Calcutta High Court (Appellete Side)
Asharat Sk. @ Hafizul @ Hafiz vs In Re:- Pijush Kanti Mondal on 7 March, 2017
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 45 07.03.2017
sm Rejected CRAN 2492 of 2016 With CRA 313 of 2016 In re: An application under Section 389 of the Code of Criminal Procedure, 1973 filed on 27.06.2016.
And In the matter of:- Asharat Sk. @ Hafizul @ Hafiz. .. Appellant. Mr.Debasish Roy, Mr.Bitasok Banerjee. ... for the appellant.
Mr.Subir Banerjee. .. for the State.
In a sessions trial, total four (4) persons were charged for committing offence under sections 341/396/397 of the Indian Penal Code. Finally, the present appellant was convicted and sentenced to undergo rigorous imprisonment for ten (10) years and eight (8) years respectively and to pay fine with default clause, whereas the co-accuseds were acquitted.
The said order of conviction is challenged in this appeal and after the appeal being admitted with leave granted by the court admitting the appeal, the appellant has approached this court for suspension of sentence and an order of his release on bail.
The learned advocate for the appellant vehemently contends that on the very next day of arrest of the appellant, he was placed in 2 the TI Parade and allegedly identified and a copy of the recovery memo was not exhibited during the trial.
He then draws our attention to the evidences of PW 18 and 20 and points out that, according to the said witnesses, the appellant was shown to them and PW 9 the only witness, who identified him in the TI Parade and in the court. He lastly submits that 313 was not conducted by the learned Judge.
The learned advocate for the appellant submits that the accused was not examined under section 313 CrPC by the learned trial Judge himself, rather the endorsement goes to show that it was merely done in his presence.
On the other-hand, the learned advocate appearing for the State vehemently opposes the prayer for suspension of sentence and submits that this is a case, where robbery was committed in the road and one person was killed and another was injured. The injured witness is PW 9 and he identified the appellant both in the TI Parade as also in the court.
He further submits that there is no bar in holding the TI Parade on the very next day of the arrest of the accused and there is nothing wrong. He also submits that PW 9 was suggested that the accused was before hand shown to him at the police station. However, he denied the fact. He was never cross-examined on the point what was stated by PWs 18 and 20.
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He further submits that the stolen articles were also recovered from the possession of the appellant.
The learned advocate for the State submits that such endorsement in the form for examination under section 313 CrPC cannot be taken to mean that the examination was not done by the learned trial Judge himself and it was merely done in his presence, because the top portion Form goes to show that the examination was done by the Presiding Officer of the court and such examination was also interpreted by him in the language understood by the accused and in the present case, it appears that the learned trial Judge interpreted the same in Bengali.
The learned advocate for the State finally insisted us to issue rule for enhancement of the sentence considering the gravity of the offence.
Heard the learned advocates appearing on behalf of both the parties. Considered their respective submissions. Perused the impugned judgement and the depositions of the witnesses. A copy whereof has been handed over to us by the learned advocate for the appellant.
This is a case, where robbery was committed in a road and one person was killed. The injured witness, who was accompanied the victim, has identified the appellant in the TI Parade and in the 4 court and the stolen articles were also recovered from his possession.
The lacuna, which has been pointed out to us by the learned advocate for the appellant, is not convincing. Accordingly, this application for suspension of sentence, being CRAN 2492 of 2016, stands rejected.
We agree with the learned advocate for the State that this is a fit case, where the enhancement rule should be issued, because not only that robbery was committed, but one person was killed in course of such crime.
We, therefore, direct that notice be served upon the appellant to show-cause as to why his sentence shall not be enhanced. The said notice be served upon him through the court of the learned Additional Chief Judicial Magistrate, Birbhum at Rampurhat and the question of enhancement will be considered at the time of final hearing of this appeal.
Office is directed to call for the lower court records, if not as yet called for. If the record is already there, the requisite number of paper books shall be prepared within six (6) months from this date or then four (4) months from the date of arrival of the records and immediately after the preparation of the paper books is complete and the appeal is made ready for hearing, the same shall be listed before the appropriate Bench for hearing. 5
We make it clear that any of the observations made hereinabove must not be construed as to our opinion regarding the merit of the case. We make it clear that those observations were made only for the reason that the same were necessary for taking the decision as to the question of bail.
Urgent xerox certified copy of this order, if applied for, be handed over to the learned advocates for the parties on their usual undertakings.
(Ashim Kumar Roy, J.) (Malay Marut Banerjee, J.) 17 07.03.2017 sm Rejected CRM No.1787 of 2017 In the matter of an application for bail under Section 439 of the Code of Criminal Procedure filed on 03.03.2017 in connection with Indpur Police Station Case No.46 of 2016 dated 02.10.2016 under sections 302/34/109 of the Indian Penal Code.
And In Re:- Pijush Kanti Mondal .. Petitioner. Mr.Samir Kumar Adhikari... for the petitioner Mr.Binoy Panda Ms.Pushpita Saha ... for the State.
6Heard the learned advocates appearing on behalf of the parties. Perused the case diary.
It is submitted by the learned advocate for the petitioner that his client is in custody for about 157 days. Investigation is over and charge-sheet has been submitted.
Opposing the prayer for bail, the learned advocate for the State draws our attention to the statements of the eyewitnesses to the occurrence and then to the post-mortem report.
Now, considering the nature and seriousness of the allegation and the materials collected during investigation and the gravity of the offence, in our opinion, this is not a fit case for bail.
Accordingly, this application for bail stands rejected at this stage.
We direct the learned court below to take steps for commitment of the case to the court of sessions for trial.
The learned advocate for the petitioner shall have the liberty to obtain photostat certified copy of this order and to communicate the same to the concerned court.
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Urgent photostat certified copy of this order, if applied for, be handed over the learned advocate for the petitioner after compliance of all formalities.
(Ashim Kumar Roy, J.) (Debi Prosad Dey, J.)