Calcutta High Court (Appellete Side)
Sabitri Pramanik vs State Of West Bengal & Anr on 19 April, 2024
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble JUSTICE UDAY KUMAR
CRR No. 2805 of 2022
Sabitri Pramanik
Vs.
State of West Bengal & Anr.
For the Petitioner: Mr. Pratip Kumar Chatterjee,
Ms. Aiswarjya Gupta,
Ms. Priyanka Saha.
For the State O.P No.1: Mr. Debasish Roy, Ld. PP
Mr. Rudradipta Nandy. Ld. APP
Ms. Manisha Sharma.
For the O.P No.2: Mr. Shivaji Kumar Das.
Hearing Concluded on : 23rd February, 2024.
Judgment On : 19th April, 2024.
UDAY KUMAR J :,-
1.This revisional application is directed against the Order dated 30.06.2022 of Learned Judicial Magistrate, 2nd Court, Contai, Purba Medinipur, passed in G.R. Case number 639 of 2006 arising out of Contai Police Station Case number 232 of 2006 dated December 12, 2006 under section 420/468/ 471/409/34 of the Indian Penal Code,1860, whereby Ld. Judicial Magistrate has allowed the application of Dr. Bidhan Roy, filed U/S 319 of Cr.P.C, for addition of Santi Pada Bera, erstwhile Branch Manager of UBI bank and Sabitri Pramanik as an accused in said GR case. 2
2. Briefly stated, one written complaint U/S 156 (3) of Cr.P.C, was filed by Dr. Bidhan Roy to the Court of Ld. Additional Chief Judicial Magistrate Contai, Purba Medinipur, against Gopal Pramanik, Narayan Chandra Pusti and Santi Pada Bera upon which Ld. ACJM directed to the Officer-in-charge of Contai Police Station to register a case treating complaint petition as F.I.R and enquire into the allegations, vide his order dated 18th October, 2006. Accordingly, Contai Police Station Case number 232 of 2006 dated December 12, 2006 under section 420/468/471/409/34 of the Indian Penal Code, 1860 was registered against the accused Gopal Pramanik, (the husband of petitioner), Narayan Chandra Pusti, (the erstwhile Bank Manager UBI Contai Branch who sanctioned loan to Gopal Pramanik against the mortgage of sale deed of Dr. Bidhan Roy, and the then Branch Manager UBI Bank Khejuri Branch) and Santi Pada Bera, (Bank Manager UBI Bank Contai Branch succeeded Narayan Chandra Pusti). After investigation, charge sheet was submitted under section 420/468/471/34 of the Indian Penal Code,1860, only against Gopal Pramanik. Ld. A.C.J.M has taken cognizance of the offence thereupon and transferred it to Ld. Judicial Magistrate 3rd Court Contai for trial, after rejecting the protest petition U/S 173(8) of Cr.P.C filed by the de facto complainant (Opposite Party No.-2 herein). He again filed an application before the Court of Learned Judicial Magistrate, 3rd Court (Ld. Trial Court) praying for further investigation, but the said application was also rejected by Learned Trial Court and proceeded for framing of charge against the Gopal Pramanik for the offence under section 420/468/471 of the Indian Penal Code, 860.
3. Consequent upon the examination of de facto complainant (Opposite Party No.-2 herein) as prosecution witness number -1, the prosecution filed an 3 application before the trial court under section 319 of the Code of Criminal Procedure, 1973, for proceeding against the Narayan Chandra Pausthi and Sri Saktipada Bera, whose name appeared in the evidence to show him guilty of the offence, but the said application was rejected by the Learned Trial Court on 04th December 2011. The said Order of rejection prompted the O.P 2 to challenged it before this High Court by filing a Revisional Application being CRR No 333 of 2011. This application was disposed of by an Order dated March 16, 2016, whereby this Court modified the Order of Learned Trial Court dated December-04, 2010, to the extent that the Trial Court would like to proceed against Sri Narayana Chandra Pusthi for the offence u/s 420/120B of the Indian Penal Code, 1860 and also directed the Ld. Magistrate to take step against the Sri Narayana Chandra Pusthi in accordance with the provision of Section 319 of the Code of Criminal Procedure, 1973 and it was also observed that the evidence adduced by P.W-1 is not sufficient to proceed against the Sri Saktipada Bera.
