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2009 DIGILAW 569 (CAL)

Biplab Mitra v. State of West Bengal

2009-07-30

PARTHA SAKHA DATTA

body2009
JUDGMENT Partha Sakha Datta, J.: On the FIR of one Smt. Rita Halder alleging ill treatment, cruelty and dowry death of her daughter Rupa Mitra, a case was registered being Barasat P. S. Case No. 533 dated 1st September, 1995 under section 498A/304B against the husband of the victim Tapan Mitra, Tapan's brother Biplab Mitra and Biplab's wife Itu Mitra. The case ended in chargesheet against the three persons under the aforesaid sections of the law. The case was committed to the Sessions and the Additional Sessions Judge, 2nd Court, Barasat was in seisin of the case. At the time of consideration of charge learned Trial Court found that on careful perusal of the case diary there were sufficient materials against the husband Tapan Mitra but observed that no material could be found against other two persons, namely, Biplab Mitra and Itu Mitra on account of the said charges accordingly. On perusal of the materials made available before the learned Trial Court the two accused persons, namely, Biplab Mitra and Itu Mitra who are the petitioners herein were discharged from the case. Charges were framed against Tapan Mitra. In trial during examination-in-chief of the de facto complainant she made allegations against the Biplab Mitra and Itu Mitra. After examination-in-chief was over another witness, namely, Alokananda Halder, wife of P.W.1 also examined-in-chief. Cross examination of both the witnesses was deferred on the prayer of the defence. Now after examination-in- chief of P.W.1, a petition was filed by the prosecution for summoning under section 319 of the Cr.P.C. Biplab Mitra and Itu Mitra on the ground that evidence of P.W.1 has implicated the said two persons. Learned Trial Court upon hearing the prosecution and the defence allowed the petition observing that if in evidence tendered in course of enquiry of trial any person not being the accused is found to have committed an offence for which he could be tried together with the accused he can be summoned to face trial even though he may not have been chargesheeted by investigating agency or may have been discharged at an earlier stage. 2. 2. It is this order of the learned Trial Court dated 22nd July, 2008 which is the subject matter of this application under section 482 of the Cr.P.C. It is contended by the petitioners that the learned Trial Court misconstrued the provision of law and section 319 of the Cr.P.C. does not contemplate summoning a person who has been discharged by the order of the of the Court under section 227 of the Cr.P.C. 3. Learned Counsel for the de facto complainant, Mr. Biplab Mitra submitted that provision of section 319 of the Cr.P.C. is wide enough to be resorted to for summoning any person even when he has been discharged earlier, evidence being there learned Trial Court did not commit any illegality in summoning the petitioners. Mr. Mitra refers to Rajendra Singh vs. State of Uttar Pradesh, reported in 2007(3) SCC (Cri) 375. In Rajendra Singh (supra) an observation was there at paragraph 6 which is as follows: "Even a person who has earlier been discharged would fall within the sweep of the power conferred by section 319 of the Code. It is therefore, clear that if the evidence tendered in the course of any enquiry or trial shows that any person not being the accused has committed any offence for which he could be tried together with the accused, he can be summoned to face trial even though he may not have been chargesheeted by the investigating agency or may have been discharged at an earlier stage." 4. In fact, this decision refers to Kishun Singh vs. State of Bihar, reported in 1993(2) SCC 16 , where an observation was made at paragraph 11 of the judgment which reads as follows:- "Even a person who has earlier being discharged would fall within the sweep of the power conferred by section 319 of the Code." It is on the basis of these decision that the learned Trial Court allowed the prayer of the prosecution. 5. Mr. Sekhar Basu, learned Advocate for the petitioners submitted that the word 'discharge' which takes place at different stages of inquiry under the Criminal Procedure Code has different connotations depending upon the stage when such order of discharge takes place. The word 'discharge' for the purpose of section 319 of the Cr.P.C. does not extend to an accused discharged under section 239 of the Cr.P.C. or under section 227 of the Cr.P.C. Mr. The word 'discharge' for the purpose of section 319 of the Cr.P.C. does not extend to an accused discharged under section 239 of the Cr.P.C. or under section 227 of the Cr.P.C. Mr. Basu refers to a decision of the Supreme Court in Sohan Lal & Ors. vs. State of Rajasthan, reported in AIR 1990 SC 2158 , where Their Lordships of the Supreme Court observed as follows: "******* The provisions of section 319 had to be read in consonance with the provisions of section 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of section 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under section 398 of the Code may not be lost sight of. This should be so because the complainant's desire for vengeance has to be tempered with though it may be, as Sir James Stephen says: 'the Criminal Law stands to the passing of revenge in much the same relation as marriage to the sexual appetite'. (General view of the Criminal Law of England, p.99). The A.P.P.'s application under section 216, insofar as the appellant Nos. 1 to 3 were concerned, could be dealt with under section 216. Appellant Nos. 4 and 5 could be dealt with neither under section 216 nor under section 319. In that view of the matter the impugned order of the Magistrate as well as that of the High Court insofar as the appellant Nos. 4 and 5, namely, Vijaya Bai and Jiya Bai are concerned, have to be set aside which we hereby do. The appeals are allowed to that extent." 