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Santosh Saha Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1973CriLJ968
AppellantSantosh Saha
RespondentState and anr.
Cases ReferredLt. Commander Pascal Fernandas v. State of Maharashtra
Excerpt:
- .....to be one under section 337, criminal procedure code and praying for issuing process-against one janaki ballav mukherjee as the co-accused and then proceed further with the enquiry.2. the background of facts necessary for considering the points at issue may be stated briefly. a petition of complaint was filed on 4-11-67 in the court of the learned sub-divisional magistrate. barrackpore by the complainant-opposite party no. 2 sachindra nath das. against the present accused-petitioner santosh kumar saha, under sections 408/420/120b /34 of the indian penal code containing a list of witnesses which included one janaki ballav mukheriee as witness no. 20. the prosecution case inter alia is that in furtherance of a criminal conspiracy with janaki ballav mukheriee, the accused, santosh kumar.....
Judgment:
ORDER

N.C. Talukdar, J.

1. This Rule is directed against an order dated the 1st July. 1972 passed bv Shri D. B. Dutta, Magistrate 1st class, Barrackpore rejecting the application filed bv the accused-petitioner on the 8th December. 1971. purporting to be one under Section 337, Criminal Procedure Code and praying for issuing process-against one Janaki Ballav Mukherjee as the co-accused and then proceed further with the enquiry.

2. The background of facts necessary for considering the points at issue may be stated briefly. A petition of complaint was filed on 4-11-67 in the Court of the learned Sub-divisional Magistrate. Barrackpore by the complainant-opposite party no. 2 Sachindra Nath Das. against the present accused-petitioner Santosh Kumar Saha, under Sections 408/420/120B /34 of the Indian Penal Code containing a list of witnesses which included one Janaki Ballav Mukheriee as witness no. 20. The prosecution case inter alia is that in furtherance of a criminal conspiracy with Janaki Ballav Mukheriee, the accused, Santosh Kumar Saha. dishonestly and fraudulently started cheating the complainant's comoanv bv submitting false bills, ghost bills and duplicate bills in respect of challans alreadv paid for and in such other manner obtained by false and fraudulent inducement laree sums of money purporting to be the price of waste paper supplied to the complainant's company and during the Bengali years 1370 to 1373 B. S. corresponding to 1963 to 1967 cheated the complainant's company to the extent of about Rs. 1,56,785/-. It was also alleged in paragraph 8 of the petition that 'the accomplice of the accused Janaki Ballav Mukheriee had since admitted his guilt and made statements'. Cognizance was taken under Section 420 Indian Penal Code against the accused-petitioner. Santosh Kumar Saha, but in view of the gravity of the offence the Court launched an enauirv under Chapter XVIII of the Code of Criminal Procedure and the same went on before the learned Munsif-Magistrate, 1st class 1 Barrackpore. In course of the enquiry the complainant was examined on 21-5-69 when he, inter alia, stated that Janaki Ballav Mukheriee admitted guilt to the complainant and others and. therefore, they did not lodge accusation against him but that thev will tender him in court if the court pardoned him and thev will produce him as P. w. or in the alternative he will be made a co-accused for conspiracv with the accused. Following that statement on 10-7-69 the accused. Santosh Kumar Saha filed an application praying for summoning the aforesaid Janaki Ballav Mukheriee as a co-accused in the case or in the alternative for examining him as a witness on tendering pardon to him under Section 337 of the Code of Criminal Procedure, The petition, however was rejected by the learned Magistrate. Being aggrieved therebv. the accused moved the learned Sessions Judge for referring the matter to the High Court under Section 438 of the Criminal Procedure Code with a recommendation for Quashing the impugned order. The learned Sessions Judge, however, did not find any reason to interfere with the order impugned but made an observation that the learned Magistrate should make it clear that processes if necessary be issued against the said Janaki Ballav Mukheriep. or he may be summoned as a witness on tendering pardon at the stage. This closed the firt chapter.

