Makhan Lal Biswas vs The State of West Bengal

P.N. Sinha, J.—This revisional application has been filed by the accused Petitioners assailing the judgment and order dated 25.2.05 passed by the learned Additional Sessions Judge, 1st Court, Barasat in Criminal Appeal No. 19/03 and 6/04 thereby remanding back the G. R. Case No. 83/94 to the learned trial Court with a direction for fresh examination of accused Appellants u/s 313 of the Code of Criminal Procedure (in short Code) and to conclude the trial preferably within three months from the date of receipt of the record in the trial Court.

Mr. Joy Sengupta, learned advocate appearing for the Petitioners submitted that the accused Petitioners were convicted by the learned Chief Judicial Magistrate (in short CJM), Cooch Behar in G.R. Case No. 83/94 which arose out of Cooch Behar Kotawali P. S. Case No. 73 dated 28. 2. 94 u/s 461/379 of the Indian Penal Code (in short I.P.C.). Against the order of conviction and sentence the accused Petitioners preferred two separate appeals being criminal appeal Nos. 5/2000 and 6/2000 before the learned Sessions Judge, Cooch Behar. In view of the direction passed by this Court in CRR No. 1877/2000 the criminal appeal No. 6/2000 was transferred to the Court of the learned Sessions Judge, Jalpaiguri for disposal. There was another revision before this Court being CRR No. 2488/ 02 by the convict accused persons who preferred criminal appeal No. 6/2000 before the learned Sessions Judge, Cooch Behar. This Court in CRR No. 2488/02 passed the direction transferring the said appeal from the Court of the learned Sessions Judge, Jalpaiguri to the Court of the learned Sessions Judge, Barasat. Subsequently, one of the convict accused persons who preferred criminal appeal No. 5/2000 and which was pending before the learned Sessions Judge, Jalpaiguri preferred another revision before this Court being CRR No. 2532/2000 and this Court directed transfer of the said appeal also to the Court of the learned Sessions Judge at Barasat. After transfer of both the appeals in the Court of the learned Additional Sessions Judge, Barasat heard the appeals and disposed of both the appeals by order dated 25.2.05 and remanded back the case for retrial to the learned CJM with direction to examine all the accused persons afresh u/s 313 of the Code. Being aggrieved by and dissatisfied with the said order the accused Petitioners have preferred this revisional application.

Mr. Sengupta submitted that the order passed by the learned Additional Sessions Judge giving direction for fresh examination of accused persons u/s 313 of the Code is absolutely bad in law and illegal. The FIR was in the year 1994 and after so many years the learned Sessions Judge should not have directed fresh examination of accused persons u/s 313 of the Code when the accused persons are already facing the trial for over 11 years. The charge itself was defective and that itself was a ground of acquittal but the learned Sessions Judge did not consider that aspect at all. The learned CJM based his conviction mainly on the confession of co-accused which was bad in law. Confession of a co-accused cannot be used against other accused persons. The exculpatory statement of other accused persons were used against the Petitioners which is totally in violation of provisions of law.

He also contended that if the accused persons are examined u/s 313 of Code they would be deprived of the benefit that has been accrued to them. In the form of fresh examination u/s 313 of the Code, the evidence and the other incriminating materials which were not put to the accused Petitioners during their earlier examination u/s 313 of the Code would be put to them and the defect in the prosecution case would be removed. The last is that, if an accused faces trial for several years or, at least for 11/12 years there cannot be direction for fresh examination u/s 313 of the Code.

Mr. Sengupta further contented that the learned Additional Sessions Judge did not consider the evidence at all and simply on technical ground of non-examination of accused persons u/s 313 of the Code properly remanded back the matter to the trial Court. If the learned Session Judge considered and appreciated the evidence of witnesses he could have found that there was no ground to base conviction and there are sufficient materials which would favour acquittal of the accused persons. Instead of acquitting the accused Petitioners the order passed by the learned Session Judge for their fresh examination u/s 313 of the Code after 11 years of FIR is bad in law. The order of the learned Additional Sessions Judge should be set aside and the accused Petitioners should be acquitted. In support of his contention Mr. Sengupta cited the decisions in Rautu Bodrav. State of Bihar 1999 S.C.C. (Cri.)1319, State of Pubjab v. Nabi Din AIR 2001 S.C. 395 and Sharad Birdhichand Sarda v. State of Maharashtra 1984 S.C.C. (Cri) 787.

