is entitled to get those copies in his mother language or not learned advocate for the petitioner argued that as per provisions of Section 207 Cr. P. C. the prosecution is bound to supply the copies of the documents to which it wants to rely and compliance of the said provision is a condition precedent for proceeding with a trial of the case Section 207 Cr. P. C. runs as follows:-"207. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following :- (i) the police report, (ii) the first information report recorded under Section 154, (iii) the statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under subsection (5) of Section 173, (iv) the confessions and statements, if any, recorded under section 164, (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173. " ( 4 ) ACCORDING to the learned Advocate for the petitioner although there is nothing mentioned in Section 207 Cr. P. C. that all those papers are to be supplied in the mother language of the accused, still in the interest of fair justice it is required that those documents should be prepared and supplied in the language which is known to the accused. P. C. that all those papers are to be supplied in the mother language of the accused, still in the interest of fair justice it is required that those documents should be prepared and supplied in the language which is known to the accused. The learned Advocate for the petitioner submits that the accused knows only Malayalam language and as such it is not possible for him to understand the documents which are in english and so it was obligatory on the part of the prosecution to supply those papers by translating them into Malayalam language in order to ensure fair justice. In this respect he further contended that although there is no specific provision in the Cr. P. C. to that effect, still as per International covenant of civil and political rights to which India is a signatory, it is desirable that in order to ensure fair and impartial trial the relevant papers should be handed over to an accused in a language which he understands so that he can face the charge properly. As such, the learned Advocate forthe petitioner argued that the learned Magistrate committed a basic mistake in ignoring all those provisions, although those were brought to his notice, at the time of passing of the impugned orders. Under such circumstances, the learned advocate forthe petitioner submits that those impugned orders of the learned magistrate suffer from material irregularity and those should be set aside and proper direction should be given in that respect. ( 5 ) AS against this, the learned Advocate for the CBI argued that there is no such provision in the Cr. P. C. that it was obligatory on the part of the prosecution to supply copies of the documents to an accused in his mother language. He further argued that the language of the Court here at Andaman is English and as such when the documents were prepared in English, it cannot be said that there was no compliance of Section 207 Cr. P. C. According, to the learned Advocate forthe CBI the accused is well acquainted with English language and as such it was not obligatory on the part of his client to supply those documents in Malayalam language, as prayed by the accused and as such the learned Advocate for the CBI prayed for dismissal of the revisional applications. P. C. According, to the learned Advocate forthe CBI the accused is well acquainted with English language and as such it was not obligatory on the part of his client to supply those documents in Malayalam language, as prayed by the accused and as such the learned Advocate for the CBI prayed for dismissal of the revisional applications. ( 6 ) I have heard the submissions of the learned Advocates for both the sides. It is the admitted position that copies of the documents which were relied upon under Section 173 Cr. P. C. by the prosecution have been supplied to the accused/petitioner. But those documents were in English language. It is the contention of the accused/petitioner that as he is unable to understand english language, so the prosecution must supply those documents by translating them into Malayalam language in orderto give opportunity to the accused/petitioner to defend his case properly. In this respect learned advocate for the petitioner cited following decisions in support of his contention :- (i) AIR 1962 SC 911 , Hahkisan v. State of Maharashtra, (ii) 1999 (1) SCC 759 , Apparel Export Promotion Council v. A. K. Chopra, (iii) 1997 (6) SCC 241 , Vishaka and Others v State of Rajasthan and Others, (iv) 2002 (5) SCC 294 , Union of India v. Association for democratic Reforms and Another, (v) A xerox copy of an unreported judgment passed in Crl. O. P. Nos. 14620, 14621 and 16888 of 1997 passed by the learned Single judge of the Madras High Court in N. Sasikala v. Additional superintendent of Police DVandac, Chennai. ( 7 ) I have perused those decisions carefully. So far as the decision reported in AIR 1962 SC 911 , Harikisan v. State of Maharashtra (supra) is concerned, it appears that the said decision was passed in respect of a preventive detention order on a habeas corpus petition. It is undisputed that in a preventive detention order, the main thing that is to be considered is to give all possible opportunities to the detenu so that he can file his representation. It may be pointed out here that in such a case there is little scope for the detenu to consult a legal personality for drawing his representation. It is undisputed that in a preventive detention order, the main thing that is to be considered is to give all possible opportunities to the detenu so that he can file his representation. It may be pointed out here that in such a case there is little scope for the detenu to consult a legal personality for drawing his representation. So in such a case as per provision of the Constitution of india the Hon'ble Supreme Court time and again emphasized that all the papers should be handed over to the detenu in the language which he understands. The position of a preventive detention detenu cannot be similar with an accused who is facing trial in a regular Criminal Court and is on bail. As such the principle as decided in that case by the Hon'ble Supreme Court, cannot be made applicable so far as the present hearing is concerned. ( 8 ) LEARNED Advocates forthe petitioner relied heavily on the decisions reported in 1999 (1) SCC 759 (supra), 1997 (6) SCC 241 (supra) and 2002 (5)SCC 294 (supra ). By citing those decisions the learned Advocate for the accused/petitioner argued that India being a signatory to the International covenant of civil and political rights, so the Hon'ble Supreme Court in all those decisions clearly laid down the principles that are to be followed to ensure fair and impartial