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2020 DIGILAW 105 (CAL)

Dukhiram Bhattacharya v. State Of West Bengal

2020-01-27

JAY SENGUPTA

body2020
JUDGMENT Jay Sengupta, J. - This is an application challenging an order dated 06.10.2018 passed by the Learned Additional Chief Judicial Magistrate, Bishnupur, Bankura in Complaint Case No. 05C of 2006, thereby allowing an application filed by the prosecution seeking correction and modification of an order passed earlier under Section 251 of the Code. 2. On 05.09.2005 a petition of complaint was filed against the accused/petitioner alleging commission of an offence under Rule 11 (2) of the West Bengal Forest Produce Transit Rules, 1951 read with the amendment of the Indian Forest (West Bengal Amendment) Act 1988, Section 7 and under Sections 65A of the Indian Forest Act, 1927. The Learned Magistrate was pleased to take cognizance of the offence on 16.01.2006. The accused appeared and the substance of the accusation was stated to him under Section 251 of the Code on 18.11.2006. The accused/ petitioner pleaded not guilty and claimed to be tried. After examination of the prosecution witnesses and the examination of the accused under Section 313 of the Code, the defence witnesses were being examined. At this stage the prosecution filed an application on 02.06.2018 contending that the offences were not properly explained to the accused and a correction and/or modification of the order passed earlier under Section 251 of the Code was required so that no prejudice would be caused to the accused. After hearing the parties, the Learned Magistrate was pleased to pass the impugned order allowing such modification as prayed for. 3. Mr. Amber Majumdar, Learned Counsel appearing on behalf of the petitioner, submitted as follows. In the present case no formal charge was framed. Only the particulars of the offence alleged were stated to the petitioner. Therefore, there was no scope of correcting and/or altering the earlier order passed under Section 251 of the Code. Section 216 of the Code could not be invoked to alter the charge as no formal charge had been framed. Besides, the bar on reviewing a final order as contained in Section 362 of the Code would very much be applicable in the present case and in view of the same, the order passed under Section 251 of the Code could not be reviewed and/or modified. Besides, the bar on reviewing a final order as contained in Section 362 of the Code would very much be applicable in the present case and in view of the same, the order passed under Section 251 of the Code could not be reviewed and/or modified. Reliance was placed on the decision of the Hon'ble Apex Court in the case of AR Antulay Versus R.S. Nayak and Another, (1984) 2 SCC 500 and it was submitted that a Court should read a provision as it is and ought not rewrite it to suit its convenience. Reliance was also placed on a decision of this Court passed in Chiranjit Pal Versus West Bengal Khadi and Village Industries Board and Another, (1969) AIR Calcutta 152 . It was submitted that when the Code of Criminal Procedure directs to do things in a certain way, the same should be done in the said way only and not otherwise. The decisions relied on by the Learned Court below as reported in AIR 1955 Cal 558 and AIR 1956 Nag 71 were distinguished on facts because there the applications were made by the accused and not by the prosecution. On facts, the prosecution ought not be permitted to have an order passed under Section 251 of the Code corrected after a lapse of about twelve years. 4. Mr. Sabir Ahmed, Learned Counsel appearing on behalf of the State and the opposite party no. 2 submitted as follows. Section 251 of the Code did not require any application of mind on the part of the Presiding Officer. The substance of the accusation was merely to be stated to the accused. Such an order was neither a final one nor was in the nature of a judgment. Therefore, Section 362 of the Code would not act as a bar on a review and/or modification of such an order. Section 216 of the Code permitted a Court to alter and/or add to any charge before the pronouncement of a judgment. This could very well be read together with the provision of explaining an accusation under Section 251 of the Code. There were some errors in mentioning the particular provisions which were violated. As such, it would be in the interest of justice that the recording under Section 251 was corrected. This could very well be read together with the provision of explaining an accusation under Section 251 of the Code. There were some errors in mentioning the particular provisions which were violated. As such, it would be in the interest of justice that the recording under Section 251 was corrected. This would be in the interest of the accused as well and would ensure that no prejudice was caused to him. The Learned Magistrate, while allowing such application, observed that the plea was recorded by an order dated November 18, 2006 under Section 65A of the Indian Forest Act instead of sub-rules (2) and (3) of Rule 4 of the West Bengal Forest Transit Rules, 1951 and punishable under sub-rule (2) of Rule 11 of the West Bengal Forest Produce Transit Rules, 1951 read with Section 7 of the Indian Forest (West Bengal Amendment) Act, 1988 and Section 65A of the Indian Forest Act, 1927 and the offences were not fully explained to the accused by the Court, when the plea was recorded and considering such aspect the substance of accusation was required to be stated to the accused afresh. On the issue of alteration of charge under Section 216 of the Code, reliance was placed on Anant Prakash Sinha alias Anant Sinha versus State of Haryana & Anr., (2016) 3 CalCriLR 5 (SC) . 5. I heard the submissions of the Learned Counsel appearing on behalf of the petitioner and the opposite parties and perused the revision petition. 