Calcutta High Court (Appellete Side)
Abhay Roy Chowdhury @ Abhay Ray ... vs The State Of West Bengal & Ors on 28 March, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
In The High Court At Calcutta Criminal Revisional Jurisdiction (Appellate Side) Present:
The Hon'ble Justice Subhasis Dasgupta.
CRR No. 302 of 2019 Abhay Roy Chowdhury @ Abhay Ray Chowdhury Versus The State of West Bengal & Ors.
For the Petitioner : Mr. Sabyasachi Banerjee, Adv.
Mr. Anirban Guhathakurata, Adv.
Mr. Arka Banerjee, Adv.
For the Opposite Party No.2 : Mr. Kaushik Gupta, Adv.
Mr. Arijit Bhusan Bagchi, Adv.
For the State : Mr. Ranabir Ray Chowdhury, Adv.
Mr. Mainak Gupta, Adv.
Judgment on : 28.03.2019
Subhasis Dasgupta, J:-
The impugned order dated 15.01.19 passed by the learned Additional District and Sessions Judge, Ranaghat, Nadia in SC-8(7)2017 arising out of Taherpur Police Station Case No. 89/2017 dated 01.04.2017 under 2 Sections 302/307/326/120B of the Indian Penal Code and Sections 25/27 of the Arms Act, rejecting the prayer for discharge of revisionist/petitioner under Section 227 of the Criminal Procedure Code is the subject of challenge in this revisional application under Section 482 of the Criminal Procedure Code.
Learned advocate, Mr. Sabyasachi Banerjee, for the revisionist submitted that statement of the witnesses so far collected including co- accused persons implicating the revisionist/accused in the instant case, did not demonstrate prima facie materials to exist against him raising a reasonable presumption of commission of offence against the accused, without which learned Judge ought not to have proceeded to frame charge against him rejecting his prayer for discharge. In support of the prayer for discharge, it was contended that learned Judge proceeded to rely upon statements collected under Section 161 Cr. P.C., but at the same time failed to consider two statements of witnesses recorded under Section 164, namely, Tapas Paul and Bidyut Biswas, wherein name of the revisionist/accused remained undisclosed. Since, the revisionist/accused did not actually take part in the altercation held between the deceased, and the accused persons as specifically named in the FIR, and since the revisionist did not participate in the penultimate action of causing bodily harm upon the deceased, that the revisionist/accused should have been favoured with an order of discharge by the learned Judge under Section 227 Cr. P.C..3
Further submission was raised, that the prosecution story revealed from the statement recorded having been diluted ultimately in the statement of witnesses recorded under Section 164 Cr. P.C., the learned Magistrate ought to have taken care of such situation by recording a discharge under Section 227 Cr. P.C. in order to prevent the accused from undertaking the agony of trial. Since the name of the accused person did not figure in the FIR itself, and since his name having transpired in the statements recorded under Section 161 Cr. P.C,. Leaned Judge ought to have satisfied that the meterials produced before him were shrowded with some doubt entailing a discharge therefor under Section 227 Cr. P.C. in a particular case, where there is no recovery under the Arms Act, without which consequent charge is not sustainable.
Mr. Ranabir Ray Chowdhury, learned advocate for the State, submitted that upon due consideration of the materials placed before the Trial Judge, and upon arriving at the satisfaction therefrom, the learned Trial Judge proceeded to believe that sufficient grounds were there against the accused person, justifying framing of charge against the accused persons upon rejection of his prayer for discharge. Thus, according to State, at the time of framing of charge, or to decide a prayer for discharge, the learned Trial Judge was not under obligation to embark upon an enquiry doing critical study of the materials placed before it. Microscopic examination of the statements doing critical evaluation thereunder together with contradiction, if therebe any, was discouraged at the time of framing 4 charge without undertaking a trial for unfolding the prosecution version of the case.
Learned advocate for the private opposite party No.2 adopted the submissions advanced by the State in this regard without subscribing anything further.
In order to address the issue now under reference mentioning of some salient facts may be helpful.
