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State of West Bengal Vs. Debabrata Moitra and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1985CriLJ204
AppellantState of West Bengal
RespondentDebabrata Moitra and ors.
Cases ReferredRatilal Bhanji v. Asstt Collector of Customs. Bombay.
Excerpt:
- .....mentioned this case, being sessions case no. 17 of 1984 pending before the learned third bench, city sessions court calcutta (state-versus-debabrata moitra and two others). he orally brought to my notice that this particular sessions case involving inter alia section 302 of the i p.c had been committed to the city sessions court by the learned metropolitan magistrate, 14th court, calcutta and that in his submission it involved complex questions of law including that of the jurisdiction of the city sessions court to try this case. he further submitted that this case should be removed for trial from the city sessions court to the high court in the exercise of its original criminal jurisdiction under the provisions of sub-section d of section 8 of the calcutta city sessions court act,.....
Judgment:
ORDER

Jitendra Nath Chaudhuri, J.

1. At the first sitting of the Fourth Criminal Sessions of 1984, on the 3rd September 1984. the learned Public Prosecutor of this Court Mr. S. Mukherjee, mentioned this case, being Sessions Case No. 17 of 1984 pending before the learned Third Bench, City Sessions Court Calcutta (State-versus-Debabrata Moitra and two others). He orally brought to my notice that this particular Sessions Case involving inter alia Section 302 of the I P.C had been committed to the City Sessions Court by the learned Metropolitan Magistrate, 14th Court, Calcutta and that in his submission it involved complex questions of law including that of the jurisdiction of the City Sessions Court to try this case. He further submitted that this case should be removed for trial from the City Sessions Court to the High Court in the exercise of its Original Criminal Jurisdiction under the provisions of Sub-section D of Section 8 of the Calcutta City Sessions Court Act, 1953.

2. Mr. S. Mukherjee, the learned Public Prosecutor of this Court was not appearing on behalf of the prosecution in the Sessions Case sought to be removed to this Court Since he had brought this matter to my notice, of my own motion, I issued a suo motu' Show Cause' notice on the parties and the learned Third Bench, City Sessions Court, Calcutta, on the same day, as to why the said Sessions Case, committed for trial to the City Sessions Court should not be removed for trial to the High Court in exercise of its Original Criminal Jurisdiction. The said notice was made returnable on the llth September 1984. and the entire records of the case were called for from the City Sessions Court

3. On the 11th September 1984, it appeared that the entire records of the case had not yet arrived before this Court It also transpired that Section 8 of the City Sessions Act 1953 stood repealed, a fact which unfortunately had escaped the notice both of Mr. S Mukherjee, the learned Public Prosecutor of this Court when he made his submissions on the 3rd September 1984. and mine. On a perusal of the records of the case as received by this Court on that day (i.e. on the 11 th September 1984) Isuomolu. issued a fresh 'Show Cause' notice on all the parties concerned, including the learned Third Bench, City Sessions Court, Calcutta as to why this case will not be transferred to and/or be tried by this Court under the provisions of the law, and in particular under the provisions of Clause 29or Clause 24of the Letters Patent or under the provisions of Section 407 of the Cri PC 1973. I also directed that the rest of the records be sent to this Court forthwith. All the three accused persons in this Case were personally present in Court with the learned Advocates representing them. The learned Public Prosecutor, High Court and the learned Public Prosecutor, City Sessions Court (Mr. Sisir Ghose) who is conducting this trial before the learned Third Bench, City Sessions Court, Calcutta on behalf of the State were also present when I issued the said fresh suo motu notice to show cause. As all the learned Advocates appearing on behalf of all the parties submitted that 17th September 1984 would be convenient for all of them I accordingly made the said notice returnable on that date.

4. The matter finally was heard at length on the 19th and 20th September 1984 and since the long vacation of this Court intervened, from the 27th September 1984 the Court reserved judgment till one week after the reopening of the Court. At the time when this matter was finally heard the entire records had been received by this Court and I have gone through the same carefully.

