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2007 DIGILAW 128 (CAL)

PRABIR DAS v. STATE OF WEST BENGAL

2007-02-28

S.P.TALUKDAR

body2007
S. P. TALUKDAR, J. ( 1 ) PETITIONER by filing the instant application under section 401 read with section 482 of the Criminal Procedure Code sought to assail order No. l dated 12. 09. 2006 passed by the learned Additional District and sessions Judge, 9th Fast Track Court, Bichar Bhavan, Kolkata. ( 2 ) GRIEVANCES of the petitioner may briefly be stated as follows: on 21. 12. 2004 one, Narayan Chandra Saha, lodged a complaint alleging that on the said night at about 12. 30 a. m. one, Prabir Das, son of late Nanda lai Das, assaulted him with fists and blows. As a result, he sustained injury on his right eye. He was taken to R. G. Kar Medical College and Hospital and was admitted in the Eye Department of the said hospital. On the basis of such complaint Burtolla Police Station stated a case under section 323/341 of Indian penal Code. The said case was duly investigated and after completion of investigation police submitted chargesheet in the said case for the offence under section 304 of Indian Penal Code. The learned Magistrate after taking cognizance of the said offence committed the case to the learned Court of Sessions as per section 209 of Criminal Procedure Code. Thereafter, the case was transferred to the learned Court of Additional District and Sessions Judge, 9th fast Track Court, Kolkata, for trial. ( 3 ) THE learned Court by order dated 12th September, 2006 after hearing learned Counsel for both parties and taking into consideration all relevant materials framed charge for the offence punishable under section 304 (Part-II) of Indian Penal Code. Such charge was read over and explained to the petitioner accused person who pleaded not guilty and claimed to be tried. Such order of framing of charge under section 304 (Part-II) of Indian Penal Code had been assailed by the petitioner on the ground that the learned Court failed to appreciate the material on record in their proper perspective. ( 4 ) MR. Ranjan Roy, as learned Counsel for the petitioner, submitted that the case was rightly started for the offence under section 323/341 of Indian penal Code. It was a case of assault with fists and blows. ( 4 ) MR. Ranjan Roy, as learned Counsel for the petitioner, submitted that the case was rightly started for the offence under section 323/341 of Indian penal Code. It was a case of assault with fists and blows. Inviting attention of the Court to the written complaint, which was treated as FIR, it was mentioned that as a result of being so assaulted, the victim sustained injury on his right eye. He was reportedly admitted to R. G. Kar Medical College and Hospital in its eye Department. According to Mr. Roy, the material available before the learned court show that the victim succumbed. But it seems to be the categorical stand of the present petitioner that such unfortunate death of the victim could not have had anything to do with such assault. It was contended on behalf of the petitioner that there was no evidence whatsoever to suggest that the cause of death was the result of the injury de hors the surgery undertaken by the doctors or that surgery was necessary to save the lives of the deceased or that there was any proximity and any direct relationship between injury suffered by the victim and his death soon thereafter. ( 5 ) IT was emphatically submitted on behalf of the petitioner that while proceeding of framing charge under section 304 (Part-II) of Indian Penal Code the learned Court failed to consider that there was no iota of evidence, oral or documentary, to suggest that the purported assault was intended to cause death or that the petitioner had the knowledge that such a blow on the right eye could at all result in the death of the victim. ( 6 ) SECTION 304 of the Indian Penal Code reads as follows: "304. ( 6 ) SECTION 304 of the Indian Penal Code reads as follows: "304. Punishment for culpable homicide not amounting to murder.- whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. " ( 7 ) MR. Roy as learned Counsel for the petitioner drew attention of the Court to the post-mortem report where the cause of death was indicated as "death was due to the effect for sub-arachnoid hemorrhage associated with other injuries and demise condition of heart and vessels - anti-mortem in nature. " ( 8 ) LEARNED Counsel for the petitioner referring to the decision in the case of kadapagunta Swaminatha Reddy vs. State of Andhaa Pradesh, reported in 1996 Cr. LJ 1387, submitted that the injuries allegedly sustained by the victim could not be said to be so serious as to pointedly show knowledge in mind of accused that his act is likely to cause death. The said case is, however, in connection with hearing of a criminal appeal where the accused was convicted for the offence under section 304 (Part-II) of Indian Penal Code. Mr. Roy submitted that it could be that the death of the victim was a resultant but this could not be attributed to the knowledge of the accused because of the fact that such injuries found on the person of the victim, were not such so as to constitute knowledge on the part of the accused. ( 9 ) IT is true that 'knowledge' is an important element so as to constitute an offence under section 304 (Part-II) of Indian Penal Code. In this context, reference was also made to the decision in the case of Anita and Ors. Etc. vs. State of Madhya Pradesh and Anr. ( 9 ) IT is true that 'knowledge' is an important element so as to constitute an offence under section 304 (Part-II) of Indian Penal Code. In this context, reference was also made to the decision in the case of Anita and Ors. Etc. vs. State of Madhya Pradesh and Anr. , reported in 1997 C Cr. LR (SC) 247. ( 10 ) IN the case of Narain Singh vs. State of Punjab, reported in 2006 (4) All india Criminal Law Reporter 226, it was observed that the accused being not armed with any weapon at the time of occurrence and in absence of any allegation that any weapon was used as such by anyone in causing injuries to the victim, there can be no offence under section 304 (Part-II) of Indian Penal code. ( 11 ) IN regard to the question as to how far this Court in exercise of its power under section 482 of Criminal Procedure Code is justified to interfere at the stage of framing of charge, reference was made in the case of State of Punjab vs. Kasturi Lai and Ors. , reported in AIR 2004 SC 4087. Such power under section 482 of Criminal Procedure Code is undoubtedly an extreme power which can only be justifiably exercised in order to secure justice and to prevent abuse of the process of Court. As settled by series of judicial pronouncement, section 482 of Criminal Procedure Code does not confer any new power on the High court. It only saves the inherent power which the Court possessed before the enactment of the Code. In envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (1) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, (iii) to otherwise secure the ends of justice. The Apex Court in the said case observed as follows: "while exercising powers under the section, the Court does not function as a Court of Appeal or Revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exists. