Calcutta High Court (Appellete Side)
Sipra Majumdar vs The State Of West Bengal & Anr on 22 November, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
1 22.11.2016(59)
(ap) C.R.R. No. 3596 of 2013 Sipra Majumdar Versus The State of West Bengal & Anr.
Re: An application under Section 401 read with Section 482 of the Code of Criminal Procedure filed on 09.10.2013 Mr. Sudipto Moitra, Mr. Abhra Mukherjee, Mr. Biplab Das, Ms. Anita Kundu. ...For the petitioner.
Mr. Ayan Basu. ...For the State.
Affidavit-of-service filed in Court be taken on record. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 wherein the widow of the victim, namely, Asit Kumar Majumdar has assailed the Order No.1 dated 05.08.2013 before this Court as passed by the learned Additional Sessions Judge, 1st, Fast Track Court, Bichar Bhavan, Calcutta in S.C. No. 20 of 2013, whereby the learned Trial Court was pleased to direct that the accused be tried in respect of the offences punishable under Sections 279/337/338/427/304A of the Indian Penal Code (hereinafter referred to as the 'said Code') and the learned Trial Court as per the impugned order, declined to pass an 1 2 order that the accused be tried in respect of the charge punishable under Section 304 (Part-II) of the Code even though the charge-sheet was submitted in respect of the offences punishable under Sections 279/304 (Part- II)/337/338/427 of the Code.
The fact relevant for the purpose of adjudication of this criminal revision can be stated in brief, thus:
That on 17.11.2010 at about 01:15 hours, the accused/opposite party no.2, being the driver of one Tata Indica vehicle bearing No. WB-02 R 6211 he was driving the said vehicle through Rani Rashmoni Avenue from West to East in a rash and negligent manner endangering the human life and safety of others with the knowledge that such driving may cause death of anybody and when he reached Dorina Crossing hit one Ambassador Car bearing No. WB 02 Q 8959, which was coming through Jaharlal Nehru Road from South to North and as a result of that collision, one passenger of that Tata Indica Car, namely, Asit Kumar Majumdar, got serious injuries and he was taken to N.R.S. Medical College and Hospital, where he was declared brought dead.
On the basis of the complaint filed by one Santanu Mondal, Hare Street Police Station Case No. 657 dated 2 3 17.11.2010 was registered under Sections 279/337/308/427 of the Code. Another FIR was registered with the same Police Station being Case No. 658 dated 17.11.2010 under Sections 279/304 (Part-II)/337/338/427 of the Code as per the complaint filed by one Parvez Alam.
Both the mattes were investigated and during investigation, it revealed that the driver, i.e. the present opposite party no.2, who was driving that Tata Indica vehicle, namely, Rajesh Roy, was responsible for the incident, who drove the vehicle in rash and negligent manner endangering the human life and safety and for his fault, this incident happened and that the driver of the other vehicle being Vehicle No. WB 02 Q 8959, Samir Hossain was given a clean chit and as such, charge-sheet was submitted against the opposite party no.2 under Sections 279/304(Part- II)/337/338/427 of the Code.
When the matter is taken up for argument, it is submitted by Mr. Moitra, learned senior counsel that one Sanjib Mitra wrote a letter to the Advocate-on-record of this case, namely, Ms. Anita Kundu that he has received instruction to appear in this case. The said copy of the letter dated 10.02.2014 is taken on record and it is evident that the opposite party no.2 is in the know of the present 3 4 revisional application and none is appearing to represent the said opposite party no.2, driver and as such, this Court prefers to take up the hearing of this revisional application on merit.
Heard Mr. Moitra, learned senior Advocate for the petitioner and Mr. Basu, learned Advocate representing the State.
Mr. Basu has handed over to me the case diary and it is the submission of both Mr. Moitra and Mr. Basu that this case may not be treated as a common accident case to implicate the accused/opposite party no.2 under Section 304A of the Code, as is generally done in other accident cases but considering the statements of the witnesses and the facts and circumstances, the Investigating Officer of the case, rightly submitted charge-sheet implicating the accused/opposite party no.2, the driver also for the offence punishable under Section 304 (Part-II) of the Code.
Mr. Moitra has relied upon the decision of the Apex Court as reported in A.I.R. 1980 S.C. 52, wherein the Apex Court held that at the time of framing of charge, the Court will consider that whether there is any strong suspicion about the commission of the offence and that is enough to frame charge against the accused. He has also relied upon 4 5 the decision of the Apex Court as reported in (2012) 3 SCC (Cri) 899 (State through P.S. Lodhi Colony, New Delhi - Vs. - Sanjeev Nanda) in support of his claim that if it is proved that the accused was driving the vehicle in an intoxicated condition, then there may be conviction under Section 304 (Part-II) of the Code and the Apex Court held that the accused/driver in that case had certain knowledge that his act may result in death.