3. The matter came back to the court below and on 10-12-1969 the accused-petitioner sought for a clarification on the point from the learned Magistrate, who was holding the enquiry at the time and he passed an order dated the 10th December, 1969. The clarification, as it appears therefrom, is to the effect that the court wanted to examine the above-mentioned Janaki Ballav Mukheriee as a witness after tendering pardon in accordance with the procedure laid down under Section 337 Criminal Procedure Code and not to proceed' against him as a co-accused. This order again was impugned by wav of a revisional application Preferred in the High Court. The application failed, however, on the ground of limitation. The enquiry thereafter proceeded and P. W. 1 was cross-examined by the accused in Dart on 10-7-1970 and a date was going to be fixed for further cross-examination of the said P. W. and for recording other evidence that may be adduced on behalf of the prosecution under Section 20& Criminal Procedure Code. At this stage the accused filed an application on 8-12-71 purported to by an application under Section 337 Criminal Procedure Code. but without any Prayer for examining-thp said Janaki Ballav Mukheriee as a witness on tendering pardon- It was ultimately prayed that Process may be' issued against the said Janaki Ballav Mukheriee as one of the accused and the enquiry be proceeded with. Shri D. B. Dutta. Munsif-Magistrate. 1st class. Barrackpore, who is the successor-in-office of the Previous incumbent, ultimately rejected the said prayer by his order dated the 1st July 1972 and issued summons on the aforesaid Janaki Ballav Mukheriee to appear in court for the purpose of being tendered pardon under Section 337 Criminal Procedure Code and of being examined as a witness. This order has been impugned and forms the subject-matter of the present Rule.

4. The contentions of Mrs. Jvotir-moyee Nag. Advocatp (with Miss Renu Roy Choudhury Advocate), appearing in support of the Rule, are of two dimensions. The first dimension is one of law and relates tn the interpretation of Section 337(1) of the Code of Criminal Procedure. Mrs. Nag contended in this behalf that the learned Magistrate holding the enquiry erred in law in straightway summoning Janaki Ballav Mukheriee, who is stated to be an accomplice, for being examined as a witness on a tender of pardon and not as a co-accused before considering the question of granting par-don. The second dimension of Mrs. Nap's contention relates to Procedure and she submitted that the same is not in accordance with that established by law and has operated to the prejudice of the accused petitioner. Mr. Ramendra Nath Basu. Advocate, appearing on behalf of the complainant-opposite party No. 2. opposed the Rule and submitted that the -order passed bv the learned Munsii-Magistrate is Quite a pertinent order within the bounds of Sub-section (1) to Section 337 of the Code of Criminal Procedure inasmuch as a tender of pardon can be given, also to a person without summoning him as an accused. He next submitted that in view of the aforesaid position in law there is no non-conformance to any procedure. Mr. Sukumar Sen, Advocate appearing on behalf of the State also joined issue and submitted that the objection taken by Mrs. Nag is not well-founded in law and would merely circumscribe the operation of Section 337(1) of the Code of Criminal Procedure, contrary to the intention of the legislature. He further contended that the terms of Section 337 of the Code are wide enough to include persons arraigned before the Court as also persons not so arraigned for tendering pardon to them.

5. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on the record. I will now proceed to consider the first dimension of Mrs. Nag's arguments. I will turn in the first instance to the provisions, of Section 337(1) of the Criminal Procedure Code for the intention of the legislature. The material part of the provisions, bearing on the point at issue is that

with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure.

Mrs. Nag contended that the word 'person' in Section 337 (IV means an accused or a person who has been summoned as _an accused and in this context she also pinpointed the marginal notes or the heading of the provisions viz., tender of pardon to .accomplice. She accordingly urged that the question of granting pardon would only arise when the person concerned appears on summons as an accused. Mr, Basu and Mr. Sen however joined issue and submitted that the words used in the statute being 'any person' should not be circumscribed to relate to an accused person only. For a proper meaning of the words, in the statute one has to refer in the first instance to the definition thereof. The word 'person' as denned in Section 3(42) of the General Clauses Act (Act X of 1897) includes any company or association or body of individuals, whether incorporated or not; a_nd the same is also the definition given in Section 11 of the Indian Penal Code. The aforesaid definition is wide enough and does not whittle down the meaning of the relevant words to denote 'accused persons' only.

6. It is pertinent to refer in this context to the principles of interpretation of statute for ascertaining the proper meaning of the provisions contained in Section 337(1) of the Code of Criminal Procedure. Crawford in his Statutory Construction has laid down the various ways by which the meaning of statutes is to be ascertained and according to him 'the first source from which the legislative intent is to be sought is the words of the statutes.' The principle of literal construction is the first and foremost elementary rule of construction. It has been laid down in Maxwell on the Interpretation of Statutes that 'a statute is the will of the legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded 'according to the intent of them that made it'' Chief Justice Tindal also, delivering the opinion of the Judges in the Sussex Peerage case, reported in (1844) 11 CL & F 85 at pp. 133 observed that 'the only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act'. I respectfully agree and applied the said principles for a correct interpretation of the words 'any person' contained in Section 337(1) of the Code of Criminal Procedure. The principles of interpretation of statutes also rule out redundancy. As was observed by Lord Sumner in the case of Quebec Railway Light Heat and Power .Co. Ltd. v. Vandry 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.' Mrs. Nag's emphasis however on the heading or marginal notes of the section for interpreting the provisions is unsustainable and is ruled out by the observations of Lord Macnashten made in the case of Balraj Kunwac v. Jagatpal Singh reported in (1904) ILR 26 All 393 I P C) that 'it is well settled that the marginal notes cannot be referred to for the purpose of construing act'. Applying therefore the guidelines enjoined by the principles of interpretation of statutes, as referred Do above, the mean-in? of the words 'any person' in Section 337(1) Cr.PC appears to be abundantly clear, being subject only to the qualification expressly laid down in the said provisions themselves viz. 'supposed to have been directly or indirectly concerned in or privy to the offence' and not in any wav otherwise circumscribed to denote a person whs has actually been made an accused. There is no other qualification in the provision excepting a condition that he would make 'a full and true disclosure of the circumstances etc.'. As was observed by Lord Simonds in the case of Magor and St. Mellons Rural District Council v. Newport Corpn. (1952) AC 189 at p. 191; that 'the duty of the Court is to interpret the words that the legislature has used; those words may be ambiguous, but even if they are, the power and dutv of the Court to travel outside them on a voyage of discovery are strictly limited'. I respectfully agree with the aforesaid observations and I hold that to side effect to Mrs. Nag's interpretation of the words 'any person' would be to trayel beyond the words of the statute on a voyage of discovery.

