Calcutta High Court
Surita Bhattacharjee vs State Of West Bengal on 9 August, 1999
Equivalent citations: (2000)1CALLT28(HC), 1999(2)CHN451
JUDGMENT G.R. Bhattacharjee, J.
1. Both these matters, one purportingly a reference under section 395(2) Cr.PC and the other an application under section 439 Cr.PC for bail are being disposed of by this order.
2. Sm. Surlta Bhattacharjee. the petitioner herein praying for bail, was facing trial in the 4th court of the Additional Sessions Judge at Barasat on a charge under section 302 1PC along with the co-accused Rajib Ghosh who was charged under section 302/120B IPC. The oral argument of both sides in the sessions trial in the court below was concluded on 15.1.99 when both the accused persons were on ball. On that date 15.2.99 was fixed for delivery of judgment. On 2.2.99 a written argument was submitted on behalf of the defence but the court below directed the same not to form part of the record as it was filed before the conclusion of the oral argument In compliance with section 314 Cr.PC. Judgment however could not be delivered on 15.2.99 as both the accused remained absent on that date and prayed for adjourment. The next date fixed for judgment was 24.2.99. In the meantime on 22.2.99 the accused Surlta filed a revlsional application under section Cr.PC In this court being CRR 271/99 for transfer of the sessions case from the trial court In view of publication of some news Item in a newspaper. Subsequently on 22.6.99 the accused Surlta filed another application under Article 227 in this court numbered as AST 29/99 praying for direction on the trial court to accept the written argument earlier filed by her and to make the same a part of the record. No order of stay was however granted by this court In any of those matters. In the meantime the sessions case which was ready for delivery of judgment suffered several more adjournments in the trial court for bringing stay order from this court. in default for delivery of judgment. Ultimately the trial court on 28.5.99 delivered judgment under the proviso to section 353(6) Cr.PC after rejecting the prayer for further adjournment made on behalf of the accused Surita who remained absent on that day although the co-accused Rajlb was present. By that judgment the trial court acquitted Rajib but convicted Surlta under section 302 IPC. The trial court fixed 14.6.99 for surrender of Surlta. She did not surrender on that date. Subsequently on 28.6.99 she filed before the trial court a lawyer's letter Informing that an order was passed by S.K. Tewari, J. on 23.6.99 In CRR 271/99 by which the learned Judge directed the trial court to treat the written argument of the accused as one filed under section 314 Cr.PC and to hear out the argument of the parlies afresh and then to dispose of the case. The learned Judge also directed Surlta to surrender in the court below within a fortnight. In view of such order passed by S.K. Tewari. J. on 23.6.99 both CRR No. 271/99 and A.S.T. 29/99 stood disposed of accordingly. It appears that in the meantime the accused Surlta filed an application on 8.6.99 before the trial court praying for sending the case record to the Copying Department so that she could obtain certified copy of the order and Judgment passed by the trial court on 28.5.99. From the text of the present reference made by the trial court it appears that the trial court in its order dated 14.6.99 expressed the view that Incomplete judgment without pronouncing the sentence after hearing the convict can not be forwarded to the Copying Department in violation of rule 250(b) of the Calcutta High Court Criminal (Subordinate Courts) Rules, 1985 and also forwarded a copy of the order dated 14.6.99 to the Judge-in-charge of the Copying Department for taking a decision accordingly.
3. Ultimately on 5.7.99 the accused Surlta surrendered In the court below and relying on the aforesaid order of S.K. Tewarl, J. dated 23.6.99 pressed for rehearing of the argument and also prayed for allowing her to continue on the same bail. The trial Judge In the last paragraph of his order dated 5.7.99 recorded that if Surlta was an accused he could consider her ball prayer and if she was treated as a convict under section 302 IPC he could not grant her any ball which according to him, was barred by law, and accordingly her ball prayer was considered and rejected at that stage and she was remended to jail custody. By that order dated 5.7.99 the trial judge Sri S.K. Chakraborly, Additional District & Sessions Judge. 4th court. Barasat thought It necessary to make the present reference to this court under section 395(2) Cr.PC for seeking 'appropriate clarification'. This is how the present reference is before us. The points of reference as formulated by the Additional Sessions Judge are as follows :
"(a) Where the present petitioner Surlta shall be treated an accused or convict in this case after pronouncement of Judgment on 28.5.99.
