RANJIT CHANDRA MITRA Vs. M. TILAK

JUDGEMENT

(1.) THIS Rule is at the instance of the accused -petitioner, Ranjit Chandra Mitra, for setting aside an order dated the 19th January, 1971, passed by Sri S. B. Dutta, Magistrate, 1st Class, Howrah, framing charges against him Under Sections 408/109 and 420, IPC and for quashing the proceedings so far as he is concerned, in case No. G. Rule 2206 of 1968.

(2.) THE facts leading on to the Rule can be put in a short compass. On 16 -8 -68 one Amilal Goolabchand Sheth, for and on behalf of M/s M. Tilak and Co. clearing and forwarding agents, sent a letter to the Officer -in -charge, Sibpore P. S., Howrah, alleging inter alia that the company has a rented godown at 103/7. Fore Shore Road, Howrah; that the accused Bidhan Dutta is the storekeeper of the godown and the co -accused Jogeswar Mistry, since discharged, is the durwan; that on 16 -8 -1968 at about 10 a.m. the above mentioned durwan reported that the locks of the godown were found open whereupon the informant sent his store -keeper Bidhan Dutta to look into the matter personally; that the said store -keeper also supported the version of the durwan; that the informant thereupon proceeded to the spot along with other employees and on physical verification found that more than four thousand bags of cement had been stolen; that more than five thousand bags of cement belonging to the Peoples Consumers Co -operative Society Ltd., Calcutta were kept in the godown; that the durwan and the store -keeper being fully responsible for looking after the godown, it was presumed that the theft was committed with their connivance; and that on being questioned, neither of them could give any satisfactory explanation. The said information was treated as the first information report and therein the store -keeper and the durwan were mentioned as the two accused and the offence was stated to be one Under Section 408, IPC An investigation started and a charge -sheet was submitted on 15 -7 -1969 Under Sections 408/406/201, IPC against the three accused persons, Bidhan Dutta, the store -keeper, Gurudas Biswas, an employee of the Peoples Consumers Co -operative Society Ltd., Calcutta, and Ranjit Chandra Mitra, Secretary of the said Institution. The durwan Jogeswar Mistry was discharged. The accused thereafter were furnished with the copies of the documents and other papers Under Section 173(4), Criminal P.C. and the learned trying magistrate proceeded to hear the parties on 22 -12 -1969 for a consideration of the charge. Orders were reserved till 19 -1 -1970 and the learned trying magistrate directed as follows: 'to 19 -1 -1970 for charge'. On 19 -1 -1970 the learned trying magistrate framed charges Under Sections 408 and 420. IPC against the accused Bidhan Dutta and Under Sections 408/109 and 420, IPC against the accused -petitioner Ran.iit Chandra Mitra and the co -accused Gurudas Biswas. The accused pleaded not guilty to the charges and claimed to be tried. 25 -5 -70 was fixed for evidence of witnesses Nos. 1, 2 and 3 as mentioned in the charge -sheet. On 24 -1 -1970, the court inspector filed an application praying for an amendment of the charges viz. all the three accused Under Sections 408/420/120 -B, IPC and the accused Bidhan Dutta on a further charge Under Section 408. IPC The learned trying magistrate thereafter issued notices on the accused persons for appearance in court in order to consider the said application for amendment. On the 28th January. 1970, an application was filed on behalf of the accused -petitioner Ranjit Chandra Mitra stating inter alia that no sanction was obtained by the prosecution for framing a charge Under Section 120 -B, I. P, C. that the' accused will be highly prejudiced if the charge was altered at this stage; and that no charge Under Section 120 -B, IPC is maintainable in the facts and circumstances of the case. It was accordingly prayed that the learned trying magis - trate may be pleased to take notice of the above facts and pass necessary orders. The application was directed to be put up on the date fixed viz., 14 -2 -1970. In the meanwhile the accused -petitioner Ranjit Chandra Mitra came up to this Court on 2 -2 -1970 and obtained the present Rule.

(3.) THE preliminary objection goes to the root of the matter and as such is taken up for determination in the first instance. In support of his preliminary objection Mr. Dutt contended inter alia that the petitioner has deliberately suppressed material facts, practising thereby a fraud on the court; that the ultimate charges were still being considered by the learned magistrate and as such the accused -petitioner had no right to come to this Court for striking down the earlier order dated the 19th January, 1970 framing the charges; and that the question being not only one of legality but also of propriety, there should be no hearing on merits and the Rule should be discharged. Mr. Dutt made it clear that this preliminary objection is independent of his contention on merits. Mr. Prasun Chandra Ghosh, adopted the submissions of Mr. Dutt in this behalf and further contended that the procedure adopted by the accused -petitioner has not been proper and as such he had no right to be heard.