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Supriyo Sarkar Vs. Sunil Ranjan Sarkar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 208 of 1969
Judge
Reported inAIR1970Cal81,1970CriLJ208,75CWN548
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 185(1) and 185(2); ;Code of Civil Procedure (CPC) , 1908
AppellantSupriyo Sarkar
RespondentSunil Ranjan Sarkar
Appellant AdvocatePrasun Chandra Ghosh and ;Birendra Nath Banerjee, Advs.
Respondent AdvocateManoranjan Das, ;Dipankar Ghosal, ;Rabiranjan Roy and ;Gopal Chandra Ghosh, Advs. for Respondent No. 1;Dipak Kumar Sengupta, Adv.
DispositionPetition allowed
Cases ReferredGhanshyamdas v. Regional Assistant Commissioner of Sales Tax
Excerpt:
- .....convenience or of any other sufficient reason, for ultimately determining as to which of the two high courts would direct the trial of such offender to be held in any court subordinate to it. the same is not, however, the position as enjoined under sub-section (1) of section 185 of the code where the two courts concerned are subordinate to the same high court. the field of consideration is therefore wider and includes not only the ground of earlier commencement but also the ground of general convenience and any other sufficient reason thereby not whittling down in any way the discretion of the high court in deciding as to which of the two subordinate courts shall enquire into or try the offence. if the legislature wanted to lay down that the sole ground for interference under section.....
Judgment:
ORDER

N.C. Talukdar, J.

1. This Rule arises out of an order dated the 7th February, 1960 passed by Shri S. C. Roy, Additional Chief Presidency Magistrate. Calcutta, in case No. C/833 of 1968, upon an application filed by the accused-petitioner Shri Supriya Sarkar for dropping the prosecution, holding that the point raised in the said petition can only be decided by the High Court under Section 185(1) of the Code of Criminal Procedure and directing the accused-petitioner to move the said Court for the necessary decision,

2. The facts leading on to the present Rule can be put in a short compass. A novel named 'Patak', written in Bengali by the accused No. 1, Shri Samaresh Basu, was printed and published by the present petitioner, Shri Supriya Sarkar in the Puja Number of the 'Amrita' in the year 1375 B. S. In course of reading the said novel, the complaints concerned were of the view that the said novel contained several vulgar, indecent and obscene passages tending to corrupt the minds and morals of the young and to degrade the culture of the society. One such complaint was lodged under Sections 292/293 I. P. C. against two accused persons viz., Shri Samaresh Basu, the writer and Shri Supriya Sarkar, the printer and publisher of the magazine, by Shri Sunil Ranjan Sarkar, Advocate, who described himself as a litterateur and a lover of Bengali Literature, on 14-12-68 in the court of the Additional Chief Presidency Magistrate, Calcutta, being case No. C/833 of 1968. The case was sent for judicial enquiry and on a perusal of the same, summons was issued on the 6th January, 1969, by the learned Additional Chief Presidency Magistrate. Calcutta against the accused no. 1, Shri Samaresh Basu under Section 292, I. P. C. and the accused no. 2, Shri Supriya Sarkar, the present petitioner, under Sections 292 and 293, I. P. C. Another complaint, being case no. C. 3409 of 1968 was also filed in the Court of the Police Magistrate, Alipore, 24 parganas by Sri Deb Kumar Ghosh, Secretary, Nitya-nanda Library, ,Chetla and a member of the Cine Film Reform Association of India against the above-mentioned two accused and also Shri Tushar Kanti Ghosh the Editor of the 'Amrita' under Sections 292 and 293 L P. C. read with Section 114, I. P. C. relating to the same novel called 'Patak'. The Police Magistrate, Alipore, examined the complainants on solemn affirmation and summoned all the three accused persons under Sees. 292/293 I. P. C. Both the cases thereafter have been pending respectively before the learned Additional Chief Presidency Magistrate. Calcutta and the learned Police Magistrate, Alipore, 24-Parganas, two subordinate courts under the jurisdiction of the same High Court. An application was filed on 25-1-69 by the co-accused Shri Supriya Sarkar in the case pending before the learned Additional Chief Presidency Magistrate, Calcutta, submitting inter alia that the offences alleged in both the cases being identical, there cannot be two separate proceedings over the same issue and accordingly the proceedings pending before the learned Additional Chief Presidency Magistrate, Calcutta, may be dropped. An objection thereto was made on behalf of the complainant opposite-party no. 1, Shri Sunil Ranjan Sarkar. After hearing both the parties the learned Additional Chief Presidency Magistrate, Calcutta, held by his order dated the 7th February 1969 that the continuance of the two different proceedings in the two different Courts over the same offence may lead on to double jeopardy tinder Article 20(2) of the Constitution of India and as the point involved in the petition can only be decided by the High Court, he directed the accused in the proceeding pending before him to move the Hon'ble High Court for a decision of the point under Section 185(1) of the Code of Criminal Procedure and in that view he adjourned the case to 25-3-69 for further orders. An application for revision was accordingly moved on the 10th March, 1969 and the present Rule was obtained by the accused-petitioner. After the matter was heard in part it transpired that Shri Samaresh Basu. the accused no. 1 in the case, was not added as a party by the petitioner and on the prayer of the learned Advocate appearing on behalf of the petitioner, and in the interests of justice, the said accused was directed to be added as the opposite-party no. 2. Shri Samaresh Basu, however, did not ultimately appear though he was served upon.