6. The provision of section 319 has the fundamental ingredient that a person to be added under section 319 of the Cr.P.C. must be a person not an accused. This section enables the Court trying a case to proceed against persons not being an accused appearing to be guilty of an offence. The appeals are allowed to that extent." 6. The provision of section 319 has the fundamental ingredient that a person to be added under section 319 of the Cr.P.C. must be a person not an accused. This section enables the Court trying a case to proceed against persons not being an accused appearing to be guilty of an offence. It is only when evidence is brought against some person or persons who also appears to be connected with the offence then process can be issued under section 319 of the Cr.P.C.. The question is whether such a person means and includes a discharged person. An FIR named accused not chargesheeted may be discharged on the prayer of the investigating agency by the Magistrate. Secondly, an accused not named in the FIR but subsequently arrested in course of investigation but not chargesheeted could be discharged by the Magistrate on the prayer of the I.O. Thirdly, an accused chargesheeted but may stand discharged by the Magistrate under section 239 of the Cr.P.C. or by the Court of Sessions under section 227 of the Cr.P.C.. The discharge under third category basically and fundamentally is different from the discharge in the first two instances. An FIR named accused not chargesheeted or a person not named in the FIR but subsequently arrested yet not chargesheeted can be discharged by the Magistrate on the prayer of the I.O. but the said discharge definitely comes within the mischief of section 319 of the Cr.P.C. inasmuch as if evidence is brought by the witnesses implicating their involvement connected with the offence then the Court trying a case can summon an accused but the question is whether an accused discharged under section 227 of the Cr.P.C. by the order of the Court of Sessions can be summoned under section 319 of the Cr.P.C.. Section 227 of' the Cr.P.C. reads as follows: "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." 7. It is under this section of the law that the learned Trial Court discharged the two petitioners and framed charges against one Tapan Mitra. It is under this section of the law that the learned Trial Court discharged the two petitioners and framed charges against one Tapan Mitra. It is worthwhile to note that Rajendra Singh (supra) which Mr. Biplab Mitra and the learned Magistrate referred to basically relies on Kishun Singh vs. State of Bihar (supra). The relevant paragraph of Kishun Singh (supra) was extensively quoted in Rajendra Singh to convey the idea that even a person who has earlier being discharged would fall within the sweep of the power conferred by section 319 of the Code. But, Kishun Singh (supra) expressly relies on Sohan Lal vs. State of Rajasthan, reported (supra). It bears recall that whether a person discharged under section 227 of the Cr.P.C. is included within the ambit of section 319 of the Cr.P.C. was not considered either in Kishun Singh (supra) or in Rajendra Singh (supra). It is the case of Sohan Lal vs. State of Rajasthan (supra) which has been relied on in Kishun Singh and which in turn was relied on in Rajendra Singh (supra) that gives a categoric answer to the question at hand as reproduced above. In Sohan Lal (supra), the Magistrate discharged appellant Nos. 4 and 5 while charging the other three with certain offences. Subsequently they were summoned under section 319, Cr.P.C., and the order of the Magistrate was affirmed by the High Court. The Hon'ble Supreme Court held that the appellant Nos. 4 and 5 would be dealt with neither under section 216 nor under section 319 and accordingly the order of the Magistrate and that of the High Court summoning appellant Nos. 4 and 5 was set aside. In Sohan Lal (supra), it was observed that the discharge of the appellant number 4 and 5 was total discharge after examination of the whole case which is exactly the case with ours. 8. In Guriya @ Tabassum Taquir & Ors. vs. State of Bihar & Anr., reported in 2008(1) C Cr. LR (SC) 7, the Hon'ble Supreme Court had occasion to deal with the scope and ambit of the provision of section 319, Cr.P.C. and referred to Michael Machado & Anr. vs. C.B.I. & Anr., reported in 2000(3) SCC 262 ; Shashikant Singh vs. Tarakeswar Singh & Anr., 2002(5) SCC 738 ; Krishnappa vs. State of Karnataka, 2004(7) SCC 792 ; Joginder Singh & Anr. vs. C.B.I. & Anr., reported in 2000(3) SCC 262 ; Shashikant Singh vs. Tarakeswar Singh & Anr., 2002(5) SCC 738 ; Krishnappa vs. State of Karnataka, 2004(7) SCC 792 ; Joginder Singh & Anr. vs. State of Punjab & Anr., AIR 1979 SC 339 ; Municipal Corporation of Delhi vs. Ram Kishan Rohtagi & Ors., 1983(1) SCC 1 ; Lok Ram vs. Nihal Singh & Anr., AIR 2006 SC 1892 and Sohan Lal & Ors. vs. State of Rajasthan, AIR 1990 SC 2158 , and held that: "Of course, as evident from the decisions reported in Sohan Lal & Ors. vs. State of Rajasthan, AIR 1990 SC 2158 , the position of an accused who has been discharged stands on a different footing." 9. Here the learned Trial Court on perusal of the materials under section 173(2) of the Cr.P.C. discharged the petitioners finding no prima facie case against them. Viewed in this light the order under section 319 of the Cr.P.C. summoning the two petitioners does not appear to be in consonance with the law. The order of discharge made in favour of the two petitioners at the time of consideration of charge did attain its finality and no revision was filed against the said order by the prosecution. 10. The application is allowed. Accordingly the order of the learned Trial Court dated 22nd July, 2008 is set aside. 11. Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible. Appeal allowed.