Calcutta High Court (Appellete Side)
Samir Sarkar vs The State Of West Bengal & Anr on 13 December, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 477 of 2017
With
CRAN 5/2020 (Old CRAN 1226/2020)
Samir Sarkar
Versus
The State of West Bengal & Anr.
For the Petitioner : Mr. Satadru Lahiri, Adv.
Mr. Safdar Azam, Adv.
Mr. Jyotirmoy Talukdar, Adv.
For the State : Ms. Faria Hossain, Adv.
Mr. Narayan Prasad Agarwala, Adv.
Mr. Pratick Bose, Adv.
Heard on : 05.12.2023
Judgment on : 13.12.2023
2
Ajay Kumar Gupta, J:
IMPUGNED ORDER UNDER CHALLEGED
1. Petitioner/accused filed this application under Section 401
read with Section 482 of the Code of Criminal Procedure, 1973 feeling
aggrieved by an order dated 21st December, 2016 passed by the
Learned Metropolitan Magistrate, 4th Court, Calcutta in connection
with Complaint Case No. C/31380/09 thereby the learned Magistrate
framed charge against the petitioner/ accused for commission of an
alleged offences punishable under Sections 193/199/200 of the
Indian Penal Code, 1860.
FACTS OF THE CASE:
2. The brief fact of this case is relevant for disposal of the
instant case as follows:
A written complaint has been filed before the Learned Chief
Metropolitan Magistrate by the Registrar, Original Side, High Court at
Calcutta under Section 195 read with Section 340 of the Cr.PC for
commission of offences punishable under Sections
193/196/199/200 of the IPC against the present petitioner in
pursuant to direction passed in judgment and order dated 23rd
March, 2009 by the Hon'ble Justice Pratap Kumar Ray and Hon'ble
Justice S.K. Gupta in APO No. 146 of 2008 ( STP Ltd Vs. 1st
Industrial Tribunal and Others) and in APO No. 331 of 2008 ( Samir
Sarkar Vs. STP Limited and Others). The allegation against the
petitioner is that he made a false statement on oath in connection
with a proceeding under Section 17B of the Industrial Disputes Act,
1947 before the Hon'ble High Court relating to his termination by his
employer. The statement made by the petitioner in the said affidavit
that he was unemployed during termination period is completely false
and he had made such statement to obtain some favourable order in
his favour and further induced the Hon'ble Court to pass some
interim relief in his favour and subsequently, it surfaced practice
upon the Court of law.
3. Upon receipt of such written complaint, the learned
Metropolitan Magistrate was pleased to take cognizance of the alleged
offences against the petitioner/accused and issued summon for
appearance for commission of alleged offences punishable under
Sections 193/199/200 of the Indian Penal Code, 1860. Upon receipt
of the said summon, petitioner appeared and obtained bail. Later, a
date was fixed for framing of charge against the accused person. It is
the contention of the petitioner that without recording pre-evidence or
evidence before charge and without following the procedure of trial of
warrant case instituted other than a police report, the trial Court was
pleased to frame charge against the petitioner/accused person for
commission of offences punishable under Sections 193/199/200 of
the IPC and fixed the next date for evidence on 23rd February, 2017.
The petitioner, feeling aggrieved by an order for framing of charge
without recording pre-charge evidence, filed this revisional
application. The learned Metropolitan Magistrate should have
followed warrant trial procedure as provided under Sections
244/245/246 of the Cr.P.C. and, thereafter, should have been framed
charge against the petitioner/ accused person as such charge framed
against the petitioner is liable to be set aside.
SUBMISSION ON BEHALF OF THE PETITIONER:
4. Mr. Lahiri, learned advocate appearing on behalf of the
petitioner vehemently submitted that the Magistrate ought to have
followed a warrant trial procedure as provided under Sections
244/245/246 of the CrPC mentioned in Chapter XIX before framing
of charge but without recording pre-charge evidence or evidence
before charge and without collecting prima facie materials, the
learned Metropolitan Magistrate immediately framed the charge,
which is totally an abuse of process of law. To secure the end of
justice, the impugned order dated 1st December, 2016 whereby
framed charges against the petitioner for commission of offence
punishable under Section 193/199/200 of the Indian Penal Code,
1860 is liable to be set aside.
5. The learned advocate relied upon a judgment of Hon'ble
Supreme Court delivered in Ajay Kumar Ghosh vs. State of
Jharkhand and Another1 in support of his contention that the
Learned Magistrate ought to have followed procedure like trial of
warrant case instituted otherwise than on police report as provided
under Sections 244, 245 and 246 of the Cr.PC and pre-charge
evidence/evidence before charge should have been recorded by the
Court of learned Metropolitan Magistrate. After recording of such
evidence before charge/pre-charge evidence, if the learned Magistrate
found and satisfied that there is sufficient evidence/materials against
the present petitioner then only the Ld. Magistrate could have framed
charge against the accused and start recording evidence of witnesses
but in the instant case no such procedure has been followed by the
learned Magistrate.
