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2006 DIGILAW 338 (CAL)

Surendra Kumar Agarwal v. STATE OF WEST BENGAL

2006-06-12

S.P.TALUKDAR

body2006
Judgment :- S.P. Talukdar, J. The present case arise out of an application under section 401 read with section 482 of the Criminal Procedure Code. 2. It is directed against orders dated 8th March, 2006 and 17th March, 2006 passed by the learned Sessions Judge, Howrah, in S.T. No.524 of 2004 arising out of Sankrail Police Station Case No. 130 dated 06.07.2004 under section 302/201 of the Indian Penal Code. 3. Grievances of the petitioner, as ventilated in the said application, may briefly be stated as follows: Petitioner is the Manager of Kanak Nursing Home, situated at No.1, Netaji Park, P.O. Bandel, Police Station Chinsurah, District-Hooghly. The petitioner along with others have been arraigned as accused persons in Sankrail Police Station Case No. 130 dated 06.07.2004 under section 302/201 of the Indian Penal Code. The said case was registered on the basis of a written complaint lodged by Smt. Kanika Pal, wife of the deceased, alleging, inter alia, that on 02.07.2004 at about 8 a.m. Dr. Sushil Pal, since deceased, went out for his duties. In the course of journey he had telephonic conversation with the de facto complainant at about 11 a.m. At about 1.30 p.m. the de facto complainant again contacted her husband over mobile phone and overheard an altercation. She was, however, told by her husband that such type of altercation is common in the operation theatre and assured her that he would return to Calcutta by 5/5.30 p.m. He, however, did not return. The de facto complainant enquired at different places. On 03.07.2004 at about 7.30 a.m. the dead body of Dr. Pal found in Saraswati Khal under Sankrail Police Station. 4. The petitioner was in no way involved with the alleged incident and had been falsely implicated in the case. He was arrested on 06.09.2004. After completion of investigation charge sheet was submitted being No.168 dated 18.10.2004 under sections 302/201/120B of the Indian Penal Code against the petitioner and twelve others. The case was, thereafter, committed to the learned Court of Sessions Judge, Howrah, where it was numbered as S.T. No.524/2004. By order dated 04.04.2005, the learned Sessions Judge, Howrah, discharged four accused persons and was pleased to frame charges under different heads against nine accused persons including the petitioner. By the self-same order, charge under section 120B simpliciter was framed against three accused persons including the petitioner herein. 5. By order dated 04.04.2005, the learned Sessions Judge, Howrah, discharged four accused persons and was pleased to frame charges under different heads against nine accused persons including the petitioner. By the self-same order, charge under section 120B simpliciter was framed against three accused persons including the petitioner herein. 5. Being aggrieved by the order dated 04.04.2005, discharging four accused persons, the prosecution preferred an application being C.R.R. No.1388 of 2005 before the High Court, Calcutta. By order dated 26.08.2005, the High Court set aside the order of discharge and directed the Trial Court to frame charges under section 201/34 of the Indian Penal Code against the four accused persons who were earlier discharged by the learned Trial Court. By order dated 20.09.2005, the High Court rejected the prayer for bail of the petitioner. Special leave to appeal was preferred and by order dated 02.12.2005 the Honble Apex Court granted bail to the petitioner while disposing of the S.L.P. No.5128 of 2005. On 07.02.2006 the prosecution filed an application before the learned Court of Sessions Judge, Howrah, to review its earlier order dated 04.04.2005 regarding framing of charge against some of the accused persons including the present petitioner. By order dated 08.03.2006 the learned Sessions Judge, Howrah, allowed the prayer of prosecution for alteration of charge and finally by order dated 17.03.2006, directed framing of charge under section 120B/302 of the Indian Penal Code against the petitioner and others. 6. The petitioner was falsely implicated in the case and there could be no material, nor any justification for framing charge against the present petitioner. The prosecution did not challenge the legality or propriety of the order dated 04.04.2005 passed by the learned Sessions Judge, Howrah, in regard to framing of charge under section 120B of the Indian Penal Code against the present petitioner though a revisional application was filed challenging the said order only in respect of four accused persons who were discharged. 7. After a lapse of about ten months prosecution filed the said application for alteration of charge being inspired by the observation of the High Court expressed in its order dated 20.09.2005 while disposing of an application for bail of the petitioner stating inter alia that the charge under section 120B of the IPC simpliciter was meaningless in absence of the principal charge under section 302 of the Indian Penal Code. 8. 8. In absence of any fresh material or any development, learned Court was not at all justified to alter charge in response to an application filed on behalf of the prosecution. Such reviewing of the earlier order dated 04.04.2005 was, thus, not at all justified. Learned Judge while adding the charge under section 302 of IPC in respect of the petitioner admitted that the subsequent act of offence of murder was not an act of accused persons including the present petitioner committing conspiracy. Conspiracy to commit a crime itself is punishable as a substantive offence and a person can separately be charged and sentenced for that. 9. In the circumstances, the petitioner filed the present application praying for setting aside of the orders dated 08.03.2006 and 17.03.2006 passed by the learned Sessions Judge, Howrah, in S.T. No.524 of 2004. 