Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 472 (CAL)

Indrajit Tapadar v. State of West Bengal

2016-06-09

RANJIT KUMAR BAG

body2016
JUDGMENT : The petitioner has preferred this revisional application challenging the judgment and order dated September 24, 2012 passed by learned Additional Sessions Judge, 3rd Fast Track Court, Bichar Bhawan, Calcutta in Criminal Appeal No.20/2012, by which learned Additional Sessions Judge had set aside the judgment and order dated April 30, 2011 passed by learned Metropolitan Magistrate, 6th Court, Calcutta in G.R. No.965/2002 and remanded the case back to the trial court for fresh judgment. 2. The backdrop of the present revisional application is as follows:- On June 25, 2002 at about 10-30 a.m. the petitioner along with another person came to the house of the opposite party no.2/defacto complainant for making valuation of one gold ring studded with 32 carats diamond. When the defacto complainant handed over the diamond ring to the petitioner, his behavior made the defacto complainant suspicious. The defacto complainant asked for return of the diamond ring from the petitioner who, without returning the diamond ring, intimidated the defacto complainant with one toy revolver and fled away. The incident was reported to the police station by filing a written complaint on the basis of which Posta Police Station Case No.89 dated June 25, 2002 under Sections 382/114 of the Indian Penal Code came into existence. The police investigated the said criminal case and submitted charge sheet in due course. On consideration of the evidence adduced before the trial court, the trial court acquitted the petitioner of the charge under Section 382 of the Indian Penal Code. The said judgment of acquittal was challenged by the opposite party no.2/defacto complainant before the court of sessions by preferring Criminal Appeal No. 20 of 2012. The learned Additional Sessions Judge, 3rd Fast Track Court, Bichar Bhawan, Calcutta disposed of Criminal Appeal No.20 of 2012 by setting aside the order of acquittal passed by learned Magistrate and by remitting the case back to the trial court for examination of charge sheeted witnesses particularly the seizure witnesses and to take additional evidence if any by invoking Section 311 of the Code of Criminal Procedure and to write fresh judgment. The said order passed in Criminal Appeal No.20 of 2012 is under challenge in this revision at the instance of the petitioner/accused person. 3. Mr. The said order passed in Criminal Appeal No.20 of 2012 is under challenge in this revision at the instance of the petitioner/accused person. 3. Mr. S. Bardhan, learned counsel appearing on behalf of the petitioner contends that the petitioner being the accused person has already suffered for about 14 years and that no fruitful purpose will be served by remitting the case back to the trial court after inordinate delay. He specifically submits that the appellate court cannot pass order of remand to fill up the lacunae in the evidence of the prosecution when the case already ended in acquittal. He also contends that the seizure witnesses did not turn up before the trial court and the court gave opportunity to the prosecution on four consecutive dates for examination of the prosecution witnesses in general and seizure witnesses in particular and as such the appellate court cannot pass the order of remand for examination of those seizure witnesses. By referring to the decisions of Supreme Court in “Ganesha v. Sharanappa” reported in (2014) 1 SCC (Cri) 8 and in “Bablu Kumar v. State of Bihar” reported in 2015 SAR (Cri) 968, Mr. Bardhan has advanced his argument on the role of the revisional court in setting aside an order of acquittal passed by the trial court. 4. In “Ganesha v. Sharanappa” (supra), the Supreme Court has laid down when the High Court can exercise the power of the appellate court in exercising the power of revision under Section 401 of the Code of Criminal Procedure. In “Bablu Kumar v. State of Bihar” (supra), the Supreme Court has quoted three Judge Bench decision of “K. Chinnaswamy Reddy v. State of Andhra Pradesh” in paragraph 6 and laid down the revisional power of the High Court in setting aside an order of acquittal. In both the above reports, the order of acquittal passed by the trial court was challenged by way of revision before the High Court. In the instant case, the order of acquittal passed by learned Magistrate was challenged before the court of sessions by preferring criminal appeal and the instant revision is preferred against the order passed by the court of sessions as an appellate court. So, the facts of the present case are clearly distinguishable from the facts of two reports on which learned counsel for the petitioner has relied upon. So, the facts of the present case are clearly distinguishable from the facts of two reports on which learned counsel for the petitioner has relied upon. In my view, those reports are not relevant for the purpose of deciding the issues in this revision. 