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Sunil Kumar Dey and ors. Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1984CriLJ823
AppellantSunil Kumar Dey and ors.
RespondentState and anr.
Cases ReferredNew India Insurance Com. v. Santi Mishra
Excerpt:
- .....is that this being a case governed under the old code of 1898 it was futile to contend that the forum of appeal as provided under the code of 1973 would govern the appeal.9. in the case of kanhailal pasuari v. corporation of calcutta (1977 cal hc (n) 109 : 1977 cri lj (noc) 177(cal) it was held by a division bench of this court that the provisions of section 483(2) of the new code clearly indicates the intention of the legislature to preserve the old code for pending proceedings except for proceedings covered by the proviso, it was further held that though the order of conviction against the petitioner was passed after the new code had come into effect, still when it was so passed in a trial which was initiated under the old code, the petitioner's right of appeal including the forum.....
Judgment:
ORDER

ED

That the accused persons are all convicted under Sections 323 I. P. C. and 504 I. P. C. But they are duly admonished and released and discharged from bonds.

2. Feeling aggrieved at the order the appellants have preferred the present appeal.

3. The case was initiated on the complaint of the respondent No, 2, Saraj Kumar Dey of 52, Kailash Bose Street. The appellants Sunil Kumar Dey, Gopal Chandra Dey and Barun Kumar Dey are brothers of respondent No. 2 and they all reside in the same premises. The respondent No. 2, complained by filing a petition of complaint in the court of the learned Additional Chief Presidency Magistrate 16-8-1973, that on 15-8-73 at about 10.00 a. m. the accused persons (appellants herein) disconnected the electric line belonging to the petitioner (respondent No. 2) and when the petitioner asked his younger brother, Arun Kumar Dey (P. W. 2) to reconnect the same, the accused persons in a body assaulted the petitioner with fists, blows and lathies causing bleeding injuries on his person and further abused the petitioner in filthy language thereby provoking breach of peace.

4. On this complaint cognizance was taken and. the appellants were tried on charges under Sections 323 and 504 I. P. Code. The learned Magistrate upon a consideration of the evidence found that the respondent was assaulted and abused by the appellants in the manner alleged and that they were therefore guilty of the offence contemplated by the aforesaid sections. Considering, however, the fact that the appellants were near relations of the respondent No, 2 and that no previous conviction against the appellants could be proved the learned Magistrate felt inclined to proceed under Section 360 Cr. P. C. read with Section 3 of the Probation of Offenders Act in the matter of awarding punishment, As already indicated the appellants were convicted but released after due admonishing. Hence the present appeal.

5. The appellants have denied the occurrence and challenged the correctness of the findings of the learned Magistrate. The respondent No. 2 on the other hand while supporting the order of conviction further raised an objection as to the maintainability of the appeal in the Court. It would be eminently desirable to consider that aspect of the case before coming to the merits Of the appeal. To be precise the contention of the respondent No. 2 is that under the provisions of Section 11(2) of the Probation of Offenders Act the appeal was incompetently filed before this Court. Section 19 of the Probation of Offenders Act provides as follows:

19. Subject to the provisions of Section 18. Section 562 of the Code shall cease to apply to the States or parts thereof in which this Act is brought into force.

6. The Code referred to in the section is the Criminal Procedure Code, 1898 and Section 562 of that Code corresponds to Section 360 of the new Code of 1973. In view of the provisions in the General Clauses Act, read with Section 483(2) of the Code of 1973, Section 19 now has to be read in the context of Section. 360 of the Code of 1973. There is no dispute that the Probation of Offenders Act has been made to apply to the State of West Bengal. Consequently it follows that Section 360 Cr. P. C. cannot be invoked. In the present case the learned Magistrate has refrained from passing any sentence in view of Section 360 Cr. P. C. read with Section 3 of the Probation of Offenders Act, Section 360 being inapplicable the judgment should be interpreted to have been passed under Sections 3 of the Probation of Offenders Act which empowers the Court to release such an offender after admonition.

7. Section 11(2) of the Probation of Offenders Act, runs to the following effect :

(2) notwithstanding anything contained in the Code, where an order under Section 3 or Section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the Court to which appeals ordinarily lie from the sentence of the former Court.