Mr. R. K. Bhattacharya, learned advocate appearing for the State submitted that the prayer portion of the revisional application reveals that the accused Petitioners have preferred the instant revisional application only challenging the order of the learned Sessions Judge giving direction for fresh examination of the accused Petitioners u/s 313 of the Code. The order of the learned CJM and the learned Additional Sessions Judge are composite. There cannot be any judgment in criminal trial without examination of accused properly u/s 313 of the Code. If in appeal the appellate Court finds that the trial Court or the Magistrate did not examine the accused persons properly u/s 313 of the Code, the Sessions Judge has the power to direct the trial Court to examine the accused persons u/s 313 of the Code properly. The Sessions Judge has the power to set aside the conviction and to send back the case to the trial Court for� fresh decision and to proceed afresh from the stage of examination u/s 313 of the Code. The Supreme Court in State of Punjab v. Naib Din (Supra) clearly observed that, "If the appellate Court finds that the trial Court did not put any question to any accused which was of vital nature, such omission should not result in setting aside the conviction and sentence as inevitable consequence. Effort should be made to undo or correct the lapse." The above observation of the Supreme Court would clearly indicate that failure to put some important question to accused during examination u/s 313 of the Code would itself not be a ground for setting aside the conviction and the Court should make attempt to correct the lapse. In the present case some vital evidence and incriminating materials were not put to the accused Petitioners and the learned Sessions Judge rightly exercised his jurisdiction and after setting aside the conviction rightly sent back the case to the learned trial Court for fresh decision starting from the stage of fresh examination of accused persons u/s 313 of the Code.

Mr. Bhattacharya further submitted that this is a serious matter as in the instant case the stolen article was very tuchy matter and it was the ornaments and the statue of Lord Madan Mohan, Cooch Behar itself. The accused Petitioners were all customs officials and they had a duty to apprehend the main criminal along with booty. The Petitioners apprehended the main culprits who committed theft in the famous madan Mohan temple and fled away with the statue of Lord Madan Mohan and ornaments of the deity. The Petitioners intercepted the main culprits but thereafter they abdicated their duties and instead of bringing the criminals to book or taking away them to custody in accordance with law connived themselves with the criminals and melted the ornaments and also the throne and other valuable metals of the statue of Lord Madan Mohan and took share of the stolen articles. The custom officials who did not perform their duties should not be lightly allowed to go free by order of acquittal on account of failure of the learned trial Court to examine the accused persons properly u/s 313 of the Code. The order passed by the learned Additional Sessions Judge requires no interference and in this came considering the gravity of offence this Court should not interfere into the impugned order.

After perusing the revisional application and annexures and considering the materials on record and the submissions made by the learned advocates for the parties, I am unable to agree with the views expressed by the learned advocate for the Petitioners. It is true that the learned Sessions Judge in his judgment and order did not discuss in detail the evidence of the prosecution witnesses and did not record his own finding regarding merit of the case on the basis of oral and documentary evidence. It is evident from the certified copy of the judgment that the learned advocate for the Appellants drew the attention of the learned Sessions Judge relating to infirmities in the examination of Appellants u/s 313 of the Code. The learned Sessions Judge thereafter recorded as to which materials, documents and evidence were not put to the accused Petitioners during their examination u/s 313 of the Code by the learned Court. The settled principle of law is that unless all the incriminating materials and evidence that transpired against an accused during trial are put to the accused during his examination u/s 313 of the Code that cannot be used against him in the judgment to base conviction. In the instant matter learned CJM convicted the accused Petitioners but, it is crystal clear that some vital and material evidence and incriminating materials were not put to the accused persons while they were examined by the learned Magistrate u/s 313 of the Code. It is thus established fact that in the trial which ended in conviction of the accused Petitioners there was no proper examination u/s 313 of the Code. Law does not prescribe that due to defect in examination of accused u/s 313 of the Code or for improper examination of accused u/s 313 of the Code, he would be entitled to acquittal when the case is of serious nature and when there were sufficient materials in evidence. In such a situation it is the duty of the Court to remove the defect.

