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Sahodari Sonar Vs. Kailash Ram Teli and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantSahodari Sonar
RespondentKailash Ram Teli and anr.
Excerpt:
- - so, the present appeal should have been filed within 2 months from the date of the order of acquittal though, there is strong suspicion that the magistrate did not write the judgment, when he pronounced it, yet, in view of the fact that there is a judgment on record, it cannot be positively asserted that he did not write the judgment at that time......and proceeded with it. later on, the case was transferred to the file of the s.d.c./i.e. (second class magistrate), who re-numbered the case as criminal case 6/i.e. of 1964.(d) during the pendency of the said criminal case no. 6/i.e. of 1964 in the court of the s.d.c./i.e. (second class magistrate), the s.h.o. imphal police station submitted the charge-sheet against the respondent accused in f.i.r. case no. 662(6)64 i.p.c. under sections 323, 354 and 506 i.p.c. on the same cause of action in the court of the sub-divisional magistrate/imphal east. subsequently, the f.i.r. case was transferred to the court of sri section tombi singh, magistrate first class, imphal. sri ch. samarendra singh succeeded him as magistrate first class, imphal police station. in the course of hearing of the.....
Judgment:

C. Jagannadhacharyulu, J.C.

1. This is an appeal filed by a private complainant Sahodari Sonar of Khurai Telipati, P.S. Imphal under Section 561(A) Cr.P.C. to set aside the judgment of acquittal of the respondent-accused passed by Sri Ch. Samarendra Singh, Magistrate First Class, Imphal in F.I.R. Case 662 (6)64—I.P.S. dated 15.6.1965.

2. This case raises important questions of law. The facts of the case, as narrated by the appellant, which led up to the institution of this appeal are, briefly, as follows:

(a) While the appellant was taking bath in the Imphal River on 15.6.1964 at Kali-may Ghat near Khurai Telipatti, the respondent Kailash Ram Teli made immoral overtures to her with intent to outrage her modesty and she felt insulted and protested against the unmannerly conduct of the respondent. The respondent became furious and struck the appellant with a lathi. The appellant tried to ward off the blow with her right hand. But, the blow fell between the thumb and the index finger of her right hand and caused a profuse bleeding injury. The appellant immediately reported the matter to the Station House Officer of Lam-long Police Out-post. He directed a constable to take the appellant to Imphal Police Station. The S.H.O. recorded the first information report of the appellant. He sent the appellant with a constable to the Civil Hospital in Imphal. The appellant was treated there as an out-patient for about one month.

(b) The Imphal Police arrested the respondent on 15.6.1964, the day of occurrence and released him on bail. But, the police did not take any prompt action and kept the investigation pending for an unduly long time.

(c) Being aggrieved with the manner of the investigation, the appellant filed a private complaint petition against the respondent under Sections 323 and 353 I.P.C. in the Court of the Sub-Divisional Magistrate Imphal East. He took cognizance of the case as Criminal Case 38 of 1964 and proceeded with it. Later on, the case was transferred to the file of the S.D.C./I.E. (Second Class Magistrate), who re-numbered the case as Criminal Case 6/I.E. of 1964.

(d) During the pendency of the said Criminal case No. 6/I.E. of 1964 in the Court of the S.D.C./I.E. (Second Class Magistrate), the S.H.O. Imphal Police Station submitted the charge-sheet against the respondent accused in F.I.R. Case No. 662(6)64 I.P.C. under Sections 323, 354 and 506 I.P.C. on the same cause of action in the Court of the Sub-Divisional Magistrate/Imphal East. Subsequently, the F.I.R. Case was transferred to the Court of Sri Section Tombi Singh, Magistrate First Class, Imphal. Sri Ch. Samarendra Singh succeeded him as Magistrate First Class, Imphal Police Station. In the course of hearing of the F.I.R, case and after framing the charges against the respondents, the Magistrate First Class Sri Ch. Samarendra Singh, called for the records of the Criminal Case 6/I.E. of 1964 and made it a part of the F.I.R. case pending in the Court of the Magistrate First Class, Lamphel Police Station.

(e) After trial, Sri Ch. Samarendra Singh, Magistrate First Class passed an order on 15.6.1965 (on the docket, without writing the Judgment) acquitting the respondent-accused. The appellant filed a revision (Cr.R.P. No. 53/1965) against the acquittal in the Sessions Court, Imphal, stating that the Magistrate did not write any-judgment and that the order of acquittal is contrary to the provisions of Section 367 Cr.P.C. The case was transferred to the Additional Sessions Judge. The latter registered the Criminal case as Criminal Revision Case 53/65/18 of 1965 and dismissed the revision on 5.1.1966 even before receiving the records in F.I.R. Case 662(6)64 I.P.S. from the Court of the Magistrate concerned, on the ground that the petitioner should have preferred an appeal against the order of acquittal with the special leave of this Court under Section 417(3) Cr. P.C. and that the irregularity of want of judgment is curable under Section 537 Cr. P.C.