4. Subsequent to the depositions of the prosecution witness no. 01 to 04, the Prosecution filed a petition under section 319 of the Code of Criminal Procedure, 1973 to the Ld. Trial Court for arraying Shaktipada Bera, the Branch Manager, United Bank of India, Contai Branch and Sabitri Pramanik, the loanee (wife of accused Gopal Pramanik) as accused in this case. This petition was allowed by the Learned Trial Judge vide Order number 188 dated June 30, 2022. Accordingly, both the persons namely Shaktipada Bera, the Branch Manager, United Bank of India, Contai Branch and Sabitri Pramanik, the loanee (wife of accused Gopal Pramanik) were summoned as an accused in this case. The said Order being number 188 dated June 30, 2006 is under challenge in this revisional application, 4 preferred by one of the accused Sabitri on the grounds that Sabitri Pramanik is housewife and she is no way associated with this offence. Name of Sabitri Pramanik never appeared in any record. She had no knowledge of the incident. The evidence of PW3 and PW4 could not be relied as they are interested witness.
5. Mr. Pratip Kumar Chatterjee, Learned Counsel for the petitioner contends that the petitioner is not connected or involved with the instant case because the land which has been mortgaged to the bank was earlier owned by them. Though it is a fact that the petitioner took loan from the Bank together with her husband, however, if there is any default or if there is any illegality made by the petitioner with the bank, the Bank may take steps against the petitioner.
6. Ld. Counsel has further contended that it appears from the loan closure certificates dated April 25, 2019 and December 26, 2019, issued by the Bank Authorities, that the loan, which was taken by the petitioner and her husband, has already been fully paid. Therefore, the petitioner should not be impleaded in this case. As such, an interference of this Court is very much necessary.
7. It is further contended that Learned Trial Court while passing the impugned Order dated June 30, 2022, failed to consider that the fact of mortgaged loan given by the said Bank to the petitioner herein, does not arise, because she was not the owner of the said landed property. She had taken loan jointly with her husband, to avoid the pain of higher rate of interest may be imposed upon the loanee i.e., the husband of the petitioner. The Learned Trial Court, passed the impugned order without considering the same. As such, an interference of this court is very much necessary. 5
8. It has further been submitted by the Learned counsel for the petitioner that the petitioner is a housewife and she is not connected with the alleged offence in any manner. Therefore, she should not be arraigned as an accused person in connection with the present case and therefore the impugned order is liable to be set aside.
9. Mr. Shivaji Kumar Das, Learned counsel for the Opposite Party number-2 submits that role of Sabitri Pramanik in taking a loan of 15 lakhs jointly with Gopal Pramanik, by mortgaging the sale deed no 3113 of 2003 is very much clear from the evidence of prosecution witnesses. Prior to mortgage, they had exchanged their deed vide a fresh deed of exchange and this fact was known to the petitioner and Gopal Pramanik despite that they mortgaged it for unlawful gains. It is fact that they had taken loan after mortgage of deed already exchanged upon which they had no right, title and interest over. As a result, said loan account became NPA, on and from the month of June, 2006.
10. He further contended that the names of Sabitri Pramanik and Saktipada Bera consistently appears from the evidence of Prosecution Witnesses. Therefore, the Learned Trial Court was absolutely justified in summoning Sabitri Pramanik and Shaktipada Bera as accused persons in connection with the said case by exercising the powers under section 319 of the Code of Criminal Procedure, 1973.
11. Mr. Debasish Roy, Ld. Advocate for O.P submitted that the petition under section 319 of Cr.P.C was allowed on the basis of materials available on record and it would not prejudice the interest of petitioner. He further stated that trial of this case is going on. These facts may also be decided by Trial Court on merit.
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12. It is evident that the allegation of criminal conspiracy to cause forgery for the purpose of cheating a person by producing a sale deed of a land over which he had no right, title or interest in any manner, to obtain the loan on the basis of equitable mortgage with respect to said land and by suppressing the deed of exchange executed between accused and complainant is involved in this case.
