Skip to content


Bhujanga Bhusan Das Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 1395 of 1956
Judge
Reported inAIR1957Cal376,1957CriLJ710,61CWN752
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 190 and 436; ;Indian Penal Code (IPC) - Sections 148 and 324
AppellantBhujanga Bhusan Das
RespondentThe State and anr.
Appellant AdvocateS.S. Mukherjee, ;Sukumar Mitra and ;Satis Chandra Majumdar, Advs.
Respondent AdvocateAnil Kumar Sen, Adv.
Excerpt:
- .....prayed again for process against the petitioner under section 148 of the indian penal code. this, learned magistrate also refused the prayer. on the 1st november, 1955, there was a further application for process against bhujanga bhusan das which was again disallowed. this was followed by another representation to the magistrate on the 14th november, 1955, and the court sub-inspector prayed for an adjournment of the proceedings to enable the prosecution to put in a supplementary charge-sheet against bhujanga bhusan das. the prayer for adjournment was disallowed.4. while the proceedings before the court of sri das gupta were pending, a petition of complaint was filed by the widow of basanta das in the court of the sub-divisional magistrate in which she alleged that her husband had been.....
Judgment:
ORDER

Debabrata Mookerjee, J.

1. This is a petition for revision of an order of the Sessions Judge of Midnapur, dated the 2nd July, 1956, by which an order of dismissal of complaint under Section 203 of the Code of Criminal Procedure made by the sub-divisional Magistrate of Tamluk was set aside.

2. The facts briefly stated are these. An Information was lodged with the police that one Basanta Das had been killed by gun fire. After the usual investigation the police submitted a charge-sheet under Section 324/148 of the Indian Penal Code. Nineteen persons were proceeded against and the case was transferred to the Court of Sri D. Basu Roy before whom an application was made, after some evidence had been recorded, for process against Bhujanga Bhusan Das, the present petitioner. The ground stated was that the evidence disclosed a case under Section 302 of the Indian Penal Code which clearly suggested the complicity of the petitioner in the murder of Basanta Das. Sri Easu Roy did not accede to the prayer when an application was made to the Sessions Judge who, however, purported to exercise jurisdiction under Section 436 of the Code of Criminal Procedure and set aside the order of the Magistrate. The effect of the Judge's order was to put Bhujanga into the proceedings. The petitioner Bhujanga Das then applied to this Court challenging the legality of the order of the Sessions Judge, and this Court in Criminal Revision Case 254 of 1955 made the Rule absolute and heldthat the order of the Sessions Judge was not a valid and proper order. This Court further made it clear that it would be perfectly open to the Magistrate who was dealing with the proceedings to consider whether on the materials before him he should summon the petitioner Bhujanga Bhusan Das to answer a charge of murder.

3. It appears that the proceedings were then transferred to the file of another magistrate Sri S. K. Das Gupta, and on the 6th September, 1955, the Court sub-Inspector prayed again for process against the petitioner under Section 148 of the Indian Penal Code. This, learned Magistrate also refused the prayer. On the 1st November, 1955, there was a further application for process against Bhujanga Bhusan Das which was again disallowed. This was followed by another representation to the Magistrate on the 14th November, 1955, and the Court sub-inspector prayed for an adjournment of the proceedings to enable the prosecution to put in a supplementary charge-sheet against Bhujanga Bhusan Das. The prayer for adjournment was disallowed.

4. While the proceedings before the Court of Sri Das Gupta were pending, a petition of complaint was filed by the widow of Basanta Das in the Court of the Sub-Divisional Magistrate in which she alleged that her husband had been killed by gun fire and the shot had been fired by the petitioner Bhujanga Bhusan Das. The learned Magistrate took cognizance of the case and examined the complainant. The petition was, however, dismissed on the 25th January 1956. Thereafter an application was made to the Sessions Judge of Midnapur under Section 436 of the Code of Criminal Procedure, and the learned Judge by an order, dated the 2nd July, 1956, set aside the order of the Sub-divisional Magistrate made under Section 203 of the Code and directed further enquiry into the complaint. It is this last order of the learned Sessions Judge which is now challenged before me.

5. In the first place, Mr. Mukherjce has contended that in view of the repeated refusal on the part of the trying Magistrate to issue process against the petitioner Bhujanga Bhusan Das, the order for further enquiry made by the learned Judge cannot be sustained. On the merits Mr. Mukherjee has argued that there ought to be a finality to these matters, and the trying Court which was in seisin of the original case had on several occasions turned down the prayer of the prosecution for summoning the petitioner. In this view, it is argued that the order of the learned Judge suffers from a sense of lack of reality, and therefore, that order ought to be set aside. I do not think it would be right for me to express any opinion on the merits; but I wish to make it clear that there are materials which can be taken into consideration by the Court, and I am, therefore, not prepared to accept Mr. Mukherjee's contention that the learned Sessions Judge should have treated the matter as closed as a result of several successive orders made by the Magistrate declining to issue process against the petitioner.

