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Sunil Kumar Ghosh Vs. Ajit Kumar Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 845 of 1966
Judge
Reported inAIR1969Cal492,1969CriLJ1234,73CWN212
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 340, 350, 423 and 439; ;Constitution of India - Articles 22 and 226
AppellantSunil Kumar Ghosh
RespondentAjit Kumar Das and ors.
Appellant AdvocateDilip Kumar Dutta, Adv.
Respondent AdvocateShib Sankar Sarkar and ;Ahindra Kumar Adhya, Advs.
Cases ReferredFakirchand v. Kamal Prosad
Excerpt:
- .....technical than real and is not warranted by law. there is no specific provision in the code of criminal procedure for hearing the arguments and the right of being 'defended' does not extend to the right to advance arguments. in any event, the petitioner in this case is but the complainant and there has been no failure of justice. the second contention raised by mr. sarkar is that arguments have in fact been heard by the learned predecessor magistrate on the 22nd july, 1965 and as such the present incumbent need not hear the same all over again, in terms of section 350 of the code of criminal procedure. 6. the points at issue, therefore, are quite intriguing and are of some importance. it is to be determined in the first place as to whether there is any mandatory provision in the code.....
Judgment:
ORDER

N.C. Talukdar, J.

1. This Rule is at the instance of the de facto complainant and is against an order dated the 31st May 1960 passed by Shri S.L. Roy, Magistrate, First Class, Howrah, acquitting the accused opposite parties, who are 4 in number, under Sections 427, 447 and 323, I. P. C.

2. Bereft of all verbiage, the prosecution case inter alia is that Shri Sunil Kumar Ghosh (P. W. 1) is a partner of Das Ghosh and Co. having amongst others a shop or a 'gola' of building materials at 127, Netaji Subhas Road, Howrah. On the 26th July, 1964 at about 8.15 A. M. when the said P. W. 1 was working in this shop, the accused opposite parties came in a body and started breaking down the northern, fencing thereof. They threatened to assault the complainant when the latter protested and came upon the land of the gola, forcing the complainant thereby to run away in fear. P. W. 1 proceeded to the police-station where he lodged a F. I. R. (Ext. 1) over the said incident which was witnessed by P. Ws, 2, 3 and 4 while P. Ws. 5 and 6 reached the place of incident thereafter to witness the damaged fencing. P. W. 11 was deputed by P. W. 9, who recorded the F. I. R., to investigate the case and the said P. W. 11 visited the place of incident on the same date and seized under a search list (Ext. 2) some broken bamboos etc. in the presence of P. W. 10. It is further stated that prior to the incident mentioned above, at about 7 A. M. on the same date P. W. 8, Assistant Sub-Inspector, served a notice tinder Section 144, Cr. P. C. upon the accused persons on the complaint of P. W. 1. The accused opposite parties were ultimately placed on trial before Shri S.K. Mukherji, Magistrate, First Class, Howrah, to answer charges under Sections 427, 447 and 323, I. P. C.

3. The defence case in short is that the accused persons are not guilty and that this is a false case, engineered by P. W. 1, to implicate the said accused persons under Section 188, I. P. C.

4. 12 witnesses were examined on behalf of the prosecution to prove the offences charged while the defence examined one witness. The case has had a chequered career. Shri S.K. Mukherji, Magistrate. First Class, Howrah recorded the evidence and heard the arguments on the 22nd July. 1965. Thereafter the judgment was deferred on one ground or other. On 13-8-1965 the learned trying Magistrate was on leave and on 27-8-05; 25-9-65, 25-10-05 and 30-10-05 the learned Magistrate could not deliver the judgment as it was not ready. Thereafter Shri S.K. Mukherji, the learned trying Magistrate retired and there were adjournments on 15-11-65, 16-12-65 and 17-1-66 as no successor had joined. ShriS. L. Roy, the present incumbent, joined thereafter and on 22-2-66 he ordered that 29-3-66 be fixed for judgment. On 29-3-66 and 27-4-68 the case was again adjourned and the judgment could not be delivered and ultimately on 31-5-66, which was the next date fixed for judgment, Shri S. L. Roy, Magistrate, First Class, Howrah, delivered the judgment, which has been impugned in the present revisional application, acquitting all the accused persons of the respective charges.