8. It is contended on behalf of the respondent No. 2 that the appeal therefore could not be brought before this Court as the forum for such an appeal was the Court of Session. In support of the contention it was argued that the expression 'Code as used in the aforesaid provision now means the Code of 1973 and that under Section 373(3)(a) a person convicted on a trial held by a Metropolitan Magistrate may appeal to the Court of Session. There is now a Court of Session for the Presidency town of Calcutta, namely, the City Sessions Court. It was therefore contended that the appeal could be competently filed before the City Sessions Court and not before this Court. The contention was sought to be repelled by the fact that the case was initiated at a time when the new Code had not come into force and that therefore all the rights available to the appellants under the old Code were preserved and available to the appellants. In other words the contention of the appellants is that this being a case governed under the old Code of 1898 it was futile to contend that the forum of appeal as provided under the Code of 1973 would govern the appeal.

9. In the case of Kanhailal Pasuari v. Corporation of Calcutta (1977 Cal HC (N) 109 : 1977 Cri LJ (NOC) 177(Cal) it was held by a Division Bench of this Court that the provisions of Section 483(2) of the new Code clearly indicates the intention of the legislature to preserve the old Code for pending proceedings except for proceedings covered by the proviso, it was further held that though the order of conviction against the petitioner was passed after the new Code had come into effect, still when it was so passed in a trial which was initiated under the old Code, the petitioner's right of appeal including the forum therefor is to be governed by the provisions of Section 411 of the old Code and hence this appeal to the High Court was competent. Mr. Chowdhury appearing on behalf of the respondent No. 2, however, contended that the quotation of retros-pectivity or otherwise of the old Code is merely a matter of academic interest in this case because whether under the old Code or under the new Code the forum for appeal was the Court of Sessions. He drew our attention to the provisions of Section 408 of the old Code in this connection and contended that this was an appeal preferred not under Section 411 but under Section 408 of the old Code. Section 408 provides that any persons convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or any other Magistrate, or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by any Magistrate may appeal to the Court of Session. Section 411 provides that any person convicted on a trial held by a Presidency Magistrate may appeal to the High Court, if the Magistrate has sentenced him to imprisonment for a term exceeding 6 months or fine exceeding 200/-rupees.

10. The present appeal cannot be treated as an appeal under Section 411 of the old Code because there was in fact, no sentence passed as against the appellants. It was, therefore, contended that 'the appeal could be filed if at all only under the provisions of Section 408 of the old Code or under Section 374 of the new Code and that the forum for such an appeal in either case was the Court of Session.

11. In the case of Garikapati Veeraya v. Subbiah Chowdhury : [1957]1SCR488 it has been held that the right of appeal is not a mere matter of procedure but is a substantive right. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. Relying upon the principle enunciated in this case it was held in the case of Kanhailal v. Corporation of Calcutta 1977 Cal HC (N) 109 : 1977 Cri LJ (NOC) 177(Cal) (supra) that where the proceeding is initiated under the old Code though disposed of after coming into operation of the new Code, the right of appeal including the forum therefor would be determined under the old Code under which the case was initiated. Our attention was drawn to a later decision in the case of New India Insurance Com. v. Santi Mishra : [1976]2SCR266 . In this case it was observed that on the plain language of Section 110A and 110F of the Motor Vehicles Act the change in law was merely a change of forum i. e., a change of adjective or procedural law and not of substantive law and it was further observed 'it is an well established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum.' This, however, was a case the facts of which stand on a somewhat different footing. There the right of relief previously was in the Civil Court. By the amended Section 110F of the Motor Vehicles Act the jurisdiction of the Civil Court was expressly taken away simultaneously with the Constitution of the claims Tribunal. It was in the context of the amended provisions of Sections 110A and 110F, barring the jurisdiction of the erstwhile competent forum that the observations were thus made. In the instant case, before us the jurisdiction of the High Court to entertain the appeal in appropriate cases has not been expressly or by necessary intendment taken away by Section 483(2) of the new Code.

12. If we are to accept the contention of Mr. Chowdhury then irrespective of the question whether the old Code or the new Code, governed the right of the appellants the forum for appeal in any event would be the Court of Sessions either under Section 408 of the Code of 1898 or under Section 373(3)(a) of the new Code. Section 408 of the old Code in our view does not contemplate an appeal from an order passed by. a Presidency Magistrate. Although it may appear that the expression 'any other Magistrate' used in that section may include a Presidency Magistrate as well but such a view is perhaps not possible in View of the specific provision made in Section 411 for appeals against orders made by a Presidency Magistrate. This apart under the scheme of the Constitution and powers of Criminal Courts envisaged in Section 6 of the old. Code there shall be 5 classes of Criminal Courts in India, namely:

(I) Court of Session.

