Calcutta High Court (Appellete Side)
(Alllowed) vs Mir Abdul Rahaman & Anr on 7 May, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
07.05.2013 CRR 1309 of 2002
Court No.29
Item No. 22
Nazrul Haque & Ors.
(alllowed)
Vs.
Mir Abdul Rahaman & Anr.
Mr. S.S. Roy, Advocate
....For the Petitioner
Even after service of administrative notice duly received by
the opposite party no. 1, Mir Abdur Rahaman, none appears.
Today the learned lawyer of the petitioners is present. Heard
him.
This revision arose out of judgment and order dated
02.05.2002 passed by the learned Additional Sessions Judge,
North 24-Parganas, Barasat in Criminal Appeal No. 39 of 2000,
modifying the judgment dated 29.06.2000 passed by the learned
S.D.J.M., Barasat in case no. C-196 of 1993 and thereby
convicting and sentencing the petitioners for two months each for
offence under 148 of the Indian Penal Code etc. etc.
In the background of this case, the fact is as follows:-
The complainant/respondent no. 1 filed a complaint case
before the Chief Judicial Magistrate at Barasat to the effect that on 28.03.1993 at about 07.00 a.m., the appellants forming an unlawful assembly being armed with deadly weapons forcibly entered into the house of respondent no. 1 and assaulted him causing injury and damaged the household articles. Some witnesses were sn examined before charge and learned S.D.J.M., Barasat framed charge against the accused persons under Sections 147/148/323/379/ 427/448 of the Indian Penal Code. The contents of the G.D. (Ext. 3) shows that on 28.03.1993 at about 07.00 a.m., the accused persons facing trial came to the house of the complainant and used filthy languages and tried to assault him. But in cross-examination, the complainant admitted that there is no story in the G.D. about snatching or theft and causing damage to their property. At the time of recording statement under Section 313 of the Code of Criminal Procedure, the accused persons claimed that they are absolutely innocent and have been falsely implicated in the said case since the petitioner no. 1 lodged a G.D. over the incident on the self-same day and specific criminal case has been instituted against the respondent no. 1 and others vide Nimta P.S. Case No. 58 dated 28.05.1993 under Sections 147/323/504/507 of the Indian Penal Code. The learned Court below convicted the appellants.
Being aggrieved by and dissatisfied with the judgment dated 29.06.2000, the petitioners filed an appeal being Criminal Appeal No. 39 of 2000 before the ld. Additional Sessions Judge who by his judgment dated 02.05.2002 was pleased to convict the petitioners under Sections 148/448/149 of the Indian Penal Code and confirmed the sentence passed by the learned SDJM, Barasat.
Being aggrieved by and dissatisfied with the judgment the present revision cropped up.
It was inter alia argued by the learned lawyer of the petitioner that both the Courts below contradicted themselves and failed to take into consideration the credibility of the witnesses. He further argued that the main allegation has not been proved in this case. So, the question of conviction under Section 441 of the Indian Penal Code not to speak of Section 448 of the Indian Penal Code does not arise. In support of his contention, the learned lawyer of the petitioner placed before me a decision as reported in AIR 1983 SC 159 (Smt. Kanwal Sood Vs. Nawal Kishore and Ors.).
I have duly considered the materials so far collected and lend my patient hearing to the submission of the learned lawyer of the petitioner. First of all, I like to put on record that nothing of the sort as to alleged theft and damage of household articles or so has been taken into consideration by both the Courts below. They wanted to mean that trespass took place by the petitioners armed with deadly weapons. But this factum, if for argument's sake, is taken as sacroscant, the same itself by no stretch of imagination can constitute an offence in the light of the decision referred to above. That apart if main offence does not seem to have been established, the enabling Sections namely 147/148 do not come to any aid.
This being the position, I find substance in the revision and accordingly the same stands allowed.
The petitioners are reported to be on bail. They may be released from bail bonds, if not wanted in any other case.
The rule may accordingly be made absolute.
(Toufique Uddin, J)