10. Learned Counsel, Mr. Dilip Kumar Dutta, submitted on behalf of the petitioner that learned Court while directing framing of charge under section 120B/302 of IPC failed to appreciate that the Honble Supreme Court directed release of the petitioner, who was charged for the offence under section 120B of IPC, on bail. This, according to him, stands in the way of framing charge against him under section 120B/302 of IPC. 11. It appears that the prosecution by filing a petition before the learned Court prayed for alteration and/or framing of additional charge against the petitioner and in doing so, was largely guided by the observation of the learned Division Bench of this Court made in the order dated 20.09.2005 while rejecting the prayer for bail. Impropriety of framing charge under section 120B of IPC simpliciter against the petitioner, as observed by the learned Division Bench in the said order, was, thus, sought to be rectified as there was material in the case diary reflecting conspiracy amongst the accused persons for the commission of murder. 12. Referring to the decision in the case of State of Andhra Pradesh vs. Kandimalla Subbaiah & Anr., reported in AIR 1961 SC 1241 , it was submitted that conspiracy to commit an offence it itself an offence and a person can be separately charged with respect to such a conspiracy. 13. Reliance was also placed to the decision in the case of Madan Lal vs. State of Punjab, reported in 1967 Cr. 13. Reliance was also placed to the decision in the case of Madan Lal vs. State of Punjab, reported in 1967 Cr. LJ 1401 and the case of Ajay Aggarwal vs. Union of India & Ors., reported in 1993 SCC (Cri) 961, in support of such contention. 14. On behalf of the opposite party/ State it was contended that neither the order of the learned Division Bench nor that of the Apex Court while dealing with bail application can stand in the way of altering the charge in the manner as was done by the learned Trial Court. 15. Mr. Safiulla, learned Public Prosecutor, High Court, Calcutta, relying upon the decision in the case of State of Bihar vs. Ramesh Singh, reported in AIR 1977 SC 2018 , submitted that if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. 16. Mr. S. G. Mukherjee, appearing as learned Counsel for the O.P./de facto complainant, submitted that at the stage of framing of charge, the High Court is not expected to consider the whole evidence and then conclude if there is material to frame charge under section 120B/302 of Indian Penal Code. Reference was made to the decision in the case of Nemichand Jain vs. Roshanlal & Ors., reported in 2004 (13) SCC 461 . 17. He further submitted that the High Court is not expected to delve into the merits and quash the charge. In this context he invited attention of the Court to the decision in the case of State of M. P. vs. Rakesh, reported in 2004 (13) SCC 523 . The aforesaid legal position also derived support from various other judgments. 18. Relying upon the decision in the case of State of Maharashtra vs. Salman Salim Khan & Anr., reported in 2004 (1) SCC 525 , it was submitted that the truthfulness, sufficiency and acceptability of the evidence can be adjudged at the stage of trial. 19. Mr. Mukherjee further referred to the earlier Single Bench decision of this Court in the case of Ashok Roy vs. C.B.I., A.C.B., Calcutta, reported in 2006 (1) CHN 225 . 19. Mr. Mukherjee further referred to the earlier Single Bench decision of this Court in the case of Ashok Roy vs. C.B.I., A.C.B., Calcutta, reported in 2006 (1) CHN 225 . It is perhaps needless to repeat that there is no reason that the Court in response to an application filed on behalf of the prosecution cannot alter the charge if already framed merely because no further material was placed before the Court. If it appears that the entire materials which ought to have been taken into consideration by the learned Court escaped the attention, there is every justification for fresh appreciation and this may very well result in alteration of charge if situation so demands. 20. After careful consideration of the entire materials and having regard to the submission made on behalf of the parties, I fail to appreciate the grievances, as ventilated on behalf of the petitioner. Mere fact that there was no additional material before the learned Trial Court but mere change of learned Counsel for the prosecution cannot also stand in the way of the prayer for alteration of charge. Section 216 of the Criminal Procedure Code clearly empowers the Court to alter or add to any charge at any time before judgment is pronounced. And it cannot be denied that the materials before the Court certainly demanded and deserved fresh consideration and justified alteration and/or addition as had been done by the learned Trial Court. 21. Considering all these aspects and having regard to the discussion made earlier, I find it difficult to accept the grievances, as ventilated on behalf of the petitioner. 22. The present application being C.R.R. No.1212 of 2006, accordingly, stands dismissed. Interim order, if any, be vacated. 23. Learned Trial Court is directed to proceed with the case as expeditiously as possible and preferably conclude the trial of the case within a period of six months from the date of communication of this order—more so, when there is also accused person in custody. 24. Criminal Department is directed to supply urgent xerox certified copy of this order, if applied for, to the learned Counsel for the parties, after due compliance with the legal formalities. Application dismissed.