Dismissed

Jayanti Kundu D/O Late Madan Chandra Day and W/O Sri Nirup Kumdu v. State of Bihar

Jharkhand HC19 Apr 2022Cr.Rev./260/1999

Case brief

AI extract

What is this about?

This revision petition questioned the High Court below's acquittal of accused persons and remand for retrial as the Union Court dismissed a complaint against the trial courts for Section 313 of CrP.C. non-compliance and failure to suitable appointment. The petition was rejected due to the excessive delay in the proceedings and potential harassment.

What did the court decide?

Revision application rejected; no remand for retrial ordered due to excessive delay of 33 years.

Jayanti Kundu D/O Late Madan Chandra Day and W/O… — Criminal Trial and Appeal | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 260 of 1999 (R)

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Jayanti Kundu ..… Petitioner

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Versus

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The State of Jharkhand.

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Nirup Kundu.

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Dilip Kundu.

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Bablu Kundu @ Arup Kundu.

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Dulal Kundu.

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Madhu Sudan Kundu.

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Bachhu Kundu @ Bikash Kundu.

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Smt. Brajadhuli Kundu. ..... Opposite Parties

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--------- CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN --------For the Petitioner : Mr. Amritansh Vats, A.C For the State : Mr. Shailesh Kr. Sinha, APP For the O.P. Nos. 2, 4 to 6 : Mr. D.K.Karmakar, Advocate ---------

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26/Dated: 19^th April, 2022

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Heard learned counsel for the parties.

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2. This revision application is directed against the judgment dated 04.08.1999 passed by the learned 3^rd Additional Session’s Judge, Jamshepdur in Criminal Appeal No. 112 of 1997; whereby the opposite parties 2 to 8 were acquitted. The learned appellate court reversed the judgment dated 11.07.1997 passed by learned Judicial Magistrate, 1^st Class at Jamshedpur in Complaint Case No.C-1/146/89 (Trial No. 375/97) whereby the opposite party nos. 2 to 8 were convicted under Section 498-A IPC and the opposite party no.2 was directed to undergo rigorous imprisonment for three years and the opposite party nos. 3 to 8 were sentenced to undergo simple imprisonment for one year each.

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3. The brief facts of the case is that, one Jayanti Kundu, daughter of complainant was married to Nirup Kundu at Jamshedpur on 11.8.86 in accordance with Hindu rites and custom. Thereafter, Jayanti Kundu went to live with her husband at his house at Midnapur (West Bengal). After one month, her husband started torturing her both physically and mentally to fulfill demand of Rs. 10,000/- by asking her father for the same, to which her father expressed his inability to pay. Also during the pregnancy of Jayanti Kundu out of the wedlock at two instances, in the year 1987 and in 1988, she was tortured continuously and even the expenses of the birth of both the children were not borne by her husband but were borne by her father only. With due passage of time, she was subjected to continuous violent tortures by all the accused persons for fulfilling their demand for dowry in monetary as well in other forms like steel almirah and gold chain etc. In May 1989 when the complainant visited her daughter’s husband’s place with a view to bring her back, he was not allowed to do so unless and until he pays a sum of Rs. 50,000/-. Thereafter, on 24.5.89 the complainant sent a lawyers’ notice to the husband of his daughter to which he refused to accept it and was further angered by this action. Thereafter, the accused persons along with 4-5 others came to the house of the complainant at Jamshedpur; all armed

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with Bhujalis and criminally trespassed into his house and wrongfully confined and restrained the complainant and his wife and were subjected to a demand of Rs. 50,000/- and in non-compliance of their demand and if they took any legal actions, the complainant, his wife and his daughter were warned with dire consequences and were given death threats. The complainant was also forced to affix his signatures on 3 blank papers that day. Consequently, a separate petition under Section 97 Cr.P.C., was filed on behalf of the complainant with a prayer to direct Midnapur police to recover the daughter of the complainant from the clutches of the accused persons and produce her before the court as her life was in danger.

