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Calcutta High Court · body

2012 DIGILAW 5 (CAL)

Bhaggyadhar Mondal v. State

2012-01-03

KANCHAN CHAKRABORTY

body2012
JUDGMENT 1. THE challenge in this revisional application is to the judgment dated 24.3.2008 passed by the learned Judicial Magistrate, 3rd Court, Contai whereby acquitting the opposite party Nos. 2 to 10 in connection with Khejuri Police Station Case No.3 dated 8.12.1988 under Sections 468/471/120B of the I. P.C. 2. THE petitioner herein lodged one petition of complaint in the Court of the learned Magistrate which was referred to the concerned Police Station under Section 156 (3) of the Code of Criminal Pocedure. THE matter was investigated into and ultimately, the Khejuri Police Station filed one charge- sheet against the opposite party Nos.2 to 10 under Sections 468/471/120B of the I.P.C. THE case was initiated in September, 1988. THE charge sheet was filed on 19.11.1993. Charge under Sections 465/468/471/120B of the I.P.C. was framed against the opposite party Nos.2 to 10 on 17.11.1995 and the trial commenced. THE learned Magistrate issued summons upon the witness Nos. 1 and 2 and upon conclusion of their evidence directed to issue summons upon the witness Nos.3 to 10. 3. ATTENDANCE of witnesses could not be procured for quite a long time and the learned Magistrate on 10.1.2000 directed to issue summons upon the witness Nos.3 to 7. On 30.9.2000, learned Magistrate closed the prosecution case in view of the decision in Raj Deo Sharma v. State of Bihar, reported in 1999 C. Cr. LR. (SC) 398 and fixed dates for examination of the accused under Section 313 of the Cr. P. C. On 7.2.2008, the de facto complainant filed one verified application praying for disposal of the case on the grounds stated in the petition. The application was kept with the record without disposing of the same. On 24.3.2008, the learned Magistrate disposed of the entire case on the basis of only witnesses recorded so far "by it in course of trial. During this long period of 20 years, some of the accused persons passed away also. 4. NOW, the de facto complainant has come up with this application challenging the legality, validity and propriety of the judgment passed by the learned Trial Court mainly on the ground that the learned Court erred in closing the prosecution case abruptly on 30.9,2000 without making any effort to issue summon upon all the witnesses and procuring their attendance by invoking the provisions of Code of Criminal Procedure. 5. MR. 5. MR. Chatterjee, learned Advocate appearing on behalf of the petitioner contended that the learned Court ought to have made all efforts to procure attendance of all the witnesses who are named in the charge- sheet. He has taken this Court to the charge-sheet and contended that as many as 36 witnesses were stated in the charge-sheet as prosecution witnesses. The statements of the accused as well as the de facto complainant were also recorded under Section 164 of the Cr.P.C. Seizure of some important materials were also made in course of investigation. Seizure list was not also admitted into evidence. MR. Chatterjee contended further that the judgment passed by the learned Trial Court should not be allowed: to be sustained in view of the fact that the Court has acted arbitrarily and entirely on misconception of law. The principles laid down in Raj Deo Sharma's case (supra) have no application in the case pending before the learned Trial Court. 6. MR. Amarta Ghosh, learned Advocate appearing on behalf of the State has submitted that although the Court has acted arbitrarily but the main witnesses of the case were examined by the Court and the Court did not find any material in their evidence to record conviction of the opposite parties. He also contended that this petitioner did not challenge the order dated 30.9.2000. He has filed this revisional application mainly on the ground that the Court passed that order arbitrarily, after such a belated period, which cannot be considered at present. Retrial of such a case itself would be amounting to miscarriage of justice. 7. MR. Jayanta Narayan Chatterjee, learned Counsel appearing on behalf of the opposite party Nos.2 to 10 has contended that this petitioner missed his bus long ago and cannot challenge the action taken by the learned Trial Court after such a long period of 23 years which has already been elapsed since the prosecution was initiated. The learned Trial Court failed to conclude the trial and that too, no fault on the part of the opposite parties. The de facto complainant could not challenge the order dated 30.9.2000 but allowed the trial Court to continue proceeding knowing fully well that the date was fixed for examination of the opposite parties (accused persons) under Section 313 of the Cr.P.C. Therefore, he cannot reprobate and approbate at the same time. 8. The de facto complainant could not challenge the order dated 30.9.2000 but allowed the trial Court to continue proceeding knowing fully well that the date was fixed for examination of the opposite parties (accused persons) under Section 313 of the Cr.P.C. Therefore, he cannot reprobate and approbate at the same time. 8. SECTION 397 of the Cr.P.C. empowers the High Court as well as - the Sessions Judge to call for and examine the record of the proceeding before any inferior Criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence and order, recorded or passed, and as to the regularity of the proceeding of such inferior Court. 