5. In this Sessions Trial pending before the learned Third Bench City Sessions, Calcutta, charges have been framed by that Court The accused No. 1, Mr. Debabrata' Moitra has been charged under Section 302 of the I P.C for murdering one Pinaki Chatterjee on or about the 24th September 1983 on the river Hooghly in mid-stream, near Vivekananda Bridge, on a boat The accused No. 3 Mr. Ranjit Roy has been charged under & 302 read with Section 114 of the I P.C for abetting the said murder by the accused No. 1 which was committed in consequence thereof, by serving hard drinks (alcohol) mixed with barbitarates to the said Pinaki Chatterjee. The accused No. 2 Mrs. Amrita Moitra (wife of accused No. 1) stands charged along with both the other accused under Section 20) read with Section 34 of the I.P.C for causing in furtherance of their common intention, evidence of the said murder to disappear, by causing the said boat to capsize partly, in order to show falsely that the death of Pinaki Chatterjee was due to drowning with the intention of screening the offender from legal punishment All the accused have pleaded not guilty to the charges No evidence has yet been taken in the pending Sessions trial

6. The learned Third Bench, City Sessions Court Calcutta in reply to the said 'Show Cause' notice has intimated that he has no objection to this case being tried by this Court.

7. Mr. S. Mukherjee ; the learned Public Prosecutor of this Court has submitted that this Court in the exercise of its Criminal Jurisdiction under Clause 29 of the Letters Patent has the power to direct suo motu the transfer of this Sessions Case from the City Sessions Court and try the same itself. In his submission, the provisions of Chap. 37 Rule 2 of the Original Side Rules of this Court are only attracted to 'applications' for the exercise of the Criminal Jurisdiction under Clause 29 of the Letters Patent and has no operation in the case of a suo motu 'show cause notice by this Court He has further submitted that this is a fit case where under Clause 29 of the Letters Patent this case should be transferred from the City Sessions Court and be tried by this Court for the reason that the City Sessions Court does not have jurisdiction to try this case committed to it for trial In support of his submission Mr. Mukherjee has relied upon the case reported in 1977 Cri LJ 157 (CaD Ashoke Chakraborty v. The State which is a Division Bench decision of this Court In this case, the accused persons were charge-sheeted by the Police for an alleged offence under Sections 395/397 of the I P. C for an alleged incident on 14-10-1972 on a ferry boat on the river Hooghly near Palghat and Belurghat Over the said incident the North Port Police Station recorded a case on 15-10-1972 and on completion of investigation submitted a charge-sheet under Sections 395/397 I.P.C on 13-8-1973 before the Chief Metropolitan Magistrate, Calcutta. The Case was ultimately transferred to the file of the Metropolitan Magistrate, 12th Court for disposal By an order dt. 27-4-1974 the learned Magistrate committed the two accused persons to the High Court on the charge under Sections 395/397 I.P.C for trial in its Extraordinary Original Criminal Jurisdiction under the provisions of Clause 24of the Letters Patent on the ground that the City Sessions Court had no jurisdiction to try the case, the incident having taken place at a place on the river Hooghly. According to him, the place of occurrence though within the territorial jurisdiction of the Sessions Judge, Howrah, convenience demanded trial in Calcutta as most of the principal witnesses were residents in Calcutta.

8. It was held by the Division Bench in the said case that the North Port Police Station and the Metropolitan Magistrate's Court, Calcutta both had jurisdiction in the matter but the City Sessions Court did not It was further held in the said case that the commitment to the High Court was a proper one and the High Court in the exercise of its extraordinary original criminal jurisdiction was competent to try to case under Clause 24 of the Letters Patent read with Sections 26 and 474 of the Cri P.C 1973.

9. Mr. Mukherjee has drawn the attention of the Court to the Notification No. 10727J dt. 29th June, 1979 issued by the Judicial Department Government of West Bengal published in the Calcutta Gazette Extraordinary dt. 7th July, 1979 which reads as follows :

In exercise of the powers conferred by Sub-section (3) of Section 8 of the Cri PC 1973 (2 of 1974), the Governor is pleased hereby to extend the limits of the Metropolitan area of Calcutta so as to include therein the limits of the Port of Calcutta and of the river Hooghly or Channel leading thereto, as such limits are defined under the law for the time being in force for the regulation of Ports and Port-dues.

