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Monoranjan Chakraborty Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGuwahati High Court
Decided On
Judge
Reported in1970CriLJ1554
AppellantMonoranjan Chakraborty
RespondentState
Cases Referred and Ram Narain v. Bishamber Nath
Excerpt:
- .....forest officer. all the accused including monoranjan chakraborty were summoned in due course. the summons issued to monoranjan chakraborty marked 'a' is on the file of the criminal motion no. 156 of 1968 of the sessions judge, tripura. the summons was served on monoranjan chakraborty on 25-7-1968 by a forest guard. monoranjan chakraborly felt that the summons issued to him was not in the form prescribed by the criminal procedure code and so he moved a revision petition in the court of the sessions judge praying that the latter should recommend to this court that the summons issued to him be quashed and his acquittal directed. a large number of objections were raised in the revision petition against the validity of the summons, . the sessions judge dealt only with the main contentions.....
Judgment:
ORDER

R.S. Bindra, J.C.

1. The present revision petition by Monoranjan Chakraborly illustrates in a telling manner that a small slip in procedural matters by a Court may furnish an occasion to a litigant to stall the proceedings for a long time and occasionally for years together. Hence, the dire necessity for the Presiding Officer of a Court and the staff attached to it to exercise eternal vigilance in carrying out their respective functions to ensure that nothing goes amiss so far as they are concerned.

2. A complaint was lodged against the present petitioner Monoranjan Chakraborty and 4 others in the Court of Shri T. L. Datta, Magistrate first class, Kamalpur, on 3-6-1968 by the Divisional Forest Officer. All the accused including Monoranjan Chakraborty were summoned in due course. The summons issued to Monoranjan Chakraborty marked 'A' is on the file of the Criminal Motion No. 156 of 1968 of the Sessions Judge, Tripura. The summons was served on Monoranjan Chakraborty on 25-7-1968 by a forest guard. Monoranjan Chakraborly felt that the summons issued to him was not in the form prescribed by the Criminal Procedure Code and so he moved a revision petition in the Court of the Sessions Judge praying that the latter should recommend to this Court that the summons issued to him be quashed and his acquittal directed. A large number of objections were raised in the revision petition against the validity of the summons, . The Sessions Judge dealt only with the main contentions raised before him during the course of arguments, namely, (1) that the summons had not been accompanied by a copy of the complaint as enjoined by Sub-section (1-B) of Section 204 of the Code, (2) that summons did not mention the offence with which Monoranjan Chakraborty had been charged, and (3) that the summons had not been happily drafted. However, he rejected the revision petition with the observation that though it is 'legally necessary that the summons be accompanied by a copy of the complaint and it should mention the offence with which the accused is charged, but these omissions are curable under Section 537 of the Code. It was also observed by the Sessions Judge that such errors and omissions as had been debated before him could also be cured by subsequent compliance with the provisions of the law. In the last para of the order rejecting the revision petition, the Sessions Judge invited the attention of the Magistrate to Sub-section (1-B) of Section 204 of the Code and suggested to him to issue a fresh summons to Monoranjan Chakraborty in accordance with the provisions of law.

3. The order made by the Sessions Judge could obviously have served the purpose which, according to the grounds mentioned in the revision petition, Monoranjan Chakraborty wanted to accomplish. However, it appears to me that Monoranjan Chakraborly had an objective different from that apparently set out in the revision petition moved in the Sessions Court. It was to delay, and possibly to defeat, the trial of the complaint lodged against : him and others. I think he has succeeded in achieving both the objectives, one mentioned in the revision petition and the other he had in his mind, namely, to delay the trial, and which perhaps was more important from his standpoint. This view is reinforced by non-appearance of either the petitioner or his counsel when the petition came up for hearing before this Court on the 13th of this month,

4. Section 68 (1) of the Code states that every summons issued by a Court shall be in writing in duplicate, signed and sealed by the Presiding Officer of the Court, or by such Officer as the High Court may, from time to time, by rule, direct. Section 555 of the Code provides that subject to the power conferred by Section 554, and by Article 227 of the Constitution, the forms set forth in the fifth schedule, with such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient. Form No. 1 of Schedule V is the form of summons issued to an accused person. According to that form, the particulars of the offence charged have to be mentioned in the summons issued to the accused. Undeniably, the summons marked 'A' issued to Monoranjan Chakraborty did not mention the offence charged against him. Therefore, very clearly the summons issued to him was legally defective. It may be pointed out that schedule V is as much a part of the Code as any other portion of it, and as such non-compliance with the requirements of the forms in that schedule cannot be treated lightly, specially when essential features, like the nature of the offence charged, are not outlined in the summons issued. Since in the present case the petitioner challenged the validity of the summons issued to him at the earliest stage, it is only fit and proper that a direction be issued to the trial Court that a fresh summons in conformity with the provisions of the law be sent to the petitioner.

5. However, I regret that Monoram'an Chakraborty should have come up in revision instead of putting in appearance before the trial Court and requesting it to furnish him with the necessary particulars of the charge. The summons is merely a means of procuring attendance of the accused and once Monoranjan Chakraborty had learnt through a summons that he was required to appear before the Court to answer a charge, he should have, in fairness to the Court, put in appearance. He could have then requested the Court to supply him with the requisite information to enable him to meet the charge levelled against him.

6. Another serious lacuna noticeable and pointedly mentioned in the revision petition is that the summons was not accompanied by a copy of the complaint as required by Sub-section (1-B) of Section 204 of the Code, The real purport of that statutory provision unmistakably is to give the accused a correct idea of the allegations made against him right at the moment the summons is served on him. If, however, neither the summons itself contains the particulars of the offence charged, nor the summons is accompanied by a copy of the complaint, as in the instant case, the person summoned undoubtedly is faced with difficulty. A combined reading of Section 68 (1) and Section 204 (1-B) of the Code would indicate that the Legislature desires that an accused should know immediately the summons is served on him the particulars of the offence with which he is charged in the complaint filed in writing. It is, therefore, highly desirable that the summons should be complete in all respects and it should also be accompanied by a copy of the complaint if the proceedings are instituted against him upon a complaint in writing. However, there is abundant authority For the proposition that non-compliance with the provisions of Sub-section (1-B) of Section 204 does not invalidate or nullify the issue of process because the provisions are merely directory and not mandatory. Reference in this connection may be made to the cases of Brahma Panda v. Chairman of Howrah Municipality : AIR1961Cal648 , and Ram Narain v. Bishamber Nath . I think the view expressed in these two authorities is quite sensible if only because non-compliance with the provisions of Sub-section (1-B) can be cured by a subsequent compliance therewith. When the accused puts in appearance in obedience to the summons issued, he can request the Court to supply him with a copy of the complaint and thereby get over the difficulty, if any, created for him by non-communication to him earlier of the allegations mentioned in the complaint.

7. For the reasons stated and the conclusions recorded above, I accept the revision petition and direct the Magistrate to re-issue a summons in the proper form to the petitioner accompanied by a copy of the complaint. The file should be immediately sent to the Magistrate to avoid any further loss of time in proceeding with the case.


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