(2009) 14 SCC 115
SUBMISSION ON BEHALF OF THE OPPOSITE PARTY NO. 2:
6. No one appeared for the opposite party no. 2 on call.
SUBMISSION ON BEHALF OF THE STATE:
7. The learned Counsel appearing on behalf of the State
submitted that the learned Metropolitan Magistrate rightly took
cognizance and framed charge against the present petitioner/accused
as the Learned Metropolitan Magistrate, Calcutta found sufficient
materials against the accused person in written complaint and
documents annexed thereto. The said written complaint was filed in
pursuant to the direction of Division Bench of this Hon'ble High
Court. Accordingly, the revisional application is liable to be
dismissed.
DISCUSSIONS AND ANALYSIS BY THIS COURT:
8. Heard both sides extensively and on perusal of the record, it
appears a written complaint has been filed before the learned
Metropolitan Magistrate with an allegation that a false statement was
made on oath by the petitioner in connection with a proceeding under
Section 17B of the Industrial Disputes Act, 1947 before the Hon'ble
High Court. The statement made by the petitioner in the said affidavit
was that he was unemployed during termination period is completely
false and he had made such statement to obtain some favourable
order in his favour and further induced the Hon'ble Court to pass
some interim relief in his favour and subsequently, it surfaced
practice upon the Court of law. The said complaint was registered as
Complaint Case No. C/31380/09 thereby the learned Magistrate took
cognizance and subsequently framed charge against the
petitioner/accused for commission of an alleged offences punishable
under Sections 193/199/200 of the Indian Penal Code, 1860. It is
the contention of the petitioner that the Learned Magistrate should
have recorded the pre-evidence charge like a trial of warrant case
instituted otherwise than on police report as provided under Sections
244, 245 and 246 of the Cr.PC.
9. In view of the above arguments advanced by the parties, a
relevant question emerges before this Court to decide as to whether
the learned Magistrate ought to be followed procedure in a complaint
filed under Section 195 read with Section 340 Cr.PC as a trial of
warrant case instituted otherwise than on police report as provided
under Sections 244, 245 and 246 of the Cr.PC and record pre-charge
evidence prior to framing of charge.
10. Learned Counsel for the petitioner cited the aforesaid
judgment to convince this Court that the Magistrate should have
followed procedure as trial of warrant case instituted otherwise than
on police report as provided under Sections 244, 245 and 246 of the
Cr.PC since the complaint was filed by the Registrar, Original Side,
High Court at Calcutta. However, this Court does not convince with
the judgment as referred by the petitioner. Petitioner would not get
benefit or any relief by relying on such judgment because in Ajay
Kumar Ghosh's Case an official of High Court filed complaint under
Section 340 Cr.PC. In the said complaint, no any material annexed in
the complaint to support the allegation. In the said case, accused
appeared in pursuant to summon sent to him under Section 244
Cr.PC and filed an application for discharge and finally, the learned
Metropolitan Magistrate dismissed the said application for discharge
and framed charge against the accused. The Hon'ble Supreme Court
in the aforesaid judgment observed that there was an absolutely
nothing before the learned Metropolitan Magistrate beyond the
complaint to consider the framing of charge and the learned
Metropolitan Magistrate could have undoubtedly proceeded under
Section 245(2) of the Cr.PC. According to Section 245(2) of the Cr.PC
the Court could have discharged the accused even before any
evidence was recorded. In the referred case pending before the
learned Metropolitan Magistrate, the complaint was made by High
Court. No other materials available before the learned Court of
Metropolitan Magistrate to frame charge. In such a situation, the
Hon'ble Supreme Court allowed the case of the appellant and
remanded back the case for recording the complainant's evidence.
11. In the instant case, the Registrar, Original Side, High Court
at Calcutta filed a written complaint before the learned Magistrate
under Section 195 read with Section 340 of Cr.PC in pursuant to the
direction of Division Bench of this Hon'ble High Court. In the said
complaint, the complainant also appended the documentary
evidences as follows:
i. Photocopy of judgment and order dated 23rd
March, 2009 passed by the Hon'ble Justice Pratap
Kumar Ray and The Hon'ble Justice S.K. Gupta.
ii. Photocopy of the application under Section 17B of
the Industrial Dispute Act, 1947 being G.A. No. 3991
of 2002 in W.P. No. 2098 of 2002.
iii. Photocopy of the report dated 12.03.2007 of Mr.
Ayan Banerjee, Advocate, Special Officer.
iv. Photocopy of the deposition submitted by Mr.
