Calcutta High Court (Appellete Side)
Hemanta Ghosh & Ors vs State Of West Bengal & Anr on 2 June, 2022
02.06.2022
RP Ct.07
CRR 1839 of 2022
Hemanta Ghosh & Ors.
Versus
State of West Bengal & Anr.
Mr. Pradyat Saha
.... For Petitioners
The learned Judicial Magistrate, 1 st Class, Kalna,
Purba Burdwan, by her judgment and order dated
December 15, 2018, passed in T.R. Case No.486A of 2006
arising out of G.R. Case No.160 of 2006 under Sections
324/325/326/34 of the Indian Penal Code, 1860,
convicted the petitioners in the following manner:-
"Upon hearing the convicts on the sentence, I
find that the offence has been committed in
broad day light and it has been done with an
intention to cause hurt to the victims and I think
if the persons are allowed to go unpunished, a
wrong message would be sent to the society at
large. Moreover, the offenders are the male
members of the society and above the age of
twenty-one years and so this is not a fit case
where the benefit of Probation of Offenders Act
should be extended to the offenders. Hence, the
convicted offenders, namely, (1) Hemanta
Ghosh, (2) Ajit Ghosh and (3) Subhankar Ghosh
be sentenced to pay a fine of Rs.1000/- each, in
default, to simple imprisonment for one month
for the offence under Section 324 of the Indian
Penal Code and accused person (4) Krishna
Ghosh be sentenced to pay a fine of Rs.1000/-,
in default, to simple imprisonment for one
month and to suffer simple imprisonment for 1
month for the offence under Section 326 of the
Indian Penal Code and Rs.1000/-, in default, to
simple imprisonment for one month for the
offence under Section 325 of the Indian Penal
Code.
The convict shall be entitled to usual set off
under Section 448 of CrPC.
Let a copy of this judgment be supplied to the
convicts free of costs."
Learned advocate appearing for the petitioners
submits that the petitioners preferred an appeal against
the said judgment and order of conviction dated December
15, 2018 by filing Criminal Appeal No.01 of 2019, before
the Court of the learned Additional Sessions Judge, Kalna,
Purba Burdwan.
He further submits that the defacto complainant also
preferred Criminal Appeal No.03 of 2019, before the same
Court challenging the same order.
It appears that by the order impugned, passed in
Criminal Appeal No.03 of 2019, the learned Additional
Sessions Judge, Kalna, Purba Burdwan enhanced the
punishment imposed by the learned Magistrate. The
operative part of the order is quoted below:-
"Accordingly, the impugned judgment dated
15.12.2018 passed by the Ld. Judicial
Magistrate, 1st Court, Kalna in G.R. Case
No.160/2016 is hereby modified with regard to
imposing sentence upon the convicts, namely,
Hemanta Ghosh, Ajit Ghosh and Subhankar
Ghosh be sentenced to suffer R.I. for 3 years
and fine of Rs.3,000/- each in default to suffer
R.I. for six months for the offence punishable
under Section 324 of the I.P.C. and convict
Krishna Ghosh be sentenced to suffer R.I. for 4
years and fine of Rs.5,000/- in default to suffer
R.I. for eight months for the offence punishable
u/s.325 of I.P.C. and convict Krishna Ghosh be
sentenced to suffer R.I. for 7 years and also to
pay fine of Rs.5,000/- in default to suffer R.I.
for eight months for the offence punishable
under section 326 of I.P.C.
Both sentences awarded to convict Krishna
Ghosh will run concurrently.
Period of detention in Jail custody of these
convicts in connection with this case be set off
as per provision under section 428 of the
Cr.P.C."
Learned advocate for the petitioners submits that
appeal filed by the petitioners has not yet been decided on
merit.
Prima facie, I am of the view that the learned
Additional Sessions Judge, Kalna, Purba Burdwan ought
not to have passed the order impugned without considering
the appeal of the petitioners, being Criminal Appeal No.01
of 2019.
In that view of the matter, there shall be stay of
operation of the order dated April 27, 2022, passed by the
learned Additional Sessions Judge, Kalna in Criminal
Appeal No.03 of 2019 arising out of G.R. Case
No.160/2006 under Sections 324/325/326/34 of the
Indian Penal Code, 1860 for a period of four weeks from
date or until further orders, whichever is earlier.
Let a copy of this order along with a copy of this
application be served upon the opposite parties within a
period of three weeks from date and file an affidavit-of-
service to that effect on the next date of hearing.
List the matter under the heading "For Order" after
four weeks before the regular Bench.
(Kausik Chanda, J.)
