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2015 DIGILAW 255 (CAL)

Hriday Ghosh v. State of West Bengal

2015-03-18

SHIB SADHAN SADHU

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Judgment :- Shib Sadhan Sadhu, J. 1. This is an application under Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 seeking to set aside/quash the impugned order No.02 dated 09.02.2015 passed by the Learned Sessions Judge, Suri, Birbhum in Sessions Case No.148 of 2014 whereby and whereunder he rejected the prayer for postponement of the trial despite pendency of a Special Leave Petition before the Hon’ble Supreme Court and directed issuance of bailable warrant of witness of Rs.500/- (Five hundred only) against the witnesses Hriday Ghosh and Sibani Ghosh (Petitioner Nos.1 & 2 herein). 2. Mr. Firoz Edulji, Learned Advocate appearing for the petitioners submitted that on 9th February, 2015 the case was fixed for examination of the petitioners as prosecution witnesses. On that date the petitioner No.3 who is the de-facto complainant filed an application before the Learned Sessions Judge, Suri to the effect that three Special Leave Petitions have been filed before the Hon’ble Supreme Court of India and she prayed that the examination of the witnesses be deferred till disposal of those SLPs. But the Learned Sessions Judge rejected the petition and issued warrant of arrest against the petitioner Nos.1 & 2 as they failed to appear to give evidence on that date. He further submitted that on 16th February, 2015 the petitioner No.3 wrote a letter to the District Magistrate, Birbhum for change of the Learned Public Prosecutor Mr. Ranjit Ganguly as he had political affiliation and was siding with the accused. As such she requested the District Magistrate to appoint an unbiased Public Prosecutor. But despite such fact the Learned Sessions Judge rejected the application filed by the petitioner No.3 for adjournment of examination of the witnesses and issued bailable warrant of arrest against the petitioner Nos.1 & 2 which has caused not only prejudice to the petitioners but also occasioned gross miscarriage of justice. He submitted yet further that the impugned order is a glaring example of non-application of judicial mind and so it is liable to be set aside. The Learned Sessions Judge ought to have considered that since the Special Leave Petitions were filed and pending before the Hon’ble Supreme Court the trial of the case should have been postponed till disposal of those SLPs. 3. Mr. The Learned Sessions Judge ought to have considered that since the Special Leave Petitions were filed and pending before the Hon’ble Supreme Court the trial of the case should have been postponed till disposal of those SLPs. 3. Mr. Eduji continued to contend that administration of criminal justice is a very solemn duty and it involves the liberty and reputation of individuals and so the Learned Sessions Judge should have exercised the power of issuing warrant of arrest against the witnesses with great care and circumspection. He should have kept in mind that such exercise can infringe the fundamental right to life and liberty of the petitioners. A witness is different from a party to the case and he/she has no personal interest in the case or its result. So witnesses cannot be treated as criminals and they are entitled to all the courtesy which a free citizen is entitled from the fellow beings. If warrant of arrest is issued against witnesses for their absence it might be impossible to secure any witness in a criminal case. 4. He further contended that as per Section 350 Cr.P.C. when a witness fails to attend in obedience to the summons issued to him, and if after a summary enquiry it is found that he absented himself without a just cause, the maximum punishment which can be imposed on him is a fine of Rs.100/- and nothing more. The said Section does not contemplate a sentence of imprisonment upon a witness disobeying the summons. There is also no other provision in the Code of Criminal Procedure, 1973 which empowers a Magistrate to remand a witness to judicial custody if he fails to attend Court. If an application was filed by the Learned Public Prosecutor, summons should have been issued under Section 350 of the Cr.P.C. to show-cause as to why the petitioner Nos.1 & 2 did not appear to give evidence but that course was not adopted. Instead the Learned Sessions Judge issued bailable warrant of arrest against the petitioner Nos.1 & 2 only to secure their presence as they failed to appear after receiving the summons. Such order passed by the Learned Sessions Judge is nothing but severe abuse of process of Court and would only strengthen the efforts of the motivated Public Prosecutor and cause severe harassment and prejudice to the petitioners. Such order passed by the Learned Sessions Judge is nothing but severe abuse of process of Court and would only strengthen the efforts of the motivated Public Prosecutor and cause severe harassment and prejudice to the petitioners. Therefore, according to him, the impugned order is palpably erroneous and bad in law and to uphold the dignity of law and in the interest of justice the impugned order should be set aside. 5. Mr. Rajdeep Majumdar, Learned Advocate appearing for the State vehemently opposed such submission made by his Learned Adversary and submitted that the Learned Sessions Judge, Suri has passed the impugned order correctly and judiciously after taking into account all the facts and circumstances. He further submitted that the learned Sessions Judge refused to stay/postpone the trial as there was no stay order granted by any Superior Court and also as the de-facto complainant filed the SLP before the Hon’ble Supreme Court of which no specific date of hearing was fixed. 