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Upendra Chandra Dey and ors. Vs. State - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantUpendra Chandra Dey and ors.
RespondentState
Prior history
Sarjoo Prosad, C.J.
1. These thirteen petitioners have been committed to the Court of Session for trial under various sections of the Indian Penal Code including Sections 302/149. They have moved for quashing of the order of commitment made against them.
2. The case arises out of a very unfortunate and tragic incident which happened as early as the 16th July, 1949 in which several police officers received injuries, some of them grievous, and one hapless Sub-Inspector actually lost his life. T
Excerpt:
.....that government were completely satisfied with this order. but the fact cannot be ignored that the special judge was also the district and sessions judge and if a judge of that position and experience found that there was prima facie no evidence against the accused, it would be too much to say that the magistrate committing the accused had exercised better judgment and discretion in the matter or that the trial of the petitioners would be fruitful of any good result except entailing harassment and hardship to them. it is well settled that any general provision in the law cannot take away the effect of a specific provision. on behalf of the petitioner reliance has been placed upon a well-known decision of the calcutta high court in -abdul karim abu ahmad khan v. it can be therefore very..........them. they were tried by the then district judge of upper assam districts who was appointed special judge under the assam special courts act, 1950 (act 19 of 1950). the special judge framed charges only against 58 of the accused and discharged the rest, including the petitioners in the present case, except nirod baran de. eventually the trial ended in the conviction of only 34 of the accused and the acquittal of the rest, the petitioner nirod baran also having been acquitted. the government appears to have been satisfied with the decision of the special judge and did not move or appeal against the order of discharge and acquittal. the result was that the order passed by the special judge in favour of these petitioners had become final. there was an appeal preferred to this court.....
Judgment:

Sarjoo Prosad, C.J.

1. These thirteen petitioners have been committed to the Court of Session for trial under various sections of the Indian Penal Code including Sections 302/149. They have moved for quashing of the order of commitment made against them.

2. The case arises out of a very unfortunate and tragic incident which happened as early as the 16th July, 1949 in which several police officers received injuries, some of them grievous, and one hapless Sub-Inspector actually lost his life. The case has a short historical back-ground culminating in this commitment order. These petitioners along with a very large number of other accused were arrested in connection with that occurrence and prosecution was started against them. They were tried by the then District Judge of Upper Assam Districts who was appointed Special Judge under the Assam Special Courts Act, 1950 (Act 19 of 1950). The Special Judge framed charges only against 58 of the accused and discharged the rest, including the petitioners in the present case, except Nirod Baran De. Eventually the trial ended in the conviction of only 34 of the accused and the acquittal of the rest, the petitioner Nirod Baran also having been acquitted. The Government appears to have been satisfied with the decision of the Special Judge and did not move or appeal against the order of discharge and acquittal. The result was that the order passed by the Special Judge in favour of these petitioners had become final.

There was an appeal preferred to this Court by the accused who had been convicted in those cases and by judgment dated 25th February, 1952 this Court held in pursuance of an order passed by the Supreme Court that the Assam Special Courts Act of 1950 was ultra vires, being inconsistent with the provisions of Article 14 of the Constitution of India. It was held in consequence that the Special Judge had no jurisdiction to try the accused persons and the conviction and sentence imposed by him were wholly without jurisdiction. In making the order this Court observed that the accused who had been charged under Sections 302/149 must stand their trial under the ordinary law of the land. In regard to those accused who had almost served out the sentences imposed on them by the learned Special Judge, they left the matter to the discretion of the State Government to consider whether or not it would be wise to prosecute them any further. It appears however that Government chose to start prosecutions afresh against all the accused persons who had been put on trial previously, including those who had been discharged or acquitted by the learned Special Judge.

In the result the learned Magistrate by his order under revision has committed the petitioners along with 57 others to take their trial in the Sessions Court as already stated. The petitioners in these circumstances obtained the Rule. In view of the previous history of the case and in view of the fact that Government were content not to move against the order of discharge or appeal against the order of acquittal passed by the learned Special Judge, we considered it desirable to adjourn the final hearing of the case in order to enable Government to consider afresh whether the prosecution of the petitioners would be expedient and desirable in the interest of justice or it might merely lead to an abuse of the process of the Court. In case the Government was satisfied that the prosecution of these petitioners would not be in the interest of justice, it might take appropriate steps for withdrawing the prosecution against them. We are informed that the Government has decided to leave the matter to the decision of this Court. We have therefore no option but to proceed to decide the matter according to law.

