Calcutta High Court (Appellete Side)
Bitan Sengupta & Anr vs The State Of West Bengal & Anr on 12 September, 2017
1 12/09/2017
ARDR CRR 3400 of 2016 + CRAN 3232 of 2017 Bitan Sengupta & anr.
Vs. The State of West Bengal & anr.
Mr. Sandipan Ganguly, Sr. Adv., Mr. Rajesh Upadhyay, Mr. Habib Hassan, ... for the petitioners.
Mr. Tushar Kanti Panda, ...for the O. P. no.2.
Mr. S. G. Mukherjee, Ld. P.P. Mr. Sourav Chatterjee, ...for the State.
The instant revisional application has been filed by the petitioners challenging the judgment and order dated 21/9/2016 passed by the learned Additional Sessions Judge, 5th Court, Burdwan in Criminal Appeal no. 28 of 2014 dismissing the aforesaid appeal and affirmed the judgment and order of conviction recorded by the learned Judicial Magistrate, 2nd Court, Durgapur in G.R. case no. 1584 of 2011.
The main argument advanced by the learned counsel appearing for the petitioners is such that after suffering an order of conviction from the learned Judicial Magistrate there was a significant development. A Matrimonial Suit was filed before the Additional District Judge, Durgapur and that was disposed of under Section 28 of the Special Marriage Act. At that time, the present petitioners as well as the de facto complainant filed a notarial certificate before the trial Court that both of them would 2 withdraw all the proceedings pending before the Court and at the same time they have relinquished their rights whatsoever they may have. In spite of that the criminal appeal was carried on and the learned first appellate Court, after considering the evidence, confirmed the judgment passed by the learned trial Court.
Both the Courts have come to a concurrent findings on appreciation of evidence. Normally the revisional Court does not like to appreciate the evidence on which there is concurrent finding of the Courts below. Yet, in the interest of justice, I have to consider the evidence also.
It is in evidence that the accused slapped the victim on the ground of demand of rupees One lakh as dowry. That part of her evidence has not been challenged by the defence at the time of trial. This goes to show that the accused indirectly admitted that position. It also transpires from the evidence that the accused took a plea that at that relevant point of time he was not in India and he is a citizen of Australia The accused/petitioner/husband before the trial Court taken a defence stated that he was not in India. Naturally, when he asserts a specific plea/alibi that at that point of time he was not in India, it was his duty to produce the passport to show the relevant date/period when he was not in India. But he did not have the courage to produce the same lest he caught on a wrong foot.
3
Be that as it may, on perusal of the impugned judgment and findings of the learned first Appellate Court, it is very difficult on my part to take a different view.
Learned counsel appearing for the petitioners has relied two decisions reported in (2007) 2 C. Cr. L.R. Cal 206 and 2007 (4) CHN
460. Factual aspect of the case reported in 2007(4) CHN 460 is completely different from the present one. In that case after filing of the case the wife made a settlement with the husband and at the relevant point of time the wife was residing in her husband's house. Considering that aspect, a coordinate Bench of this Court has passed the order. Factual scenario of this case is completely different from that one.
On perusal of the judgment reported in 2007 (2) C.Cr.L.R. Cal 206, I find that the coordinate Bench relied on a joint affidavit filed by the accused and the de facto complainant. On being asked and requested by this Court to the learned counsel appearing for the petitioners that whether it will be possible on his part to produce the de facto complainant for filing an Affidavit or not. But the petitioner declined. Quite rightly, the said decision of 2007 (2) C. Cr. L. R. Cal 206 cannot be applied here. He has also referred two other decisions of Hon'ble Apex Court reported in (2005) 3 SCC 299 and (2005) 3 SCC 302. I have gone through those judgments and it appears to me that those judgments were passed in the context of pre-trial stage and not at such stage. 4
He has also relied on a judgment reported in (2008) 5 SCC 794. The relevant paragraph 9 of the said judgment is reproduced below:
"9. The appellants being aggrieved by the said judgment of the first appellate court filed three separate petitions under Section 482 CrPC before the High Court for quashing the proceedings pending in the Court of Second Additional District and Sessions Judge, Gwalior. The High Court also declined to interfere in the matter. The appellants being aggrieved by the impugned judgment of the High Court have preferred this appeal".
Before coming to the decision, the Hon'ble Supreme Court has considered the submission made by the complainant that she was not interested to prosecute the appellant. But here the picture if completely different. Secondly, the Hon'ble Supreme Court can pass any order under Article 141 of the Constitution of India while the High Court does not have such power to make Section 482 as compoundable.
Learned counsel appearing for the de facto complainant appeared without vakalatnama and urged that the de facto complainant is no more interested to proceed with the appeal.
Considering the aforesaid facts and circumstances, I am of the view that both the Courts below have come to a correct conclusion, which do not call for any interference.
Accordingly, the CRR stands dismissed. As a consequence, the CRAN also stands dismissed.
The petitioners are hereby directed to surrender before the trial Court within seven days from the date, failing which the learned trial Court shall take all measures so that the convict serves out the sentence 5 as awarded by the trial Court. In case of necessary, he can take the help of interpole to ensure the presence of the petitioner.
The department is directed to send a copy of this order to the learned trial Court below at once.
Urgent photostat certified copy of this order, if applied for, be given to the parties.
(Siddhartha Chattopadhyay, J. )