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2010 DIGILAW 34 (CAL)

M. S. Tirupathi v. C. H. Ramakrishna Rao

2010-01-13

AMIT TALUKDAR

body2010
JUDGMENT 1. APPLYING the test of Section 362 of the Criminal Procedure Code it would be an easy task, perhaps the easiest task to say no on the face of the petitioner and roll down the shutters before him. But, in the trajectory of the peculiar facts and circumstances of this case it is required that the Court should travel beyond bonds and boundaries. In the event it simply says AMEN with Section 362, Cr.P.C. perhaps it would not be a taciturn situation where justice would be a silent sufferer and would result in throwing away the baby with the bath water. 2. The petitioner hereinabove who faced the trial before the learned Judicial Magistrate, Port Blair in connection with CR No. 92 of 2006 earned an order of acquittal on 29.3.2007. The same was carried at the instance of the complainant (Opposite Party hereinabove). My predecessor-in-office by the Judgment and Order dated 7.12.2009 in connection with CRA No. 001 of 2009 set aside the aforesaid order of acquittal recorded by the learned trial Court and remanded the same before the learned Magistrate for fresh consideration. As a preliminary issue this Court is required to be abreast of two staring situations. These are Section 362 of the Criminal Procedure Code and the fact that this Court sitting in a coordinate jurisdiction cannot depart from the view taken by another Bench. 3. WHILST the provisions of Section 362 of the Criminal Procedure Code is quite categorical and in no uncertain term have laid down that no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. It is a statutory embargo. The other portion of the point involved relates to the principle of stare decisis. In other words, a coordinate Bench of equal jurisdiction is bound by the former. Of course, there are exceptions to this rule by way of applying the ratio of per incurium or the theory of sub silenclo. Both of the same would of course have no manner of application for the discussion held herein below. 4. IN ordinary circumstances, this Court would have been absolutely precluded from even looking at the order in CRA No. 001 of 2009 passed on 7.12.2009 by a predecessor Bench of coordinate jurisdiction. Both of the same would of course have no manner of application for the discussion held herein below. 4. IN ordinary circumstances, this Court would have been absolutely precluded from even looking at the order in CRA No. 001 of 2009 passed on 7.12.2009 by a predecessor Bench of coordinate jurisdiction. Leave alone considered the prayer made for recalling in this application. But, sometimes facts are even more stranger than fiction and law has to be read for the purpose of the sake of ultimate justice otherwise the entire scheme of the justice delivery system becomes dysfunctional. It is correct that justice is above the law. But the same has to be administered in accordance with law. IN this application, this Court is entrusted with the job of administration of justice keeping the same above law, but, at the same time in tune with law so as to address the situation which has bubbled up in this application. Ex facie the order passed in CRA No. 001 of 2009 sending the matter for remand before the learned Judicial Magistrate stands in complete violation of Section 386(a) where it specifically stipulates that the lawyer of the accused must be heard and the record must be perused. But, it appears that neither the records were called for nor the evidence was perused but simply on the basis of reading of the Judgment the order of acquittal was set aside. This cannot be said to be a valid order within the meaning of Section 386(a) of the Cr.P.C. It is by now a well settled principle of law that a Court while hearing an appeal against acquittal, where two views are possible cannot substitute the other with one which goes against the accused and the fact that the presumption of innocence is only fortified by the order of acquittal and it still remains even at the appeal stage is also a matter of primordial consideration. In the absence of any material omission or non-consideration of the evidence normally the Appeal Court would not interfere with the order of acquittal. 5. TheSE are all well settled principles of law by virtue of the various decisions of the Apex Court which need not be gone into in the present situation. Furthermore, an appeal cannot be decided without either perusing the records or hearing the learned Counsel for the accused. This is a mandate of law. 5. TheSE are all well settled principles of law by virtue of the various decisions of the Apex Court which need not be gone into in the present situation. Furthermore, an appeal cannot be decided without either perusing the records or hearing the learned Counsel for the accused. This is a mandate of law. In the event such Counsel is not found available at the time of hearing it is open to the Court either to seek the assistance of Amicus Curiae or appoint a State Defence. 6. The Supreme Court in Bani Singh and Ors. v. State of U.P. reported in AIR 1996 Supreme Court 2439 : 1996 C Cr LR (SC) 367 laid down the guidelines for dealing with appeals where the Counsel is absent when the appeal is taken up for hearing. The Supreme Court in Para 14 of the said Judgment was very much categorical : "The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record." In the said decision, Their Lordships specifically emphasized "disposal on merits after perusal of the record". The Supreme Court again in the case of Rishi Nandan Pandit v. The State of Bihar reported in (1999)8 SCC 644 also deprecated the dismissal of Criminal Appeals in the absence of learned Counsel of the accused. The Judgment rendered by the Court in CRA No. 001 of 2009 on 7.12.2009 is covered under the eclipse of non-consideration of a vita! area of the statute governing the field. Now, we have covered the statutory portion of the order where Section 386(a) of the Cr.P.C. has stood in its breach. 7. NOW, this Court goes into the Constitutional aspect of the matter. In our adversarial system of law, no man can be condemned unheard. It is the reasonable opportunity of hearing in the due process of law is the hallmark of our Criminal Justice System. 7. NOW, this Court goes into the Constitutional aspect of the matter. In our adversarial system of law, no man can be condemned unheard. It is the reasonable opportunity of hearing in the due process of law is the hallmark of our Criminal Justice System. In this context, this Court feels tempted to rely on a decision of the Supreme Court in Kalyanl Baskar(Mrs.) v. M.S. Sampoornam (Mrs.) reported in (2007)2 SCC 258 where it has been held : "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed,........." which in other words would mean that a person cannot be condemned unheard. As an appeal is a continuation of the trial it would be deemed that reasonable opportunity of being heard should be given. More so, in view of the statutory provisions contained in the Cr.P.C. in this regard the same cannot be denied to an accused under any circumstances. 