5. Mr. Bardhan has also relied on the decision of the Supreme Court in “A.G. v. Shib Kumar Yadav” reported in 2015 SAR (Cri) 1230 in support of his contention when the court can invoke the provision of Section 311 of the Code of Criminal Procedure for giving proper justice to the parties. It is relevant to quote some portions of paragraph 11 of the said report, which is as follows:- “11……The power available with the court to prevent injustice has to be exercised only if the court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised. It is not possible to lay down precise situation when such power can be exercised. The legislature in its wisdom has left the power undefined. Thus, the scope of the power has to be considered from case to case…….” While I fully agree with the above proposition of law and I am bound by the said law laid down by the Supreme Court, I would like to hold that the above report has no relevance in this revision. 6. Mr. Kausik Chatterjee, learned counsel for the opposite party no.2 has supported the decision of the court of sessions on the following four grounds:- (i) The appellate court has rightly held that learned Magistrate wrongly concluded that the ownership of diamond ring of the defacto complainant was not established for non-examination of the father of the defacto complainant. (ii) The appellate court has rightly held that learned Magistrate was wrong in holding that the identification of the diamond ring was not established without resorting to local inspection under Section 310 of the Code of Criminal Procedure in compliance with the order dated June 19, 2003 passed by learned single Judge of this court in CRR 1885 of 2003. (ii) The appellate court has rightly held that learned Magistrate was wrong in holding that the identification of the diamond ring was not established without resorting to local inspection under Section 310 of the Code of Criminal Procedure in compliance with the order dated June 19, 2003 passed by learned single Judge of this court in CRR 1885 of 2003. (iii) The appellate court has rightly observed that the trial court did not consider the disclosure statement (exhibit-4) to establish the fact of recovery of diamond ring from the possession of the present petitioner, when the said disclosure statement is admissible under Section 27 of the Indian Evidence Act and (iv) The appellate court was right in observing that the trial court did not exhaust the procedure to compel the attendance of seizure witnesses to establish the fact of seizure of diamond ring from the possession of the present petitioner. According to Mr. Chatterjee, this is a fit case where the appellate court passed the order of remand for giving justice to the victim who preferred the appeal only when he came to know about the acquittal of the petitioner by the trial court, on receiving notice of a proceeding under Section 452 of the Code of Criminal Procedure by which the Petitioner prayed for return of the diamond right from the trial court. 7. Mr. Ayan Basu, learned counsel for the State submits that the appellate court has rightly interfered with the order passed by the trial court as the trial court took into consideration the irrelevant circumstances and did not consider the relevant evidence in passing the order of acquittal. He has pointed out the following two circumstances which are irrelevant, but considered by the trial court; first, the fact that the ownership of the diamond ring of the defacto complainant was not proved by way of inheritance, and secondly, no independent witness was examined to prove the incident when there was no existence of witness at the time of the incident, apart from the defacto complainant. He has also pointed out the relevant evidence which is not considered by the trial court viz, PW-2, the guard of the house who saw the accused person fleeing away when he was approaching towards the house, which was not within the knowledge of the defacto complainant and as such the said fact was not disclosed by the defacto complainant. 8. 8. Having heard the learned counsel representing the respective parties and on consideration of the impugned judgment under challenge in the revision, the question which calls for determination of this court is whether the judgment and order passed by the court of sessions is liable to be set aside. The incident of theft took place on June 25, 2002 and the judgment of acquittal was recorded by learned Magistrate on April 30, 2011. The opposite party no.2/the victim of the case preferred appeal before the court of sessions when he came to know about the acquittal of the petitioner after receiving notice of a proceeding under Section 452 of the Code of Criminal Procedure, whereby the petitioner prayed for return of the diamond ring from the trial court. The present revision preferred against the order passed by the court of sessions is also pending before the High Court for last four years. This delay cannot be attributed to the opposite party no.2/defacto complainant who has pursued his legal remedy to get justice. Accordingly, I am unable to accept the contention of Mr. Bardhan that no fruitful purpose will be served by remand of the case after inordinate delay. 