Calcutta High Court (Appellete Side)
Pradip Kumar More vs The State Of West Bengal on 11 May, 2016
Author: R.K.Bag
Bench: R.K.Bag
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Ranjit Kumar Bag
C.R.R. No.109 of 2011
With
C.R.R No.110 of 2011
With
C.R.R. 4013 of 2011
Pradip Kumar More
Versus
The State of West Bengal.
For the petitioner: Mr. Amit Bhattacharjee,
Mr. Sabyasachi Banerjee,
Mr. Ayan Bhattacharya,
Mr. Anjan Datta.
(in CRR 109 & CRR 110 of 2011)
For the opposite party: Mr. Amit Bhattacharjee,
Mr. Sabyasachi Banerjee,
Mr. Ayan Bhattacharya,
Mr. Anjan Datta.
(in CRR 4013 of 2011)
For the State: Mr. Manjit Singh,
Mr. Sanjoy Banerjee.
Heard on: 11th May, 2016
Judgment on: 11th May, 2016
R.K.Bag, J:
1.The petitioner, Pradip Kumar More, has challenged the judgment and order dated September 22, 2010 passed by learned Additional Sessions Judge, Fast Track, 3rd Court, Bichar Bhawan, Calcutta, in Criminal Revision No.147/2010 by affirming the order dated May 18, 2010 passed by learned Chief Metropolitan Magistrate, Calcutta, in connection with G.R. No.1072 of 2010 by preferring revision being CRR 109 of 2011. The petitioner, Sushil Kumar Sureka has also challenged the judgment and order dated September 22, 2010 passed by learned Additional Sessions Judge, Fast Track, 3rd Court, Bichar Bhawan, Calcutta, in Criminal Revision No.133/2010 by affirming the order dated May 18, 2010 passed by learned Chief Metropolitan Magistrate, Calcutta, in connection with G.R. No.1072 of 2010 by filing revision being CRR 110 of 2011. On the other hand, the State of West Bengal has challenged the order dated November 9, 2011 passed by learned Metropolitan Magistrate, 12th Court, Calcutta, in G.R. No.1072 of 2010 by preferring revision being CRR 4013 of 2011. Since all three revisional applications arise out of the same criminal proceeding, I am inclined to dispose of all the revisional applications by this common judgment.
2. The backdrop of the three revisional applications is as follows:-
(a) One Sumit Sur, Station Officer, Headquarters Fire Station, West Bengal Fire & Emergency Services filed one written complaint before the Officer-in-Charge of Shakespeare Sarani Police Station on March 24, 2010 on the basis of which the Shakespeare Sarani Police Station Case No.116 dated March 24, 2010 came into existence. The police investigated the said criminal case and submitted charge sheet against the petitioner Pradip Kumar More, the petitioner Sushil Kumar Sureka, the opposite party Sanjay Bagaria (hereinafter referred to as the petitioner-accused persons) and other co-accused persons for the offence punishable under Sections 304/308/427/109 of the Indian Penal Code and Section 11C/11L/11J of West Bengal Fire Services Act.
(b) On May 18, 2010, the Investigating Officer of the case filed an application before the court of learned Chief Judicial Magistrate praying for issuance of proclamation against the petitioner-accused persons. The learned Chief Metropolitan Magistrate allowed the prayer of the Investigating Officer for issuance of proclamation and publication of the same in the newspaper by an order on May 18, 2010. The said order of learned Magistrate was challenged by the petitioner Pradip Kumar More before the court of sessions by preferring Criminal Revision No.147 of 2010. Similarly, the said order of learned Magistrate was challenged by the petitioner Sushil Kumar Sureka before the court of sessions by preferring Criminal Revision No.133 of 2010. On September 22, 2010 learned Additional Sessions Judge, Fast Track 3rd Court, Bichar Bhawan, Calcutta, disposed of both the revisions by affirming the order passed by learned Magistrate. Both the petitioner Pradip Kumar More and the petitioner Sushil Kumar Sureka have challenged the judgment and order passed in Criminal Revision No.133 of 2010 and Criminal Revision No.147 of 2010 respectively by preferring two separate revisional applications before this court.
(c ) I am informed that during stay of operation of the order dated May 18, 2010 passed by learned Chief Metropolitan Magistrate by the court of sessions, the petitioner Sushil Kumar Sureka surrendered and the opposite party Sanjay Bagaria was arrested by the police. I am also informed that immediately after disposal of the revisional application by learned Additional Sessions Judge, the petitioner Pradip Kumar More surrendered before the court of learned Magistrate. All the petitioner-accused persons are now on bail granted by the court. During pendency of proclamation against the petitioner-accused persons the Investigating Officer carried out further investigation in connection with the main criminal case and submitted supplementary charge sheet disclosing offences not only under Sections 304/308/427/109 of the Indian Penal Code and Sections 11C/11J and 11L of West Bengal Fire Services Act but also under Section 174A of the Indian Penal Code against the petitioner-accused persons. The issue of submitting supplementary charge sheet disclosing offence under Section 174A of the Indian Penal Code was contested before the court of learned Magistrate. On November 9, 2011 learned Magistrate passed an order refusing to take cognizance of the offence punishable under Section 174A of the Indian Penal Code against the petitioner-accused persons. The said order passed by learned Metropolitan Magistrate, 12th Court, Calcutta, in G.R. No.1072 of 2010 is challenged by the State of West Bengal by preferring revision being CRR 4013 of 2011.