13. Thus, the main question is that whether the power U/S 319 of Cr.P.C. has been judiciously exercised by Ld. Trial Court or not?
14. For proper determination of this question, threadbare introspection of the provision of Section 319 of Code of Criminal Procedure, 1973, is necessary. It is reproduced as follows: -
"319. Power to proceed against other persons appearing to be guilty of offence-
(1) where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could not be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1) then-
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard.7
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry of trial was commenced.
15. It simply contemplates that the Court may proceed against such person, for the offence, to which, it appears from the evidences that he has committed any offence for which he may be tried together. The Constitutional Bench of Hon'ble Supreme Court has illuminated the scope of Section 319 Cr.PC, in Hardeep Singh vs. State of Punjab (2014) 3 SCC 92 as follows-
"57. Thus, the application of the provisions of Section 319 CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 CrPC can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to herein above, adding a person as an accused, whose name has been mentioned in Column 2 of the charge sheet or any other person who might be an accomplice." *** "105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. 8 The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."
16. Hon'ble Supreme Court of India has further explained the powers bestowed on the Court under section 319 Cr.P.C. in Sukhpal Singh Khaira vs. The State of Punjab: (2023) 1 Supreme Court Cases 289, and ruled that:
"15. At the outset, having noted the provision, it is amply clear that the power bestowed on the Court is to the effect that in the course of an inquiry into, or trial of an offence, based on the evidence tendered before the Court, if it appears to the Court that such evidence points to any person other than the accused who are being tried before the Court to have committed any offence and such accused has been excluded in the charge sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offence which appears to have been committed by such persons summoned as additional accused."
17. In Hardeep Singh (Supra), it has been eloquently stated that the word "evidence" in Section 319 Cr.P.C. has to be broadly understood and thus materials which have come before the Court in course of inquiry can be used for corroboration of evidence recorded by Court after commencement of trial; for exercise of power under Section 319 Cr.P.C.; and to add an 9 accused whose name is shown in column no.2 of the charge sheet. It further explained that statement made in examination-in-chief also constitutes "evidence" and the Court while exercising power under Section 319 Cr.P.C, post-commencement of trial, need not wait for evidence against person proposed to be summoned, to be tested by cross-examination.
18. In this regard some guidelines for the courts to follow while exercising the power U/S 319 of Cr.P.C were enunciated by Hon'ble Supreme court in Sukhpal Singh Khaira (Supra). The said guidelines are enumerated below -
(i) if the competent court finds evidence or if application under Section 319 Cr.P.C. is filed, regarding involvement of any other person in committing the offence based on evidence "recorded at any stage in the trial" before passing of the order of acquittal or conviction, it shall Pause the trial at that stage and the Court shall proceed to decide the fate of the application under Section 319 Cr.P.C.;
(ii) if the Court decides to summon an accused under Section 319 Cr.P.C, such summoning order shall be passed before proceeding further with the trial in the main case and depending upon the stage at which the order is passed, the Trial Court shall apply its mind to the fact as to whether such summoned accused is to be tried along with other accused or separately; and
(iii) if the power under Section 319 Cr.P.C. is not invoked or exercised in the main trial till its conclusion and if there is a split-up case, such power can be invoked or exercised only if there is evidence to 10 that effect, pointing to the involvement of the additional accused to be summoned in the spilt-up bifurcated trial.
19. Thus, it is manifested that power of summoning under Section 319 Cr.P.C. is not to be exercised routinely and the existence of more than a prima facie case is sine qua non to summon an additional accused.