The Hon''ble Supreme Court in State of Punjab v. Naib Din (supra) laid down the law by observing that, "That apart, Respondent failed to show that there was any failure of justice on account of the omission to put a question concerning such formal evidence when he was examined u/s 313 of the Code. No objection was raised in the trial court on the ground of such omission. No ground was taken up in the appellate court on such ground. If any appellate court or revisional court comes across that the trial court had not put any question to an accused even it is of a vital nature. Such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particular items of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the appellate or revisional court can endeavour to see whether it could be rectified."

The principle of law as pronounced above makes it clear that if the Appellate Court or the Sessions Court comes across that the learned trial Court did not put questions to accused which is of vital nature, such omission should not result in setting aside the conviction and sentence as an inevitable consequence. The Supreme Court made it clear that there should be effort to undo or correct the lapse. If it is not possible to correct it by any means the Court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particulars item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much and can be sidelined. But if the lapse is so vital as would effect the entire case, the appellate or the revisional Court can endeavour to see whet here it could be rectified.

The Supreme Court in an earlier decision in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, held that such an omission does not ipso facto vitiate the proceeding unless prejudice was established by the accused. In the instant case during trial or during examination of the accused Petitioners u/s 313 of the Code the learned advocate for the accused persons did not raise any object before the learned CJM regarding omission of not raise any objection before the learned CJM regarding omission of not putting all the incriminating materials and evidence to the accused persons. They have raised objection relating to defect of examination of accused persons u/s 313 of the Code only in the appeal, considering the evidence of the witnesses as it appears from the judgments of the two lower Courts including the Sessions judge, I am of opinion that it is not such a case that the lapse caused prejudice to the accused Petitioners. On the other hand, this Court finds that there are some evidence and in Criminating materials which were of vital nature and those were not put to the accused Petitioner. In order to remove the defect of trial and examination of accused u/s 313 of the Code those evidence and materials should be put to the accused persons in the i form of fresh examination u/s 313 of the Code. There is no question of acquittal of the accused Petitioners on the ground that in the meantime 11 years have passed. No prejudice has been caused to accused Petitioners by the direction of the learned Sessions Judge for their examination afresh u/s 313 of the Code. If there was no such direction the prejudice would have been caused to the prosecution. Merely delay of certain years is not itself a ground or acquittal of the accused Petitioners in a case of serious nature having material evidence.

The decisions placed before the Court by the learned advocate for the Petitioners do not favour them. In the reported cases the accused persons were ordinary people having no knowledge about law. and order and duties and responsibilities. For this reason in Rautu Bodra v. State of Bihar (Supra) the supreme Court directed that as the alleged offence was committed more than 15 years ago and as the Appellants have already served more than 4 years of imprisonment, it would not be justified to place the accused persons for fresh trial from the stage of examination u/s 313 of the Code.

the decision in Sharad Birdhichand Sarad v. State of Maharashtra (Supra) is also not applicable properly in favour of accused persons. In the said decision the Supreme Court found that the evidence of the witnesses were not sufficient to point to the guilt of the Appellant. The case was based on circumstantial evidence and the theory of last seen together and supreme Court found that the theory of last seen was unsafe and evidence was not sufficient to lead to the guilt of the Appellant. This is not the situation in the present case and this Court finds that in this matter there are some materials and evidence which should be put to the accused Petitioners during their examination u/s 313 of the Code.