6. It is trite law that in order to be termed as a final order, such order need not finally dispose of an entire proceeding. In other words, if a particular issue is decided by an order it is quite final so far as the decision on such issue is concerned. Such decision may not finally decide the entire proceeding and may be passed at an intermediate stage. In view of this, one can fairly conclude that the stating of the particulars of an accusation under Section 251 of the Code is a final order. Therefore, unless it can be shown that there is a provision which permits an alteration of the same, the bar as contained in Section 362 of the Code shall preclude the same Court from reviewing such order. The only remedy therefore will lie before the superior Court. 7. Therefore, unless it can be shown that there is a provision which permits an alteration of the same, the bar as contained in Section 362 of the Code shall preclude the same Court from reviewing such order. The only remedy therefore will lie before the superior Court. 7. Section 251 of the Code of Criminal Procedure may be set out as under : "251. Substance of accusation to be stated. - When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge." 8. From a plain reading of the provision it can be unerringly inferred that the provision is meant to be a surrogate of a charge. In fact, it has been clearly provided that a formal charge need not necessarily be framed in such a case. As a natural corollary, it would follow that even a formal charge could be framed while exercising powers under Section 251 of the Code. 9. "Charge" has been defined in Section 211 of the Code of Criminal Procedure. Section 216 of the Code provides for an alteration of the charge. Sub-section (1) of Section 216 provides that any Court may alter or add to any charge at any time before a judgment is pronounced. Sub-section (2) provides that every such alteration or addition shall be read and explained to the accused. Therefore, if one reads along with these, the provisions contained in Section 251 of the Code that the particulars of an accusation are to be stated to the accused and that a formal charge need not be framed, it can fairly be argued that the provisions under Section 216 shall equally apply to an accusation and/or charge, whichever may be the case, as referred to in Section 251 of the Code. 10. In this context, it is also significant that Chapter XVII of the Code deals with charge, its alteration and the like and not with a particular form of trial while Chapter XX, which contains Section 251, deals with trial of summons-cases by Magistrate. Thus, these provisions are not to be read to the exclusion of each other. 10. In this context, it is also significant that Chapter XVII of the Code deals with charge, its alteration and the like and not with a particular form of trial while Chapter XX, which contains Section 251, deals with trial of summons-cases by Magistrate. Thus, these provisions are not to be read to the exclusion of each other. Rather, a harmonious reading of the two provisions namely, Sections 216 and 251 of the Code would imply that even if a formal charge was not framed under Section 251 of the Code, any charge could be added in future. Secondly, the concept of alteration of charge need not necessarily be limited to the trial of cases before the Court of Session or the trial of warrant cases by Magistrate. 11. Therefore, the exercise of inherent powers would not be required to correct an order under Section 251 of the Code. An alteration of charge as envisaged under Section 216 of the Code would equally apply in respect of Section 251 of the Code. 12. The harmonious construction of the provisions as referred to above being Sections 216 and 251 of the Code does not at all amount to rewriting of statues. It comes out of a careful reading of provisions that are already there in the statute book. 13. Although not so much in the above terms, this Court as well as the Nagpur Bench of the Hon'ble Bombay High Court had taken the view that if the particulars of an offence were not stated to the accused by a Magistrate, the same ought to be explained fully and the accused ought to be tried again on this point. The Learned Magistrate quite rightly relied on the decision of this Court in Golam Ahia versus Lutfal Hoda and Another, (1955) AIR Calcutta 558 in this regard. The Nagpur Bench of the Hon'ble Bombay High Court had also taken a view in the State Government versus Deodatta Diddi, (1956) AIR Nagpur 71 that if the accusation was not explained to the respondent at the beginning of the trial, he would not be entitled to an acquittal but to a retrial. The plea of the petitioner that these decisions were delivered upon a prayer for alteration by the accused does not touch upon the ratios laid down and hence, cannot be termed as a distinguishable feature. 14. The plea of the petitioner that these decisions were delivered upon a prayer for alteration by the accused does not touch upon the ratios laid down and hence, cannot be termed as a distinguishable feature. 14. It would indeed be better to correct such mistakes as in a charge or the surrogate of a charge before the conclusion of the trial than after. 15. It is true that in the present case the prosecution failed to detect the mistake early on. But, nothing has been placed on record to show that the prosecution was responsible for any part of the delay caused. Nothing has been brought on record to show that the petitioner/accused had prayed for an expeditious trial at any point of time. Be that as it may, when it is found that a defect in stating the particulars of an accusation to the accused under Section 251 of the Code can be cured, a mere passage of a length of time should not come in the way of giving effect to it when the same is in the interest of justice and is not prejudicial to the accused. 16. In view of the above discussions, I do not find any illegality in the impugned order. Accordingly, the revisional application is dismissed. 17. However, there shall be no order as to costs. 18. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.