justice. According to the learned Advocate for the petitioner fair and impartial justice cannot be possible unless the petitioner is supplied with the copies in his mother language i. e. Malayalam language. ( 9 ) I have perused those decisions. It appears to me that in those decisions certainly the Hon'ble Supreme Court has made it clear that all attempts should be made for ensuring fair and impartial justice to an accused in a criminal trial. But that does not mean that the Supreme Court has directed that as per provision of the Section 207 Cr. P. C. the prosecution is bound to supply copy of the documents in the mother language of an accused. We must not forget that there are huge number of languages through out India and consequently there are large number of people who are talking in different languages. It is absolutely impossible for the prosecution to supply copies of the documents in the mother language to all those persons. We must not forget that there are huge number of languages through out India and consequently there are large number of people who are talking in different languages. It is absolutely impossible for the prosecution to supply copies of the documents in the mother language to all those persons. We also cannot ignore the fact that so far as Andaman is concerned, the language of the Court is English. As such, prosecution is bound to supply documents in english language which it had actually done. Learned Advocate for the petitioner by citing an unreported judgment of the Madras High Court passed by a learned Single Judge argued that it was decided in that case that the prosecution was bound to supply the documents as per provision of Section 207 Cr. P. C. by translating them into Malayalam language. I have perused the decision. It appears that in that case before the Madras High Court documents were also supplied in English language and thereafter the learned judge was of the opinion that those documents should be translated in Tamil language and supplied to the accused person. But if we look into the said judgment then it will appear that there it has been clearly mentioned that in tamil Nadu, the Court language is Tamil only. As such, the direction, as given by the learned Single Judge, in directing the prosecution to supply the copies in Tamil language cannot be made applicable so far as the present case is concerned, as because of the fact that here at Andaman the language of the Court is English. Under such circumstances. I am of opinion that the said decision of the Madras High Court is not at all applicable so far as the present case is concerned. That apart, if we look into the documents which have been annexed along with the revisional applications then it will appear that the accused was selected as a delegate to attend conference of the aots meeting to be held in Osaka, Japan. This document was filed along with the petition before the learned Magistrate in order to pray for permission in favour of the accused/petitioner to attend the said conference at Japan. This document is also in the English language. This document was filed along with the petition before the learned Magistrate in order to pray for permission in favour of the accused/petitioner to attend the said conference at Japan. This document is also in the English language. If the accused could understand the contents of this document which has been written in English, then I fail to understand as to why it will be difficult for him to understand the contents of the papers as supplied to him under Section 207 Cr. P. C. by the prosecution in this case. Moreover, in the 1st Para of the revisional applications the accused has clearly stated that he has read up to Class VIM standard and only he can sign his name in English Claim of the accused to that effect does not inspire my confidence at all in view of the fact that he could understand the communication which was made with him by the concerned authority for his visit to Japan as a delegate. There is reason to believe that the accused/petitioner is feigning the ignorance of the language as because it appears that he has at least working knowledge of the English language either by him self orthrough his counsel. It further appears that the accused is all along being represented by his learned Advocate and as such it is difficult to believe that the accused is not in a position to understand the contents of the documents even through his learned counsel. By feigning such ignorance the accused has already stalled the further proceeding of the criminal case against the interest of the prosecution for the last five years and to my mind it will not be fair and proper to allow the matter to be delayed any further. In a Court of law it is always open to give reasonable direction in the interest of the accused and at the same time it is also the duty of the Court to see that the prosecution should not be allowed to suffer for no fault of its own. From the circumstances of the present case, I have got reason to believe that the accused is any how trying to stall the proceeding of the criminal case and as such he has taken a plea that he is not in a position to understand the contents of the documents supplied to him. From the circumstances of the present case, I have got reason to believe that the accused is any how trying to stall the proceeding of the criminal case and as such he has taken a plea that he is not in a position to understand the contents of the documents supplied to him. This, in my considered opinion, is nothing but an attempt to frustrate and delay the criminal cases at any cost. ( 10 ) THE learned Magistrate, in his impugned orders discussed all these things and thereafter he was pleased to reject the contention of the accused/ petitioner. To my mind there is nothing wrong in the impugned orders, as passed by the learned Magistrate and I think that there is no scope for this court to interfere into those orders and it is desirable that those orders should be confirmed and the learned Magistrate should be directed to proceed with the trial without any further delay. ( 11 ) IN the result, all the four revisional applications are dismissed on contest. The orders, as passed by the learned Magistrate in all those four cases, are confirmed. The learned Magistrate is directed to take immediate steps for expeditious disposal of those cases without any further delay and without allowing any unnecessary adjournment to either of the sides. Let a copy of this order be sent to the Court below immediately for his information and taking necessary action. Later-After the above order is passed, learned Advocate for the petitioner prays for stay of operation of this judgment passed by this Court today. I have heard his submissions. Such prayer is considered and rejected.