5. Mr. Dilip Kumar Dutta, Advocate, appearing on behalf of the complainant petitioner, has pressed the Rule only on one ground as mentioned below. In view thereof and in view of the findings I am going to arrive at, it is not necessary to enter into the merits and traverse the evidence on record. Mr. Dutta has urged that the learned trying Magistrate, namely the present incumbent, has followed a procedure not known to law by not giving the parties an opportunity to advance arguments before the delivery of the judgment, vitiating the same thereby. In this connection he has contended that there has not been a fair or proper trial and the resultant order of acquittal is not sustainablc in law. Mr. Shib Sankar Sarkar, Advocate, appearing with Mr. Ahindra Kumar Adhya, Advocate, contended in the first instance that the objection raised by Mr. Dutta is more technical than real and is not warranted by law. There is no specific provision in the Code of Criminal Procedure for hearing the arguments and the right of being 'defended' does not extend to the right to advance arguments. In any event, the petitioner in this case is but the complainant and there has been no failure of justice. The second contention raised by Mr. Sarkar is that arguments have in fact been heard by the learned predecessor Magistrate on the 22nd July, 1965 and as such the present incumbent need not hear the same all over again, in terms of section 350 of the Code of Criminal Procedure.

6. The points at issue, therefore, are quite intriguing and are of some importance. It is to be determined in the first place as to whether there is any mandatory provision in the Code of Criminal Procedure for the hearing of arguments and as such the Court, in a criminal trial, is bound to hear such arguments and the failure to do that will vitiate the trial; secondly, whether such, a right to argue applies to the complainant in a criminal case; and thirdly even if such arguments are the sine qua non of a proper and legal trial, whether the same is complied with by the hearing of such arguments by the predecessor Magistrate, though not by the successor Magistrate, in terms of Section 350 of the Code of Criminal Procedure.

7. The point involved, in the questions enumerated above, is one of law and the approach thereto should be two-fold. In the first instance one has to consider the position before the commencement of the Constitution and secondly one will have to consider the position subsequent to the commencement of the Constitution.

8. The proper determination of the position before the commencement of the Constitution is based upon the consideration of Sections 340, 423 and 439 of the Code of Criminal Procedure. Section 340 relates to the right of persons, against whom proceedings are instituted, to be defended. Under Sub-section (1) of the said section, any person who is accused before a criminal Court 'may of right be defended by a pleader'. Whether it is the intention of the legislature that the expression 'to be defended' includes the right of arguments. The answer to that question will be the answer to the case. The Judicial Committee in a case from the protectorate Court of Somaliland protectorate, in the case of Galos Hirad v. The King, AIR 1944 PC 93 has laid down principles which would throw light upon the said question, though the case concerned is not directly on the point Viscount Maugham, who delivered the judgment held that just as a conviction following a trial cannot stand if there has been a refusal to hear the counsel for the accused, so also an appeal cannot stand where there has been a refusal to adiourn an appeal in which the appellant was entitled as of right to be heard by a counsel assigned to him. Such a right is not of a merely directory character. In Hold-sworth's History of English Law, Vol. 9. It has been observed that the importance of persons accused of a serious crime having the advantage of counsel to assist them before the Courts, cannot be doubted by anybody who remembers the long struggle which took place in England resulting ultimately in such persons having the right to be represented by counsel. The next provision Is Section 423 of the Code of Criminal Procedure and that relates to the powers of the appellate Court in disposing of appeal. The expression used in clause 1 of Section 423 of Cr. P. C. is 'hearing the appellant or his pleader'. The absence of any opportunity to be so heard has been held to have vitiated the judgment A reference In this connection may be made to the decision by Mr. Justice S.K. Sen, in the case of Rajed Sheikh v. The State, : AIR1957Cal735 , where it was held that where it is found that the appellant or his counsel could not be present In Court when the appeal was heard through no fault of theirs, it Is the duty of the Court to adjourn the hearing of the appeal 'to enable the appellant to put forth hisarguments before the Court' In the present case however, which was not an appeal, the complainant and his lawyer were present in Court but still no arguments were heard. It has of course been held by Mr. Justice Lort Williams and Mr. Justice Mallick, in the case of Behari Majhi v. Hari Majhi, : AIR1932Cal61 that a private prosecutor cannot claim to be heard as of right, in a criminal appeal, although the Court may in its discretion hear him in support of the judgment. The facts are however, distinguishable and the present case was not an appeal. Moreover in view of the recent Supreme Court decisions as to the rights of the private complainant in cases of acquittal and also in view of the commencement of the Constitution, the position has substantially changed. The third provision is Section 439 of the Code of Criminal Procedure which lays down the powers of the High Court in revision. Under Sub-section (2) of the said section, no order shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. The expression 'hearing' therefore, finds place in the said section although In connection with the accused. Section 440 of the Code of Criminal Procedure, though it appears in the first blush to lay down that no party has any right to be heard either personally or by pleader before any Court when exercising its power of revision. Is nonetheless subject to the proviso thereunder which lays down that nothing in that section shall be deemed to affect Section 439, Sub-section (2). One is not concerned in this case with the powers of the High Court in revision 'to hear parties' but the same is being referred to only for the purpose of elucidating the principle involved therein.