Mr. Moitra has also cited another decision of the Apex Court as reported in (2012) 1 SCC (Cri) 953 = (2012) 2 SCC (Cri) 648 in the case of Alister Anthony Pareira - Vs. - State of Maharastra wherein also the Apex Court held that there is no conflict in trial of an accident case under Section 304(Part-II)/337/338 of the Code as those two Sections are not mutually destructive. This Court is not unmindful of the fact that before the Trial Court some decisions were placed, those are as follows:
(1) 2001 Cr.LJ 1723 (Smt. Om Wati & Anr. Vs. - The State through Delhi Admn. & Ors.) wherein the Apex Court held that the High Court should not interfere at the initial stage of framing of charges merely on hypothesis, imagination and far-fetched reasons.
5 6 (2) 2005 SCC (Cri) 415 (State of Orissa - Vs. -
Devendra Nath Badhi) wherein the Apex Court held that at the stage of framing of charge only the material produced by the prosecution can be looked into by the Court and as it was the provision of the Code of Criminal Procedure, there is nothing, which has given the right to the accused to file any material or document at the said stage.
(3) The learned Single Bench decision of Madhya Pradesh High Court as reported in 2002 CrLJ 3104 wherein the learned Single Bench held that at the stage of framing of charge, the Court has to consider the charge-sheet filed by the police under Section 173 of the Code of Criminal Procedure only and the order of discharge passed after perusing the case diary is a piece of evidence is without jurisdiction.
On behalf of the prosecution, Mr. Basu submitted that the fact of this case, as established by the Investigating Agency, is enough to say prima facie that it was within the knowledge of the accused/opposite party no.2 that the act, which he was doing, may result in death of one person and 6 7 as such, there was enough material before the Trial Court to frame charge under Section 304(Part-II) of the Code also.
Regarding the framing of charge under Section 279 of the Code, it is his submission that the element of rash and negligent driving is very much hidden in Sections 337 and 338 of the Code and if Sections 337 and 338 of the Code are not mutually destructive to Section 304 (Part-II) of the Code, then Section 279 of the Code can also be inferred to be not mutually destructive to Section 304 (Part-II) of the Code.
I have gone through the case diary, which includes the statements of the witnesses, including one statement recorded by the learned Magistrate under Section 164 CrPC given by this petitioner. Without ventilating my mind further, which may prejudice the learned Trial Court at the time of trial, this Court can say that there was at least prima facie case under Section 304 (Part-II) of the Code also, as the element of knowledge was very much there with the accused, as he was driving the vehicle in a drunken condition.
This Court is not at one with the decisions of the single Bench of Madhya Pradesh High Court that at the time of framing of charge, the Court cannot peruse the case diary 7 8 as a piece of evidence. The decision of the other Court has a persuasive value and is not binding upon this Court.
The learned Trial Court took much pain to allow such a lengthy order practically judging the pros and cons of the prosecution case, which is not permissible at that stage while deciding as to whether charge is to be framed or not.
Thus, relying on the decision of the Apex Court as passed in Alister Anthony Pareira (supra) and other decision of the Apex Court as passed in Sanjeev Nanda (supra), this Court is of the view that the learned Trial Court ought to have framed charge under Sections 279/304 (Part- II)/337/338 and 427 of the Code. There is no reason to frame charge under Section 304A of the Code.
If a charge is framed under Section 304 (Part-II) of the Code, the Court can scale down to Section 304A of the Code and if ultimately the prosecution story regarding 304 (Part- II) of the Code fails thus, in view of the discussions so long made, this Court is satisfied that the impugned order passed by the learned Trial Court is fit to be set aside and I do that.
The Trial Court is directed to frame charge against the accused/opposite party no.2 for the offence punishable under Sections 279/304 (Part-II)/337/338/427 of the Code 8 9 and to conclude the trial as early as possible complying with the provisions of Section 309 of the Code of Criminal Procedure.
This revisional application is allowed accordingly. If by this time the record has reached, the Court of the Chief Metropolitan Magistrate, Kolkata, the learned Trial Court will call for the records from the said Court to dispose of the Sessions Trial No. 20 of 2013.
Office is directed to communicate this order to the learned Trial Court for strict compliance.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.
(Indrajit Chatterjee, J.) 9