On the fateful day of incident, as many as nine (09) accused persons, as named in the FIR were enjoying with may others picnic party in fornt of of library community hall at Birnagar, P.S.- Taherpur, Nadia. Deceased was returning his home riding on a motor cycle, and when reached the said location, the accused person named in the FIR insulted the deceased. The deceased raised protest against accused persons. The FIR named accused persons then held him down from the motor cycle wounded him catching hold of deceased's legs and hands and ultimately the deceased suffered his gun shot death, which was ultimately recovered from co-accused Chandan Das, upon execution of the statements collected from co-accused during custody period.
Mr. Banerjee, learned advocate for the revisionist in his sincere effort sought to establish a prime stand that presumption of commission of alleged offence, for want of a prima facie materials to exist against the 5 revisionist/accused, could not be attributable to the revisionist accused, without which charge if any framed would be a misnomer.
The satisfaction of the Trial Judge so as to hold that a sufficient grounds were there for proceedings against the accused was a prerequisite for framing a charge, otherwise the accused sought to be put up to trial shall be favoured with discharge.
The attention of the Court is drawn by Mr. Banerjee, for the revisionist, to the statement of Bapi Majumder, Somenath Nandi and Tapas Paul together with statement of two witnesses namely Tapas Paul and Bidyut Biswas recorded under Section 164 Cr. P.C. Adverting to such statements, it was contended with emphasis by Mr. Banerjee that suspicion was found to exist against the revisionist/accused, as regards the alleged presumption of commission of offence justifying a discharge reasonably in the given context of this case under Section 227 Cr. P.C. True it is that the name of the accused person did not figure in the FIR itself. His name was subsequently transpired during the course of investigation. Nothing was admittedly recovered from him. The name of the accused person remained undisclosed in the statement of witnesses recorded under Section 164 Cr. P.C, though name of the accused person was conspicuously divulged in the statement of Tapas Paul recorded under Section 161 Cr. P.C. One significate aspect, that it is deducible from the FIR itself together with the statement of witness recorded under Section 161 6 Cr. P.C, besides the name of the accused persons, as already disclosed in the FIR itself, some other persons also participated in the scene of crime, and they fled away immediately after the deceased victim had suffered his gunshot death.
The statement of witnesses, both relied upon by the State and revisionist, is that Bapi Majumder, Somenath Nandi, are the witnesses having had the opportunity to see and know about incident. Bapi Majumder own's xerox machine shop, while Somnath Nandi own's an electric materials shop near the place of occurrence. Tapas Paul at the material tieme had his occasion to go to a motor cycle show room/shop, situated near the place of occurrence. Thus three (3) witnesses consistently mentioned their circumstances offering their scope to view and know about the incident. When statements already gathered together with the version of the FIR indicating "many more others" were there at the scene of crime at the material point of time, and when those "many more others" fled away leaving the scene of crime, the circumstancs involved here projected a strong/ grave suspicion against the revisionist/accused, not remaining explained properly, and upon due apprisal of the same the Trial Judge attempted presumably to make out a prime facie case for satisfaction of his finding that a sufficient grounds were there to frame the charge against the accused person including that of the revisionist/accused upon rejecting his prayer for discharge.7
Learned advocate for the revisionist referring decision reported in 1979(3) SCC 4 delivered in the case of Union of India versus Prafulla Kumar Samal and Anr. submitted that the Trial Judge ought to have weighed the evidence in order to form his opinion on the limited question of whether a prima facie case was made out or not. It would be profitable here to refer para 10 of the said decision envisaging priniples mentioned as hereunder:
10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to shift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is 8 satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the code that Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mounthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
Another decision was also referred by revisionist, reported in 2002(2) SCC 135 delivered in the case of Dilawar Balu Kurane versus State of Maharashtra, wherein the same principle, as emerged in the case of Union of India versus Prafulla Kumar Samal (supra) was reinforced. The ratio decided in such decisions referred above, is whether the materials placed before the Court, disclosed a grave suspicion against the accused, not 9 similar or akin to some ordinary suspicion, the Court will be justifyed in framing charge and proceed with the trial.