(f) The appellant carried the matter in revision to this Court in Criminal Revision Case 3 of 1966. My learned predecessor held that the revision did not lie and that an appeal should have been filed. So, he dismissed the revision petition.

(g) Thereafter, the appellant filed the present appeal under Section 561 (A) Cr. P.C. and also a separate petition to condone the delay in filing the appeal.

3. The first point for determination is whether this appeal is barred by limitation. The present appeal against the order of acquittal of the accused-respondent, instituted by the appellant, has to be construed to be an appeal under Section 417(3) Cr. P.C. though the appellant did not mention the said provision of law in the memorandum of appeal. Then, the appeal is barred by limitation, because, it was filed long after the expiry of 60 days (prescribed by Section 417(4) Cr. P.C.) from 15.6.1965. the date of the order of acquittal passed by Shri Ch. Samarendra Singh, M.I.C. Imphal. The Supreme Court made it clear that the Court has no power under Section 5 of the Limitation Act (Act XXXVI of 1963) to extend the special period of limitation of 60 days prescribed by Sub-section (4) of Section 417 Cr. P.C. in view of Sub-sections (2) and (3) of Section 29 of the Indian Limitation Act (Act XXXVI of 1963). Vide Kaushalya Rani v. Gopal Singh : [1964]4SCR982 .

4. The contention of the learned Counsel for the appellant is that the trial started on the police charge-sheet filed in F.I.R. Case 662(6)64 I.P.S., that the Magistrate did not write the judgment as can be seen from the copy of the judgment given to the appellant, that revision lies as the State Government did not file an appeal under Section 417(1) Cr. P.C. and that this Court can review its previous order in Criminal Revision Case 3 of 1966 dismissing the revision and set aside the illegal order of acquittal passed by the First Class Magistrate by treating this appeal as a revision. With regard to the contention of the learned Counsel for the appellant that the Magistrate did not write any judgment, there is room to doubt that Shri Ch. Samarendra Singh, Magistrate First Class did not write any judgment in the first instance.

Certified copy of the order given by this Court to the appellant contains only a short statement made on the docket of the record that the accused appeared, that the Magistrate found that he was not guilty of the offences under Sections 354 and 323 I.P.C. and that, therefore, he acquitted the accused. This is no judgment at all. Under Section 367 Cr.P.C. the judgment of the trial Court should contain the point or points for determination, the decision thereon and the reasons for the decision. The Additional Sessions Judge held that, even if the judgment of the Magistrate is not in accordance with Section 367 Cr.P.C. it is an irregularity which is curable. The Additional Sessions Judge disposed of the revision petition even without sending for the records of the Magistrate. He did not care to see whether there is any Judgment in the records or not.

His judgment that the defect is a curable one is not supported by any ruling or any provision of law. Thus, his order is perfunctory and unsatisfactory. But, actually, there is a judgment in the trial Court's records, written by the Magistrate. The records show that they were tossed between one Court and another. It was submitted by the learned Counsel for the appellant that, after the case was disposed of by the Magistrate, separation of Judiciary was effected in part, that the Magistrate did not write the judgment in the first instance and that subsequently he wrote the judgment and managed to insert it into the records. There is some force in this argument. The table of contents of the lower Court records shows that as against serial No. 7 in the table of contents the judgment was shown to consist of sheets 19 to 21 and the number 19 was scored out. This throws grave doubt over the bona fides of Shri Ch. Samarendra Singh, Magistrate First Class, who wrote the judgment. It appears that he was subsequently transferred to some other Department.

5. That a revision is maintainable by a private complainant in a Criminal case, initiated on the report of the police, against an order of acquittal is clear from Harihar Chakravarty v. State of West Bengal : AIR1954SC266 . That ordinarily the High Court does not entertain an application for revision, unless the lower Court having concurrent jurisdiction is moved is clear from Alapati Sriramamurty v. State of Andhra Pradesh : AIR1959AP377 and S.P. Dubey v. Narsing Bahadur : AIR1961All447 . That under Section 561A Cr.P.C. this Court can review its own decision in a Criminal revision case in the ends of justice is also clear from Talab Haji Hussain v. Madhukar Purshottam Mondkar : 1958CriLJ701 , Raj Narain v. State : AIR1959All315 , T. Narayana v. State of Andhra Pradesh : AIR1960AP1 and State of Andhra Pradesh v. Thadi Narayana : [1962]2SCR904 . It is also evident from the saving of inherent powers of the High Court under Section 561A Cr.P.C. that Section 369 Cr.P.C. is confined to the Judgments of its subordinate Courts and not to those of the High Court.

