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Provat Kumar Ghosh Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Nos. 878 and 879 of 1956
Judge
Reported inAIR1956Cal602,1956CriLJ1315,60CWN913
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 207A, 207A(1), 207A(3), 207A(4), 208 and 526; ;Indian Penal Code (IPC) - Sections 366 and 498; ;Constitution of India - Article 14
AppellantProvat Kumar Ghosh
RespondentState of West Bengal
Appellant AdvocateAjit Kumar Dutta and ;Prasun Chandra Ghose, Advs.
Respondent AdvocateJ.M. Banerjee, Adv.
Excerpt:
- .....under section 498, i. p. c. is taken by the magistrate on a complaint by the husband and not on a police report, the provisions of section 207a, cr. p. c. will in no way apply to such enquiry. i would, therefore, set aside the order for joint 'trial' of the offences under sections 498 and 336, i. p. c. as passed by the magistrate on 2-6-1958. we order that he should proceed with the enquiry under section 207a, cr. p. c. in accordance with law as regards the offence under section 366, i. p. c., and direct that after he has passed an order of discharge under the 6th sub-sec. or order of commitment of the accused for trial under the 7th sub-section of 207a, cr. p. c., he should take up the trial of the accused for the offence under s, 498, i. p. c. in accordance with law. 5. i am unable.....
Judgment:

K.C. Das Gupta, J.

1. These two Rules which were heard together relate to proceedings in connection with the taking away of one Ha Rani Choudhury from the house of her husband Ham Narayan Roy Choudhury and to criminal breach of trust in respect of certain ornaments said to have been entrusted by the said Ila Rani Choudhury to the petitioner Provat Kumar Ghose.

2. It appears that on information given by the husband Ram Narayan Choudhury the Police started a case and after investigation they sent up charge sheet against the present petitioner Provat under Section 406, I. P. C. and under Section 363/120B against the present petitioner and two others. On perusal of the documents submitted along with the charge sheet, the learned Magistrate passed an order on 2-6-1956, directing that the offence under Section 406, I. P. C. shall be tried separately. In the meantime on 19-4-1956, the husband Ram Narayan filed a complaint before the Magistrate against the petitioner and two other persons accusing the petitioner of an offence under Section 498, I. P. C. and the other persons under Section 498/114, I. P. C. The learned Magistrate issued process against the petitioner under Section 498, I. P. C. On 2-6-1956, when, as already stated, he passed an order for separate trial of the offence under Section 406, I. P. C., he made a further order that the offences under Section 366, I. P. C. and Section 498, I. P. C. shall be 'tried' together. Proceeding thereafter apparently under Section 207A, Cr. P. C. the Magistrate has examined some witnesses in connection with the alleged offence under Sections 336 and 498, I. P. C. As regards the offence under Section 406, I. P. C. he started separate proceedings and proceeding under Section 251A, Cr. P. C. has framed a charge under Section 406, I. P. C. against Provat.

3. These two Rules were obtained by Provat for quashing of the different proceedings pending against him, for transfer of the case from the learned Magistrate to some other Magistrate and also for setting aside the order for joint trial of the offences under Sections 498 and 366, I. P. C.

4. It is obvious that at the present stage there can be no order in law for the joint 'trial' of the offences under Sections 366 and 498, I. P. C. Indeed, the stage for what can strictly be called 'trial' of the offence under Section 366, I. P. C. has not yet arrived; that will arrive if the Magistrate after proceeding in the manner laid down in Section 207A, Cr. p. C. decides to commit him for trial. No one can say now whether the Magistrate will order him to be committed or whether he will pass order under the 6th sub-section of Section 207A, Cr. P. C. discharging the accused. To speak of a joint trial of the accused for the offences under Sections 366 and 498, I.P.C. at this stage is therefore meaningless. It is equally clear that the enquiry under Section 207A, Cr. P. C. must be limited by the Magistrate to the offence under Section 366,, I. P. C. and cannot cover the offence under Section 498, I. P. C. In the first place an offence under Section 498, I. P. C. is triable by the Magistrate and therefore no question of an enquiry does arise. This is not to say that if when trying the accused for an offence under Section 498, I. P. C. a Magistrate comes to the conclusion, in view of the special circumstances of the case or in view of some other case connected with the alleged offence under Section 498, I. P. C. being before a Sessions Court, that the offence under Section 498, I P. C. should also be tried by the Court ofSessions, he cannot commit him to the Court of Sessions for trial. He certainly can order in a pro-per case that the person accused of offence under Section 498, I. P. C. should also be committed to the Sessions, provided he has before that proceeded in the manner prescribed by law in Chapter XVIII of the Code of Criminal Procedure. Obviously, as the cognizance of the offence under Section 498, I. P. C. is taken by the Magistrate on a complaint by the husband and not on a police report, the provisions of Section 207A, Cr. P. C. will in no way apply to such enquiry. I would, therefore, set aside the order for joint 'Trial' of the offences under Sections 498 and 336, I. P. C. as passed by the Magistrate on 2-6-1958. We order that he should proceed with the enquiry under Section 207A, Cr. P. C. in accordance with law as regards the offence under Section 366, I. P. C., and direct that after he has passed an order of discharge under the 6th sub-sec. or order of commitment of the accused for trial under the 7th Sub-section of 207A, Cr. P. C., he should take up the trial of the accused for the offence under S, 498, I. P. C. in accordance with law.

