Calcutta High Court (Appellete Side)
Hriday Chandra Mandal vs The State Of West Bengal on 24 February, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
C.R.R. 1462 of 2021
Hriday Chandra Mandal
versus
The State of West Bengal
For the Petitioner : Mr. Soubhik Mitter,
Ms. Rajnandini Das.
For the State : Mr. S. G. Mukherjee, Ld. P.P.,
Mr. Saryati Datta.
Heard On : 23-02-2023 & 24-02-2023.
Judgement On : 24-02-2023.
Tirthankar Ghosh, J. :
The present revisional application has been preferred challenging
the order dated 01.03.2021 passed by learned Sessions Judge, Malda in
connection with S.T. No. 01/2021 (corresponding to S.C. No. 11/2021)
arising out of Mothabari Police Station Case No. 229 of 2020 dated
24.06.2020 (corresponding to G.R. Case No. 2651/2020) under Sections
302/34 of the Indian Penal Code wherein the learned trial court was
pleased to allow the application of the prosecution under Section 319 of
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the Code of Criminal Procedure and directed issuance of summons
against the petitioner viz. Hriday Chandra Mandal.
Mr. Mitter, learned advocate appearing for the petitioner has
submitted that in this case the petitioner was discharged after thorough
investigation was completed. Learned Magistrate while taking cognizance
did not find any material to consider that there was any complicity of the
present petitioner nor did the learned trial court while considering the
charges. According to the learned advocate, there are hardly any fresh
material for the learned trial court to invoke the powers under Section
319 of the Code of Criminal Procedure except a part examination-in-
chief of PW-1 viz., Sulekha Bibi who according to the learned advocate is
a hearsay witness.
By referring to the following decisions of the Hon'ble Supreme
Court on this issue, the learned advocate substantiates his argument :
(i) Sagar Vs. State of Uttar Pradesh and another reported in
(2022) 6 Supreme Court Cases 389,
(ii) Periyasami and Others Vs. S. Nallasamy reported in (2019)
4 SCC 342,
(iii) Ajay Kumar alias Bittu and Another Vs. State of
Uttarakhand and Another reported in (2021) 4 Supreme
Court Cases 301,
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(iv) Hardeep Singh Vs. State of Punjab and Others reported in
(2014) 3 Supreme Court Cases 92,
(v) Sukhpal Singh Khaira Vs. State of Punjab reported in
(2019) 6 Supreme Court Cases 638,
(vi) S. Mohammed Ispahani Vs. Yogendra Chandak and Others
reported in (2017) 16 Supreme Court Cases 226 and
(vii) Juhru & Ors. Vs. Karim & Anr. - Criminal Appeal No. 549 of
2023 [arising out of Special Leave Petition (Criminal) No.
1658 of 2020].
Mr. Mukherjee, learned Public Prosecutor submitted that in this
case PW-1, Sulekha Bibi in her deposition before the court has
corroborated what she earlier stated in the letter of complaint which has
been treated to be the FIR of the instant case. Learned Public Prosecutor
referred to the chargesheeted witnesses and drew the attention of the
Court particularly to the statement in reference to the present petitioner.
It was pointed out that three witnesses, viz. Motiur Rahaman, Jahangir
Hasan Sk and Md. Mistarul Sk. cited as CSW-3, CSW-4 and CSW-5
respectively alleged complicity regarding the present petitioner while Md.
Hasim Sk., CSW-9 and Asmaul Sk, CSW-10 stated before the
investigating officer regarding their opinion that the present petitioner
may not be involved. Learned advocate submits that so far as the CSWs
3, 4 and 5 are concerned, their statement would fail to distinguish the
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distinction between the participation of the accused who are facing trial
and the present petitioner who has not been sent up for trial.
Additionally, it has been stated that the investigating officer has not
assigned any reason also why the present accused was left out in the
charge-sheet.
In support of his submission, learned Public Prosecutor has relied
upon the following decisions of the Hon'ble Supreme Court :
(i) Sartaj Singh Vs. State of Haryana and another reported in
(2021) 5 Supreme Court Cases 337 and
(ii) Naveen Kumar Vs. Rishipal and others reported in (2021) 11
Supreme Court Cases 563.