9. IN the instant case, Mr. Chatterjee, learned Advocate appearing on behalf of the petitioner, in fact, ventilated his grievance as to the way the learned Court closed the prosecution case on 30.9.2000 and fixed date for examination of the accused under Section 313 of the Cr. P. C. It is true that the learned Trial Court should not have done this because the record shows that all the witnesses even were not served with summons and nowhere it has been mentioned in the orders passed by the learned Trial Court that what was the fate of the summons issued by the Court and what action it had taken in order to procure attendance of the witnesses because there were 36 witnesses in all mentioned in the charge-sheet. But, Mr. Chatterjee's client allowed the proceeding to be continued without challenging the order dated 30.9.2000. Since the order remain unchallenged, the Court proceeded with the case and examined the accused under Section 313 of the Cr.P.C. and thereafter passed the order impugned on the basis of evidence recorded by it as well as the documents admitted so far into evidence by the learned Trial Court. 10. IT is correct to say that the principles laid down by the Hon'ble Apex Court in Raj Deo Sharma's case (supra) is not applicable to the learned Trial Court because it was under obligation to conclude the trial as early as possible by applying of the provisions of the Code of Criminal Procedure in the matter of procuring attendance of the witnesses and examination of them. IT was the duty of the Court itself and the Court itself failed to do so and at the same time invoked the principles laid down in Raj Deo Sharma's case (supra). This action on the part of the Court cannot possibly be approved. 11. BE that as it may, when a matter has been referred to the High Court and questions of miscarriage of justice and abuse of process of the Court have been raised, the High Court is duty bound to take into consideration of all the aspects concerning the case, action taken by the Court, conduct of the stake holders of the case and fate of the trial. There cannot be any room of doubt that a long period of 23 years has been elapsed since initiation of the proceeding. The Court could not procure attendance of any witnesses excepting two who failed to support the prosecution case. Those two witnesses were the main witnesses of the prosecution case and one of them was the de facto complainant who on 7.2.2008 filed a verified application and prayed for disposal of the case on the ground that he was not willing to proceed with the case any further. 12. THERE is no dispute as to the legal principle that no precise time limit has been sanctioned by any law within which a trial is to be concluded. But, speedy trial being a constitutional right under Article 21 of the Constitution of India cannot be overlooked specially when the main stake holder of a criminal prosecution has no fault on his part in the matter of delay in prosecution. A period of 23 years is not a small one. It is found already that two of the accused persons have been died in course of trial. Obviously, most of the witnesses either have been retired or died. Their attendance cannot possibly be procured by the trial Court if the matter is sent back to the learned Trial Court for retrial. The right to speedy trial and guiding principle that in invoking the Article 21 of the Constitution has been thoroughly discussed by the Hon'ble Apex Court in Abdul Rehman Antulay v. R. S. Naik, 1992 (1) SCC 225 . 13. The right to speedy trial and guiding principle that in invoking the Article 21 of the Constitution has been thoroughly discussed by the Hon'ble Apex Court in Abdul Rehman Antulay v. R. S. Naik, 1992 (1) SCC 225 . 13. IT is true that the learned Court acted arbitrarily and closed the prosecution case in a peculiar way but, at the same time, the person aggrieved did not come forward and challenge the order within a period of 11 years. The person aggrieved allow the trial Court to continue the proceeding and challenged the judgment finally passed by the learned Trial Court mainly on the ground that the learned Court ought not have stopped the prosecution case arbitrarily without summing of all the witnesses whose names are mentioned in the charge-sheet 14. TAKING everything into consideration, this Court finds that it would be wastage of time and money of both the parties, if the trial Court is" directed to start again the trial after issuing summons on the rest of the witnesses whose names have been mentioned in the charge-sheet and pass a fresh judgment. This appears to be an impossible and useless job after such a long period of. 23 years. Passing direction of like nature would itself amounting to miscarriage of justice and abuse of the process of the Court. Therefore, this Court finds it inexpedient to allow the application. 15. AS far as report of the judgment is concerned, this Court finds that the learned Trial Court has assigned reasons as to why the oral testimony of the P.Ws.1 and 2 has not been found acceptable to it. That being the fact, this Court is reluctant also to upset the order which is based on some reasons. The revisional application fails. The revisional application thus stands disposed of. There will be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates of the parties upon compliance of necessary formalities.