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4. It appears that the original-petitioner, namely, Mandan Chandra Dey filed a complaint petition against the opposite parties under Sections 498 A, 406, 386/383 and 452 of I.P.C. The learned trial Court after dealing with the evidences, both oral and documentary, convicted the opposite parties nos. 2 to 8 holding them guilty for the offence committed under Section 498 A of the I.P.C.

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5. The opposite parties being aggrieved by the order challenged the same before the appellate court in Criminal Appeal No. 112/97.

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6. The learned appellate Court on the ground that Section 313 of the Cr. P.C has not been complied with

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which has highly prejudiced the opposite parties and on the said score alone, allowed the appeal of the opposite parties and as a result the present petitioner being the victim of the case is before this Court against the order passed by the appellate court.

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During pendency of this application, the O.P. No. 3, 7 & 8 have died; as such this application has been abated as against them vide order dated 20.09.2019.

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7. Mr. Amritansh Vats, learned Amicus submits that even if no specific question is being asked by the accused persons then also acquittal of the accused persons is not legal; rather in the interest of justice the matter should have been remanded by the appellate court to the learned trial Court to start the proceeding from the stage of asking questions under Section 313 of the Cr. P.C. However, the learned appellate Court has committed an error in allowing the appeal on the ground that Section 313 of the Cr. P.C. has not been properly complied with.

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He contended that it is not a case that no question was asked under Section 313 of Cr.P.C. However, admittedly; no specific question were asked by the opposite parties/accused persons under which they were being convicted and the law demands that specific question should have been asked but it does not mean that the appellate court should have allowed the appeal of the

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accused persons only on this technical ground.

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He further referred to the judgment passed in the case of Nar Singh versus State of Haryana, reported in (2015) 1 SCC 496 wherein the Hon’ble Apex Court at paragraph 11, 30.1 and 30.3 has held as under:-

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“11. The object of Section 313(1)(b) CrPC is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of the accused under Section 313(1)(b) CrPC is not a mere formality. Section 313 CrPC prescribes a procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real importance of Section 313 CrPC lies in that, it imposes a duty on the court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point.

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30.1. Whenever a plea of non-compliance with Section 313 CrPC is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer.

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30.3. If the appellate court is of the opinion that noncompliance with the provisions of Section 313 CrPC has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 CrPC and the trial Judge may be directed to examine the accused afresh and defence witness, if any, and dispose of the matter afresh.”

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8. Learned counsel further relied upon the judgment passed in the case of Asraf Ali Vs. State of Assam as reported in (2008) 16 SCC 328 , wherein at 21 & 22 the Hon’ble Court has held as under:-

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“21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

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22. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) [(1976) 2 SCC 819 : 1976 SCC (Cri) 324 : AIR 1976 SC 2140] while dealing

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with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.

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9. Relying upon the aforesaid judgment specifically at para 30.3 of the Nar Singh (supra) learned counsel submits that the appellate Court should have directed for retrial from the stage of recording the statements of the accused i.e. from the stage where the irregularity occurred. However, only on this technical ground that no specific question was asked from the accused persons, the appellate court has allowed the case in favour of the opposite parties so this is against the mandate given by the Hon’ble Apex Court in the aforesaid case. Hence, the matter may be remanded back to the trial Court with a direction to retrial the opposite parties/accused persons from the stage of recording the statement i.e. from the point where the irregularity occurred that is from the stage of questioning of Section 313 of Cr. P.C.

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10. Mr. D.K.Karmakar, learned counsel for the opposite parties submit that there is no infirmity in the order passed by the appellate Court, inasmuch as, it was not only the ground that Section 313 of the Cr. P.C. was not complied

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by the trial Court, but even on merit the appellate Court has considered the case and came to finding that no offence is made out and even otherwise; the complaint has been lodged in the year 1989, as such no fruitful purpose would be served by sending back the case to the trial Court, inasmuch as, out of original 8 accused persons three have already died and rest all are aged persons. 11. Having heard learned counsel for the parties and after going through the impugned judgment, it appears that the learned appellate Court has taken note and considered the entire evidence and came to the conclusion that no illegal demand of money or demand of dowry was there on account of which the victim lady was caused or subject to cruelty. Relevant portion of the impugned judgment is quoted hereinbelow:-

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“23. …………. Apart from the aforesaid so far as the charge with respect to the demand of Rs. 50,000/- is concerned, the court-below itself has found the same to be not proved and now so far the demand of Rs. 10,000/- is concerned, in my view, the same has also not been established by the prosecution or by the complainant side. This besides the fact that no question pertaining to the demand of Rs. 10,000/- was put to the accused persons in course of their examination under section 313 Cr.P.C.