6. The next point made by Mr. Mukherjee is that the order of the learned Sessions Judge for further enquiry, relating as it does to a complaint which was riled in the Court of the sub-divisional Magistrate of Tamluk on a date on which the parent proceedings were pending before the Court of Sri Das Gupta, cannot be sustained. The argument is that the proceedings originating with a charge sheet submitted, by the police were pending before the Court of Sri Das Gupta on the 24th December, 1955, on which date the pre-sent complaint by the widow of Basanta Das was taken cognisance of. Although this complaint was ultimately dismissed on the 25th January, 1956, the complaint was revived for further enquiry under the orders of the Sessions Judge; and this order must necessarily relate back to the complaint which was purported to have been revived by the learned Judge's order. Therefore, for all purposes the present proceedings in prosecution instituted on the complaint of the widow of Basanta Das were initiated on a date when the charge sheet proceedings were pending before another Itemed Magistrate, viz; Sri Das Gupta. This involved a procedure which was illegal and improper.

7. I agree with the contention put forward by Mr. Mukherjee, and I think that there is substance in the contention. There can be no doubt that the widow's complaint was filed on a date during the pendency of the original or parent proceedings then pending before the Court of Sri Das Gupta. It must be recalled that cognisance is taken of offences and not of offenders, and in this case cognisance was taken of the offence when the police submitted the charge-sheet. The police may not have sent up as an accused person a particular, individual; but that does not prevent the Court considering the charge from holding an enquiry under Chapter XVIII of the Code of Criminal Procedure or from bringing before it for trial a person whose complicity is clearly suggested by the evidence heard by it; When a case is transferred upon cognisance being taken, the whole is transferred, and there cannot be the slightest doubt that piecemeal cognisance of offences is something unknown to the scheme of the Code of Criminal Procedure. It must, therefore, be held that when the charge-sheet was submitted on the 31st May, 1954, the Court which applied its mind to the facts of the case disclosed by the police charge-sheet took cognisance of the offences disclosed by the allegations contained in the charge-sheet. When later on the case was transferred to the file of Sri D. Basu Roy and then to the file of Sri Das Gupta the whole case went and no part of it was left behind to be dealt with in a piecemeal fashion. Therefore, when the case came finally before Sri Das Gupta the entire body of allegations was before that' Court and if any process was to be asked for by any body, the proper Court to apply for it, was the Court of Sri Das Gupta. The mere fact that on previous occasions the Court had declined to accede to the prayer of the prosecution to summon any body would not make any difference in the jurisdiction of the Magistrate; in other words, if at any stage of the proceedings any application was to be made to any Court for securing the presence of any body as an accused person, the Court to apply to was the Court in seisin of the case. It must accordingly be held that the complaint which was filed by the widow in the Court of a, different Magistrate namely the Sub-divisional Magistrate of Tamluk on the 24th December, 1955, represented an effort on the part of an interested party to break up the essential integrity of the case and to induce an order which might he favourable to the prosecution. The proper course would have been to apply to the Court of Sri Das Gupta again for an order summoning the present petitioner. Obviously that Court was avoided inasmuch as on preivous occasions that Court had declined to make a favourable order; but that could be ho ground for holding that the Sub-divisional Magistrate of Tamluk had jurisdiction to deal with thecomplaint filed on the 24th December, 1955. If the Sub-divisional Magistrate of Tamluk had no jurisdiction to entertain the complaint then the order for further enquiry into the complaint directed by the Sessions Judge of Midnapur was an order which has no legs to stand upon. It is quite clear that the order for further enquiry has to be related back to the complaint into which further enquiry is directed. That being so, I must hold that the order of the learned Sessions Judge was misconceived and must accordingly be set aside.

8. The question now is whether it is still open to the widow of Basanta Das to move the Court of Sri Das Gupta for an order summoning the present petitioner. I think there can be no bar to a fresh application being made before that Court. It matters very little that the proceedings before the Court of Sri Das Gupta have been terminated by an order of acquittal in the main case. It will be quite open to that Court to consider the application of the widow on the merits if, of course, the widow feels advised to make such an application. An order of refusal to issue process will attract normal procedure and will, in my view, be liable to be challenged in revision by this Court.

9. This Rule is made absolute. The orderof the learned Sessions Judge directing furtherenquiry and the subsequent orders made by theMagistrate issuing process against the petitionerare all set aside.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //