Calcutta High Court (Appellete Side)
Baidyanath Garai vs The State Of West Bengal on 19 September, 2024
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Partha Sarathi Sen
CRR 2322 of 2004
With
CRAN 1 of 2004 (Old No. CRAN 2094 of 2004)
Baidyanath Garai
Vs.
The State of West Bengal
For the petitioner : Mr. Jayanta Narayan Chatterjee
Ms. Devipriya Mitra
Ms. Sreeparna Ghosh
For the State : Mr. Avishek Sinha
Heard on : 19.09.2024
Judgement on : 19.09.2024
PARTHA SARATHI SEN, J.:
1. The legality, propriety and correctness of the judgment and order
dated August 16, 2004 as passed by the learned Additional
Sessions Judge, First Track Court, Bankura in Criminal Appeal
No. 10 of 2003 is the subject matter of the instant revisional
application.
2. By the impugned judgment, the said appellate Court upheld the
judgment and order of sentence as passed by the learned Judicial
Magistrate, 3rd Court, Bishnupur on March 20, 2003 in G.R. Case
No. 28 of 1995 whereby and whereunder the accused persons
were found guilty under Sections 353/323 IPC and they were
sentenced to suffer R.I. for one year each and to pay fine of Rs.
1,000/- each i/d to surer S.I. for one month for the offence
committed by them under Section 353 IPC. However, the learned
Judicial Magistrate did not impose any separate punishment of
sentence for the offence committed by the accused persons under
Section 323 IPC.
3. In course of his submission, Mr. Chatterjee, learned advocate for
the revisionist at the very outset draws attention of this Court to
the judgments as passed by the learned trial Court as well as by
the learned first appellate Court. It is submitted on behalf of the
present revisionist that both the learned trial Court as well as the
first appellate Court has failed to consider that identification of
the present revisionist before the learned trial Court has become
doubtful in absence of any T.I. parade which affects the very root
of the case.
4. It is further argued by Mr. Chatterjee, learned advocate for the
revisionist that both the learned trial Court as well as the learned
first appellate Court has failed to visualize that the present
revisionist being a co-accused in the aforementioned G.R. case is
not named in the FIR though from the evidence of the prosecution
witnesses, it would reveal that the present revisionist and the
other co-accused are the principal assailants. It is thus argued
that both the learned trial Court as well as the learned first
appellate Court has failed to consider that at the earliest
opportunity, the name of the present revisionist was not
mentioned in the written complaint which really casts a shadow of
doubt with the alleged involvement of the present revisionist in the
alleged crime which both the trial Court as well as the first
appellate Court had failed to consider causing serious miscarriage
of justice for which the revisional jurisdiction of this Court may be
exercised under Section 397 read with Section 401 Cr.P.C.
5. In his next fold of submission, Mr. Chatterjee, learned advocate
for the revisionist further contended that in absence of any cogent
material to show that the P.W. 1 on the relevant day and hour
visited the P.O. in discharge of his official duty, both the Courts
ought not to have come to a finding that P.W. 1 was resisted by
the accused persons while he was discharging his official duty. It
is further submitted on behalf of the revisionist that the learned
trial Court as well as learned first appellate Court did not
appreciate the cross-examination of the P.W. 1 in its proper
perspective and, therefore, the conviction as awarded under
Section 353 IPC may be set aside.
6. It is further submitted by Mr. Chatterjee, learned advocate for the
revisionist that the learned trial Court as well as the learned first
appellate Court committed serious error in coming to a finding
with regard to the involvement of the present revisionist in the
alleged assault of P.W. 1 and, therefore, the finding of the
aforementioned two Courts regarding the alleged offence
committed under Section 323 IPC is faulty.
7. Placing reliance upon a reported decision in the matter of Bishan
Singh and Another Vs. State reported in (2007) 13 SCC 65, it is
submitted that considering the fact that the instant revisional
application is pending for a considerable length of time and also
considering the fact that during bail, the present revisionist has
not violated the condition of bail and also considering the mental
agony suffered by the present revisionist for a considerable length
of time, leniency may be shown to the present revisionist keeping
in mind the spirit of decision of the Hon'ble Apex Court in the case
of Bishan Singh and Another (Supra).
