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2008 DIGILAW 896 (CAL)

Ram Chowdhury v. STATE OF WEST BENGAL

2008-09-05

ARUNABHA BASU

body2008
Judgment Arunabha Basu, J. The revisional application under section 482 of the Code of Criminal Procedure is directed to quash the charge sheet filed under section 147/153/353/379 of the Indian Penal Code in connection with G.R. Case No. 522 of 1990, now pending before the Court of learned Judicial Magistrate, Additional Court, Hooghly. 2. Petitioner herein is' arrayed as accused in connection with the above noted case. 3. It is the contention of the petitioner that even if the narration in First Information Report (in short FIR) is taken as a whole, it cannot be stated that so far as the petitioner is concerned, any offence, as alleged, is said to have been committed by him. 4. The subsequent submission of charge-sheet does not change the complexion of the case as because no material even prima facie could be collected against the petitioner. 5. It is also submitted that the petitioner filed earlier revisional application which was registered as C.R.R. No. 1799 of 1993, however, the said revisional application was not decided on merit. It is also contended that in the earlier revisional application the order, issuing warrant of arrest, was challenged by the petitioner. 6. In view of the earlier direction passed by this Court, Mrs. Krishna Ghosh, learned Advocate for the State cause production of the case diary. 7. I have examined the record in connection with C.R.R. No. 1799 of 1993 and it appears from the order passed on 18.6.2001, the learned Single Judge in connection with the aforesaid revisional application passed the following order: "Accordingly, the revisional application is dismissed for default." 8. The scope of dismissal of revisional application on the ground of default came up for consideration before the Supreme Court in Madan Lal Kapoor vs. Rajiu Thapar & Ors., reported in 2007 AIR SCW 5717. The Supreme Court referring to the earlier decision of three-Judge Bench in Bani Singh & Ors. vs. State of U.P., reported in 1996(4) SCC 720 , held that a criminal revision cannot be dismissed for default. In Bani Singh's case (supra), Supreme Court overruled the earlier decision of the Supreme Court in Ram Naresh Jadau vs. State of Bihar, reported in AIR 1987 SC 1500 , and held that criminal appeal can not be dismissed for default. 9. In Bani Singh's case (supra), Supreme Court overruled the earlier decision of the Supreme Court in Ram Naresh Jadau vs. State of Bihar, reported in AIR 1987 SC 1500 , and held that criminal appeal can not be dismissed for default. 9. The principle being that in connection with matters connected with administration of criminal justice, the same cannot be dismissed for default and must be decided on merit. 10. I must point out in this context that this Court while exercising coordinate jurisdiction will not be competent either to sit in appeal or review the order passed on earlier occasion. In view of section 362 of the Code of Criminal Procedure, the earlier dismissal order cannot be reviewed or recalled. In this connection reference may be made to three Judge Bench decision in Supreme Court, in State of Kerala, vs. M.M. Manikantan Nair, reported in AIR 2001 SC 2145 . In this decision Supreme Court held in a case where the High Court earlier rejected the prayer for quashing criminal proceeding but subsequently the High Court reversed the earlier order and quashed the criminal proceeding for want of proper sanction. Three-Judge Bench of Supreme Court held that in view of section 362 of the Code of Criminal Procedure, the Court is prohibited after it has signed the judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct clerical m arithmetical error. 11. However, in this context it may be pointed out that the earlier revisional application in connection with C.R.R. No.1799 of 1993 was preferred challenging the order issuing warrant of arrest against the petitioner. But so far as the present revisional application is concerned, the petitioner has challenged the entire proceeding including submission of charge-sheet on conclusion of investigation. 12. It is evident that the cause of action in connection with earlier revisional application is not identical with the cause of action of the present revisional application. If the nature of relief prayed by petitioner in connection with the subsequent revisional application has no bearing or connection with the earlier revisional application, then it cannot be stated that the second revisional application is filed to review or to recall the earlier order, in violation of provision under section 362 of the Code of Criminal Procedure. If the nature of relief prayed by petitioner in connection with the subsequent revisional application has no bearing or connection with the earlier revisional application, then it cannot be stated that the second revisional application is filed to review or to recall the earlier order, in violation of provision under section 362 of the Code of Criminal Procedure. For example, if the petitioner has filed a revisional application for quashing FIR and even if the same is dismissed in earlier occasion, this does not prevent the petitioner from challenging the same proceeding at latter point of time that is by way of challenging the subsequent submission of charge sheet or the subsequent framing of charge. What is prohibited under section 362 of the Code of Criminal Procedure that the same prayer cannot be renewed by way of filing subsequent revisional application in view of bar under section 362 of the Code of Criminal Procedure. 13. In my view the present application being filed on a separate cause of action is maintainable. 14. Coming to the merit of the application, it appears that FIR was lodged by one Hara Prasad Konar, Head Ticket Collector, Howrah and in the FIR it is disclosed that the informant during the course of his duty, at 319 Up entered into Compartment No.7085 and requested the passengers, who were occupying the said compartment either to vacate the said compartment or to pay Rs.20/- per head. It is stated in the FIR that at Rishra Station one lady passenger along with her husband fell from the compartment and over this occurrence some rowdy passengers became furious and started assaulting the informant in the compartment. Subsequently the informant could detect that railway dues realised by him along with his wristwatch have been snatched. The wearing apparels of the informant was torn subsequently he reported the matter to Train Guard Party, who arrested some of miscreants. 