DUKHIRAM BHATTACHARYA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application challenging an order dated 06.10.2018 passed by the Learned Additional Chief Judicial Magistrate, Bishnupur, Bankura in Complaint Case No. 05C of 2006, thereby allowing an application filed by the prosecution seeking correction and modification of an order passed earlier under Section 251 of the Code.

(2.) On 05.09.2005 a petition of complaint was filed against the accused/petitioner alleging commission of an offence under Rule 11 (2) of the West Bengal Forest Produce Transit Rules, 1951 read with the amendment of the Indian Forest (West Bengal Amendment) Act 1988, Section 7 and under Sections 65A of the Indian Forest Act, 1927. The Learned Magistrate was pleased to take cognizance of the offence on 16.01.2006. The accused appeared and the substance of the accusation was stated to him under Section 251 of the Code on 18.11.2006. The accused/ petitioner pleaded not guilty and claimed to be tried. After examination of the prosecution witnesses and the examination of the accused under Section 313 of the Code, the defence witnesses were being examined. At this stage the prosecution filed an application on 02.06.2018 contending that the offences were not properly explained to the accused and a correction and/or modification of the order passed earlier under Section 251 of the Code was required so that no prejudice would be caused to the accused. After hearing the parties, the Learned Magistrate was pleased to pass the impugned order allowing such modification as prayed for.

(3.) Mr. Amber Majumdar, Learned Counsel appearing on behalf of the petitioner, submitted as follows. In the present case no formal charge was framed. Only the particulars of the offence alleged were stated to the petitioner. Therefore, there was no scope of correcting and/or altering the earlier order passed under Section 251 of the Code. Section 216 of the Code could not be invoked to alter the charge as no formal charge had been framed. Besides, the bar on reviewing a final order as contained in Section 362 of the Code would very much be applicable in the present case and in view of the same, the order passed under Section 251 of the Code could not be reviewed and/or modified. Reliance was placed on the decision of the Hon'ble Apex Court in the case of AR Antulay Versus R.S. Nayak and Another, (1984) 2 SCC 500 and it was submitted that a Court should read a provision as it is and ought not rewrite it to suit its convenience. Reliance was also placed on a decision of this Court passed in Chiranjit Pal Versus West Bengal Khadi and Village Industries Board and Another, AIR 1969 Cal