The genesis of the present case is on the basis of a complaint
lodged by Sulekha Bibi (CSW-1 and PW-1) to the effect that her family
had a land adjacent to the land of the accused persons which they
themselves cultivated and produced crops. For the last few days dispute
arose between her husband and the accused persons over the issue of
harvesting when the accused persons threatened her husband of dire
consequences. On the fateful day her husband left in the early morning
and reached the field when he found that the accused persons were
involved in stealing the produce. It was also found that the accused
persons had stacked some of the crops after illegally taking it from the
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field and her husband protested. There was altercation when the
accused persons with the aid of sharp cutting weapon (Hasua) struck
him at different parts of his body. Hearing the same, she sent her son
who after reaching the field found her husband Sajjad Sk was lying
dead. On such complaint, Mothabari Police Station Case No. 229 of 2020
dated 24.06.2020 was registered for investigation. On completion of
investigation, charge-sheet was submitted before the learned Chief
Judicial Magistrate, Malda. The case was thereafter committed to the
court of sessions. The charge-sheet so submitted reflects that the
investigating authorities relied upon 14 witnesses which included
Sulekha Bibi, Rafikul Islam, Motiur Rahaman, Jahangir Hasan Sk, Md.
Mistarul Sk, Satyajit Roy, ASI Shyamal Barman, Constable Amiya
Thakur, Md. Hasim Sk, Asmaul Sk, ASI Sk Sariful, Dr. Aloke Mazumder,
SI Chiranjit Nandy and SI Chandan Kumar Das.
It would not be out of place to state that in the letter of complaint
there was a specific allegation against four persons by the CSW-1,
Sulekha Bibi who happens to be the wife of the deceased. They are Dijen
Mandal, Biren Mandal, Hriday Chandra Mandal and Bapan Mandal. The
three witnesses viz. Motiur Rahaman, Jahangir Hasan Sk and Md.
Mistarul Sk in their statement which was recorded on 24.06.2020 by the
investigating officer stated that when the deceased Sajjad Sk protested
against the act of the accused persons, then Dijen Mandal, Hriday
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Chandra Mandal, Biren Mandal and Bapan Mandal together entered into
a hot altercation and they attacked the deceased with sharp weapon and
struck at different parts of the body which resulted in his death. The
other two witnesses whose statements were recorded on 15.09.2020
which are of Md. Hasim Sk and Asmaul Sk, it was recorded by the
investigating officer that Hriday Mandal had no enmity with the
deceased and as he was a teacher, he was not there at the relevant point
of time when the incident took place. The investigating officer while
submitting charge-sheet gave his opinion under the heading brief facts
of the case (at serial No. 17) "during investigation it could be learnt that
one FIR named person viz. Hriday Chandra Mandal s/o Lt. Biswanath
Mandal of Nayagram, P.S. Mothabari, district Malda has been not
established in this case as per leading statement of the witnesses".
Mr. Mitter, learned advocate for the petitioner emphasises on the
factum of materials available including the evidence in examination-in-
chief of a witness who is a hearsay witness. Learned advocate by relying
upon S. Mohammed Ispahani (supra) emphasises that it was not open to
the High Court to rely upon the statement recorded under Section 161 of
the Code of Criminal Procedure as independent evidence at this stage
when the charge has already been framed and the trial court at the stage
of consideration of charges was not of any opinion that the petitioner
should have been called upon to face the ordeal of a criminal trial.
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Learned advocate for the petitioner by referring to Ajay Kumar
alias Bittu and Another (supra) has submitted that the principles which
have been laid down in respect of Section 319 of the Code of Criminal
Procedure also includes within its ambit the test which is more than
prima facie case as exercised at the time of framing of charge and it has
been held that the same should be short of satisfaction to an extent that
the evidence, if goes unrebutted, would lead to conviction. Drawing the
attention of the Court to the relevant paragraph of the judgement,
learned advocate has submitted that in the absence of satisfaction of
such nature being available, the courts are refrained from exercising
power under Section 319 of the Code of Criminal Procedure.
Learned advocate for the petitioner has relied upon the decision
in the case of Hardeep Singh (supra) and drawn the attention of the
Court to paragraph 105 which is set out as follows :
"5. Power under Section 319 CrPC is a discretionary and an extraordinary power. It
is to be exercised sparingly and only in those cases where the circumstances of the case
so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of
the opinion that some other person may also be guilty of committing that offence. Only
where strong and cogent evidence occurs against a person from the evidence led before
the court that such power should be exercised and not in a casual and cavalier manner."