3. It has been argued at the outset in support of this application that the prosecution of the petitioners is in violation of Article 20(2) of the Constitution of India which provides that no person shall be prosecuted and punished for the same offence more than once. The contention of the learned Counsel is that the word 'and' is not conjunctive but has been used only in a disjunctive sense and Clause (2) of the Article should be read as meaning that no person shall be prosecuted for the same offence more than once. The contention in other words is that the petitioners having been once prosecuted for the same offence earlier, they cannot be prosecuted any further. It is also urged that the Article in question does not contemplate that the prosecution or punishment must be before a Court of competent jurisdiction as required by Section 403 of the Code of Criminal Procedure. The contention in effect amounts to this that Article 20 concedes some larger right to a person than what is conferred by Section 403 of the Code,

This contention in my opinion is apparently unsound and against the language of the Article itself. The word 'and' there has been definitely used in a conjunctive sense and could not possibly bear a disjunctive meaning. The effect of such an interpretation would be that although a person may be prosecuted but not punished and the trial has for some reason become abortive either because the Court or tribunal had no jurisdiction to try him or because of some inherent defect or illegality affecting the validity of the trial itself, yet once this erroneous prosecution had been adopted, the person can claim exemption under cover of the said Article from any fresh trial before a competent Court and in a regular manner. That could never be the intention of the law. The Article merely recognizes the principle of 'autrefois convict' which is one of the principles recognized by Section 403 of the Code itself. The decision of the Supreme Court in - 'Maqbool Hussain v. State of Bombay' : 1983ECR1598D(SC) throws a flood of light on the point under investigation and on the interpretation of Article 20(2) of the Constitution.

There Bhagwati J. delivering the judgment of the Court made the following important observation:

The words 'before a Court of law or judicial tribunal' are not to be found in Article 20(2). But if regard be had to the whole background indicated above it is clear that in order that the protection of Article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a Court of law or a tribunal, required by law to decide the matters in controversy judicially or even on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of Article 20 and the words used therein, 'convicted', 'commission of the act charged as an offence', 'be subjected to a penalty', 'commission of the offence', 'prosecuted and punished', 'accused of any offence', would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates? the offence and regulates the procedure.

It is obvious therefore that in the present case the petitioners could not be said to have been prosecuted before a Court of law having jurisdiction to try them; nor were they punished as a result of any such prosecution; and therefore Article 20 of the Constitution is of no avail to them. The trial of the petitioners was found to be abortive because the Special Judge was held to be not a Court of competent jurisdiction to try them. This contention therefore must fail. Article 20(2) of the Constitution is no bar to the trial of the petitioners.

4. It is next argued that the prosecution of the petitioners amounts definitely to an abuse of the processes of the Court, inasmuch as twelve of the petitioners on the evidence given by the prosecution were discharged, evidently because the learned Special Judge found no prima facie case of any offence having been established against them; while one of them, he actually acquitted on consideration of the evidence. It is pointed out that Government were completely satisfied with this order. It may be that the Special Judge was found to have no jurisdiction to try the accused. But the fact cannot be ignored that the Special Judge was also the District and Sessions Judge and if a Judge of that position and experience found that there was prima facie no evidence against the accused, it would be too much to say that the Magistrate committing the accused had exercised better judgment and discretion in the matter or that the trial of the petitioners would be fruitful of any good result except entailing harassment and hardship to them. The argument undoubtedly is very impressive and I should think, that technical difficulties apart, this aspect of the case should have considerably weighed with the Government when directing the prosecution of the petitioners. But it will have to be seen to what extent if any, we can exercise the powers which have been recognized to exist under Section 561A of the Code.

Section 561A says:

Nothing in this Code shall be deemed to limit or effect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court otherwise to secure the ends of justice.

