Calcutta High Court (Appellete Side)
Apu Mondal vs Unknown on 6 January, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1
06.01.2011
(2) mb C.R.R. 1506 of 2004
In re: An application under Section 401 read with Section
482 of the Code of Criminal Procedure
And
In the Matter of : Apu Mondal
Mrs. Kabita Mukherjee....................for the State
None appears on behalf of the petitioner.
Pursuant to the order of this Court dated 5th
January, 2011 the petitioner failed to comply with the
direction passed upon him.
The matter has come up for the purpose of
disposal on merit.
Mrs. Kabita Mukherjee, learned counsel
appearing for the State submits that there is no
irregularity or wrong in the order impugned. In order to
stop abuse of process of the Court and secure the ends of
justice, the learned Magistrate has rightly passed the
order under challenge. As such, she submits that there is
no scope for this Court to exercise its inherent power
under Section 482 of the Code of Criminal Procedure.
This petition, under section 482 of the Code, has
been filed by Apu Mondal, who is made an accused in a
case lodged by Uma Fulmali. The case was investigated
into and charge sheet was filed under Sections 493 and
376 of the Indian Penal Code against the petitioner. The
2
learned Magistrate, however, upon receiving the charge
sheet No. 120 dated 11.10.2000 under Sections 493 and
376 of the Indian Penal Code against Apu Mondal @ Aptu
Mondal, taken cognizance of offence under Section 417 of
the Indian Penal Code only without assigning any reason
whatsoever. The learned Magistrate also fixed date for
examination of Apu Mondal (hereinafter referred to as "the
petitioner') under Section 251 of the Code of Criminal
Procedure. On 26.2.2004 while the learned Magistrate
was about to examine the petitioner under Section 251 of
the Code, his attention was drawn by the learned Public
Prosecutor, who was conducting the case on behalf of the
State, to the fact that the charge sheet was filed under
Section 493 and 376 of the Indian Penal Code, not under
Section 417 of the Indian Penal Code and cognizance was
taken by the learned Magistrate inadvertently under
Section 417 of the Indian Penal code, which required to be
rectified and the case should be committed to the Court of
Learned Sessions Judge since offence disclosed in the
First Information Report as well as the charge sheet were
triable exclusively by a Court of Sessions. At that time,
the learned advocate conducting the case on behalf of the
petitioner, vehemently objected to such prayer of the
learned Public Prosecutor and urged that the learned
Magistrate had rightly taken cognizance under Section
417 of the Indian Penal Code as he was not bound by the
charge sheet filed by the Investigating Officer. The matter
3
was heard at length by the learned S.D.J.M. and an order
was passed on 28th.4.2004, which has been impugned in
this revisional application.
The learned Magistrate while disposing of the
matter came to the conclusion that there was a strong
prima facie case under Section 493 and 376 of the Indian
penal Code and the case was to be tried exclusively by a
Court of Sessions. The learned S.D.J.M. while passing the
order impugned has also observed that his predecessor in
Court failed to assign any reason as to why cognizance
under Section 417 of the I.P.C. was taken by him although
charge sheet was submitted under Sections 493 and 376
of the Indian Penal Code. The learned Magistrate by
exercising his power under Section 323 of the Criminal
Procedure Code came to a conclusion that while there is a
strong prima facie case against the petitioner under
Section 376 of the I.P.C. read with Section 493 of the
I.P.C., the case should be committed to a Court of Session
for trial. Hence he passed the impugned order to that
effect.
The petitioner has come up with this petition
under Section 482 of the Code for quashing of the entire
proceeding on the ground that the learned Magistrate had
no reason to alter or modify the order of cognizance dated
30.1.2001since it was not set aside by any superior Court, and that, the learned S.D.J.M., Rampurhat, violated the provisions of Section 362 of the Criminal 4 Procedure Code by modifying the order of cognizance passed by his predecessor in Court.