8. Per contra, Mr. Avishek Sinha, learned advocate for the State,
however, contends that from the evidences of P.W. 1 and P.W. 2, it
would reveal that on the relevant day and hour, the P.W. 1 went to
the P.O. in discharge of his official duty and the same was
communicated to the present revisionist as well as to the co-
accused who is the owner of the grocery shop in question and,
therefore, by no stretch of imagination, it can be said that the
present revisionist was not aware that P.W. 1 went to the P.O. in
discharge of his official duty.
9. Drawing further attention of this Court to the evidence of P.W. 8
being a departmental driver of the office of P.W.s. 1 and 2, it is
submitted that from his oral evidence, it would reveal further that
P.W. 1 on the relevant day and hour went to the P.O. in discharge
of his official duty and thus the learned trial Court rightly invoked
the provision of Section 353 IPC while awarding sentence to the
present revisionist.
10. It is further submitted by Mr. Sinha, learned advocate for the
State that there is little scope for this revisional Court to interfere
with the concurrent findings of the guilt of the accused under
Section 323 IPC since there is sufficient materials in the trial
Court record to come to a conclusion that on the relevant day and
hour at the P.O., P.W. 1 was assaulted by the present revisionist
and the other co-accused and the evidence of P.W. 1 and P.W. 2
get sufficient corroboration from the evidence of P.W. 8 who is a
doctor of a government hospital.
11. It is thus submitted by Mr. Sinha that being a revisional Court,
this Court is not expected to interfere with the concurrent finding
of guilt and punishment of both the trial Court as well as the first
appellate Court.
12. For effective adjudication of the instant lis, this Court is at the
very outset proposes to look to the provisions of Sections 319,
321, 323 as well as 353 IPC and those are quoted herein below in
verbatim:
"319. Hurt. - Whoever caused bodily pain, disease or
infirmity to any person is said to cause hurt.
321. Voluntarily causing hurt. - Whoever does any
act with the intention of thereby causing hurt to any
person, or with the knowledge that he is likely thereby to
cause hurt to any person, and does thereby cause hurt to
any person, is said "voluntarily to cause hurt".
323. Punishment for voluntarily causing hurt. -
Whoever except in the case provided for by section 334,
voluntarily causes hurt, shall be punished with
imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one
thousand rupees, or with both.
353. Assault or criminal force to deter public
servant from discharge of his duty. - Whoever
assaults or uses criminal force to any person being a
public servant in the execution of his duty as such public
servant, or with intent to prevent or deter that person
from discharging his duty as such public servant or in
consequence of anything done or attempted to be done by
such person in the lawful discharge of his duty as such
public servant, shall be punished with imprisonment or
either description for a term which may extend to two
years, or with fine, or with both."
13. Before entering into the merit of the instant lis, this Court
proposes to look to the settled position of law with regard to the
scope of revision under Sections 397/401 Cr.P.C. while dealing
with the concurrent findings of convictions.
14. In the reported decision of Malkeet Singh Gill Vs. State of
Chattisgarh reported in (2022) 8 SCC 204, the Hon'ble Apex
Court expresses the following view:
"Before adverting to the merits of the contentions, at the
outset, it is apt to mention that there are concurrent findings
of conviction arrived at by two courts after detailed
appreciation of the material and evidence brought on record.
The High Court in criminal revision against conviction is not
supposed to exercise the jurisdiction alike to the appellate
court and the scope of interference is really narrow. Section
397 Cr.P.C. vests jurisdiction for the purpose of satisfying
itself or himself as to the correctness, legality or propriety of
any finding, sentence or order, recorded or past, and
regularity of any proceeding of such inferior court. The
object of the provision to set right a patent defect or an error
of jurisdiction or law. There has to be well-founded error
which is to be determined on the merits of the individual
case. It is also well-settled that while considering the same,
the revisional court does not dwell at length upon the facts
and evidence of the case to reverse those findings."
15. Keeping in mind, the aforementioned legislative provisions and the
proposition of law as enunciated in the reported decision of
Malkeet Singh Gill (supra), this Court shall make an endeavour
to come to a logical finding as to whether there is at all any scope
to interfere with the concurrent findings of the learned trial court
as well as the learned first appellate court with regard to the proof
of guilt of the present revisionist as well as with regard to the
sentence as imposed upon him.