3. Mr. Prasun Chandra Ghosh, Advocate (with Mr. Birendra Nath Banerjee, Advocate) appearing on behalf of the accused no. 2, the petitioner, has made a two-fold submission. The first contention of Mr. Ghosh is that in view of the pendency of two separate proceedings over the same offence in two different courts, the same would only lead on to double jeopardy and as such the proceedings pending in the court of the Additional Chief Presidency Magistrate, Calcutta, as prayed for, by the petitioner, should be dropped. The second contention of Mr. Ghosh is that the dominant consideration for interference under Section 185(1) of the Code of Criminal Procedure is the ground of convenience of the accused and not the factum of earlier commencement as enjoined under Section 185(2) of the said Code. In this context and in support of his contention, Mr. Ghosh relied on the enunciation made in Article 705 in Kenny's Outlines of Criminal Law (19th Edn.) as also on the case of Charu Chandra Majumdar v. Emperor, reported in 21 Cal WN 320 = (AIR 1917 Cal 137) (FB). Mr. Monoranjan Das, Advocate (with Messrs. Dipankar Ghosal, Rabiranjan Roy, Gopal Chandra Ghosh, Advocates) appeared on behalf of the complainant opposite-party no. 1 after the arguments were heard in part but in the interests of justice, I adjourned the case to enable Mr. Das to make his submissions. An affidavit-in-opposition was also filed on behalf of the opposite-party no. 1 and was kept on the record. Mr. Das contended that the question of convenience of the accused is immaterial and the sine qua non for an interference under Section 185(1) of the Code of Criminal Procedure is as to which proceedings 'were first commenced' as enjoined under Section 185(2) of the Code of Criminal Procedure, The question, according to Mr, Das, is one of law and relates to the Interpretation of Section 185(1) of the Code of Criminal Procedure. In this context Mr. Das further submitted that the proceedings before the learned Additional Chief Presidency Magistrate. Calcutta, were started first as cognizance was taken on the 14th December, 1968 whereas in the case before the learned Police Magistrate at Alipore such cognizance was taken on the 18th December, 1968. Mr. Das also contended that the number of accused persons is not the determining factor for holding as to in which of the two courts, subordinate to the same High Court, an enquiry or trial for the offence shall go on. Mr. Dipak Kumar Sengupta, Advocate, appearing on behalf of the State has supported the Rule and has contended that the concept of an earlier commencement as enjoined under Section 185(2) of the Code of Criminal Procedure cannot be imported into Section 185(1) for the purpose of determining as to in which of the two subordinate courts, the enquiry or trial should go on. Mr. Sengupta further contended that it should not be overlooked that in the Alipore case there are three accused persons and not two as in the proceedings pending before the learned Additional Chief Presidency Magistrate. Calcutta and that the question being one of convenience of the accused, the proceedings in Alipore should continue as prayed for by one of the accused himself, and not objected to by the other.