15. Over this occurrence, police registered a case being Bandel G.R.P.S. Case No. 22/90 under section 147/153/353/379 of the Indian Penal Code against unknown persons. 16. During the course of investigation a prayer was submitted for Test Identification Parade. It is the contention of the petitioner that so far he is concerned no Test Identification Parade was conducted by the police. Moreover, the other accused persons, who were placed in Test Identification Parade, could not be identified by the witness. 16. During the course of investigation a prayer was submitted for Test Identification Parade. It is the contention of the petitioner that so far he is concerned no Test Identification Parade was conducted by the police. Moreover, the other accused persons, who were placed in Test Identification Parade, could not be identified by the witness. This fact remains undisputed. It is evident that the informant was placed as the only identifying witness in the Test Identification Parade, but he failed to identify any of the accused persons, who were placed in Test Identification Parade. So far as the petitioner is concerned, it is evident that he was not placed in the Test Identification Parade and there was no prayer by the officer conducting investigation to place the petitioner in the Test Identification Parade. Relevant order passed by the learned Court below will show that no witness was produced on the date of Test Identification Parade and there was no prayer by the Investigating Officer for fixing date of Test Identification parade. So far as the petitioner is concerned, there is no material to show that any Test Identification Parade was conducted by the Investigating Officer for his identification by the informant. 17. I have already pointed out that so far as the other suspects are concerned, they were placed at Test Identification Parade but the informant who was the only witness relied on by the prosecution failed to identify any suspects. 18. It may be pointed out that the FIR was lodged against unknown persons. The petitioner is not named in the First Information Report as one of the miscreants. He was not placed in the Test Identification Parade for his identification. In such situation, the case against him will be in the nature that no legal evidence could be collected by the police during investigation against the petitioner. The importance of identification in respect of unknown persons has been considered by Supreme Court in Kanan & Ors. vs. State of Kerala, reported in AIR 2979 SC 1127. Supreme Court held where a witness identifies an accused, who is not known to him in the Court for the first time, his evidence is absolutely valueless. The importance of identification in respect of unknown persons has been considered by Supreme Court in Kanan & Ors. vs. State of Kerala, reported in AIR 2979 SC 1127. Supreme Court held where a witness identifies an accused, who is not known to him in the Court for the first time, his evidence is absolutely valueless. The idea of holding Test Identification Parade under section 9 of the Evidence Act, is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no Test Identification Parade is held then it will be wholly unsafe to rely on his bare testimony recording the identification of his accused for the first time in Court. 19. In Budhsen & Anr. vs. State of U.P., reported in AIR 1970 SC 1321 , Supreme Court held the purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of the evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. 20. So far as the present case is concerned, there is no material to show in the absence of earlier Test Identification Parade as to how the petitioner is connected with the offence for which the charge-sheet is submitted by police after investigation. 21. Learned Advocate for the State, however, drew attention of the statement of witnesses and submitted that there is prima facie material against the petitioner and as such this Court may not interfere with the result of investigation and the charge-sheet submitted against the petitioner. 22. The scope of inherent power of this case came up for consideration in number of decisions of the Supreme Court. However, for the purpose of present discussion, the decision of the Supreme Court in Didigam Bikshapathi & Anr. vs. State of A.P., reported in 2007 AIR SCW 7411, may be taken into consideration. 22. The scope of inherent power of this case came up for consideration in number of decisions of the Supreme Court. However, for the purpose of present discussion, the decision of the Supreme Court in Didigam Bikshapathi & Anr. vs. State of A.P., reported in 2007 AIR SCW 7411, may be taken into consideration. Supreme Court after recording the earlier decisions in R.P. Kapur vs. State of Punjab, reported in AIR 1960 SC 866 and the decision in State of Haryana vs. Bhajan Lal, reported in 1992 Supp (1) SCC 335, held that the powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. 23. In R.P. Kapur's case (supra), the Supreme Court summarized some categories of cases where inherent power can and should be exercised to quash the proceeding. They are as follows : (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction. (ii) where the allegations in the First Information Report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged. (iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 24. In State of Haryana vs. Bhajan Lal case (supra), Supreme Court also indicated illustrative categories where the inherent powers of the High Court under section 482 of the Code of Criminal Procedure can be exercised. The illustrative categories enumerated by Supreme Court are given below :- "(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar en grafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious' redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 25. In view of the decision of the Supreme Court, as referred to above, the evidence collected during investigation is required to be examined in order to see whether there is any prima facie case against the petitioner. 