It is argued that the trial of the petitioners amounts to a mere abuse of the process of the Court and in the ends of justice we should interfere and quash the commitment. The circumstances of the case are certainly impelling. But I cannot lose sight of the other weighty consideration that where there is a specific provision in the Code under which commitments may or may not be quashed, the inherent powers of the Court should (not?) be invoked. The : specific provision under consideration is Section 215 of the Code. This section runs as follows:

A commitment once made under Section 213 by a competent Magistrate or by a Civil or Revenue Court under Section 478, can be quashed by the High Court only, and only on a point of law.

The provisions are mandatory and the limitations prescribed by the section cannot be lightly ignored. The section enjoins that a commitment made by a competent Magistrate can be quashed by the High Court only and only on a point of law.

The repeated emphasis on the word 'only' is very significant. The learned Counsel for the petitioner has been unable to cite any precedent or authority to indicate that in spite of Section 215 an order of commitment has been quashed on any ground other than that provided for in that section. It is well settled that any general provision in the law cannot take away the effect of a specific provision. On behalf of the petitioner reliance has been placed upon a well-known decision of the Calcutta High Court in - 'Abdul Karim Abu Ahmad Khan v. Allahabad Bank Ltd.' AIR 1917 Cal 44 (B). The argument is based upon the analogy of Section 151 of the Code of Civil Procedure, which recognizes the inherent powers of the Court in a civil case just asmuch as Section 561A does in a criminal case. It is argued on the authority of the above decision that although the power of remand under Section 107 of the Civil Procedure Code is limited to the case described in Order 41, B, 23 of that Code, yet nothing in that section was held to restrict in any manner the application of the principle of inherent power, recognized by, Section 151 of the Code, to direct a remand in an appropriate case where the ends of justice justify that procedure.

Even in that case it has been pointed out that inherent jurisdiction must be exercised with caution subject to general legal principles and to the condition that the matter is not one with which the legislature has specifically dealt so as to preclude the exercise of that power. Having regard to the mandatory provisions of Section 215 and the limitations prescribed therein, I feel great hesitation in exercising my power under Section 561A much as I was tempted to do so in the circumstances of this case.

5. I however feel that even on the terms of Section 215 relief can be substantially given to many of the petitioners. The learned Magistrate has at the end of his order of commitment summed up the evidence that is supposed to exist as against each of the accused. The synopsis of the evidence as summed up by the Magistrate shows that there is no evidence worth the name as against the petitioners Upendra Chandra Dey, Sachindra Lal Chakrabarty, Sukhendu Bikas Das (son of Akhil), Nikhil Chandra De, Aswini Kumar Seal, Jyotish Chandra Kulal, Bholanath Choudhuri, Nirode Baran Dey and Bimal Chandra Das. In the case of these petitioners the evidence rests on the supposed identification of one witness only and even that identification is on the face of it discrepant. It can be therefore very well assumed that there is no evidence on which a prima facie case can be found to exist as against those petitioners. In regard to the other four petitioners I am constrained not to interfere with their commitment at this stage. I am undoubtedly impressed by the submission of the learned Counsel that on the evidence as it is it may be very difficult for a reasonable court or jury to convict even these petitioners.

But I am not as at present advised prepared to hold that the order of commitment passed against them is illegal or erroneous. It may be that the Judge or the jury may not decide to convict even these petitioners on the evidence adduced. That is a matter which it is not for us to prejudge at this state. The evidence may be held to be satisfactory or may not be held to be satisfactory. But if there is some legal evidence to be placed at the trial irrespective of its ultimate probative value, the order of commitment cannot be interfered with. I am anxious to make it clearly understood that any remark that I may have made at this stage is not intended to prejudice the trial either for or against any of the other accused. The application of the petitioners Upendra Chandra Dey, Sachindra Lal Chakrabarty, Sukhendu Bikas Das (son of Akhil), Nikhil Chandra De, Aswini Kumar Seal, Jyotish Chandra Kulal, Bholanath Choudhuri, Nirode Baran Dey and Bimal Chandra Das is accordingly allowed and the order of commitment passed against them is quashed. The Rule in favour of the other four petitioners Girindra Chandra Dey, Bishnupada Roy, Sukhendu Bikas Chaudhury (son of Mahendralal) and Basanta Kumar Chakrabarty is discharged. The bail bonds of the nine petitioners about whom the commitment order is quashed, are cancelled,

Ram Labhaya, J.

6. I agree.


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