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2011 DIGILAW 837 (CAL)

Ranvijay Singh v. STATE OF WEST BENGAL

2011-06-24

SYAMAL KANTI CHAKRABARTI

body2011
Judgment Syamal Kanti Chakrabarti, J. 1. THE present revisional application under Section 482 Cr. P.C. has been filed for quashing of the proceedings in Sessions Case No. 38 of 1983 pending before the Court of learned Additional Sessions Judge, 2nd Court, Jalpaiguri arising out of G. R. Case No. 572/80 in connection with Metellli Police Station case No. 4 dated 04.04.1980. 2. THE petitioner contends that the aforesaid PS case was instituted on the basis of a complaint lodged by OP No. 2 Dalim Thapa against the petitioner to the effect that on 03.04.1980 the workers of Moorti Tea Estate demanded supply of tank water from the petitioner when the petitioner was taking a tank full of water to his Bungalow as there was no supply of water for last three days. THE petitioner being Senior Manager of the tea estate did not pay any heed to such demand. THE workers also demanded fulltime charges for their extra work which was also refused by him. At that time the workers became furious and to control the situation police intervened and fired from their guns to disperse the workers while Sher Bahadur Thapa and his wife were injured. THE workers then went to the Bungalow of the petitioner and requested for providing transport for removing the injured to the hospital. At that time the petitioner opened fire from his licenced gun and killed Pritam Thapa and two others were injured giving rise to the said case. On the self-same issue the petitioner lodged a counter case against Pritam Thapa, Kumar Thapa, Jas Bahadur, Sher Bahadur and 300/400 men and women of Moorty Tea Estate on charges of firing, unlawful assembly with deadly weapons and fire arms and attacking the house of the petitioner with the intention to commit murder and grievous hurt and set fire to his house and motor car. On this basis the Metelli PS case no. 3 dated 04.04.1980 was started under Sections 147/148/149/448/506/307/436/427/325/435/480/120B IPC read with Section 25/27 of the Arms Act. 3. AFTER completion of investigation police submitted charge-sheet bearing no. 44 dated 05.10.2008 in connection with Metteli PS case no. 4 of 1980 under Section302 IPC. On this basis the Metelli PS case no. 3 dated 04.04.1980 was started under Sections 147/148/149/448/506/307/436/427/325/435/480/120B IPC read with Section 25/27 of the Arms Act. 3. AFTER completion of investigation police submitted charge-sheet bearing no. 44 dated 05.10.2008 in connection with Metteli PS case no. 4 of 1980 under Section302 IPC. On the basis of such charge-sheet the learned erstwhile Sub-Additional Judicial Magistrate, Jalpaiguri took cognizance of the offence on 11.01.1983 and copies of relevant documents were supplied to the accused and the case was committed to the Court of learned Sessions Judge on 24.06.1983 which was renumbered as Sessions Case No. 38 of 1983. The learned Sessions Judge thereafter transferred the case by order dated 13.08.1983 to the Court of learned Additional Sessions Judge, 2nd Court, Jalpriguri for trial and disposal. 4. ON 18.07.1987 the learned Trial Judge framed charges under Section 302 IPC. Thereafter, during the period from 09.09.1987 to 12.09.1987 six witnesses were examined on behalf of the prosecution. ON 12.09.1987 the case was adjourned at the instance of the learned Public Prosecutor who filed an application before this Honble Court against refusal of his prayer for withholding one witness by the learned Trial Court. This Honble Court by order dated 16.11.1987 stayed further proceedings of the said sessions case in Criminal Revision No. 1456 of 1987 until further orders and the lower court record was also called for. It is further contended that 12 years thereafter this Honble Court directed for reconstruction of the lower court records on the ground that the same was misplaced or lost. The learned trial Court by order dated 07.07.1999 upwards has directed both the parties for reconstruction of the lower court records but to no effect. As a consequence the accused is facing trial for more than few decades which is opposed to the concept of speedy trial and unusual delay in conducting the trial of this case for which the accused is not at all responsible. So there shall be miscarriage of justice unless the accused is discharged as under Article 21 of the Constitution of India a person facing criminal prosecution is entitled to expeditious and fair trial. Learned lawyer for the petitioner has referred to and relied upon the principles laid down in 1999 SCC (Cri) 1324 (Raj Deo Sharma (II) Vs.- State of Bihar) in support of his contention. 5. Learned lawyer for the petitioner has referred to and relied upon the principles laid down in 1999 SCC (Cri) 1324 (Raj Deo Sharma (II) Vs.- State of Bihar) in support of his contention. 