26. It is evident that in the FIR there is recital as to how the occurrence which according to prosecution led to the commission of offence punishable under different provisions of the Indian Penal Code commenced. 27. According to informant, the occurrence started when a lady along with her child and husband fell from the train, after which some of the passengers became furious and started assaulting the informant. 27. According to informant, the occurrence started when a lady along with her child and husband fell from the train, after which some of the passengers became furious and started assaulting the informant. It may be pointed out that, incidence as to assault and subsequent snatching of articles as alleged started after the lady fell from the train and the other passengers started assaulting the informant. The petitioner cannot be the person, who along with others started assaulting the informant as the petitioner is the husband of the lady who fell from the train. The petitioner cannot be the person who after he fell from the train can remain inside the compartment as because in the FIR and also from the statement of witnesses it is evident that the assault was committed by the persons who were then inside the compartment. The statement of Constable Amritlal Ghosh also indicates that when the lady started crying after she fell, some passengers from inside the compartment started assaulting the informant. Similar is the statement of the other witnesses who were all police personnel. In this case the only issue before this Court is whether there is any prima facie material against the petitioner. The issue is not before this Court is whether in connection with the prosecution case, there is any material against other accused persons who were charge-sheeted along with the petitioner. 28. So far as the petitioner is concerned, he being the husband of the lady, who fell from the train along with the petitioner and her child and as the statement recorded under section 161 of the Code of Criminal Procedure indicates that the other persons/passengers, who were present in the compartment, started assaulting the informant then it cannot be stated that petitioner is the person involved in the commission of offence. 29. The most important element in a criminal trial is place of occurrence. In this case the entire occurrence, as alleged, took place inside the compartment, where the informant was assaulted. There is clear indication in FIR and the statement of witnesses, recorded under section 161 of the Code of Criminal Procedure, that wife of petitioner and the petitioner himself fell from the compartment and thereafter the alleged occurrence took place. The evidence collected during investigation, completely rules out the possibility of presence of petitioner inside the compartment, where the occurrence took place. The evidence collected during investigation, completely rules out the possibility of presence of petitioner inside the compartment, where the occurrence took place. When it is clear that the petitioner can not be present at the place of occurrence, his involvement with the commission of offence, as alleged, does not arise. This position is further strengthened by absence of Test Identification Parade, so far as petitioner is concerned. 30. R.P. Kapur's case (supra), Supreme Court held that there must be legal evidence justifying submission of charge-sheet. So far as the present case is concerned, the evidence collected during investigation does not show that the petitioner is in any way connected with the commission of offence. There is also no evidence that petitioner was ever placed in Test Identification Parade and the informant failed to identify the other suspects, who were placed in Test Identification Parade. 31. The bare allegations shorn of materials cannot be taken as a ground justifying submission of charge sheet against the petitioner. 32. It may be pointed out that in order to take cognizance for the offence, there must be some materials. Bare suspicion, however, strong that may be does not take the place of proof. In a recent decision, in Harishchandra Prasad Mani & Ors. vs. State of Jharkhand & Anr., reported in 2007 AIR SCW 1077, Supreme Court held that, cognizance can not be taken unless there is at least some materials indicating the guilt of the accused. At para 14 of the aforesaid decision, Supreme Court held : "In the present case, there is not even an iota of material indicating the guilt of the accused persons. It is true that at the stage of taking cognizance adequacy of evidence will not be seen by the Court, but there has to be some material implicating the accused, and cognizance can not be taken merely on the basis of suspicion as it appears to have been done in the present case. To take a contrary view would only lead to harassment of the people." 33. After considering the entire matter, I am of the view that there is no material against the petitioner and as such it is a fit case to invoke the inherent power of this Court under section 482 of the Code of Criminal Procedure justifying quashing of the case, so far as the petitioner is concerned. 34. After considering the entire matter, I am of the view that there is no material against the petitioner and as such it is a fit case to invoke the inherent power of this Court under section 482 of the Code of Criminal Procedure justifying quashing of the case, so far as the petitioner is concerned. 34. The revisional application is disposed of with the direction that the proceeding against the petitioner is quashed in connection with the G.R. Case No. 522 of 1990. 35. There shall be no order as to costs. 36. Criminal Section is directed to forward a copy of the order to learned Court below. 37. Criminal Section is also directed to supply urgent Photostat copy of the order to the petitioner as and when applied for. 38. Case Diary be returned. Revisional application disposed of.