20. Adverting to the case in hand, the allegation against the petitioner is that she played an active role in the commission of the alleged offence and put her signature to claim, joint loan together with her husband, on the basis of equitable mortgage. It appears from the evidence of PWs that petitioner was also involved in taking joint loan of Rs. 15 lakhs along with her husband Gopal Pramanik from the United Bank of India, Contai Branch, by mortgaging 10 decimals of land pertaining to Plot no 289, JL 263, Khatiyan no 214 of Mouza Padampukur, Khuriya, which was initially purchased by Gopal Pramanik from one Satyaranjan Sen and Smt. B. Sen vide sale deed number 3113 of 2003. The de-facto complainant /O.P2 acquired the title of said land from the owner Gopal Pramanik and Sabitri Pramanik by way of deed of exchange being number 3836/2003 executed on 18-06-2023 and further a sale deed number 6129 of 2004 executed on 21.07.2004. The de facto complainant/ OP2 constructed two storied building on the said land after obtained sanctioned plan on October 28, 2003 from Contai Municipality. Both, the petitioner and her husband suppressed the fact of said execution of deed of exchange from the banker, intentionally for obtaining loan from UBI Bank after mortgaging of the previous sale deed. On June 18, 2003 they obtained the joint loan of Rs 15 lakhs together with petitioner from the United Bank of India, Contai Branch by the mortgage of 11 the sale deed of land belonged to the O.P2 by showing his previous deed of sale dated March 21, 2003.
21. To decide the existence of any element of culpable collusion between Gopal Pramanik and petitioner Sabitri Pramanik for obtaining loan in their favour by mortgaging the land of the O.P. 2, Court should give full effect to the words used by the legislature, so as to encompass any situation which the Court may have to tackle, while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution. Moreso, the person whose name does not appear even in the F.I.R or in the Chargesheet or whose name appears in the F.I.R and not in the main part of the Chargesheet but in column no-2 and has not been summoned as an accused, can be summoned by the Court, provided the Court is satisfied that the conditions provided in the said statutory provisions stand fulfilled.
22. This view has been supported by Hon'ble Supreme Court in Rajendra Singh vs State of Uttar Pradesh and Another reported in 2007 (7) SCC
378. that, "20. The power under section 319 of the Code is conferred on the court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that the code has specifically conferred a power on the court to proceed against others not arrayed as accused in the circumstances set out by this section. 12 It is a salutary power enabling the discharge of a court's obligation to the society to bring to book all those guilty of a crime.'' And in Mohammed Safi vs Mohammed Rafiq reported in (2007) 14 Supreme Court Cases 544, that, "7. ... thus, a trial Court seeks to take recourse to the said provision, the requisite ingredients therefor must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appear to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf."
And in Bholu Ram vs State of Punjab and Another, (2008) 9 SCC 140, that, "20. Section 319 of the Code empowers a court to proceed against any person not shown to be an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused. ...
21. Sometimes a Magistrate while hearing a case against one or more accused finds from the evidence that some person other than the accused before him is also involved in that very offence. It is only proper that a Magistrate should have power to summon by joining such person as an accused in the case. The primary object underlying Section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. The power must be regarded and conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice."
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23. On the basis of aforesaid deliberations, it can be inferred that only Section 319 of Cr.P.C empowers the Court to ensure that all those apparently involved in the commission of an offence are tried together and none left out. There is no reason to restrict this power of the Court to do complete justice to the victim and to the society.
24. By following the above proposition of law, I would like to consider the evidence as adduced on behalf of the prosecution to decide whether the petitioner is liable to be prosecuted by invoking the provisions of Section 319 of the Cr. P.C. The fact of suppression of subsequent deed of exchange between the husband of Petitioner and Opposite Party number-2 with regard to the said land is evident. It is also explicit that Petitioner herein, along with her husband being accused no.1, had applied for loan by showing knowingly the previous deed of sale dated March 21, 2003 and they had suppressed the fact of execution of deed of exchange dated June 18, 2003 and obtained the loan of Rs 15 lakhs from the United Bank of India, Contai Branch, by mortgaging the said land of the Opposite Party number-
2. The petitioner, is the wife of accused namely Gopal Pramanik against whom charge-sheet has been submitted and the Petitioner together with her husband Gopal Pramanik had jointly applied for the said loan which was granted in their favour by way of equitable mortgage with respect to the Land belongs by deed of exchange to Opposite Party No.2 herein, which evidently indicates their dishonest and culpable intention along with collusion and further discloses her complicity towards commission of offences as alleged against her husband at the time of obtaining the loan.