5. IN course of hearing of the matter this Court by order dated 03.09.2010 and 09.09.2010 called for a report from the learned Registrar (Administration) regarding progress of reconstruction of the said record and manner of despatch of the LCR after disposal of Criminal Revision No. 1456 of 1987. From the interim reports so far received it appears that the following documents have been reconstructed: a) Order-sheets from order no. 1 dated 02.07.1983 to order no. 30 dated 16.11.1987. b) Xerox copies of case diary. It is reported that the statement of witnesses namely, PWs 1 to 6 recorded in the case could not be reconstructed as yet since copies of the statements of the said witnesses have not been supplied by the parties. It appears that the LCR was sent to this Honble Court in connection with CRR No. 1456 of 1987 which was disposed of by this Honble Court on 26.11.1999. The said revisional application was filed by the State challenging the legality and propriety of the order dated 12.09.1987 passed by the learned Additional Sessions Judge, 3rd Court, Jalpaiguri rejecting the prayer of the prosecution for withholding the charge-sheeted witnesses Karan Singh and fixing the next date 14.09.1987 for examination of the said charge-sheeted witness along with other witnesses. The said prayer was rejected by this Honble Court directing the learned Trial Judge to proceed with the trial as expeditiously as possible since it is an extremely old case. For want of reconstruction of the LCR the said trial could not be resumed by the learned Trial Judge. 6. THEREAFTER, the accused filed another revisional application being CRR No. 2598 of 2001 challenging the legality and propriety of the order dated 12.09.2001 passed by the learned Trial Judge rejecting prayer for discharge and for quashing the entire proceedings. The said revisional application was disposed of on 18.01.2005 by this Honble Court and this Honble Court has rejected the prayer after due consideration. The said revisional application was disposed of on 18.01.2005 by this Honble Court and this Honble Court has rejected the prayer after due consideration. Without challenging the legality and propriety of the said order dated 18.01.2005 passed in CRR No. 2598 of 2001 to the higher forum the accused has again come up with same prayer for quashing the proceedings on grounds of inordinate delay in trial following missing of the original lower court records. It appears that by order dated 18.01.2005 while rejecting the revisional application this Honble Court observed as follows: Hence it is felt that no interference at this stage is called for, however considering the situation that the matter is appearing for the last 21 years which is a very unfortunate situation before any Court, this Court directs that immediately after receipt of this Order the Ld. Trial Court will proceed with the Trial and complete the same within a fixed period of three months without fail while doing so the Ld. Trial Court would fix the date of the Trial on day-to-day basis. 7. WITHOUT going through unnecessary details it may be pointed out that in the instant case it is alleged that the lower court record has been misplaced in course of transit pending disposal of earlier revisional application for which different authorities were directed from time to time to trace the record, but to no effect. From the ratio of 1999 SCC (Cri) 1324 it will appear that the Honble Apex Court has directed to exclude some period for completion of prosecution evidence on the grounds of delay for period of pendency of appeal or revision, against interim orders, if any, preferred by the accused to protract the trial. From the facts of the present case it is apparent from the evidence on record that the present CRR as well as CRR No. 2598 of 2001 have been filed by the accused/petitioner and the prosecution cannot be held responsible for the time taken for the disposal. From the facts of the present case it is apparent from the evidence on record that the present CRR as well as CRR No. 2598 of 2001 have been filed by the accused/petitioner and the prosecution cannot be held responsible for the time taken for the disposal. The Honble Apex Court also placed on record the views taken in A. R. Antulay, Kartar Singh and other cases and observed, inter alia, that it would not be just and fair to the society and the victim to close the prosecution evidence after the prescribed period without considering the nature of offence and other causes for delay such as dilatory procedure, large pendency of cases, insufficient strength of Judges or non-availability of Counsel. In those cases, however, the Honble Court has not dealt with the effect of delay in trial in which the Trial Court record is misplaced or missing in course of transit and remaining untraceable despite diligent search for a decade. Now only xerox copy of the case diary and a portion of order sheets could be reconstructed. Along with this application accused has filed certified copies of order no. 1 dated 02.07.1983 to order no. 201 dated 9.09.2008. 