4. Having heard the learned Advocates appearing on behalf of the respective parties and having considered the materials on the record, I will now proceed to determine the point at issue in the light of the same. The point involved in this Rule is of some importance and relates to the interpretation of Section 185 (1) of the Code of Criminal Procedure. It is pertinent in this context to refer to the language of Sub-section (1) of Section 185 of the Code which runs as follows: 'whenever a question arises as to which of two or more courts subordinate to the same High Court ought to inquire into or try any offence it shall be decided by that High Court.' The provisions of Sub-section (2) of the said section would also be relevant in this connection. It lays down that 'where two or more courts not subordinate to the same High Court have taken cognizance of the same offence the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced may direct trial of such offender to be held in any court subordinate to it and if it so decides altogether proceedings against such persons in respect of such offence shall be discontinued.' It will appear therefore that the provisions contained in Section 185(1) of the Code of Criminal Procedure do not fetter in any way the discretion of the High Court by enjoining any condition precedent for deciding as to In which of the two or more courts, sub-ordinate to the same High Court, the enquiry or trial shall proceed. In Sub-section (2) of the said section, however, the sine qua non for such interference is as to where the proceedings 'were first commenced'. The point for determination therefore is whether the concept of an earlier commencement as enjoined in Sub-section (2) can be imported into Sub-section (1) of Section 185 of the Code of Criminal Procedure, which is otherwise silent on the same. If it can be so imported and be deemed to be the only ground for interference thereunder, it is the Presidency Magistrate's Court, wherein the proceedings were first commenced, that should be the court where the proceedings should continue in preference to the other proceedings pending in the court of the learned Police Magistrate at Alipore. On an interpretation of the relevant provisions of the Code, I, however, hold that it is not so and that it had never been the intention of the legisla-ture that it should be so. The canons of interpretation of statute enjoin that some meaning and effect must be given to the significant absence of the expression 'were first commenced' in Sub-section (1) and the specific presence thereof in subsection (2) of Section 185 of the Code of Criminal Procedure. The principles of interpretation of statutes rule out redundancy, and as was observed by Lore Sumner in the case of Quebec Railways, Light, Heat and Power Co. Ltd. v. Van-dry, AIR 1920 PC 181 at p. 186 that 'effect must be given if possible TO all the words used, for the legislature is deemed not to waste its words or to say anything in vain.' Mr. Justice Subbarao (as His Lordship then was) also observed in the case of Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur. : [1964]51ITR557(SC) that 'A construction which would attribute redundancy to a legislature shall not be accepted except for compelling reasons.' I respectfully agree with the same and I hold that the dominant consideration of an earlier commencement has been incorporated in Sub-section (2) of Section 185 of the Code of Criminal Procedure for good reasons because the said Sub-section refers to a different state of circumstances, where the two or more subordinate courts taking cognizance of the same offence are not subordinate to the same High Court and therefore to eliminate possible confusion and conflict, the principle of earlier commencement has been enjoined as the proper criterion, irrespective of any ground of general convenience or of any other sufficient reason, for ultimately determining as to which of the two High Courts would direct the trial of such offender to be held In any court subordinate to it. The same is not, however, the position as enjoined under Sub-section (1) of Section 185 of the Code where the two courts concerned are subordinate to the same High Court. The field of consideration is therefore wider and includes not only the ground of earlier commencement but also the ground of general convenience and any other sufficient reason thereby not whittling down in any way the discretion of the High Court in deciding as to which of the two subordinate courts shall enquire into or try the offence. If the legislature wanted to lay down that the sole ground for interference under Section 185(1) of the Code of Criminal Procedure is merely that of an earlier commencement of the proceedings concerned, it could have said so in express words. In view of the same and in consonance to the rules of interpretation of statute, a true and proper effect must be given to the provisions as incorporated in Sub-section (1) to Section 185 of the Code. In my view the discretion conferred under the said Sub-section is unfettered and untrammelled by any consideration of an earlier commencement only. The factum of earlier commencement may be one such consideration but not the only consideration or an inflexible consideration for exercising the discretion of the court conferred under Section 185(1) of the Code of Criminal Procedure. In that context undoubtedly the question of convenience of the parties may be a material consideration, the nature of the case and the facts thereof will also be another yard-stick for exercising the said discretion; and last but not the least, sufficient reason is also one of the criteria for such determination.