10. Mr. Mukherjee has submitted that by the said notification, it is only intended to extend the limits of the Metropolitan area of Calcutta for the regulation of ports and port-dues He has further submitted that Section 7 of the Cri PC 1973 does not contemplate the addition of a part of a district and that only a part of a district has been added by the said notification. In his submission, the said notification does not extend the jurisdiction of the City Sessions Court

11. In support of his submission that this Court has the power to transfer this case from the City Sessions Court and try the same itselt he has cited the case reported in (1871) 7 Beng LR 240 (Queen v. Ameer Khan). This is a decision of a Bench of three learned Judges of this Court in which it has been held that the High Court in its Extraordinary Criminal Jurisdiction has the power to direct the transfer of any Criminal Case to itself and to try the same under the powers conferred by Clause 29 of the Letters Patent 1855. The proceedings arose out of an application on behalf of two accused that their cases might be removed from Patna and tried by the High Court at Calcutta in the exercise of its Extraordinary Original Criminal Jurisdiction under Clausse 24 of the Letters Patent This case was decided in the year 1871. The learned Judges in this case relied upon another Bench Decision, reported in( 1868) 1 Beng LR 15 The Queen v. Nabadeep Ch. Goswami, wherein it was held that this High Court was competent to direct that the trial of an offence triable by the Sessions Court at Patna should be tried by the High Court itself.

12. Lastly, Mr. Mukherjee has submitted that this Court has ample powers under Section 482 of the Cri PC 1973 to do justice.

13. Mr. Sisir Ghose, the learned Public Prosecutor of the City Sessions Court who is also the Special Public Prosecutor in the present Sessions trial has submitted that although he had raised the question of jurisdiction of City Sessions Court to try this ease at the stage when bail was being sought for on behalf of the accused Mr. Ranjit Roy before the learned Chief Judge, City Sessions Court (Mr. S.P. Das Ghosh, as he then was), he no longer contends that the City Sessions Court has no jurisdiction in the matter. The learned Chief Judge. City Sessions Court had while disposing of the said bail mutter held that the City Sessions Court had jurisdiction to try this case. Mr. Ghose has, however, submitted-that the High Court has in its Criminal Jurisdiction under Clause 29of the Letters Patent the power to transfer this case from City Sessions Court and to try the same itself and that this power can be exercised suo motu by a learned Judge sitting singly if vested with the powers of exercising Original Criminal Jurisdiction of this Court He has submitted that a suo motu rule or show cause notice is not controlled by the provisions of Chap. XXXVII of Rule 2 of the Original Side Rules of this Court, which only apply 'applications'.

14. Mr. Sisir Ghose has further submitted that he has no objection to this case being tried by the High Court in the exercise of its Criminal Jurisdiction under Clause 24 of the Letters Patent, since some complexity may arise in view of the medical opinion of the Doctor conducting the post-mortem examination of the deceased Pinaki Chattcrjee, as he has opined that the death was due to the effect of injuries in and around the neck, ante mortem in nature, the drowning of the body not being anle-mortem, and that the said injuries are not inconsistent with manual compression of the throat. Mr. Ghose has also indicated that it is likely to be a fairly long trial involving over 40 witnesses. He has also submitted that under & 482 of the new Code, this Court has ample powers which can be exercised for the ends of justice. Mr. Ghose has made it very clear that although he has no objection to this case being tried by the High Court in view of the medical opinion as stated hereinbefore, he does not feel that the learned City Sessions Court is in any way less competent to deal with the same.

15. Mr. Sankardas Banerji learned Advocate appearing for the accused Moitras, has submitted that undoubtedly Criminal Jurisdiction of the High Court exists under Clause 29of the Letters Patent, but the exercise of such jurisdiction is governed by Chap. XXX VII Rule 2 of the Original Side Rules. In his submission the word' applications' also covers suo motu action and hence, suo motu power under Clause 29of the Letters Patent can only be exercised by a Division Bench sitting on the Appellate Side only. He has relied on the decision reported in 35 Cal WN 1086 : AIR 1932 Cal 394 Sasadhar Acharya v. Sir Charles Tegert wherein Buckland J sitting singly and exercising Original Criminal Jurisdiction held that an application purporting to be one under Clauses 24 and 29 of the Letters Patent is governed by Chap. XXX VII Rule 2 of the Original Side Rules and thus was not entertainableby him.