In State of Punjab v. Naib Din (Supra) the Supreme Court on the other hand laid down that there should be effort to remove the defect or to correct the lapse. It was also indicated that if the evidence is not convincing or of formal nature the appellate Court or the revisional Court can make endeavour to see how the matter can be dealt with. In the instant matter it appears to me that the evidence and the incriminating materials which were not put to the accused Petitioners are not of formal nature and those were convincing materials and evidence and accordingly those materials and evidence should be put to the accused persons in their examination u/s 313 of the code.

In the instant matter all the accused Petitioners are customs officers. All of them had the duty to check smuggling or illegal movement of goods. In the instant matter the sentiment of people of Cooch Behar was involved as the ''singhasan'', i.e. throne, ornaments and the statue of the deity Lord Madan Mohan were stolen from the famous temple of Madan Mohan at Cooch Behar. The Petitioners being the customs officials apprehended the main culprits and also recovered of the stolen articles. The Petitioners instead of handing over the accused persons and the stolen articles to police entered into collusion and conspiracy with the accused Ashim Bhattacharya and forming the conspiracy shared the ornaments of the deity, statue of the deity Madan Mohan. The Petitioners could not have absolved themselves of their duty and responsibility in discharging their duties and official functions and they were accountable to their authorities for every sphere of their official function. Instead of bringing of principal accused Ashim Bhattacharya before the police they joined hand with the principal accused and took share of the stolen articles and in this fashion they failed to perform their duty and responsibility or did not care to complete their duties and abducted themselves from performing their duties. They were not common illiterate people and they were fully aware of their duties and instead of that they joined in the crime. Such a matter cannot be lightly taken into account and the Petitioners must face the trial in accordance with law. If in this Matter Court takes a liberal view and passes order of acquittal only for 11 years delay when there was improper examination u/s 313 of the Code, the Court would also be equally guilty. Accordingly, this Court finds that the learned Sessions Judge rightly sent back the case on remand to the trial court for fresh trial of the accused Petitioners starting from the stage of 313 of the Code. The Petitioners only suffered imprisonment for about 2 months which this Court thinks was not sufficient at all for their acquittal considering the ratio of the decision of Supreme Court in Rautu Bodra v. State of Bihar 1999 S.C.C. (Cri.)1319. If further appears that the delay has been caused only for the conduct of the accused Petitioners as during pendency of the trial and appeal the Petitioners moved this Court 2/3 times in revisional applications for transfer of the case, for transfer of the appeal etc. As the delay was to some extent due to the conduct of the accused Petitioners they cannot now take advantage of their own conduct.

There cannot be any question of filling in lacuna in prosecution case as evidence was complete. In examination u/s 313 of the Code, it is a matter between Court and accused and prosecution has no role to play. The trial Court will put questions to the accused persons on the basis of evidence and materials transpired during trial against each and every accused and the accused persons are to give their answer. The law is that the accused persons are not bound to give answer and if the accused persons think that they would not given answer nobody can compel them to give answer. In this matter their is no question of recording fresh evidence so that the accused persons can raise objection that there would be filling in lacuna of prosecution case. In examination of accused u/s 313 of the Code there cannot be filling in lacuna of prosecution case. On the other hand, if the Court examines the accused persons properly putting all the evidence and materials that came up before the Court during trial it would result in fair trial and would remove all the defects.

In view of the discussion made above this Court finds no materials at all to interfere with the impugned order passed by the lamed Additional Sessions Judge in sending back the case on remand for fresh examination of accused Petitioners u/s 313 of the Code. Learned CJM, Cooch Behar would complete the trial (1) Supra within the time indicated by the learned Sessions Judge in his order. The revisional application having no merit fails and is dismissed.

All interim orders passed earlier stand vacated.

The observation made by this Court are only tentative for the purpose of this revisional application only and it is made clear that this Court has not entered into merit of the case on the basis of entire evidence. The learned trial Court will arrive at this own decision on the basis of evidence and materials on record without being influenced in any way by the observations made by this Court in this revisional application.

Send a copy of this order to the learned Additional sessions Judge, 1st Court, Barasat and to the learned Chief Judicial Magistrate, Cooch Behar for information and necessary action.