Calcutta High Court (Appellete Side)
Pabitra Das & Ors vs Ruma Das & Anr on 30 July, 2015
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present :
THE HON'BLE JUSTICE SANKAR ACHARYYA
C.R.R. No. 1068 of 2014
In the matter of :
Pabitra Das & Ors.
Vs.
Ruma Das & Anr.
For the petitioners : Mr. Subhasish Pachhal; adv.
Mr. Rameswar Sinha; adv.
For the opposite : Mr. Debashis Banerjee; adv.
party/wife
Heard on : 01.07.2015
Judgment on : 30.07.2015
SANKAR ACHARYYA, J.
This revisional application has been filed by five accused petitioners against de facto complainant/complainant Ruma Das as Opposite Party (in short O.P.) No. 1 and The State of West Bengal as Opposite Party No. 2. The petitioners have alleged in substance that the Opposite Party No. 1 filed a complaint against the petitioners as accused under Section 406/34 of the Indian Penal Code in the Court of learned Chief Judicial Magistrate, Howrah and that complaint has been registered in that Court as Complaint Case No. 192 C of 2011. Simultaneously, said Ruma Das filed another complaint under Section 156(3) of the Code of Criminal Procedure, 1973 on 15.03.2011 in the same Court against these petitioners and in pursuant to the order of learned Chief Judicial Magistrate the Sankrail Police Station Case No. 133 of 2011 dated 17.03.2011 under Sections 498A/406/325/308/506/34 of the Indian Penal Code and under Sections 314 of the Dowry Prohibition Act was started treating that complaint as first information report (in short FIR). After investigation Police submitted charge-sheet No. 248/11 dated 31.05.2011 under Sections 498A/406/325/308/506/34 of the Indian Penal Code against all the present petitioners as accused. In both the complaint case (192 C/2011) and Police case (Sankrail Police Station Case No. 133 of 2011 dated 17.03.2011) cognizance has been taken. The police case has been committed to the Court of Sessions and it is awaiting for trial. All the petitioners as accused persons in both the cases have been granted bail. Since the offence punishable under Section 406/34 of the Indian Penal Code is triable by Magistrate of the first class the complaint case is pending in the Court of learned Chief Judicial Magistrate, Howrah. Petitioners made a prayer before learned Sessions Judge, Howrah for withdrawal of the Complaint Case No. 192 C of 2011 from the Court of learned Chief Judicial Magistrate, Howrah and transfer of the same to another Court for conjoint trial but their prayer has been rejected by learned Sessions Judge, Howrah in Criminal Misc. Case No. 1431 of 2013 on 26.02.2014. Challenging that order the instant revisional application has been filed for quashing of the proceeding being Case No. 192 C of 2011 under Section 406/34 of the Indian Penal Code now pending in the Court of learned Chief Judicial Magistrate, Howrah.
At the time of hearing this case no one appeared to represent the Opposite Party No. 1 but learned counsels for petitioners and the State participated in the hearing.
On perusal of the impugned order passed by learned Sessions Judge, Howrah it appears that learned Sessions Judge has considered the provisions of Section 210 of the Code of Criminal Procedure, 1973 but has omitted to consider the provisions of Section 26 of that Code by exercise of which any offence under the Indian Penal Code (including Section 406/34) may be tried by the Court of Session. In this case it is undisputed that in both the complaint case and police case present petitioners are accused and in both the said cases Section 406/34 of the Indian Penal Code is common. In the complaint case excepting Section 406/34 of the Indian Penal Code there is no other section but in the police case there are some other sections also.
Be that as it may, Section 210 of the Code of Criminal Procedure, 1973 reads as:-
"Procedure to be followed when there is a complaint case and police investigation in respect of the same offence -
1. When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the magistrate, during the course of the inquiry or trial held by him, that an investigation by the police on progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer concluding the investigation.
2. If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
3. If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the pplice report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code".
In the instant case there is a complaint case being No. 192 C of 2011 and police case being Sankrail Police Station Case No. 133 of 2011 both have been brought against same accused persons about the same subject matter. But the complaint case is triable by Magistrate of first class while the police case is exclusively triable by Court of Sessions. It appears from the copy of impugned order that the police case is now pending for Sessions Trial being S.T. No. 430 of 2013. As such, said police case cannot be tried in the Court of Magistrate. But according to Section 26 (a)(ii) of the Code of Criminal Procedure, 1973 the Court of Session is competent to try the Magistrate triable complaint case also.
In that view of the matter the impugned order dated 26.02.2014 passed by learned Sessions Judge, Howrah in Criminal Misc. Case No. 1431 of 2013 cannot be upheld. Accordingly said order is liable to be set aside.
At the time of hearing learned counsel for the petitioners has relied upon a decision of this High Court in the case of Sri Ram Sarkar Hazra Vs. The State of West Bengal reported in (2007) 2 C Cr.L.R. (Cal) 712 and has claimed that the Complaint Case No. 192 C of 2011 is liable to be quashed. On going through the said decision I do not find any similarity with the present case. In that reported case two first information reports (FIR) was registered at Chinsurah Police Station on the same subject matter and the proceedings on second FIR was quashed. As such, said decision is not helpful for petitioners' claim of quashing the complaint case here.
As a result, the impugned order dated 26.02.2014 in Criminal Misc Case No. 1431 of 2013 is hereby set aside. Learned Sessions Judge, Howrah is to pass order for withdrawal of the complaint case from the concerned Court of learned Magistrate and for trial of both the complaint Case (192 C 2011) and the Sessions Trial No. 430 of 2013 together by the same Court of Session.
A copy of this judgment be sent under signature of Assistant Registrar to learned Sessions Judge, Howrah for information and compliance.
Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SANKAR ACHARYYA, J.,)