9. I will now proceed to consider the position as to the right of argument of the parties in a criminal case, after the commencement of the Constitution. Article 22(1) of the Constitution guarantees the right of the accused in a criminal case to consult and to be defended by a legal practitioner of his choice'. The right so conferred under Article 22(1) may not be an absolute right but nonetheless it is the right to have the opportunity to consult and to be defended and such a right to be defended does Include the right to advance arguments. The opportunity of being heard is the sine qua non of any proper and legal determination of any dispute. The concept is as old as the hills and is not only incorporated in different pieces of legislation but has assumed added importance after the commencement of the Constitution In this country. It is therefore rather late in the day to deny any such opportunity to any of the parties in a criminal case,'whether the same is in the original stage or is pending in revision or in appeal. The principle underlying is the same in each case,

10. The point at issue may further be considered in the light of the principles of natural justice. As has been observed by the House of Lords in the case of General Council of Medical Education and Registration of United Kingdom v. Spackman, 1943-2 All ER 337 (at p. 343) 'natural justice' seems to be used in contrast with any formal or technical rule of law or procedure. Reference was made therein to the Earl of Selborne's observation that 'this is a matter not of a kind requiring form, not of a kind requiring litigation at all, but rerjuiring only that the parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him'. A reference in this connection may also be made to the case of Kishan Lal Agarwalla v. Collector of Land Customs, : AIR1967Cal80 wherein it has been held by Mr. Justice P. B. Mukharji and Mr. Justice Masud that ordinarily the principle of natural justice is that no man shall be a judge in his own cause and no man should be condemned unheard. This latter doctrine is known as Audi Alteram Partem. It is on this principle that natural justice ensures that both sides should be heard fairly and reasonably. A part of this principle is that if any reliance is placed on evidence or record against a person then that evidence or record must be placed before him for his information, comment and criticism. Their Lordships of the Judicial Committee have also observed in the case of Md. Nawaz v. Emperor that broadly speaking the Judicial Committee will only interfere when there has been an infringement of the essential principle of justice. An obvious example would be a conviction following a trial where it could be seriously contended that there was a refusal to hear the case of the accused or where the trial took place in his absence or where he was not allowed to call relevant witnesses.

11. On the basis of the said principle, it is manifestly clear that the refusal of the opportunity of being heard, has also caused a failure of natural justice in this case and has prejudiced the complainant petitioner.

12. A reference in this connection may be made to the Code of Civil Procedure to find out as to whether there is any specific provision for any such absolute right to advance arguments in civil cases. The nearest approach to the point is the provision, embodied in Order 18, Rule 2of the Code of Civil Procedure, which provides that on the day fixed 'for the hearing of the suit or any other day to which the hearing is adjourned' the party having the right to be defended shall state his case and produce any evidence which speaks for any issue which is bound to be proved. In Sub-rule (1) under the said rule the expression used is 'on the day fixed for the hearing of the suit' and Sub-rule (2) provides that 'the other parties shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.' Sub-rule (2) provides that 'the party beginning may then reply generally en the whole case.' In the case of Hansraj v. Sohan Singh, Mr. Justice Harnam Singh has held that the expression 'hearing of the suit' in Order 18, R. 2 of the Code of Civil Procedure means the hearing at which the judge would be taking evidence or Rearing arguments or would have to consider questions relating to the determination of the suit which Would enable him finally to come to an adjudication upon it. In another case, namely, the case of Sitaram Hirachana v. Yograjsing Shankarsing, : AIR1953Bom293 Chief Justice Chagla and Mr. Justice Dixit held that

'the trial of suit does not mean the same thing as the hearing of a suit. Order 18 of the Code of Civil Procedure in terms speaks of the hearing of suit and not the trial of the suit ............... Thehearing of a suit is only a part of the trial of the suit and the hearing is concerned with what happens in open Court where witnesses are examined and cross-examined, addresses are delivered by counsel and judgment is delivered.'