5. So far as the ground of convenience of the parties is concerned, there is no question however, of the complainant being inconvenienced because the complainants are different in the two different proceedings and as such, whoever may bo the complainant will not be inconvenienced in any way wherever the proceedings may ultimately take place. Upon ultimate analysis the question of general convenience does not include the complainant and can only relate to the accused in such proceedings and the same again must depend on the facts of each case. In the instant case one of the accused is the petitioner and on his ground of convenience and prejudice he has prayed for the proceedings at Presidency Magistrate's Court. Calcutta to be dropped. The co-accused, who has been made a party, has not appeared to object but it is only the complainant who had objected to the prayer in the court below and has reiterated the said objection in this Court. In this connection Mr. Ghosh appearing on behalf of the accused-petitioner, Shri Supriya Sarkar has referred to Article 705 in Kenny's Outlines of Criminal Law (19th Edn.). The said article refers to venue. It has been observed therein that 'At common law an offence can only be tried by the court within whose jurisdiction it (or a part of it) was committed, but by Section 11 of the Criminal Justice Act, 1925, as modified by the Magistrates Courts Act. 1952, S. 2(4), it is provided that a person charged with any indictable offence may be proceeded against, indicted, tried and punished in any place in which he was apprehended, or is in custody, or has appeared to a summons, on that same charge, just as if the offence had been committed there; unless it appears to the examining justices that the accused would suffer hardship if he were indicted and tried in such place.' A further reference in this connection may be made to the case of 21 CWN 320 = (AIR 1917 Cal 137) (FB). It is undoubtedly true that the said case was decided in the context of the old Act before amendment of Act 18 of 1923, which not only amended Sub-section (1) of Section 185 but also added Sub-section (2) to the said section to set at rest the conflict in decisions between the Calcutta and the Madras High Courts. But the principles laid down therein relating to the ground of general convenience would hold good. The majority of the Full Bench held that Section 185 is not restricted to cases in which there is doubt as to whether one court or another has jurisdiction but includes cases in which the doubt is on the point where the choice between the two courts both of which have jurisdiction should be decided on the ground of general convenience. I respectfully agree with the observations made by the Full Bench and I hold that the ground of convenience is also one of the factors which should determine ultimately as to in which of the two or more courts subordinate to the same High Court, the offence shall be enquired into or tried. I uphold therefore the contentions raised in this behalf by Mr. Prasun Chandra Ghosh.

6. Before I part with the case. I must refer to another submission that was made on behalf of the petitioner viz. that in the proceedings pending at Alipore there are three accused persons and as such for a proper determination, the said proceedings should be allowed to continue. It was also prayed for by Mr. Das on behalf of the opposite-party No. 1 that if it be so necessary, he may be permitted to add the name of the third accused in the proceedings pending before the learned Additional Chief Presidency Magistrate, Calcutta. The learned Additional Chief Presidency Magistrate, Calcutta has rightly held that the inclusion of a third accused in the proceedings at Alipore does not make any difference and has no bearing upon the point for consideration under Section 185(1) of the Code of Criminal Procedure. I agree with the said finding and this contention accordingly fails.

7. In the result, I make the Rule ab-solute; and I direct that, of the two courts subordinate to this court, Shri M. B. Mukherjee, Police Magistrate, Alipore shall try the case pending against the three accused persons under Sections 292/293 I. P. C., being case No. C 3409 of 1968, ex-peditiously and in accordance with law.


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