Ayan Banerjee, Advocate, Special Officer dated
6.3.2007.
v. Photocopy of supplementary affidavit affirmed by
Shankar Chakraborty, Assistant General Manager of
S.T.P. Limited on 19th June, 2007.
12. So, it is not the case where bare complaint was available
before the Magistrate. There was sufficient materials as well as
deposition recorded during enquiry, supplementary affidavit affirmed
by Shankar Chakraborty, Assistant General Manager of S.T.P.
Limited, deposition submitted by Mr. Ayan Banerjee, Advocate,
Special Officer, copy of application under Section 17B of the
Industrial Dispute Act, 1947 being G.A. No. 3991 of 2002 in W.P. No.
2098 of 2002 and the judgment and order dated 23rd March, 2009
were very much available with the written complaint before the Ld.
Magistrate and those evidences are sufficient materials to take
cognizance and to frame charge on the basis of materials available on
record. The learned Magistrate read out the charge to the accused
person and when he pleaded not guilty framed charge of offences
punishable under Sections 193/199/200 of the Indian Penal Code,
1860 and fixed a next date for evidence. Moreover, in the referred
case, the Hon'ble Supreme Court was not asked to consider if the
warrant trial procedure is applicable to complaint cases filed under
Section 195 read with Section 340 Cr.PC was to be followed in all
cases, when a complaint is filed by the Court as the statute is
specific. It is stated that a complaint sent to the Court under Section
340 Cr.PC shall, notwithstanding the procedure contained in Chapter
XV of the Cr.P.C has to be considered as a police report and the case
has to proceed as if it were instituted on a police report.
13. In case of trial of warrant cases instituted otherwise than on
police report, this Court would like to refer the procedure mentioned
in Chapter XIX for better understanding. Those Sections are 244, 245
and 246, 247 and 248 which are as follows:
244. Evidence for Prosecution. - (1) When, in any
warrant-case instituted otherwise than on a police report,
the accused appears or is brought before a Magistrate,
the Magistrate shall proceed to hear the prosecution and
take all such evidence as may be produced in support of
the prosecution.
(2) The Magistrate may, on the application of the
prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or
other thing.
245. When accused shall be discharged. - (1) If, upon
taking all the evidence referred to in section 244, the
Magistrate considers, for reasons to be recorded, that no
case against the accused has been made out which, if
unrebutted, would warrant his conviction, the Magistrate
shall discharge him.
(2) Nothing in this section shall be deemed to prevent a
Magistrate from discharging the accused at any previous
stage of the case if, for reasons to be recorded by such
Magistrate, he considers the charge to be groundless.
246. Procedure where accused is not discharged. - (1)
if, when such evidence has been taken, or at any
previous stage of the case, the Magistrate is of opinion
that there is ground for presuming that the accused has
committed an offence triable under this Chapter, which
such Magistrate is competent to try and which, in his
opinion, could be adequately punished by him, he shall
frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the
accused, and he shall be asked whether he pleads guilty
or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall
record the plea, and may, in his discretion, convict him
thereon.
(4) If the accused refuses to plead, or does not plead or
claims to be tried or if the accused is not convicted under
Sub-Section (3) he shall be required to stale, at the
commencement of the next hearing of the case or, if the
Magistrate for reasons to be recorded in writing so thinks
fit, forthwith whether he wishes to cross-examine any,
and if so, which, of the witnesses for the prosecution
whose evidence has been taken.
(5) If he says he does so wish, the witnesses named by
him shall be recalled and, after cross-examination and
re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the
prosecution shall next be taken and after cross-
examination and re-examination (if any), they shall also
be discharged.
247. Evidence for defence.- The accused shall then be
called upon to enter upon his defence and produce his
evidence; and the provisions of section 243 shall apply to
the case.
248. Acquittal or conviction. - (1) If, in any case under
this Chapter in which a charge has been framed, the
Magistrate finds the accused not guilty, he shall record
an order of acquittal.
(2) Where, in any case under this Chapter, the Magistrate
finds the accused guilty, but does not proceed in
accordance with the provisions of section 325 or section
360, he shall, after hearing the accused on the question
of sentence, pass sentence upon him according to law.
(3) Where, in any case under this Chapter, a previous
conviction is charged under the provisions of sub- section
(7) of section 211 and the accused does not admit that he
has been previously convicted as alleged in the charge,
the Magistrate may, after he has convicted the said
accused, take evidence in respect of the alleged previous
conviction, and shall record a finding thereon:
Provided that no such charge shall be read out by the
Magistrate nor shall the accused be asked to plead
thereto nor shall the previous conviction be referred to by
the prosecution or in any evidence adduced by it, unless
and until the accused has been convicted under sub-
section (2).
14. Whereas Chapter XXVI deals with offences affecting
administration of justice. Offences which are mentioned in Section
195 are those offences committed by the accused persons or
witnesses or litigants during pendency of trial or otherwise when the
matter is pending before the Court and for that, the procedure to be
followed in such cases under Section 340 of the Cr.P.C.
