Calcutta High Court (Appellete Side)
Subhrangshu Ghosh & Ors vs Unknown on 5 December, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 17 05.12.2011
m.b C.R.R. 2733 of 2010 In Re.: Application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973.
And In the matter of: Subhrangshu Ghosh & Ors..........petitioners. Mr. Milon Mukherjee, Mr. Saibal Mondal,.............................for the petitioner Mr. Debasis Roy, learned P.P. Mr. Amarta Ghose..............................for the State of W.B. This application under Section 401 read with Section 482 of the Code of Criminal Procedure has been taken out by Subhrangshu Ghosh and nine others, accused persons in G.R. Case No. 103 of 2003, praying for quashing of the proceeding as well as challenging legality, validity and propriety of the order dated 23.08.2010 passed by the learned Magistrate in that case.
These petitioners are arrayed to face charges under Section 498A of the Code of Criminal Procedure in a case, being G.R. Case 103 of 2003, pending in the Court of Learned Judicial Magistrate, 2nd Court, Asansol. The charge was framed initially on 31.03.2005 wherein the time and place of incident were not mentioned. The prosecution examined some witnesses, who were also cross- examined by the accused persons. Thereafter, the learned Court 2 on 23.08.2010 on the basis of an application dated 03.08.2010 filed by the learned Public Prosecutor, considered the omission made by it at the time of framing of charge. Accordingly, the learned Court re-framed the charge on 23.08.2010 showing the date of solemnisation of marriage as 05.06.2000 and place of incident at Icchapur as well as Asansol. The petitioners, being the accused, felt aggrieved by that order and has come up with this application praying for quashing of the proceeding on the ground that no case has made out against them as well as the order impugned is bad in law and is liable to be set aside.
Mr. Mukherjee, learned advocate appearing on behalf of the petitioners, contends that on perusal of the First Information Report as well as charge sheet it will appear that no case is made out against the petitioners. Therefore, the proceedings against the petitioners should be quashed.
Mr. Roy, learned Public Prosecutor appearing on behalf of the State of West Bengal, submits that question of quashing of the proceeding does not arise at this stage because almost all the witnesses of the prosecution have been examined and cross- examined and date has been fixed for hearing of arguments.
On careful perusal of the First Information Report, charge sheet and the evidence on record, it appears to me that there are materials in abundance against the petitioners to prosecute and 3 try them for an offence under Section 498A of the Indian Penal Code. The submission of Mr. Mukherjee that no case under Section 498A of the Indian Penal Code has been established against the petitioners, prima facie, does not appear to be correct. Accordingly, this Court does not concede to this submission of Mr. Mukherjee.
As far as the order dated 23.08.2010 is concerned, it is true that the learned Magistrate made corrections of the errors it made at the time of framing of charge earlier. It is true that some of the witnesses of the prosecution were examined and cross-examined thoroughly. It is also true that the petitioners, being accused, tried to establish that the incident, if any, had taken place at Icchapur, not within the jurisdiction of Asansol. All these facts altogether cannot be said to be sufficient for this Court to invalidate the proceeding.
In view of provisions laid down in Sections 215, 216 and 464 of the Code of Criminal Procedure, Trial Court can alter a charge at any stage of trial. In the instant case, the omission to mention the time and place of occurrence was corrected simplicitor. It is not correct to say that the petitioners had no knowledge as to why they have been prosecuted and tried. They cross-examined the witnesses extensively. There was no scope for them to say that they have been prejudiced in any manner because of the correction 4 made by the learned Magistrate after examination of the prosecution witnesses. This contention of Mr. Mukherjee cannot be accepted.
However, I find that the learned Magistrate had fixed 02.09.2010 for further argument without giving the petitioners opportunity to invoke the provisions of Section 217 of the Code of Criminal Procedure. This opportunity ought to have been given to both the sides.
Accordingly, I allow this revisional application in part. The last line of the impugned order to the effect that "fixed 02.09.2010 for further argument" be set aside. The learned Court should ask both the parties to express their willingness to invoke the provisions of Section 217 of the Code of Criminal Procedure within a date to be fixed by it. If no one desires to invoke that provision under Section 217 of the Code of Criminal Procedure, the learned Court would complete the hearing and pass judgment. In case, anyone of the parties wants to invoke the provision in Section 217 of the Code of Criminal Procedure, the learned Court should give him that opportunity. After hearing both the side, the learned Court should pass necessary order in accordance with law.
With the directions above, this revisional application stands disposed of.
There will, however, be no order as to costs.
5Interim order, if there be any, stands vacation Let photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of necessary formalities.
(Kanchan Chakraborty, J.)