6. Mr. Majumdar submitted yet further that the witnesses namely petitioner Nos.1 & 2 were present in Court but subsequently they disappeared and so the case was again taken up at 2 P.M. for hearing. But at that time also, the said two witnesses were found absent without any reason or just cause and so on the application made by the Learned Public Prosecutor, the Court issued Witness Warrant against the said witnesses Hriday Ghosh (petitioner No.1) and Shibani Ghosh (Petitioner No.2). However, the Learned Sessions Judge allowed the prayer for examination of the de facto complainant Saraswati Ghosh on any other day as she was sick. This very impugned order passed by the Learned Sessions Judge reflects clearly that he viewed the entire situation with a very sound and rational approach and passed the order which is an elaborate and a speaking order. Thus it cannot be criticized as has been done by his Learned Adversary. 7. Mr. Majumdar, submitted yet further that the instant Revision has become infructuous inasmuch as the petitioner Nos.1 & 2 namely Hriday Ghosh and Shibani Ghosh have surrendered themselves in pursuance of the bailable warrants and executed bail bonds but they did not appear on the date fixed i.e. on 25.02.2015. 7. Mr. Majumdar, submitted yet further that the instant Revision has become infructuous inasmuch as the petitioner Nos.1 & 2 namely Hriday Ghosh and Shibani Ghosh have surrendered themselves in pursuance of the bailable warrants and executed bail bonds but they did not appear on the date fixed i.e. on 25.02.2015. According to him mere pendency of an SLP before the Hon’ble Supreme Court cannot justify stay of the trial of the case for the simple reason that it might meet the fate of dismissal. He thus concludingly submitted that the Learned Sessions Judge has rightly rejected the petition and issued bailable warrant of arrest against the petitioner Nos.1 & 2 and the impugned order should not be disturbed. 8. Having regard to the rival submission made by the Learned Advocates and on perusal of the Revisional Application and its Annexures with special attention to the impugned order, I would like to say at the very outset that Section 87 of the Criminal Procedure Code empowers a Court to issue at first instance process of summons for the attendance of any person which includes a witness and after recording its reasons in writing, a warrant for his arrest if such person fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure. In the instant case, the clear picture reflected from the impugned order itself is that the summons were duly served upon the witnesses Hriday Ghosh and Shibani Ghosh and they also appeared but when the case was taken up for their evidence they disappeared without any just or reasonable cause. Therefore, the Learned Sessions Judge has correctly proceeded to issue bailable Witness Warrant against them on the prayer made by the Learned Public Prosecutor. There is no scope for any controversy to accept the legal proposition that the primary duty of a Court is to administer justice and not to punish any witness. Therefore the exercise undertaken by the Learned Sessions Judge by issuing the bailable warrant against the petitioners 1 & 2 was only to secure their attendance as witnesses, so that their evidence can be recorded. Therefore the exercise undertaken by the Learned Sessions Judge by issuing the bailable warrant against the petitioners 1 & 2 was only to secure their attendance as witnesses, so that their evidence can be recorded. The Learned Sessions Judge acted fully within his domain by resorting to coercive process of warrants of arrest and that too after recording reasons only to discharge his duty as a judge. Section 350 of the Criminal Procedure Code lays down a summary procedure for punishment for non-attendance by a witness in obedience to summons. He also could have very well proceeded against the said witnesses under Section 174 of the Indian Penal Code which provides for punishment with Simple Imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, as they were legally bound to appear before him as witnesses in obedience to summons issued by him and since they departed from the Court without leave of the Court. Therefore it appears that the Learned Sessions Judge was generous enough not to punish the said witnesses by resorting to the provisions of Section 350 of the Criminal Procedure Code or to that of Section 174 of the Indian Penal Code. I do not find any wrong or illegality committed by the Learned Sessions Judge in issuing bailable warrant of arrest against the said witnesses. 9. It appears from the Annexure to the Supplementary Affidavit filed by the petitioners (Annexure P-9 at page 6) that the SLP (Crl) Nos. 1018/2015 and 1121/2015 was called on for hearing in the Mentioning List on 27.02.2015 and upon hearing the Counsel the Hon’ble Supreme Court made the following order: “Taken on board. Issue notice in both the SLPs.” In view of such order the trial of the Sessions Case in question cannot be stayed. Therefore, on the background of the facts and circumstances and stage of the trial I do not find any reasons to interfere with the impugned order which was passed by the Learned Sessions Judge, Suri, Birbhum after exercising his discretion judicially. 10. For the aforesaid reasons, I do not find any merit in the instant Revisional Application and the same is accordingly dismissed. 11. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.