16. As discussed supra, Mr. Chatterjee, learned advocate for the
revisionist, in course of his submission, was very vocal with regard
to the finding of both the courts regarding the proof of guilt of the
present revisionist under Section 353 IPC.
17. On perusal of the judgment and order of conviction dated 20th
March, 2003, as passed by the learned trial court, it appears to
this Court that learned trial court placed its reliance upon the
evidence of PW1 and PW2, as well as upon the Exhibit-1, to come
to a conclusion that on the relevant day and hour, PW 1 visited
the P.O. in his official capacity for the purpose of inspection and
learned trial court also noticed that in the written complaint, PW 1
has disclosed his official designation and had used his official
seal.
18. As discussed supra, this Court being a revisional court, is not
supposed to act as an appellate court to re-appreciate the
evidence as assessed by the learned trial court as well as by the
first appellate court. However, on perusal of the cross-examination
of PW 1, it reveals to this Court that there was specific cross-
examination to that effect on behalf of the accused persons with
regard to the alleged visit of PW 1 in his official capacity. It
appears to this court that both PW 1 and PW 2 in their respective
cross-examinations, though testified that on the relevant day and
hour they visited the P.O. in their official capacity, but to the utter
surprise of the Court, no document has been exhibited on the part
of the prosecution to substantiate that the visit of PW 1 and PW 2
at the P.O. was official.
19. This court has also noticed that in his cross-examination, PW 2
specifically testified that they had attendance register, as well as
tour diary, but for the reason best known to the prosecution, no
endeavour was made for seizure of the attendance register, as well
as the tour diary, as well as for tentering the same into the
evidence by the prosecution witnesses.
20. In considered view of this Court, a serious aspect has been
overlooked both by the learned trial court, as well as by the
learned first appellate court, which in considered view of this
Court causes serious miscarriage of justice, since a patent defect
arose in coming to a conclusion that on the relevant day and
hour, PW 1 and PW 2 went to the P.O. in discharge of their official
capacity.
21. In view of such patent error as noticed by the Court and as
discussed supra, this Court considers that the conviction of the
present revisionist under section 353 I.P.C. cannot be sustained
and is thus hereby set aside.
22. So far as the other charge under section 323 IPC is concerned,
this Court finds sufficient, consistent, corroborative evidence with
regard to the involvement of the present revisionist in assaulting
the victim of the incident and this Court thus finds no scope to
interfere with the concurrent findings of the learned trial court as
well as the learned first appellate court with regard to the proof of
guilt under section 323 IPC.
23. As rightly argued by Mr. Chatterjee, learned advocate for the
revisionist that the alleged incident occurred in the year 1995 and
the learned trial court passed the impugned judgment on March
20, 2003. In the meantime, almost 30 years have elapsed. This
court cannot shut its eyes over the mental agony suffered by the
present revisionist on account of the long pendency of the
litigation. No material is also forthcoming before this court that
the present revisionist has misused the liberty of bail.
24. In view of such, while affirming the conviction of the present
revisionist under Section 323 IPC, this Court considers that
justice would be sub served, if the present revisionist is sentenced
to pay a fine of Rs 1,000/- only without giving any substantive
sentence.
25. It is thus ordered that the present revisionist shall deposit the fine
amount of Rs.1000/- within three months from the date of
passing of this order, failing which he has to suffer simple
imprisonment for one month.
26. With the aforementioned observations, the instant criminal
revision being CRR 2322 of 2004 is disposed of along with all
pending interim applications.
27. Department is directed to forward a copy of this judgment along
with Trial Court Record to the trial court forthwith.
28. Department is further directed to forward a copy of this judgment
along with First Appellate Court Record to the first appellate court
at the earliest.
29. The learned trial court is hereby directed to issue non-bailable
warrant of arrest against the present revisionist, in the event, the
fine amount as awarded by this Court is not deposited within the
time as mentioned supra and the learned trial court after
apprehension of the present revisionist shall send him to the
correctional home to suffer the default sentence as awarded by
this Court after setting off the period of incarceration already
undergone, if therebe any.
30. Urgent photostat certified copies of this order, if applied for, be
supplied to the parties upon compliance with all the necessary
formalities.
(Partha Sarathi Sen, J.)
Sourav Banerjee
Gourab Banerjee
A.R. (Court)s