(b) Whether any certified copy of incomplete Judgment dated 28-5.99 without pronouncing sentence shall be given to her in violation of rule 250(b) of the Calcutta High Court Criminal (Subordinate Courts) Rules. 1985.
(c) Whether In terms of order dated 23.6.99 passed by the Hon'ble court, this court would be treated as a trial court or a sentencing court, and
(d) Whether it shall proceed to dispose of the case even if the convict-accused has lost her confidence upon this court and making her submission as such In writing (annexure 5)."
4. It is needless to say that a reference on a question of law should be made by a subordinate court under sub-section (2) of section 395 Cr.PC only for some compelling reason In an extraordinary circumstance, and not for any fanciful or spent up purpose. In the present case there was an order of a learned Judge of this court requiring the court below to rehear the argument of the parties in the sessions case and to dispose of the same. However the court below had, long before, delivered Judgment in the case acquitting one accused and convicting the other under section 302 IPC and the case was awaiting hearing on the question of sentence only In regard to the convicted accused. The learned Judge of this court who passed the order for rehearing of the argument by the trial court was however not aware of the fact that the trial court had already delivered judgment in the case. What is grossly shocking and unfortunate is that the convicted accused did not bring this fact to the notice of the learned Judge of this court and we would rather say that she obtained the order of this court by fraudulantly supressing this vital fact to the learned Judge who passed the order of this court. What is worse is that after, fraudulantly obtaining such order from this court she went back to the trial court and pressed for rehearing of the argument although the judgment had been delivered long back to her knowledge. Understandably the trial court was at crossroads. If it had to rehear the argument, it would possibly have to recall the Judgment already delivered including the order of acquittal. Whether that could be done under law to the prejudice of the acquitted accused, is indeed a legitimate question of law which the trial court could have referred to this court under section 395(2) Cr.PC in the peculiar and extraordinary circumstances obtaining In the case in view of the order passed by a learned Judge of this court without being made aware that the judgment had already been delivered in the case. Unfortunately the trial Judge, as we have seen, did not make the reference on that point and has Instead made the reference on certain other points which we have already noted.
5. Now coming to the first point of this reference, namely, whether Surita is to be treated as an accused or convict, we are constrained to say that this question is not only irrelevant but is also embedded in a misconception of law. That an accused remains an accused even after conviction would have been evident to the trial judge if he would have taken the trouble of looking into the provisions of sections 235(2), 363(2) & (4). 368, 377(3). 386(b) & (c). 391(3) Cr.PC etc. Moreover the order dated 5.7.99 passed by trial judge clearly shows that the trial Judge refused bail to the petitioner treating her as a convict under section 302 IPC. It is not understood what was the necessity of the reference on point No. 1. namely, whether the concerned person was an accused or convict and how was any such question relevant at all for the purpose of reference after the ball was refused to her by treating her as convict. The second point whether certified copy of the Judgment dated 28.5.99 should be given to the petitioner without pronouncing the sentence is also refundant, because at page 4 of the very reference itself the Addl. Sessions Judge has noted that on 14.6.99 he observed that Incomplete Judgment without pronouncing sentence after hearing the convict cannot be forwarded to the Copying Department in violation of rule 250(b) of the Calcutta High Court (Subordinate Courts) Rules, 1985 and he forwarded a copy of such order dated 14.6.99 to the Judge-ln-Charge, Copying Department to take a decision accordingly. That being so, there was no scope for him to make a reference on this point again to this court. The third point of reference, namely, whether in terms of the order dated 23.6.99 passed by this court, the court below should be treated as a trial court or a sentencing court is also wholly defundant and is basically a misconceived one. In the whole of the Code of Criminal Procedure there is no mention of any 'sentencing court' which is a product of misconception on the part of the court below. It is needless to mention that it is the trial court which has to impose the sentence as a trial court. Moreover, the question whether a particular court at a particular point of time is a trial court or a sentencing court Is also wholly unwarranted, more so In the context whether bail should be granted or not at a particular stage. The fourth and the last point of the reference is whether the court below should proceed to dispose of the case even if the convict-accused has lost confidence in the court below. It is needless to mention that this is not at all a fit question for reference to this court. In fact, as we have seen, the petitioner herself made an application before this court for transfer of the case which was however virtually rejected by the learned single Judge and therefore there was no further question whether the case should be transferred to some other court and there was no scope for making any reference to this court by the court below on this point. We are, therefore, clearly of the opinion that the reference made by the court below on points formulated by It is wholly unwarranted and misconceived and is a product of confused thinking on the part of the court below. The reference therefore, deserves to be rejected as being unwarranted and misconceived.