6. So, the next question for determination is whether the order of this Court in Criminal Revision Case 3 of 1966 dated 22.2.1966 is incorrect and whether it is liable to be reviewed. This leads to the question as to whether the Magistrate took cognizance of the case on the private complaint filed by the appellant or whether he took cognizance of the case on the charge sheet filed by the police in F.I.R. Case 662(6)64 I.P.S. The case of the appellant as mentioned in para 3 of the memorandum of appeal in this case is that, though she at first lodged the first information report before the Station Officer, Imphal Police Station, on the same date of occurrence of 15-6-1965, the S.H.O. did not take prompt action, that he kept the investigation pending for an unduly long time and that, therefore, she filed a private complaint under Sections 323 and 354 I.P.C. in the Court of the S.D.M./I.E.

The appellant also states in para 4 of the memorandum of appeal that the S.D.M./I.E. took cognizance of the case as Criminal case 38 of 1964 and proceeded with the same, that later on the case was transferred to the file of the S.D.C./I.E. (Second Class Magistrate) and that the case was renumbered as Criminal Case 6/I.E. of 1964. In para 5 of the memorandum of appeal, the appellant stated that during the pendency of the said criminal case 6/I.E. of 1964, the S.H.O., I.P.S. submitted the charge-sheet in F.I.R. Case 662(6)64 I.P.S. under Sections 323, 354 and 506 I.P.C. on the same cause of action in the Court of the Magistrate/I.E.

In para 6 of the memorandum of appeal the appellant states that, thereafter, the F.I.R. Case was transferred to the Court of Shri S. Tombi Singh, Magistrate First Class, that Sri Ch. Samarendra Singh succeeded him as Magistrate First Class, that, in the course of hearing of the F.I.R. case after framing the charges Sri Gh. Samarendra Singh, Magistrate First Class called for the records of the Criminal Case 6/I.E. of 1964 and made it a part of the F.I.R case pending in his Court. Thus, Sri Ch. Samarendra Singh, Magistrate First Class clubbed both the cases and tried the respondent. The records show that the evidence was recorded in F.I.R. Case 662(6)64 I.P.S. and that the judgment in question was also delivered in that case.

But, as the private case and the police case were clubbed together, it follows that both the cases were disposed of together. Both the cases relate to the same offences., Thus, as the Magistrate First Class at first took cognizance of the case on the private complaint petition filed by the appellant and later on sent for the records from the Second Class Magistrate's Court and clubbed the said case with F.I.R. Case 662(6)64 I.P.S. which was filed later, even though the evidence was recorded in F.I.R. Case 662(6) 64 I.P.S., the trial must be held to have taken place in the earlier private complaint case, which was first taken cognizance of.

The facts of the case in Jamuna Singh v. Bhadai Shah : 1964CriLJ468 are analogous to the facts of the present case. It was held that when once the cognizance was taken by the Magistrate on a private complaint, there was no escape from the conclusion that the case was instituted on a private person's complaint and not on the police report submitted later on by the police and that, therefore, the contention that the appeal did not lie under Section 417(3) Cr. P.C. must be rejected. To the same effect is the decision in State of Bihar v. Sakaldip Singh : AIR1966Pat473 .

Thus, as the Magistrate First Class at, first took cognizance of the case judicially, the subsequent institution of the charge-sheet by the police cannot make the initial proceedings started on a private complaint as those started on the subsequent police report. As such, the remedy of the appellant was to file an appeal under Section 417(3) Cr.P.C. in the first instance. Her remedy was not by way of revision as no revision lies under Section 439(5) Cr.P.C. when an appeal lies. So, the present appeal should have been filed within 2 months from the date of the order of acquittal Though, there is strong suspicion that the Magistrate did not write the judgment, when he pronounced it, yet, in view of the fact that there is a judgment on record, it cannot be positively asserted that he did not write the judgment at that time. Redress should have been sought for by the appellant by filing the appeal in time. It is barred by limitation and the delay in filing the appeal cannot be condoned. A persual of the judgment shows that the Magistrate discussed the evidence and concluded that the appellant did not prove the case beyond doubt. The circumstances of the case do not warrant interference of this Court under its extraordinary powers under Section 561A Cr.P.C.

7. The result is that the appeal fails. and it is accordingly dismissed.


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