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24. In view of all the aforesaid observations, discussion and findings, I, therefore, come to the conclusion that the order of conviction and sentence passed by the court-below is quite unsustainable in law and deserves to be set aside. Hence, this appeal is allowed and the impugned order of

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conviction and sentence of the court-below are hereby set aside. ”

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12. Further, on the issue of Section 313 of Cr. P.C, is concerned; admittedly the learned appellate court has given a categorical finding and acquitted the opposite parties. The issue of asking specific question under Section 313 (1)(b) Cr.P.C. is now well settled that specific question is to be asked from the accused person charged on the basis of which he or she is being convicted. Normally if this not being done, the matter should have been remanded back to the trial Court for retrial from the stage of asking question under Section 313 of Cr. P.C.

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However, in the instant case since the matter is running since 1989 and more than 33 years have passed as such remitting the case at this stage on the ground of Section 313 of Cr. P.C. would not suffice the ultimate justice.

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In this regard reference may be made to the case of Abdul Rehman Antulay & Ors. vs. R.S. Nayak & Anr. reported in (1992) 1 SCC 225 wherein at para 63 and 64 the Hon’ble Apex Court has held as under:-

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“63. In Machander v. State of Hyderabad this Court observed that while it is incumbent on the Court to see that no guilty persons escapes, it is still more its duty to see that justice is not delayed and accused persons are not indefinitely harassed. The scales, the Court observed, must be held even between the prosecution and the

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accused. In the facts of that case, the Court refused to order trial on account of the time already spent and other relevant circumstances of that case.

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64. In Veerabadran Chettiar v. Ramaswami Naicker this Court refused to send back proceedings on the ground that already a period of five years has elapsed and it would not be just and proper in the circumstances of the case to continue the proceedings after such a lapse of time. Similarly, in Chajoo Ram v. Radhey Shyam the Court refused to direct a re-trial after a period of 10 years having regard to the facts and circumstances of the case. In State of U.P. v. Kapil Deo Shukla, though the Court found the acquittal of the accused unsustainable, it refused to order a remand or direct a trial after a lapse of 20 years.

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13. In the aforesaid judgment the Hon’ble Apex Court relying its earlier judgment has held that while it is incumbent on the Court to see that no guilty person escapes; it is still more its duty to see that justice is not delayed and accused persons are not indefinitely harassed.

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14. Looking to the aforesaid observation passed in the above referred case; this Court is of the view that after 33 years from the date of lodging complaint application, sending this matter back to the trial Court to start fresh trial from the stage of asking question under Section 313 of Cr. P.C. would harass both the parties and it would not be just and proper in the circumstances of the case to continue the proceedings after huge lapse of time.

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15. At the cost of repetition, Section 313 of the Code of Criminal Procedure casts a duty on the court to put in an

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enquiry to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him and this recording of statement of the accused under Section 313 is not a purposeless exercise; however at the same time on the ground that already a period of 33 years has elapsed from the date of complaint; it would not be just and proper in the circumstances of the case to continue the proceedings after such a lapse of time.

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16. Consequently, the instant revision application is, hereby, rejected.

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17. Let a copy of this order be communicated to the court below.

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18. Let the lower court record be sent back to the court concerned forthwith.

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(Deepak Roshan, J.)

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Amardeep/

Jayanti Kundu D/O Late Madan Chandra Day and W/O Sri Nirup Kumdu v. State of Bihar

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Jayanti Kundu D/O Late Madan Chandra Day and W/O Sri Nirup Kumdu v. State of Bihar

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