3. Mr. Ayan Bhattacharya, learned counsel appearing on behalf of the petitioner- accused persons contends that proclamation was not published by following the procedure laid down in Sectrion 82 of the Code of Criminal Procedure. He further submits that clear 30 days time was not granted for appearance of the accused persons for appearance and the date and time was not published in the proclamation. He argues that the petitioner-accused persons pursued legal remedy before the higher court challenging the order of issuance of proclamation by learned Magistrate and as such, those accused persons are not liable to be prosecuted on the allegation of committing offence under Section 174A of the Indian Penal Code. Mr. Bhattacharya has defended the order passed by learned Magistrate on November 9, 2011 by submitting that the order of proclamation and publication of the same in the newspaper is nullity and learned Magistrate cannot take cognizance of the offence under Section 174A of the Indian Penal Code due to specific bar under Section 195 of the Code of Criminal Procedure. According to Mr. Bhattacharya, the supplementary charge sheet disclosing offence under section 174A of the Indian Penal Code cannot be clubbed with the other offences, as the offence punishable under Section 174A of the Indian Penal Code took place long after the incident for which the original criminal proceeding was initiated against the petitioner-accused persons.
4. Mr. Sanjoy Banerjee, learned counsel appearing for the opposite party State submits that the petitioner-accused persons are liable to be prosecuted for the offence punishable under Section 174A of the Indian Penal Code, as they failed to appear after publication of proclamation in the newspaper, but the Investigating Officer wrongly amalgamated the offence punishable under Section 174A of the Indian Penal Code along with other penal laws by filing supplementary charge sheet after carrying out further investigation. According to Mr. Banerjee, the supplementary charge sheet may be taken into consideration for other offences punishable under law, except the offence punishable under Section 174A of the Indian Penal Code. He further submits that a separate application was filed before the court of learned Magistrate praying for proceeding against the petitioner-accused persons for the offence punishable under Section 174A of the Indian Penal Code and the said application is still pending for adjudication before the court of learned Magistrate. The specific submission of Mr. Banerjee is that learned Magistrate may be directed to take up the said application for hearing as early as possible.
5. The first point which I would like to consider is whether the order of issuance of proclamation and publication of the same in the newspaper by learned Magistrate and affirmation of the said order of learned Additional Sessions Judge is justified under the law. On consideration of the judgment and order passed by learned Additional Sessions Judge in Criminal Revision No.133 of 2010 and Criminal Revision No.147 of 2010, I find that learned Additional Sessions Judge has not considered that learned Magistrate issued proclamation without recording his satisfaction that the accused persons for whom the proclamation is issued, have been absconding and evading the arrest. On perusal of the order dated May 18, 2010 passed by learned Magistrate, I find that learned Magistrate has not recorded in the order about his satisfaction that the petitioner-accused persons were absconding and evading arrest in spite of issuance of warrant of arrest. It appears from the order passed by learned Magistrate that learned Magistrate has allowed the prayer of the Investigating Officer for issuance of proclamation and publication of the same in the newspaper only because warrant of arrest was pending against the petitioner-accused persons. It is brought to the notice of this court that the petitioner-accused persons were pursuing legal remedy before the higher court initially by praying for anticipatory bail and thereafter by challenging the order passed by learned Magistrate by way of revision before the court of sessions. I am also informed that the petitioner-accused persons either surrendered or arrested by the police during pendency of the revisional application before the court of sessions or immediately after dismissal of the revisional application by the court of sessions. Since learned Magistrate did not record in the order that the petitioner-accused persons absconded and evaded arrest for issuance of proclamation against them and publication of the same in the newspaper, and since this vital omission in the order of learned Magistrate was not considered by learned Additional Sessions Judge in the revisional applications, I am of the view that the order of the court of sessions affirming the order of issuance of proclamation is not justified under the law as the same was not done in accordance with the provision of Section 82 of the Code of Criminal Procedure. The natural corollary of my above observation is that the judgment and order passed by learned Additional Sessions Judge in the revisional applications is liable to be set aside.
6. With regard to further investigation carried out by the Investigating Officer and filing of the supplementary charge sheet under Section 173(8) of the Code of Criminal Procedure, I am of the view that the Investigating Officer has authority under the law to carry out further investigation and to file supplementary charge sheet under Section 173(8) of the Code of Criminal Procedure. However, the offence alleged to have been committed by the petitioner-accused persons for which FIR was registered and further investigation was carried out, cannot be mixed up and clubbed with the offence alleged to have been committed by them under Section 174A of the Indian Penal Code. I have already observed that the order of issuance of proclamation and publication of the same in the newspaper against the petitioner-accused persons was not justified under the law and as such they are not liable to be prosecuted for the offence punishable under Section 174A of the Indian Penal Code. Accordingly, the order passed by learned Metropolitan Magistrate, 12th Court, Calcutta in refusing to take cognizance on supplementary charge sheet needs to be modified by this court.
7. In view of the observations made by me hereinabove, the judgment and order dated September 22, 2010 passed by learned Additional Sessions Judge, Fast Track, 3rd Court, Bichar Bhawan, Calcutta, in Criminal Revision No.133/2010 and Criminal Revision No.147 of 2010 by affirming the order dated May 18, 2010 passed by learned Chief Metropolitan Magistrate, Calcutta, in connection with G.R. No.1072 of 2010 is set aside. The order passed by learned Metropolitan Magistrate, 12th Court, Calcutta, on November 9, 2011 in G.R. No.1072 of 2010 is modified to the extent that the offence under Section 174A of the Indian Penal Code is not made out against the petitioner- accused persons, but the court will take into consideration the materials collected during further investigation. Learned Chief Metropolitan Magistrate, Calcutta, is directed to forward the supplementary charge sheet and other materials annexed thereto to the court of learned Additional Sessions Judge, Fast Track, 3rd Court, Bichar Bhawan, Calcutta, for taking necessary action, if not already forwarded.
With the above direction, all the criminal revisions are disposed of. The trial court is directed to expedite the hearing of this case in accordance with law. (R. K. Bag, J.)