9. It appears from record that the disclosure statement of the petitioner was admitted into evidence and marked Exhibit-4. This disclosure statement is admissible under Section 27 of the Indian Evidence Act. This is a valuable piece of evidence which will indicate the fact of seizure of diamond ring from the place pointed out by the petitioner/accused person. This vital piece of evidence has not been considered by the trial court and the said omission has been rightly pointed out by the appellate court. To establish the charge under Section 382 of the Indian Penal Code, the prosecution need not establish the ownership of the property. What is required to be established in such a case is the bona fide possession of the property in question. The appellate court has rightly observed that the trial court should have considered whether the defacto complainant was in bona fide possession of the seized diamond ring before the alleged incident. The trial court has, thus, considered the irrelevant circumstances of inheritance of the diamond ring and came to the wrong and irrelevant conclusion that the prosecution has failed to establish the ownership of the said diamond ring. 10. The trial court has, thus, considered the irrelevant circumstances of inheritance of the diamond ring and came to the wrong and irrelevant conclusion that the prosecution has failed to establish the ownership of the said diamond ring. 10. It also appears from record that on June 19, 2003 learned single Judge of this court directed the trial court to resort to local inspection under Section 310 of the Code of Criminal Procedure for identification of the diamond ring during trial, if necessary. Without resorting to the procedure laid down in Section 310 of the Code of Criminal Procedure, the trial court has come to the conclusion that the identification of the diamond ring has not been established before the trial court. This fact is rightly pointed out by the appellate court. The seizure witnesses were summoned, but they did not turn up before the trial court and the prosecution failed to examine any witness on four consecutive dates. There is nothing on record to indicate that the trial court exhausted the process to compel the attendance of seizure witnesses when the seizure witness did not respond to the summons. The opportunity given to the prosecution to examine seizure witnesses afresh before the trial court by way of remand cannot be construed as filling-up the lacunae in the evidence of the prosecution, because those witnesses are already cited in the charge sheet by the prosecution and the trial court did not exhaust the procedure to compel the attendance of those witness. 11. In view of my above findings, I do not find any justification to interfere in the judgment and order passed by the appellate court. However, the order of open remand given by the appellate court is not warranted in the facts and circumstances of the present case. I do not find that there is any need of examination of additional witness by invoking Section 311 of the Code of Criminal Procedure as the ownership of the diamond ring need not be established before the trial court. There is only need of examination of the seizure witnesses and recalling of the investigating officer after giving the opportunity to the prosecution and the defence. 12. There is only need of examination of the seizure witnesses and recalling of the investigating officer after giving the opportunity to the prosecution and the defence. 12. As a result, the judgment and order passed by learned Additional Sessions Judge, 3rd Fast Track Court, Bichar Bhawan, Calcutta in Criminal Appeal No.20/2012 is modified to the extent that the judgment and order passed by learned Metropolitan Magistrate, 6th Court, Calcutta in G.R. No.965/2002 is set aside and the case is remanded back to the trial court for examination of seizure witnesses and for recall of the investigating officer and for further examination of the petitioner/accused person under Section 313 of the Code of Criminal Procedure. The trial court is directed to give opportunity to both prosecution and defence and to hear both parties and write fresh judgment in the light of observation made by me in the body of the judgment. The entire exercise must be completed within a period of six months from the communication of the order. 13. The criminal revision is, thus, disposed of. 14. Let a copy of the order be sent down to the learned court below for favour of information and necessary action. Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible after compliance with all necessary formalities.