8. I conceive procrastination is no doubt a thief of time but not thief of judicial conscience. From the alleged facts it appears that in this murder case the elements involved are provocation and exercise of right of private defence which may be proved by oral testimony and secondary evidence. It appears from the certified copy of the order no. 126 dated 29.01.2000 of the learned Trial Judge that as per order of this Honble Court passed in Criminal Revision No. 1456 of 1987 learned lawyer for the prosecution, defence, SP, Jalpaiguri, DM, Jalpaiguri and LR, Government of West Bengal were requested separately to supply copy of the charge-sheet, evidence and other relevant papers if they have any of them. Surprisingly from no where single piece of document in connection with the present case record is received. Admittedly in this case charge has been framed against the accused under Section 302 IPC and thereafter six witnesses were examined. Surprisingly from no where single piece of document in connection with the present case record is received. Admittedly in this case charge has been framed against the accused under Section 302 IPC and thereafter six witnesses were examined. Obviously, at the time of commencement and before trial all copies of documents on which the prosecution relied were supplied to the accused but the accused facing trial did not extend any cooperation to the Court by supplying the documents so supplied to him before commencement of trial which were in his possession. The copies of documents and statement of witnesses etc. so supplied to the accused on behalf of the prosecution, cannot be treated as defence document and in the event of demand of such document under order no. 126 dated 29.01.2000 cannot be treated as compelling the accused to adduce evidence against him. For expeditious trial it was also the duty of the accused to supply these documents which, of course, cannot be extracted from him against his will. Therefore, accused is equally responsible to a great extent for delay in trial of this case. 9. MOREOVER, once this Honble Court by disposal of two revisional applications has decided that a serious case under Section 302 IPC of this nature should be brought on trial and cannot be stopped in the midst of trial on the grounds of disappearing of records and since the accused has not challenged the said order before higher forum, I think while disposing of this revisional application I cannot sit in appeal to make the order dated 08.01.2005 of this Honble Court in CRR No. 2598 of 2001 inoperative. Because the said order was passed by this Honble Court keeping in view the long pendency of the trial for last 21 years. Judicial propriety restrains my conscience to interfere with the order by discharging the accused on the same ground of inordinate delay but once we have traced out xerox copy of the case diary I think instead of continuous harassment of the accused the prosecution should be given the last opportunity to make an end of this tragic episode which have shaken the faith of the public regarding preservation of case records by the Court itself. If the accused is discharged it will create a very bad precedent impairing the dignity of judiciary as a whole. If the accused is discharged it will create a very bad precedent impairing the dignity of judiciary as a whole. Therefore, instead of wasting time in quest of reconstruction of lost lower court record it is appropriate time to undertake trial immediately and now the evidence of six witnesses already examined will be treated as not in existence. Therefore, I hold that there is no merit in this revisional application which is dismissed. 10. LEARNED Trial Judge is directed to proceed with the trial de novo from the stage of examination of witnesses as per charge-sheet on the basis of xerox copy of case diary and by supplying the documents available in the xerox copy of the case diary to the accused once again for ends of justice treating all the documents so collected as secondary evidence as per Evidence Act and to complete the trial within a period of three months from the date of communication of this order by fixing day to day hearing and without adjourning the same unnecessarily. He will also keep the entire case record in safe custody all along to avoid similar situation. Copy of this order be also sent to the learned District Judge, Jalpriguri with direction to see that trial in this case is not hampered in any way on account of temporary absence of the Presiding Officer of the Trial Court on grounds of leave or otherwise and the direction so made will be treated as mandatory. Learned Registrar General is directed to communicate this order to the learned Trial Court at once. 11. URGENT certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.