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exists. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. " ( 12 ) INVITING attention of the Court to the various materials disclosed in course of investigation as well as statements made under section 161 of the code of Criminal Procedure and other available material including the post- mortem report, it was submitted that by no stretch of imagination the same could call for an order of framing charge under section 304 (Part-II) of Indian penal Code. ( 13 ) ON the other hand, it was contended by learned Counsel for the private opposite party that this Court can have very little justification to interfere at this stage when the learned Trial Court presumably after forming his opinion directed framing of charge under section 304 (Part-II) of Indian Penal Code. ( 14 ) IN the case of Kanti Bhadra Shah and Anr. vs. State of West Bengal, reported in AIR 2000 SC 522 , it was submitted that if the Trial Court decides to frame charge, there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself prima facie shows that the Trial Judge has found the opinion upon considering the police report and other documents and after hearing both sides that there is a ground for presuming that the accused has committed the offence concerned. Framing of charge itself prima facie shows that the Trial Judge has found the opinion upon considering the police report and other documents and after hearing both sides that there is a ground for presuming that the accused has committed the offence concerned. ( 15 ) IT was further submitted that at the stage of framing of charge the Court has to consider the material with a view to find out if there is a ground for presuming that the accused has committed the offence or that there is any sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction (Ref -. State of maharashtra vs. Priya Sharan Maharaj and Ors. , reported in AIR 1997 SC 2041 ). ( 16 ) IN the case of Dilawar Babu Kurane vs. State of Maharashtra, reported in AIR 2002 SC 564 , it was held that if there is no prima facie case made against an accused person and there is remote chance of charges ultimately culminating into conviction, the criminal proceeding is liable to be quashed. ( 17 ) RELYING upon the decision in the case of Om Watiandanr. vs. State through delhi Administration and Ors. , reported in 2001 SCC (Cri) 685, it was submitted on behalf of the learned Counsel for the opposite party that High Court should not ordinarily interfere with Trial Court's order for framing of charge unless there is glaring injustice. It was held that High Court's interference at that stage may encourage unscrupulous persons to protract trial and prevent culmination of criminal case which would amount to abuse of process of the court. ( 18 ) THIS stand as ventilated by learned Counsel for the private opposite party finds further support in the decision in the case of Stree Atyachar Virodhi parishad vs. Dilip Nathumal Chordia and Anr. , reported in 1989 (1) SCC 715 . ( 19 ) LEARNED Counsel for the opposite party/state while adopting the argument advanced on behalf of the private opposite Party categorically mentioned that there can be no justification for any manner of interferance at the stage when the learned Trial Court just passed an order of framing charge under section 304 (Part-II) of Indian Penal Code - presumably after forming its opinion on the basis of the materials available before it. ( 20 ) IN the present case, even a thorough and detailed investigation could not bring out even an iota of material so as to suggest that the accused person while assaulting the victim did have the knowledge that such a blow on the right eye could cause death. There is absolutely no material worth mentioning so as to suggest that the accused while so assaulting did have any intention to cause death or to cause such bodily injury as is likely to cause death. Admittedly, the accused did not have any weapon nor there is any allegation of any assault by a weapon. On proper reading of section 304 of Indian Penal Code it can be very well said that Part-II applies to acts, which are done without any intention to cause death, or such bodily injury as is likely to cause death but which are done with such knowledge. ( 21 ) THIS seems to be the settled position of law. The argument advanced on behalf of the O. P/state and the private opposite party that this may not be the right stage for interference does not inspire confidence of the Court. After all, it is the duty thrust upon this Court to ensure that there is no abuse of the process of Court and in order to secure the ends of justice this Court is called upon to interfere so that the valuable time of the Trial Court and the public money do not get unnecessarily wasted in a wild goose chase. ( 22 ) AFTER due consideration of all such facts and materials I am inclined to hold that there is no such material before the learned Trial Court which could justify framing of charge under section 304 (Part-II) of Indian Penal Code. ( 23 ) THE impugned order as such be set aside and the learned Court is hereby directed to consider the matter afresh and pass appropriate order in accordance with las. This disposes of A. S. T. No. 2567 of 2006. ( 24 ) SEND a copy of this order to the learned Trial Court for information and necessary action. ( 25 ) DEPARTMENT is directed to supply certified copy of this order, if applied for, to the learned Counsel for both parties, after due compliance with legal formalities. Application disposed of with direction.