16. With regard to jurisdiction, Mr. Banerji has submitted that the said notification of 1979 has given the necessary jurisdiction to the City Sessions Court to try cases relating to incidents on the river Hooghly within the territorial limit as mentioned therein and that the said notification was passed after the said decision reported in 1977 Cri LJ 157 (CaD Ashoke Chakraborty v. State On the question of complexity, it is Mr. Banerjis submission that this case does not present any such complexity as would necessitate a transfer from the City Sessions Court for trial to the High Court In his submission, the question of the assessment of medical evidence in conjunction with other evidence in a case are matters of appreciation of evidence which a Sessions Court is quite competent to da Mr. Banerji submits that there is no reason why this case should be transferred from the City Sessions Court for trial to the High Court

17. Mr. B.C. Ghosh, learned Advocate for the accused Ranjit Roy, has submitted that the City Sessions Court has got jurisdiction to try this case, that the exercise of the jurisdiction under Clause 29of the Letters Patent whether invoked suo motu or otherwise is a matter governed by Chap. XXXVII Rule 2 of the Original Side Rules, and hence, can only be exercised by a Division Bench sitting on the Appellate Side, and that there are no complex questions of law or fact which necessitate any transfer from the City Sessions Court to the High Court under Clause 29 of the Letters Patent

18. Mr. B.C Ghosh has further submitted that by virtue of the said Notification dt 29th June, 1979 the City Sessions Court has been given jurisdiction over the river where the incident in the present case is alleged to have taken place on a boat He draws the attention of the Court to the fact that the words, 'as such limits are defined under the law for the time being in force for the regulation of Port and Port-dues', which occur in the last part of the said Notification dt. 29th June. 1979, also occur in Section 20 of the Cri PC 1898. He has further submitted that this notification, issued by the Government of West Bengal (Judicial Deptt) cannot be meant for the regulation of port and port-dues, as is sought to be interpreted by Mr. Su. Mukherjee, the learned Public Prosecutor of this Court He submits that under the Major Port Trusts Act. 1963 (Act (XXXVIII of 1963) which is a Central Act, provisions have been made for the regulation of Port and Port-dues. On the question of the inherent powers of the High Court under Section 482 of the Cri PC 1973 (which corresponds & 561-A of the Cr.PC 1898). he has submitted that undoubtedly this Court has inherent powers, but the procedure for invoking the inherent powers, is regulated by rules framed by the respective High Courts, as has been stated by the Supreme Court in the case, reported in AIR 1967 SC 1639 : 1967 Cri LJ 1576 Ratilal Bhanji v. Asstt Collector of Customs. Bombay.

19. I will first deal with the power of this Court to issue the present suo motu show cause notice under Clause 29of the Letters Patent Clause 29of the Letters Patent reads as follows -

High Court may direct the transfer of a case from one Court to another. And we do further ordain, that the said High Court shall nave power to direct the transfer of any criminal case or appeal from any Court to any other Court of equal or superior jurisdiction, and also to direct the preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or try it, though such case belongs in ordinary course to the jurisdiction of some other officer or Court.

20. Chapter XXX VII Rule 2 of the Original Side Rules of this Court reads as follows :

2. Applications for the exercise of the Extra-ordinary Original Criminal Jurisdiction conferred on this Court by Clause 24 and 29 of the Letters Patent, and applications under Section 526 of the Cr.P.C shall be heard and disposed of at the Appellate Side. But cases directed to be tried by the High Court will be tried at the Criminal Side according to the provisions of the Cr.PC before such Judge as the Chief Justice shall appoint.