The test to determine a prima facie case is dependent upon facts and circumstances of each case. The prima facie case is thus left to be decided by the Trial Judge in terms of the materials placed before Court. When name of the revisionist/accused conspicuously transpired during the course of investigation, as evident from the statements collected under Section 161 Cr. P.C, and when statements were there by the witnesses finding the revisionist/accused to participate in the picnic party and to flee away from the spot, though his name could not be revealed in the FIR itself, it offered sufficient materials to reveal the prima facie case necessary in terms of the Section 227 Cr. P.C., providing thereby sufficient ground to frame charge against him. The very existence of the words "many more others", whose name could not be disclosed in the FIR, and subsequently transpired during investigation revealed from the statement of witnesses, gave reasons for the Learned Trial Judge to find out sufficient grounds for framing charge against him at least for putting him to trial at this stage upon rejection of his prayer for discharge. Whether participation of the revisionist/accused was there by presenting him at the scene of crime can only be decided after entering into a full trial. The materials placed before the learned Trial Judge having offered a strong/grave suspicion, different from ordinary suspicion, which not being properly explained, the learned 10 Trial Judge was justified to put his effort sincerely for framing charge against accused persons upon rejection of prayer for discharge.
It requires no mention that the charge can be altered at any point of time. In that view of the matter there would be no prejudice occasioned to revisionist/accused, if he is put to trial after framing charge. It is the trial, which would only give necessary clues explaining the circumstances with all probabilities as regards the role of the accused persons, if any, facing trial, behind the cause of the death of the deceased.
Mr. Ray Chowdhury, representing the State submitted that when facts and circumstances gathered during the course of investigation revealed presence of the revisionist/accused persons at the scene of crime, and subsequently fleeing away from the spot after the deceased had suffered his gunshot death, and when presence of "many more others" was there whose name could not be disclosed in the FIR, but subsequently transpired during investigation, and further when there was sufficient grounds for presuming to frame charge against the accused, the Trial Judge was quite justified to find existence of prima facie case against the accused in order to frame a charge against him so as to go ahead with the trial of this case unless the strong and grave suspicion occurring in the circumstances are satisfactorily explained. Reliance was thus also placed on a decision reported in 1996 SC (Cri) 820 in the case of State of 11 Maharashtra and Ors vs. Som Nath Thapa and Ors.. It would be most reasonable here to refer para 31 of the said decision as hereunder:
31. Let us note the mearning of the word 'presume'. In Black's Law Disctionary it has been difined to mean "to believe or accept upon probable evidence". (emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law 'presume' means "to take as proved until evidence to the contrary is forthcoming", Stroud's Legal Dictionary has quoted in this context z certain judgment according to which Ä presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged." (emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at p. 1007 of 1987 Edn.
Thus upon application of judicial mind with regard to the materials placed before the learned Trial Judge, a logical conclusion was reached that the accused might have committed the offence and, therefore, the Trial Judge was at his liberty to frame charge against the accused to go ahead with the trial upon rejection of his prayer for discharge. At this stage, the probative value of materials on record cannot be analytically gone into, far to speak of the contradictions, if there be any, which are of course subject matter of trial.
12
In the given set of facts Mr. Ray Chowdhury, learned advocate for the State proceeded to take shelter on a decision of Apex Court, reported in 2008(16) SCC 390, 2010(4) SCC Cri 298 rendered in the case of M. Viswanathan versus M/s. S.K. Tiles & Potteries P. Ltd. & Ors. wherein and whereunder three circumstances were envisaged under which the inherent jurisdiction may be exercised namely (i) to give effect to order under the code (ii) to prevent abuse of the process of court and otherwise
(iii) to secure the ends of justice.
Since satisfaction of the learned Trial Judge to frame charge was reached on the basis of materials placed before it, transpiring a prima facie case and thereby justifying framing of charge against accused, in the given context of this case, it cannot be concluded with all certainty that exercise already undertaken to frame the charge against accused upon rejecting his prayer for discharge under Section 227 Cr. P.C. so as to go ahead with the trial, there was illegality committed, and if not prevented or checked, there would be an abuse process of the Court.
The revisional application fails being without any merits. Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties upon compliance with all formalities.
(Subhasis Dasgupta,J.)