7. A reference may now be made to the imprimatur of judicial decisions. bearing on the point at issue. In the case of Kashiram v. Emperor AIR 1923 Nar 248 : 24 Cri LJ 566 it was observed by Batten J. C. and Halifax, AJC at PP. 249 that.

under Sections 337 and 338 Criminal Procedure Code, it is not necessary that the person to whom a pardon is tendered should himself be charged with an offence triable exclusively by the Court of Session: all that is requisite is that the person to whom pardon is tendered who may not even be an accused in the case, should be supposed to have _ been directly or indirectly concerned in, or privy to an offence, triable exclusively by the Court of Session, with which another person is charged.

A reference may also be made to the case of Lt. Commander Pascal Fernandas v. State of Maharashtra reported in : 1968CriLJ550 . The decision is in the context of Section 8(21 of the Criminal Law Amendment Act, 1952 but the provisions thereof are similar to those of Section 337(1) of thp Criminal Procedure Code, M. Hfidayatulla, J. (as His Lordship then was) delivering the -Judgment of Court observed at page 598 that.

There can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in or privy to, an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned.

I respectfully agree with the said observations and I hold that the provisions of Section 337(1). Cr.PC applies not only to a person summoned as an accused but also to others who are not so summoned. To hold otherwise would be to circumscribe the meaning and effect of Sub-section (1) to Section 337 of the Code, frustrating thereby the intention of the legislature. The stage of the prayer as made on behalf of the accused-petitioner cannot also be overlooked. The cross-examination of P. W. 1. the complainant has not yet been concluded and the court has vet to decide whether any pardon should ultimately be granted to the person concerned in order to examine him as a witness in the enquiry. There is therefore no question of any prejudice. The first dimension of Mrs. Nag's submission accordingly fails.

8. The second dimension of Mrs. Nag's arguments is substantially based on the first dimension and is indeed ancillary thereto. In view of the findings already arrived at on the first dimension, there is no non-conformance to any procedure established by law and as such the second dimension of Mrs. Nag's arguments also fails.

9. The order passed by the_ learned Munsif-Magistrate is also sustainable on another ground. It is abundantly clear that the predecessor-in-office of the present Magistrate passed an order on 10th December. 1969 bv wav of clarification of the earlier order passed on the application filed under Section 337 of the Criminal Procedure Code, and in that context he made it quite clear that the court would examine Janaki Ballav Mukheriee as a witness on tendering pardon: the prayer of the present accused-petitioner for summoning the said Janaki Ballav as a co-accused was rejected. A revisional application before the High Court impugning the said order was ultimately rejected on the ground of limitation. The order dated the 10th December 1969. accordingly stands. In view thereof, a repetition of the same prayer made earlier as contained in the present application 'dated the 8th December, 1971 purported to be on under Section 337(1) Criminal Procedure Code, is ruled out by the Principles of Issue Estoppel. Justice demands that the applicant concerned should be stopped from raisins the issue once again as there is no scope for any further clarification. The party aggrieved had a remedy by moving the High Court and that remedy having been exhausted the present prayer is unwarranted and untenable. Having, therefore, considered the arguments advanced by Mrs. Nag. in all dimensions I ultimately hold that those are untenable and must fail.

10. In the result, I discharge the Rule; uphold the order dated the 1st July. 1972 passed by Shri D. B. Dutta, Magistrate. 1st Class Barrackpore. in case no. -794/C of 1967; and I direct that the case shall go back to the Court below for being disposed of in accordance with law and expeditiously from the stage reached.

11. The records shall go down as early as possible.


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