20A. Normally whenever any Bench, single or otherwise, of the High Court issues a suo motu rule or show cause notice it is because of the desire of the Court to prevent any abuse of the process of Court or otherwise to secure the ends of justice or for the purpose of giving effect to any order of the Court In my view, if this suo motu power of the High Court to do justice is to be taken away from any Bench sitting single or otherwise, it has to be done expressly. My attention has not been drawn to any rule or provision of the law debarring this Court from exercising its suo motu powers under Clause 29of the Letters Patent Similarly, my attention has not been drawn to any Rules framed by this High Court debarring me from exercising the inherent powers expressly conferred on the High Court by Section 482 of the Cr.P.C 1973, and I hold that the powers conferred by the said Section can be exercised by me. In my view, the provisions in Rule 2 of Chap. XXXVII of the Original Side Rules are not attracted in cases when a suo motu rule or show cause notice is issued by the High Court under Clause 29 of the Letters Patent, as that rule applies only specifically to' applications' and contain no reference to the exercise of the suo motu powers of this Court A suo motu show-cause notice or rule cannot be and is not an 'application'. It is not disputed in this case that sitting in the High Court Sessions, I have been vested (by the determination of the Hon'ble Acting Chief Justice dt. 21st August 1984) with the Original Criminal Jurisdiction and Extraordinary Criminal Jurisdiction of this Court until further orders. I accordingly hold that I had and have the jurisdiction to issue the suo motu show-cause notice under Clause 29 of the Letters Patent with or without the aid of the provisions of Section 482 of the new Code of Criminal Procedure. It is not disputed that once the case is transferred to the High Court the provisions of Sections 26 and 474 of the new Cr.P.C would apply.

21. There is no dispute in this case that the alleged place of the incident on the river Hooghly falls within the jurisdiction of the North Port Police Station and hence, within the jurisdiction of the Court of the learned Chief Metropolitan Magistrate, Calcutta The question which falls for determination is whether by the said Notification dt. 29th June, 1979, the City Sessions Court has now jurisdiction over the alleged place of the incident on the river Hooghly. It is also not disputed in this case that prior to the said notification of 1979, the City Sessions Court had no jurisdiction over the alleged place of the incident Under Section 8(3) of the Cr.P.C 1973, the State Government may, by notification, extend, reduce or alter the limits. of a Metropolitan area. Under Section 8(2) the presidency town of Calcutta is to be deemed to be a Metropolitan area The said notification dt. 29th June, 1979 has been issued in virtue of the powers conferred by Section 8(3) of the said Code Section 7(1) of the said Code lays down that every Metropolitan area shall for the purposes of the said Code be a separate division and district It is not disputed that under the Police Regulations, Calcutta (Vol 2, 1968) the jurisdiction of the North Port Police Station extends over the place of the alleged incident on the river Hooghly (near Vivekananda Bridge). In my view, reading the provisions of Section 8(3) with the provisions of Section 7(1) of the said Code, along with the said Notification dt. 29th May, 1979, the City Sessions Court has jurisdiction over the alleged place of incident in this case, after the issue of the said Notification dt. 29th June, 1979.

22. With regard to the question of any complexity arising from the medical opinion of the doctor conducting the post-mortem examination of the deceased Mr. Pinaki Chatterji I do not find any such complexity as would induce me to transfer this case from the City Sessions Court for trial to the High Court under Clause 29 of the Letters Patent Questions relating to appreciation of evidence fall for determination of every trial court I deliberately refrain from discussing the details of the facts of this case as the same would serve no useful purpose at this stage The question of convenience of the witnesses do, not arise as the High Court and the City Sessions Court are in adjoining buildings I am accordingly of the view that as the matter now stands, at present, there are no grounds, either of law or of fact, which necessitate a transfer of this case from the City Sessions Court for trial to the High Court This is not a case where Clause 24of the Letters Patent, (which is dependant on a committment to this Court), falls for consideration. Powers under & 407 of the new Cr.P.C cannot be exercised by the High Court Sessions in the exercise of its Original Criminal Jurisdiction.

23. The suo motu show-cause notices in this case are hereby discharged and the interim stay is vacated i direct the matter to be sent back to the learned Third Bench, City Sessions Court, Calcutta, for trial in accordance with law from the stage at which the matter stood at the time of the issue of my suo motu show-cause notice dt 3rd September 1984. I direct the entire records to be sent down immediately to the learned Third Bench, City Sessions Court, Calcutta, by Special Messenger. All parties including the learned Judge, Third Bench, City Sessions Court, Calcutta will act on a copy of this judgment and order, countersigned by the Clerk of the State, High Court, Calcutta.

24. I would like to place on record my deep appreciation for the able assistance which I have received during the hearing of the suo motu show-cause notices, from the learned Advocates appearing before me.


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