(II) Presidency Magistrates (now renamed as Metropolitan Magistrates under the new Code).

(III) Magistrates of the First Class.

(IV) Magistrates of the Second Class.

(V) Magistrates of the Third Class.

13. This being the Constitution of Courts under the Code of 1898 the expression 'any other Magistrate' Would not cover a Presidency Magistrate, Therefore, if an appeal against an order passed by a Presidency Magistrate has to be preferred, such an appeal could not possibly be filed under Section 408 of the old Code, As against an order of a Presidency Magistrate there may be an appeal under Section 411 of the old Code if the sentence imposed comes within the meaning and mischief of that section. If a Presidency Magistrate passed a sentence lesser than that contemplated bisection 411 the remedy lay in a revision and not in an appeal under Section 408 of the Code. Therefore, the contention of Mr. Chowdhury that in any view of the matter, namely, whether under Section 408 of the old Code or under Section 374 of the new Code the appeal is incompetent here, cannot perhaps be supported. It is true that under the old Code itself there was no provision for appeal against an order of conviction followed by release after admonition. The new Code, however, covers such a case as well and under the new Code the forum is the Court of Session. Even if this procedural aspect, namely, the forum of an appeal is treated as an adjective law and not a mere substantive right then also the position remains somewhat anomalous. At the time when the present complaint was filed, the old Code governed the field. That Code did not specifically provide for an appeal against an order made under Section 3 of the Probation of Offienders Act, But in view of Section 11(2) of the Probation of Offenders Act the Offender against whom an order under Section 3 has been made, is entitled to appeal to the Court to which 'appeals ordinarily lie' from the sentences of the former Court. Therefore, a right of appeal is there and it cannot be denied only because of the absence of any specific provision in that behalf in the old Code. The question of filing an appeal under the Code to the Court of Session in a Riven case may not also be available. The City Sessions Court was established by the City Sessions Court Act, 1953 but that Court had no right to entertain appeals or revisions in view of the bar imposed by Section 6 of that Act. The bar was not lifted simultaneously with the introduction of the new Code. It was lifted sometime in July, 1975. Therefore, one may pertinently ask what would be the proper forum for an appeal against an order passed by a Presidency Magistrate under Section 3 of the Probation of Offenders Act in a proceeding initiated under the old Code and disposed of after the new Code came into force but before the bar under Section 6 was lifted. Would he be without any right of appeal then? We think not because the right of appeal undoubtedly is a substantive right and that right is given by the Probation of Offenders Act. Prior to the coming into force of the provisions of Probation of Offenders Act, remedy against an order passed by a Presidency Magistrate under Section 562 of the old Code lay by way of revision. The provision conferring a right of appeal has been conferred by the Probation of Offenders Act. Section 404 of the old Code as also Section 372 of the new Code lay down that no appeal shall lie from any judgment or order of a criminal Court except as provided for by this Code 'or by any other law for the time being in force'. Therefore in the case of a person against whom an order under Section 3 of the Probation of Offenders Act has been made, he has a right of appeal because that is a right conferred by a law then in force.

14. We feel that in the present case the right of appeal cannot be denied merely because Section 411 is not attracted or because Section 408 also cannot be invoked. The right of appeal is there under the provisions of the special statute, namely, the Probation of Offenders Act, The forum prescribed in that statute is the Court to which appeals ordinarily lie from the sentences passed by the trial Court. The trial Court in this case was the Court of Presidency Magistrate. Even though the case under consideration does not fall under Section 411 of the old Code yet there seems to be no escape from the position that an appeal from an order of a Presidency Magistrate ordinarily lay before the High Court. That this is so. would appear from the scheme of the Code of 1898, the provisions of Section 411 as also the provisions of Section 406 which provides that any person who has been ordered to give security for keeping the peace or for good behaviour, may appeal against such order, if made by a Presidency Magistrate, to the High Court. If Mr. Chowdhury's contention is to prevail then such an appeal could come within the meaning of Section 408 and could therefore be made to the Court of Session. But the scheme of the Act being what it is it seems, the legislature thought it fit to prescribe the High Court as the appellate forum for all appealable orders made by a Presidency Magistrate. We find that the Court to which appeals ordinarily lay against orders made by a Presidency Magistrate was the High Court. We accordingly hold that the appeal was competently filed before this Court.