I have carefully gone through the order passed on 20.1.2001 by Shri S.S. Anand, Sub-divisional Judicial Magistrate, Rampurhat, whereby the learned Magistrate took cognizance of the offence under Section 417 of the Indian Penal Code against the petitioner upon receiving of the charge sheet No. 120 dated 11.10.2000 under Sections 493 and 376 of the Indian Penal Code. It appears therefrom that the erstwhile S.D.J.M., Rampurhat, did not find it necessary to record any reason as to why cognizance was taken under Section 417 of the Indian Penal Code instead of under Sections 376 and 493 of the Indian Penal Code. Peculiarly enough, the last paragraph of the said order dated 20.1.2000 passed by the learned Magistrate shows that he fixed 10.9.2001 for appearance and supply of copies and commitment of the case. The order appears to be self-contradictory because an offence under Section 417 of the Indian Penal Code is not triable exclusively by a Court of Session. Therefore, question of supply of copies and commitment of the case was not supposed to be rised. Apparently, it was a mistake on the part of the Court, might be a typographical mistake while cognizance of offence was taken. The matter was brought to the notice of the Court presiding over by Ashim Kumar Das on 26.2.2004. Shri Das found the order dated 20.1.2001 not in consonance with the materials placed 5 before the Court at the time of filing of charge sheet. He found that there was strong prima facie case against the petitioner under Sections 493 and 376 of the Indian Penal Code and there was no case at all under Section 417 of the Indian Penal Code. The said learned S.D.J.M., Rampurhat, found it proper to exercise power under Section 323 of the Code of Criminal Procedure and passed an order of commitment of the case to the Court of Session.
It has already been stated that there was no occasion for the erstwhile S.D.J.M. to take cognizance of offence under Section 417 of the Indian Penal Code instead of Section 493 read with Section 370 of the Indian Penal Code against the petitioner and there was no reason for that Magistrate also to fix date for commitment of the case upon taking cognizance of offence under Section 417 of the Indian Penal Code. So there was a mistake apparently in the face of record. That was made good by his successor in Court Mr. Das by invoking the provisions of Section 323 of the Code. The provisions of Section 323 of the Code says:
"323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed. - If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall, commit it to that Court under the provisions hereinbefore contained and thereupon the provision of Chapter XVIII shall apply to the commitment so made."
From the record it is found that the trial is commenced before the Court of learned S.D.J.M, 6 Rampurhat at any point of time. That being the fact, it cannot be said that the learned Magistrate acted illegally by modifying the earlier order of taking cognizance by his predecessor in Court under Section 417 of the Indian Penal Code against the petitioner.
The provision of Section 362 of the Code of Criminal Procedure applies only to the judgment or final order disposing of a case and no other orders. Therefore, the plea taken by the petitioner in this petition is not at all sustainable.
I have bestowed my serious thought over the issue and I am of the considered opinion that there is no reason for this Court to exercise its inherent power under Section 482 of the Criminal Procedure Code in this particular case. It is settled principle of law that power under Section 482 of the Code of Criminal Procedure is to be exercised sparingly with caution and with great care in order to prevent abuse of process of the Court or otherwise to secure ends of justice.
That principle has been reiterated by the Hon'ble Apex Court in a recent case in Preeti Gupta & Ors. V. State of Jharkhand & Ors., reported in 2010(3) C Cr.Lr. (SC) 411.
In the case in hand it has already been detected that there was a mistake on the part of the Court in writing section while the cognizance was taken by the erstwhile S.D.J.M. That mistake was detected by his 7 successor in Court subsequently when his attention was drawn by the learned Public Prosecutor and the mistake was rectified by invoking power under Section 323 of the Code of Criminal Procedure before commencement of the trial.
The factual aspect mentioned above altogether unequivocally suggests that the Clause was not at all prejudiced by the order impugned passed by the Court subsequently modifying the earlier order. At the cost of reiteration, I would like to say that High Court can invoke its inherent power under Section 482 of the Code of Criminal Procedure to prevent abuse of process of the Court or otherwise to secure the ends of justice. A lady was alleged to have been raped, a charge sheet, upon her F.I.R, was filed on completion of investigation under Section 376 of the Code against the petitioner. There was no occasion for the learned Court to take cognizance of offence under Section 417 of the Indian Penal Code without assigning any reason. To secure the ends of justice, the learned Magistrate subsequently modified the earlier order by invoking his power under Section 323 of the Code of Criminal Procedure and directed the case to be committed by the Court of learned Session Judge.
I think that the learned Magistrate have acted rightly to secure ends of justice and to prevent the abuse of process of the Court. This case does not appear to be a fit one where this Court can interfere into such an order, 8 which was passed in order to secure the ends of justice and to prevent the abuse of process of the Court.
The prayer made in this application under Section 482 of the Code of Criminal Procedure stands rejected.
The Criminal Revisional Application stands disposed of.
Interim order, if any, passed in connection of this revisional application, stands vacated.
The Criminal Department of this Court is directed to send down the Lower Court Records to the Court of learned Sub-divisional Judicial Magistrate, Rampurhat, Birbhum, immediately.
The Criminal Department is also directed to send a copy of this order to the learned Court of Sub-divisional Judicial Magistrate, Rampurhat, Birbhum, for taking necessary action.
Let urgent xerox certified copy of this order, if applied for, be given to the learned advocate of the parties on the usual undertaking.
(Kanchan Chakraborty, J)