Learned advocate for the petitioner has referred to the
Constitution Bench judgement of the Hon'ble Supreme Court in Sukhpal
Singh Khaira (supra) and placed the guidelines laid down by the Hon'ble
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Supreme Court in relation to the questions which were considered at
paragraph 26 of the said judgement which is set out as follows :
"26. After pursuing the relevant facts and circumstances, the following
substantial questions of law arise for further consideration--
26.1.(i) Whether the trial court has the power under Section 319 CrPC for
summoning additional accused when the trial with respect to other co-
accused has ended and the judgment of conviction rendered on the same
date before pronouncing the summoning order?
26.2.(ii) Whether the trial court has the power under Section 319 CrPC for
summoning additional accused when the trial in respect of certain other
absconding accused (whose presence is subsequently secured) is
ongoing/pending, having been bifurcated from the main trial?
26.3.(iii) What are the guidelines that the competent court must follow
while exercising power under Section 319 CrPC?"
Learned advocate for the petitioner also relies upon the decision
of the Hon'ble Supreme Court in Juhru & Ors. (supra) wherein reliance
was placed upon Sukhpal Singh Khaira (supra) and Hardeep Singh
(supra) to arrive at its finding in the facts of the said case.
Mr. Mukherjee, learned Public Prosecutor on the other hand has
relied upon Sartaj Singh (supra). Referring to paragraphs 13.1.7, 13.2,
13.3 and 13.4 of the said judgement, it has been submitted that the
power invoked by the learned trial court was appropriate and in the
fitness of the circumstances. The relevant paragraphs are set out as
follows :
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"13.1.7. While answering Question (v), namely, in what situations can the
power under Section 319 CrPC be exercised : named in the FIR, but not
charge-sheeted or has been discharged, this Court has observed and held as
under : (Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3
SCC 92 : (2014) 2 SCC (Cri) 86] , SCC pp. 139-41, paras 112 & 116)
"112. However, there is a great difference with regard to a person who has
been discharged. A person who has been discharged stands on a different
footing than a person who was never subjected to investigation or if subjected
to, but not charge-sheeted. Such a person has stood the stage of inquiry
before the court and upon judicial examination of the material collected during
investigation, the court had come to the conclusion that there is not even a
prima facie case to proceed against such person. Generally, the stage of
evidence in trial is merely proving the material collected during investigation
and therefore, there is not much change as regards the material existing
against the person so discharged. Therefore, there must exist compelling
circumstances to exercise such power. The court should keep in mind that the
witness when giving evidence against the person so discharged, is not doing
so merely to seek revenge or is naming him at the behest of someone or for
such other extraneous considerations. The court has to be circumspect in
treating such evidence and try to separate the chaff from the grain. If after
such careful examination of the evidence, the court is of the opinion that there
does exist evidence to proceed against the person so discharged, it may take
steps but only in accordance with Section 398 CrPC without resorting to the
provision of Section 319 CrPC directly.
***
116. Thus, it is evident that power under Section 319 CrPC can be
exercised against a person not subjected to investigation, or a person placed
in Column 2 of the charge-sheet and against whom cognizance had not been
taken, or a person who has been discharged. However, concerning a person
who has been discharged, no proceedings can be commenced against him
directly under Section 319 CrPC without taking recourse to provisions of
Section 300(5) read with Section 398 CrPC."
13.2. Considering the law laid down by this Court in Hardeep
Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC
(Cri) 86] and the observations and findings referred to and reproduced
hereinabove, it emerges that (i) the court can exercise the power under
Section 319 CrPC even on the basis of the statement made in the
examination-in-chief of the witness concerned and the court need not wait till
the cross-examination of such a witness and the court need not wait for the
evidence against the accused proposed to be summoned to be tested by
cross-examination; and (ii) a person not named in the FIR or a person though
named in the FIR but has not been charge-sheeted or a person who has been
discharged can be summoned under Section 319 CrPC, provided from the
evidence (may be on the basis of the evidence collected in the form of
statement made in the examination-in-chief of the witness concerned), it
appears that such person can be tried along with the accused already facing
trial.
13.3. In S. Mohammed Ispahani v. Yogendra Chandak [S. Mohammed
Ispahani v. Yogendra Chandak, (2017) 16 SCC 226 : (2018) 2 SCC (Cri)
138], this Court has observed and held as under : (SCC p. 243, para 35)
"35. It needs to be highlighted that when a person is named in the
FIR by the complainant, but police, after investigation, finds no role of that
particular person and files the charge-sheet without implicating him, the
court is not powerless, and at the stage of summoning, if the trial court
finds that a particular person should be summoned as accused, even
though not named in the charge-sheet, it can do so. At that stage, chance
is given to the complainant also to file a protest petition urging upon the
trial court to summon other persons as well who were named in the FIR
but not implicated in the charge-sheet. Once that stage has gone, the
court is still not powerless by virtue of Section 319 CrPC. However, this
section gets triggered when during the trial some evidence surfaces
against the proposed accused."