8. IN the celebrated decision of the Supreme Court in A. R. Antulay v. ft S. Nayak reported in (1988)2 SCC 602 the Supreme Court held : "No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaid of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied." Similarly, the Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat reported in (2006)3 Supreme Court Cases 374 : (2006)1 C Cr LR (SC) 524 held : "38. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an over hasty stage-managed, tailored and partisan trial." 9. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an over hasty stage-managed, tailored and partisan trial." 9. THIS Court is on God's errand. Even though there is a shift from the Divine Role of Justice, yet while deciding an application it is always required to be kept in mind that while balancing the interest of both sides the ultimate cannons of justice cannot be tilted on the ground of blind technicalities otherwise we will be polluting the cause of justice. In the process the cause of justice would be dumped In the freezer of the cold logic of law. 10. HERE, the principle of audi alteram partem has been absolutely breached. A person has been denied an opportunity of being heard, the basic right of hearing before being condemned has been denied to the petitioner. A valuable Right guaranteed under the Law had been disregarded. 11. IN view of the statutory infraction as well as violation of the principle of natural justice, this Court feels that the order passed in CRA No. 001 of 2009 on 7th December, 2009 cannot be said to be a valid order. It is non-est in the eye of law. As such, neither I am bound by the law of precedence nor Section 362, Cr.P.C. would preclude me from responding to the prayer made in the application. 12. WHILE forming an opinion in this regard I am not oblivious of the ratio of the Full Bench decision of this Court in Harjeet Singh v. State of West Bengal reported in (2005)2 Cal HN 445 : (2005)1 C Cr LR (SC) 598 wherein the Full Bench of our Court taking into account the dissenting views operating in the field held Section 362 would be a dear bar even for the High Court to review or recall an order or judgment passed even if it is found that it offends the principle of natural justice. Firstly, since I am proceeding on the basis of infraction of the statutory provisions of the Cr.P.C. which has cropped up in the judgment under review consequently rendering it to be a non-est order the impact of the Full Bench decision in Harjeet Singh (supra) would have no manner of application. Secondly, the Full Bench was not covered by the Constitutional sweep. Secondly, the Full Bench was not covered by the Constitutional sweep. As it did rot take note of the basic right of an accused to be heard and the position of our Jurisprudence that he cannot be condemned without being heard, in view of the ratio of the decision of the Supreme Court in A. R. Antulay (supra) and Zahira Habibullah (supra) the question decided therein, I would feel, emboldened to abide by the same as the ratio of the Full Court Bench decision of our Court in Harjeet Singh case (supra) would be deemed to be sub sllencio that limited effect and cannot haves any binding precedence over me. Even though I am sitting singly the Full Bench decision cannot bind me by way of judicial precedence as the operation of which remained sub silencio in view of the ratio of the decision of the Supreme Court in A. R., Antulay (supra) and Zahira Habibullah (supra). While arriving at my aforesaid conclusion, I have had the occasion to hear at length the learned Counsel in support of the explication as well as Shri C. H. Ramakrishna Rao who appears in person and has addressed the Court. Shri Rao submitted that there was no strike on that day which prevented the learned Counsel for the accused to be present and that since she had been appearing earlier there was no reason why she did not appear on that particular day when the matter was decided ex parte. 13. SHRI Rao further submitted that on the basis of consideration of the materials the order was passed and it should not be disturbed. 14. Learned Public Prosecutor could not break bread with Shri Ramakrishna Rao. Learned Public Prosecutor was of the view that without offering an opportunity of hearing to the accused such step cannot be adopted which will result in the accused being condemned unheard. 14. Learned Public Prosecutor could not break bread with Shri Ramakrishna Rao. Learned Public Prosecutor was of the view that without offering an opportunity of hearing to the accused such step cannot be adopted which will result in the accused being condemned unheard. Since this Court has arrived at its finding on the basis of infraction of the principle of natural justice as well as statutory violation of the provisions of law and has found the earlier order to be a non-est order it is of the view, the submission of the learned Counsel banking on her averment made in Para 6 of the application that there was cease work and she could not present herself before the Court would be of no consequence and I am sorry that the submission made by Shri Rao cannot be considered. 15. BEFORE saying omega I feel it should be clarified that the claptrap of the humdrum approach will simply result in just another churning out of an order. But for the posterity it will simply be a few sheets of paper. 16. IN my quest for arriving at the correct position I was not imbibed with my personal notion of Justice but for me it is Justice according to the law of the land ; Justice according to the Constitution. It is in such perspective I have even slightly breached barriers for preserving the legal position. After all as held by Arijlt Pasayat, J. in Sunita Devi v. State of Bihar, (2005)1 SCC 608 : (2005)1 C Cr LR (SC) 239 To perpetuate an error is no herdism. To rectify it is the compulsion of the judicial conscience". 17. AS it would not be the same sauce for the goose which is for the gander, as a necessary fallout thereof the recipe has to be different and the application is required to be allowed. 18. EVEN though Section 482, Cr.P.C. cannot be resorted to retrieve the situation consequent to Section 362, Cr.P.C, I would view the entire scenario cropping up as a result of this application from the looking glass of the classic decision of the Supreme Court in Popular Muthiah v. State reported in (2006)7 SCC 296 : (2007)1 C Cr LR (SC) 25 for ex debito justitlae to do real and substantial justice. The application is accordingly allowed. The Appeal is registered afresh. The application is accordingly allowed. The Appeal is registered afresh. It will now be heard by way of opportunity given to all the parties afresh and the lower Court Records be called for immediately.