Calcutta High Court (Appellete Side)
Ms. Falguni Das vs The State Of West Bengal & Ors on 14 May, 2014
Author: Asim Kumar Mondal
Bench: Asim Kumar Mondal
1
C.R.R. 1221 OF 2008
14.05.2014
Ms. Falguni Das.
Vs.
The State of West Bengal & Ors.
Mrs. Nilima Das
.... for the petitioner.
Mr. Suman De
... for the State.
Mr. Sabir Ahmed
Mr. Bhaskar Hutait
Mr. Debajyoti Goswami
... for the opposite party No. 2
The present application has been filed under Section
397/401/482of the Criminal Procedure Code challenging the order dated August 17th, 2006 passed by learned Judicial Magistrate, 2nd Court at Tamluk in G.R. Case No. 510 of 2000.
The fact of the case can be summed up as follows : -
The petitioner herein filed a complaint under Section 156(3) of Criminal Procedure Code against the opposite parties alleging the commission of offence punishable under Section 323/354/337 read with Section 34 of the Indian Penal Code. The said complaint was sent to police for registering the case and investigation. Accordingly police registered the case as G.R. No. 510 of 2000 investigated the 2 matter and submitted charge sheet against one person out of five F.I.R. named accused. The investigating agency on submission of charge sheet prayed for discharge of remaining accused person named in First Information Report and submitted that a prima facie case was made out only against the accused Dinabandhu. Accordingly cognizance was taken and the case was proceeded on trial after being transferred the same to the Court of the learned Judicial Magistrate, 2nd Court at Tamluk.
In course of trial the defacto complainant Falguni Das filed a petition under Section 319 of the Cr.P.C. with a prayer to take cognizance and issue process against the accused persons named in column 2 of the charge sheet who has been discharged on the prayer of the investigating agency. The learned Trial Court by the order impugned dated August 17th, 2006 has been pleased to reject the petition under Section 319 of the Cr.P.C.
Being aggrieved by and dissatisfied with the said order of rejection by the learned Trial Court the defacto complainant Falguni Das has preferred the present revisional application on the ground that the observation made by the learned Judicial Magistrate in the impugned 3 order is vitiated by palpable errors and gross irregularities and as such the said order cannot stand in the eye of law.
Learned Advocate Mrs. Nilima Das appears for the petitioner and submits that the observation of learned Judicial Magistrate cannot be sustained in view of the fact that the opposite parties were also involved in the criminal offence as alleged and the same is transferred in the course of trial at the time of examination of the witnesses. So, learned Trial court has violated all norms and procedure as prescribed in the Code of Criminal Procedure under Section 319 of the said Act. Learned Counsel also submits that the learned Trial Court has failed to exercise the jurisdiction under Section 319 of the Criminal Procedure Code vested upon him.
Mr. Bhaskar Hutait and Mr. Debyojyoti Goswami appear on behalf of the opposite parties and submits that there is no scope to interfere into the order as learned Trial Court has observed that there is no scope to invoke the power vested upon him under Section 319 of the Criminal Procedure Code at the stage of trial. Mr. Ahmed appearing on behalf of the opposite parties, submits relied upon one decision of Hon'ble Apex Court reported in 2014 (1) Supreme 132 that at the time of taking cognizance the 4 Court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 of Cr.P.C. though the test of prima facie is the same, the degree of satisfaction that is required is much stricter. Mr. Ahmed also submits that learned Trial Court has elaborately discussed to come to the conclusion relying upon a decision of Hon'ble Apex Court reported in (1990) 4 SCC 580. It is further submitted that the power under Section 319 of the Criminal Procedure Code can be exercised against a person not subjected to investigation or a person placed in the column No. 2 of the charge sheet and against whom cognizance had not been taken, or a person who has been discharged. However concerning a person who has been discharged, no proceeding can be commenced against him directly under Section 319 Cr.P.C. without taking recourse to provisions of Section 300 (5) read with Section 398 of Cr.P.C. If during or after such enquiry their appear to be an evidence against such person power under Section 319 Cr.P.C. can be exercised. However, it is submitted that the power under Section 319 be exercised against an accused person only after an enquiry has completed by Section 300 (5) and 398 of Cr.P.C. and during and after enquiry there appears to be an evidence against such person, power under 5 Section 319 Cr.P.C. can be exercised. Mr. Ahmed also submits and concluded his argument that the trial under Section 319 Cr.P.C. can be eclipsed by virtue of above provisions and the same cannot be invoked so far as a person discharged is concerned.
Considered the submissions of learned Counsel appearing on behalf of the parties as well as certified copies of order impugned, annexed herewith. The order impugned, it appears that learned Judge relied upon a decision of Hon'ble Apex Court reported in (1990) 4 SCC 580 where Hon'ble Apex Court held that the person discharged under Section 245 cannot be proceeded again under Section 319 Cr.P.C. So, learned Trial Judge came to the conclusion that the formal order of discharge was passed, at the stage of prosecution under Section 245 Cr.P.C. and as such the presumption should be that there was no case made out against the persons discharged and not sent up in the charge sheet. So, without taking the recourse of provisions of Section 300 (5) read with Section 398 Cr.P.C. the court cannot invoke power under Section 319 of Cr.P.C. In view of the principles laid down in a case reported in 2014 (1) SCC 132 relied upon by the learned Counsel Mr. Ahmed, I find that power under Section 319 Cr.P.C. is a discretionary 6 power and also an extraordinary power. It is to be exercised 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 the offences. Only where a strong and cogent offences occurs against a person from the evidence led before the Court, only then such power should be exercised and not in a casual manner. Section 319 Cr.P.C. significantly uses two expressions that have to be taken note of i.e. (1) Enquiry and (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under sections 200, 201, 202 Cr.P.C. and under section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the Court after the trial commences, for the exercise of power under Section 319 Cr.P.C. and also to add an accused whose name has been shown in Column 2 of the charge sheet. In such circumstances the evidences under Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. 7
In the instant case upon proper consideration of the submissions advanced by the learned Counsel for the parties and the facts and circumstances of the case as well as materials placed before me I do not find any scope to interfere into the order impugned as the same is not suffering from any gross irregularity or illegality in view of the guideline of the Hon'ble Apex Court in a case quoted as above.
In the result revisional application stands dismissed without costs. The stay if any, granted by this Court stands vacated.
Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.
(Asim Kumar Mondal, J.) Later :
Mrs. Nilima Das, Learned Advocate for the petitioner prays for stay of the operation of the order for a period of four weeks.
Prayer is considered and rejected.
(Asim Kumar Mondal, J.)