15. In that view of the matter it is now necessary to consider the merits of the appeal. It has transpired in evidence and has not been disputed before us that the premises, where the parties reside belonged to the father of the respondent No. 2 and the appellants. The correspondence that passed between the respondent No. 2 and his father, some of which have been exhibited in this case, clearly indicate that the respondent No. 2 and his father were not pulling on well. The reason behind was perhaps the fact that the father had made a gift of the house to the 3 appellants only. The respondent No. 2 and another son, namely, Arun Kumar Dey (P. W. 2) were excluded. Respondent No. 2 naturally was dissatisfied with the arrangement and the relation with the appellants also became strained. In the context of these admitted facts let us now consider the allegation of the respondent No. 2 and the evidence adduced in support thereof. The allegation is that the accused persons, namely, appellants entered into an unholy alliance and a criminal conspiracy to create disturbances and nuisance to the petitioner and his family members with a view to oust them from the said premises. It is then alleged in the petition of complaint that on 15-8-1973 at about 10.00 a.m. the accused persons disconnected the electric line belonging to the petitioner and when the respondent No. 2 asked Arun to reconnect the same, the incident occurred. This complaint was filed on 16-3-1973. It was preceded by an information given by the respondent No. 2 with the local police station which was entered in a G.D. Ext. 4. In the G.D., the case made out was somewhat different. During the trial the evidence given by the respondent No. 2(P.W. 1) is still different. There, he says as if the electric connection to the portion occupied by him was disconnected seme time in December, 1972, that he thereafter took a temporary connection from a tenanted portion of the premises occupied by one Rampalak Sahoo and that on the relevant day while P. Ws. 1 and 2 were talking with each other the electric fan suddenly stopped, at which P. W 1 came out and found the 3 appellants standing together and the electric, line was cut. P. W. 1 protested when the appellants fell upon him, resulting in bleeding injuries to his person. It thus appears that the case of the respondent No. 2 as initially made in the G.D. has improved from stage to stage till it took the final shape during the trial as stated above. Besides the complainant (respondent No. 2) the only other material witness is P. W. 2 Ms brother, who apparently must be also a disgruntled person because of the gift made by his father in favour of the appellants and to his exclusion. He, therefore, falls in the category of an interested witness. There is no other independent witness in the case although it is in evidence, that there are several shopkeepers in the premises and some of them would have certainly known of the incident if there was any. What is more significant is that P.W. 2, did not even accompany P. W. 1 to the Police Station. The next part of the prosecution case relates to the examination of the respondent No. 2 by the medical witness namely, P. W. 4. He is a Medical Officer attached to Marwari Relier Society Hospital. He has said with reference to a register that he examined the respondent No. 2 and found some injuries on his person which could be caused by fists, blows, and lathies. The entry with reference to which the witness deposed, is purported to bear the date 15-3-1973. The signature of the witness at the bottom of the report was initially written as 18-3-1973 which however, was corrected by over writing the figure 15 in place of 18. The overwriting is apparent to the naked eye. Apart from that, the register shows that the entry purporting to be dated 15-3-1973 was written below an entry dated 16-3-1973. It was also elicited by cross-examination from this witness that at several other places similar irregularities in regard to entries were there and they were all in the hand of this witness (vide Ext. G. H & I). The Doctor could not dispute the fact that the entry was written below an entry dated 16-3-1973 and could not explain how it could be so. We are satisfied upon a reference to the exhibits that the particular entry relating to the respondent No. 2 was not contemporaneously made on 15-3-1973. It must have been made subsequently or otherwise it could not come below an entry dated 16-3-1978. This apart the. Doctor was called upon to produce the out-door register of the relevant date. He did not bring the same and did not offer any explanation why he did not bring it. Had it been produced, it would perhaps have shown that the respondent |No. 2 was not in fact examined as an out patient on 15-3-1973. In such a situation we are not inclined to accept the prosecution evidence that the respondent No. 2 was in fact assaulted in the manner and on the date as alleged and was medically examined on the same date at the hospital. The prosecution allegation, in our view has not been proved. The appeal accordingly is liable to succeed and is hereby allowed. The order of conviction is set aside.

Sankari Prasad Das Ghosh, J.

16. I agree .


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