13. Several reported decisions in Criminal cases appear to support the view referred to above. A reference may be made to the case of Ramadhar v. The State, : AIR1954All645 (Lucknow Bench). Mr. Justice Sapru held therein that one of the principles which is firmly embedded in the system of jurisprudence that is administered in India, is that justice must not only be done, but must seem to be done. If parties to a civil or a criminal litigation were to get the impression that Courts have no use for counsel when they are not prepared to hear arguments addressed to them and that they come to Courts with closed minds, confidence in the administration of justice will be shaken. While it is incumbent on the Courts to see that their time is not wasted by frivolous arguments, It is also obligatory on them to remember that without the assistance of the counsel the quality of their work will possibly suffer.

14. In a Calcutta case Kalipada Kumar v. Emperor, (1941) 45 Cal WN 1045, Mr. Justice Lodge and Mr. Justice Pal heldthat where the trying Magistrate arbitrarily fixed a brief period with the completion of the defence arguments and thereupon no argument on behalf of the defence is advanced, there is no proper trial of the case and the conviction and sentence must be set aside. The fact that arguments were advanced later on in the appellate Court would not rectify the defect.

15. Arguments are hut the handmaidens of justice and although the legislature has in express terms pin-pointed the importance of such arguments in the case of the accused, upon ultimate analysis no indispensable distinction can really be made in the case of the complainant also Prosecution has as much the right to address the Court as 1he defence and justice demands that not only the accused but also the complainant in a criminal case be not denied the opportunity to address the Court and place its viewpoints. The prosecution and the defence are but the two prongs of a scissor--they cut the rase but, never cut each other. It is imperative ex debito justitiae that neither of these two prongs be allowed to have an edge over the other, disturbing thereby the stream of justice. I, therefore, hold that the failure on the part of the learned trying Magistrate to give an opportunity to the complainant petitioner to be heard by advancing arguments, has resulted in a failure of justice, vitiating the ultimate order of acquittal.

16. In this connection, it may be pertinent 1.0 consider the extent of the power of the High Court in setting aside orders of acquittal. The limits of the High Court's powers in revision for setting aside an order of acquittal have been laid down in a recent decision of the Supreme Court in the cast; of Chinnaswamy Reddy v. State of Andhra Pradesh, : [1963]3SCR412 . Their Lordships held that it is true that it is open to a High Court in revision to set aside the order of acquittal even at the instance of private parties though the State may not have thought fit to appeal but this jurisdiction should be exercised by the High Court only in exceptional cases when there is any glaring defect in the procedure or there is manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. An almost similar view has been taken in a later decision of the Supreme Court in the case of Fakirchand v. Kamal Prosad, 1964-2 Cri LJ 74 (SC). I accordingly hold that the refusal of opportunity to the petitioner to advance arguments in support of his contention in the trial Court, sis a glaring defect in the procedure and has caused a miscarriage of justice. Justice should not only be done but must manifestly be seen to be done and as suchthe impugned order of acquittal is unsustainable in law. I make however, no observations as to the merits of the case, as it is quite irrelevant for the purpose of the present Rule.

17. The only point that now remains to be considered is as to whether the arguments in this case having once been heard by predecessor Magistrate, any failure on the part of the successor Magistrate to hear the arguments once again, is bad in law and amounts to a shutting out of any opportunity to advance arguments and as to whether such an opportunity to advance arguments once again must be given in terms of Section 350 of the Code of Criminal Procedure. In my opinion Section 350, Criminal P. C. does not constitute any such bar in limine or otherwise and the said section is to be, considered in the light of the other provisions of the Code. In any event, the principle as discussed above applying in the case of the predecessor Magistrate, holds equally good in the case of a successor Magistrate.

18. In the result, I make the Rule absolute; set aside the order of acquittal complained of; and send back the case to the Court below to be heard by some other Magistrate, to be nominated by the District Magistrate, Howrah.


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