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Calcutta High Court · body

2007 DIGILAW 276 (CAL)

Nirmal Kumar Agarwal v. STATE OF WEST BENGAL

2007-04-09

ASHIM KUMAR ROY

body2007
Judgment :- (1.) THE petitioner in the instant criminal revisional application challenged the charge under Section 498a/304b/34 of the Indian Penal Code and under Section 3 of the Dowry Prohibition Act framed against them in connection with the sessions Case No. 53/06 by the Learned Additional Sessions Judge, 3rd Court, darjeeling. (2.) MR. Sekhar Basu, the Learned Counsel appearing on behalf of the petitioner submitted before this Court that the impugned charge is not in accordance with law and wholly defective. According to him that the impugned charge does not fulfil the mandatory requirements of the provisions of Section 211 of the Code of Criminal Procedure and as well the provisions of Section 212 of the Code of Criminal Procedure. He further submitted that the requirement of section 213 of the Code of Criminal Procedure has not satisfied. Mr. Basu vehemently urged that the impugned charge has not given the accused sufficient notice of the matter and by the charge so framed the accused persons have not been made aware about the prosecution case against them and thereby they have been denied the opportunity to properly and effectively defend them in the trial and to prove their innocence. Thus, he prays that the impugned charge be quashed. (3.) ON the other hand, Mr. Swapan Kumar Mullick, the learned advocate appearing on behalf of the State submitted that the charge does not suffer from any impropriety or illegality and according to him the minor defects, if any, occasioned in the said charge would not in any way prejudice the accused persons. He further submitted if the Court so feels may interfere with the impugned charge with a direction to the Trial Court to rectify the alleged defects, if any, and to frame fresh charge. (4.) I have given my anxious consideration to the submissions made on behalf of the respective parties. Perused the materials on record more particularly the impugned charge. He further submitted if the Court so feels may interfere with the impugned charge with a direction to the Trial Court to rectify the alleged defects, if any, and to frame fresh charge. (4.) I have given my anxious consideration to the submissions made on behalf of the respective parties. Perused the materials on record more particularly the impugned charge. (5.) SO far as the charge for the offence punishable under Section 304b of the Indian Penal Code is concerned although there is clear mention about time and place of occurrence as well as the offence of commission of dowry death of mannu Goyal by the accused persons in furtherance to their common intention but it has not been mentioned that by such act the accused persons committed offence punishable under Section 304b read with Section 34 of the Indian Penal code. However, the charge under Section 498a read with Section 34 of the Indian Penal Code as well as the charge under Section 3 of the Dowry Prohibition act read with Section 34 of the Indian Penal Code does not suffers from any defect and in my opinion has spelt out all the requirements of a charge. Although, according to my opinion the impugned charge under Section 304b of the Indian Penal Code is absolutely in accordance with law except non-mentioning of Section 34 of the Indian Penal Code, still I feel that when such defects has been brought to the notice of this Court let the same be cured before commencement of the trial. Accordingly, while the framing of charge under Section 498a/34 of the Indian Penal Code and Section 3 of the Dowry Prohibition Act read with section 34 of the Indian Penal Code stands sustained, the impugned charge under Section 304b of the Indian Penal Code is set aside and the Learned Judge is directed to frame the charge afresh in accordance with law in the light of the observation made hereinabove. The Learned Trial Court is directed to take steps in this regard immediately. (6.) THE office is further directed to communicate the aforesaid order by special messenger in course of this week at the cost of the petitioner to be deposited by Tomorrow. The Learned Trial Court is further directed upon receipt of such communication shall fix a date within a week thereafter for framing of the charge. (6.) THE office is further directed to communicate the aforesaid order by special messenger in course of this week at the cost of the petitioner to be deposited by Tomorrow. The Learned Trial Court is further directed upon receipt of such communication shall fix a date within a week thereafter for framing of the charge. The accused persons who are the petitioners in the instant criminal revision are also directed to be present in Court on the date so fixed for framing of charge. The Learned Trial Court shall be at liberty to take all steps available in the law to secure the appearance of the accuseds on the date so fixed for framing of charge in the event of their absence. Thus the instant criminal revisional application stands allowed in part.