5. I am unable however to accept Mr. Dutta's further submission that the enquiry now proceeding under Section 207A, Cr. P. C. should itself be quashed on the ground that it is not open to the Magistrate to examine witnesses unless the documents forwarded by the Police make a prima facie case against the accused. Reading the provisions of Section 207A, Cr. P. C. I am of opinion that it is the right and duty of the Magistrate to consider not only the documents forwarded by the Police but also to examine any witness that he may think proper. The examination of the witnesses is proceeding, I do not think there is anything to justify us in passing any order now for the quashing of the enquiry now pending before the Magistrate.

6. Mention must also be made of the argument advanced by Mr. Dutta that Section 207A, Cr. P. C. is ultra vires of the Constitution. His argument is that the special procedure laid down in this Section as regards the enquiry for commitment to a Court of Sessions in cases instituted on police report offends against the equal protection of law as embodied in Article 14 of the Constitution. It is well settled however that equal protection of law does not mean that there can be classification for the purpose of application of different laws; if there is classification -- and the index of classification has a reasonable nexus with the purpose of the legislation, -- the fact that there are different laws' for different classes, would not offend Article 14 of the Constitution. There can be no doubt that the procedure as laid down in Section 207A for proceedings instituted on police report differs widely from the procedure to be followed in enquiries for commitment to a Court of Sessions in proceedings not instituted on police report. The classification is however clear. The special procedure as provided in Section 207A applies to proceedings instituted on a police report, while the other procedure as embodied in Section 208 and subsequent sections of Chapter XVIII of the Code of Criminal Procedure, applies to proceedings instituted otherwise than on a police report. There has always been some distinction between proceedings instituted on police report and proceedings instituted otherwise than on a police report; under the present Code of Criminal Procedure this distinction has been widened by the fact that when a proceeding is instituted on a police report, the accused has got certain special rights under the fourth sub-section of Section 173 to get free of cost a copy of the report submitted by the Police, a copy of the first information report and all other documents or relevant extracts therefrom on which the prosecution proposes to rely. These facts are sufficient to show that the classification is based onclear and marked indices having close and rational connection with the purpose of the legislation. Mr. Dutta's contention that & 207A of the Code of Criminal Procedure is ultra vires of the Constitution must therefore be rejected.

7. As already stated, the learned. Magistrate has already framed a charge against the accused under Section 406, I. P. C. Mr. Dutta has taken us through the statements of the persons examined by the Police as recorded in the documents for warded by the Police to the Magistrate. We do not think it possible to say at this stage that on the documents before him the learned Magistrate could not in law frame a charge under Section 406, I. P. C. The prayer for quashing the proceeding under Section 406, I. P. C. must therefore be rejected.

8. There remains for consideration the prayer for transfer of the case to some other Magistrate. The only ground for transfer seriously urged before us is that the learned Magistrate acted arbitrarily in refusing the prayer for adjournment of the hearing for the enquiry under S, 207A, Cr. P. C. on the ground that the defence lawyer was ill. We do not think it necessary to express any opinion as regards the propriety or otherwise of the Magistrate's action as we are clearly of the view that the mere fact that the learned Magistrate has refused a prayer for adjournment cannot justify a reasonable minded man to apprehend that he will not get fair justice in the hands of the Magistrate. We have no doubt that the Magistrate will give full opportunity to the accused to cross-examine all the prosecution witnesses.

9. The Rules are disposed of accordingly.

Debabrata Mookerjee, J.

10. I agree.


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