25. In the attending facts and circumstances of case as reveals from the evidence of prosecution witnesses, I am of the view that the petitioner 14 cannot escape from her criminal responsibility by stating the reason that subsequently Bank had issued Loan Closure Certificate showing the repayment of whole Loan was fully made. Considering the evidence of the prosecution witness as well as the materials came before the Trial Court, I am of the view that there are sufficient material to proceed against the petitioner, as more than prima facie case is established against the petitioner for which the petitioner is liable to be prosecuted for the offences under section 420/468/471/120B of the Indian Penal Code.
26. It is fact that the edifices of Section 319 of Cr.P.C rests on the doctrine Judex domnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted. A constructive and purposive interpretation should be adopted which may advances the cause of justice and does not dilute the intention of the Statue. It is only logical that there must be substantive evidence against a person in order to summon him for trial, although he is not named in the Chargesheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction.
27. The prosecution evidence suggests more than prima facie case against the petitioner is available, as subject to rebuttal, she was in agreement with her husband in commission of unlawful activity to obtain loan by causing forgery for the purpose of cheating. As such, she is liable to arraigned as accused and to face trial together with the accused persons in accordance with the provisions of law.
28. The testimony of the Complainant/ OP2 and other prosecution witnesses examined during the trial revealed that the insinuations against the Petitioner were exactly the same as those attributed to the accused Gopal Pramanik, who is the husband of the Petitioner and is already facing trial. 15
29. Hence, in the absence of any distinguishable features, the Petitioner is also liable to be tried along with Gopal Pramanik and other accused persons already facing trial. In such view of the matter, I find that there exist sufficient grounds for summoning the Petitioner as additional accused.
30. In any event, Learned Trial Court while deciding the application filed under section 319, Cr.P.C, noticed the allegations made by prosecution against the petitioner, in the perspective of the evidence of prosecution witnesses. Learned Trial Court had objectively considered the entire matter and judicially exercised discretion under section 319, Cr.P.C for taking cognizance of the petitioner.
31. As such, the allegations of petitioner that summons were issued against her irrationally, which amount to abuse of process of law is baseless and not sustainable. In the impugned order, Learned Trial Court adequately considered on the facts of the case, evidence of PWs, and the documents produced at trial distinctively unravels that, the impugned order, to the extent of summoning Petitioner, therefore, satisfies the ingredients of Section 319 Cr.P.C. and may not warrant any interference of this Court. I do not find any reason to interfere with the impugned order as there is no irregularities or abuse of process of law appears from the face of the record in the peculiar facts and circumstances of the case.
32. In light of above discussion, I am of the considered view that there no irregularities or abuse of process of law in involved in the impugned order. The Petitioner has been rightly summoned, hence the order for summoning of Petitioner sustains. He is liable to be tried together with her husband and other accused persons.
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33. At last, I think it pertinent to discuss guidelines which is necessary for trial court to follow as enumerated by the Constitution Bench in Sukhpal Singh Khaira (Supra),. These are :
"41 (III). What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC ? 41.1 If the competent court finds evidence or if application under Section 319 of CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.
41.2 The Court shall thereupon first decide the need or otherwise to summon the additional accused and pass order thereon. 41.3 If the decision of the court is to exercise the power under Section 319 CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case. 41.4 If the summoning order of additional accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately. 41.5 If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
41.6 If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the accused who were being proceeded with.*** 17 41.11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held. 41.12. If, in that circumstance, the decision is to hold a separate trial in case of summoned accused as indicated earlier:
(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal, the order shall be passed to that effect in the main case and then proceed afresh against summoned accused."
34. The Trial Court shall, thus, proceed as per the aforesaid guidelines and in accordance with law. For the reasons afore stated but without expressing any views on merits, instant Criminal Revision is hereby disposed of in above terms.
35. The instant Criminal Revision Application, is thus liable to be dismissed as is suffering from lack of merit.
36. Accordingly, the instant Criminal Revision along with the application, if any is hereby dismissed.
37. The interim order/orders, if any stands vacated.
38. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard (Uday Kumar, J.)