15. Section 340 reads as under:
340. Procedure in cases mentioned in section 195.-
(1) When, upon an application made to it in this behalf
or otherwise, any Court is of opinion that it is expedient
in the interests of justice that an inquiry should be made
into any offence referred to in clause (b) of sub- section
(1) of section 195, which appears to have been committed
in or in relation to a proceeding in that Court or, as the
case may be, in respect of a document produced or given
in evidence in a proceeding in that Court, such Court
may, after such preliminary inquiry, if any, as it thinks
necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first-class having
jurisdiction;
(d) take sufficient security for the appearance of the
accused before such Magistrate, or if the alleged offence
is non- bailable and the Court thinks it necessary so to
do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence
before such Magistrate.
(2) ....................
(3) ...................
(4) ...................
16. In the instant case also some preliminary enquiry had been
conducted and when it is found the petitioner committed the offences
before the Court, the Hon'ble Court directed the Registrar to file
complaint before the jurisdictional Magistrate.
17. Section 343 of Cr. P.C. provides the procedure to be followed
by a Magistrate to whom a complaint is made under Section 340 Cr.
P.C.
Section 343 (1) of Cr. P.C. specifically provides that a
complaint made to the Magistrate under Section 340 or 341 Cr. P.C
shall, notwithstanding anything contained in Chapter XV (Chapter
dealing with complaint cases), proceed, as far as may be, is to be
dealt with as if it was instituted on a police report.
18. Section 344 Cr. P.C. provides for following of a summary trial
procedure for trial in cases of giving false evidence or had fabricated
false evidence with intention that such evidence should be used in
such proceeding by the same Court.
Under Section 344 of Cr. P.C, the trial court has option to
follow summary trial procedure and convict the offender who commits
an offence affecting administration of justice with punishment up to 3
months imprisonment, or to fine which may extend to five hundred
rupees, or with both. It also provides that the Court, at its discretion,
may make a complaint under Section 340 Cr. P.C.
19. Similarly, Section 345 Cr. P.C. prescribes procedure in cases
where offences as prescribed in Section 175, 178, 179 & 180 of Cr.
P.C. or in Section 228 of IPC (offences of acting administration of
justice) is committed by a person in the view or presence of the Court.
Under this provision a Court in whose presence the offence is
committed can take cognizance of the offence and, after giving the
offender a reasonable opportunity of showing cause why he should
not be punished under this section, summarily sentence the person
to a fine not exceeding Rs. 200/- and in default, simple imprisonment
extending to one month can be awarded.
20. Section 346 Cr. P.C. provides that where procedure of
summary trial as given under Section 345 Cr. P.C. is not followed and
the court considers that punishment of fine of Rs. 200/- was not
adequate, the Court may forward the case to Magistrate, having
jurisdiction to try the same.
Section 346 (2) Cr. P.C. again emphasizes that the
Magistrate to whom a case is forwarded under Section 346(1) Cr.
P.C., shall proceed and deal with the case as if it was instituted on a
police report.
21. Upon careful perusal of the aforesaid provisions, it is very
clear with the intention of the legislature that either the offence
against administration of justice should be tried summarily or by the
complaint filed by the Court regarding such offence should be treated
as police report. As statute is a clear mandate there should not be
any doubt about the procedure which has to be followed by the Court
below, when the complaint filed by the Registrar of the Hon'ble High
Court has to be treated as a police report and the trial of the
petitioner has to be conducted in the same manner as of a trial of
warrant case as if it was instituted on a police report, as case is done
by the Learned Metropolitan Magistrate.
22. Accordingly, this Court does not satisfy with the contention
of the petitioner that the learned Metropolitan Magistrate has failed to
follow the real provisions as enshrined in the Criminal Procedure
Code and committed an error or an abuse of the process of law.
23. Accordingly, this Court does not find any scope to interfere
with the order passed by the learned Metropolitan Magistrate, 4th
Court, Calcutta in connection with Complaint Case No. C/31380/09.
24. Consequently, the revisional application being CRR 477 of
2017 is dismissed without order as to costs.
25. In view of dismissal of this case, connected application being
CRAN 5/2020 (Old CRAN 1226/2020) is also disposed of.
26. Interim order, if any, shall be vacated.
27. Let the copy of this judgment and order be sent to the
learned Court below with a direction to proceed with the matter as
expeditiously as possible in accordance with law and without
granting unnecessary adjournment to the parties.
28. Parties shall act on the server copies of this order uploaded
on the website of this Court.
29. Urgent photostat certified copy of this judgment, if applied
for, is to be given as expeditiously to the parties on compliance of all
formalities.
(Ajay Kumar Gupta, J)
P. Adak (P.A.)