13.4. In Rajesh v. State of Haryana [Rajesh v. State of Haryana,
(2019) 6 SCC 368 : (2019) 2 SCC (Cri) 801] , after considering the
observations made by this Court in Hardeep Singh [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86]
referred to hereinabove, this Court has further observed and held that
even in a case where the stage of giving opportunity to the complainant to
file a protest petition urging upon the trial court to summon other persons
as well who were named in the FIR but not implicated in the charge-sheet
has gone, in that case also, the Court is still not powerless by virtue of
Section 319 CrPC and even those persons named in the FIR but not
implicated in charge-sheet can be summoned to face the trial provided
during the trial some evidence surfaces against the proposed accused."
Learned Public Prosecutor also relied upon the decision of the
Hon'ble Supreme Court in the case of Naveen Kumar (supra). Attention
of the Court has been drawn to paragraph 5 of the said judgement which
is set out as follows :
"5. In the above circumstances, there is adequate material so as to summon the
accused persons and we find no material on the basis of which the police have left
out the accused who have been named in the FIR. Be that as it may, in view of the
material on record, the FIR and the statements of PW 1 and Hitesh, we are satisfied
that there was adequate material on record to summon these accused persons."
I have considered the rival submissions of the parties and also
taken into account the provision under Section 319 of the Code of
Criminal Procedure. The applicability of the said Section cannot be
uniform and is variable according to the circumstances of the case and
that is why the Section incorporates "in the course of any inquiry into, or
trial of, an offence, it appears from the evidence that any person not
being the accused ........................"
The purpose of a criminal trial is to unearth the truth and also to
see that neither innocent persons are convicted nor guilty persons are
left scot-free. The satisfaction of the court is to be from the materials
available from the records of the case. The availability of such materials
on which the prosecution has relied to frame its charge particularly the
documents under Section 207 of the Code of Criminal Procedure cannot
be ignored at the initial stages of the trial and obviously would be a
guiding factor of consideration to assess the test of a prima facie case. So
far as the present case is concerned, the complicity of the accused
persons who are facing trial cannot be distinguished on a major score so
far as the role which was attributed to the present petitioner which is
already available in the materials collected and the personal opinion of
the two witnesses which were recorded just prior to submission of the
charge-sheet, there was hardly any relevance which weighed with the
investigating officer for not assigning any reason in not sending the
present petitioner as an accused in the trial. When a higher court
exercises its jurisdiction under Section 482 of the Code of Criminal
Procedure, it is also the duty of the higher court to see that there is no
miscarriage of justice being caused. As such, the observations made in
paragraph 5 of Naveen Kumar (supra) wherein it has been held that no
reason was assigned by the investigating officer to leave out the accused
in the charge-sheet who was named in the FIR also applies in this case.
In the present case also I find that the petitioner's name was appearing
in the FIR. Three of the witnesses on whom the prosecution has relied
upon have also stated regarding his complicity. Further at the time of
recording of evidence in the examination-in-chief PW-1 has corroborated
the evidence. Thereafter the public prosecutor took out an application
under Section 319 of the Code of Criminal Procedure. The learned trial
court on an assessment of the whole of the materials came to its finding
and allowed the application under Section 319 of the Code of Criminal
Procedure thereby summoning the present petitioner.
Having considered the propositions of law and the reasons so
assigned by the learned trial court, I am of the view that there is no
illegality in the order dated 01.03.2021 passed by the learned Sessions
Judge, Malda. As such, there is no scope for interference.
Accordingly, the revisional application being CRR 1462 of 2021 is
dismissed.
Interim order, if any, is hereby vacated.
All pending connected applications, if any, are consequently
disposed of.
If the petitioner appears before the learned trial court, learned
trial court would invoke the powers under Section 88 of the Code of
Criminal Procedure and taking into account that the response of the
petitioner was prompt and there was no non-cooperation on the side of
the present petitioner would consider his application for bail.
Case diary be returned to the learned Public Prosecutor.
All parties shall act on the server copy of this order duly
downloaded from the official website of this Court.
Urgent photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(Tirthankar Ghosh, J.)
dc.