6. We are also shockingly surprised at the expressions made by the referring Judge in respect of the order passed by the learned single Judge of this court in disposing of the applications filed under section 482 Cr.PC and Article 227. The referring Judge made such expressions in the garb of giving his opinion on the points of reference. He however did not care to see whether under the provisions of law he was entitled or required to give opinion on the points of reference. A referring court is required to give opinion only when the reference is made under sub-section (1) of section 395. But sub-section (2) of the said section does not require the referring court to give its opinion when a reference Is made under the said sub-section (2) as is the case here. But inspite of that the referring judge in this case has freely used highly Improper and rather contumacious expressions In the garb of expressing opinion. He says : "The order passed in CRR No. 271/ 99 was under section 482 Cr.PC and that the order passed in A.S.T. No. 29/99 was under Article 227 of the Constitution of India. So far as acquitted Rajib Ghosh is concerned, there is apparent contradictions in the power exercised by the Hon'ble Court under Article 227 of the Constitution of India and section 482 Cr.PC and the liberty guaranteed to such accused under Article 20(2) of the Constitution of India. I also hold that as there is specific provision under section 378 Cr.PC for appeal against such order of acquittal, there is no scope for the Hon'ble Court to exercise power either under section 482 Cr.PC or under Article 227 of the Constitution of India." This is only a sample of the expressions used by the referring court in its reference which is replete, with improper expressions regarding the power of this court and the order passed by the learned single Judge of this court. It Is as if the referring court was sitting in appeal over the order passed by this court. The referring court not only went astray from the track of relevance which he was required to maintain, but also lost all sense of propriety and Judicial discipline which a subordinate court is required to maintain. We take a serious view of the expressions and criticisms made by a subordinate court In respect of the power exercised and order passed by a learned single Judge of this court and we think that, this is a case fit to be appropriately dealt with for contempt. However Instead of taking recourse to any such action we leave the matter by administering a caution to the Additional Sessions Judge with the expectation that In future he shall maintain judicial propriety and discipline and shall not Indulge In such contumacious and overbearing errantry.
7. Now coming to the application to ball filed In this court we do not consider it at all a fit case for granting ball to the petitioner at this stage, more particularly when we find that she went to the extent of suppressing a vital fact to the learned single Judge of this court for the purpose of procuring the order for rehearing of argument when as a matter of fact the trial court had already delivered judgment in the case. The prayer for ball merits rejection.
8. Since the order dated 23.6.99 passed by this court was obtained by suppressing the vital fact that Judgment in the case had already been delivered by the trial court, and since by such judgment the trial court had already acquitted one accused and convicted the other, there is no scope of rehearing of the argument. And since the order dated 23.6.99 was passed by this court unaware of that vital fact, the said order is infructuous and inoperative from the very Inception and is beyond the scope of implementation under law. We therefore direct the court below to hear the accused Surita now on the question of sentence and dispose of the case pending before It In accordance with law.
9. The prayer for ball is rejected and the reference stands disposed of. The Department is directed to communicate this order to the court below Immediately. The Registrar General is also directed to communicate this order to the officer concerned and Incorporate the caution we have administered to him, in his service dossier.
10. Petition disposed of M. K. Basu, J.
11. I agree.