STATE Vs. CHITTARANJAN DAS

JUDGEMENT

(1.) THIS is a Reference made under section 438 of the (Code of Criminal Procedure by a learned Additional Sessions Judge of Alipore recommending that a proceeding by way of a committal proceeding as a preliminary to a criminal trial now pending in the court of a Magistrate in that district should toe quashed because of the legal bar under Section 403 (1) of the Code of Criminal Procedure. The facts that gave rise to the criminal proceedings and the Reference made by the learned Additional Sessions Judge are that on 6th June, 1959 an information was lodged in the Khardah Police Station that a girl aged about 15 years named Sandhya Kant Das Gupta was missing from the house of her mother in the Ghola Government Colony for refugees. Upon that information being sent to the Enforcement Branch of Calcutta Police, by a search the police recovered the girl from the house of Ganesh Dey in Tollygunge within 24 -Par -ganas and her statement was recorded and was treated as an F. I. R. The case was investigated by an Inspector of Police of the Enforcement Branch, Calcutta. According to the conclusions reached by the said Inspector there was a conspiracy entered into between Monl Prava Majumdar alias Mom Bala of SS/A, Asutosh Muknerjee Road, Bhowanlpore, Ganesh Dey of Tollygunge, Chittaranjan Das of 29/A Kailash Bose Street and another person named Anil Chatterjee in pursuance of which conspiracy the girl Sandhya Rani was Kidnapped from her mother's house at Uhola in 24 -Parganas by false and deceitful representations to her that she would secure a Job for Sandhya Rani. Sandhya Rani was brought to Moni Bala's house at 88/A, Asutosh Mukherjee Road and was taken on several occasions by Ganesh Dey to the house of Chittaranjan Das 29/A, Kailash Bose Street, it was alleged that Chittaranjan Das committed rape on the said minor girl Sandhya Ram on several occasions at 29/A, Kailash Bose. Street holding out the hope of giving her a job and that Ganesh Dey aided and abetted Chittaranjan Das in committing that offence of rape. It may be mentioned that Ganesh, Dey was a peon employed at the office of the Relief and Rehabilitation Department at Tollygunge where Chittaranjan Das was an officer. On these allegations a charge -sheet was submitted on 1st September 1959 against Chittaranjan Das and the other persons in respect of charges under Ss. 370, 376/109, 366 and 120B/366 of the Indian Penal Code before the Additional Chief Presidency Magistrate, Calcutta. That learned Magistrate took cognizance of the offence under Sections 370 and 376/109 of the Indian Penal Code and issued process against Chittaranjan Das and Ganesh Dey hut he refused to take cognizance of the other offences, namely, offences under Sections 366 and 120B/366 of the Indian Penal Code as he held that he had no Jurisdiction to take cognizance and try those latter offences. The learned Magistrate discharged Monibala and Anil Chaterjee. On 1st September, 1959 prosecution again prayed for process against the said, two discharged persons but that was rejected. Thereafter on 24th September, 195!) the police submitted a supplementary charge -sheet against Chittaranjan Das and the other accused persons alleging offence under Section 120B/366 of the Indian Penal Code. The learned Magistrate again refused to issue process. Against that order a Revisional order was made to this Court and giving rise to Criminal Revision No. 1415 of 1959. By an order dated 19th; January, 1960 passed by this Court the order of the Magistrate refusing to issue process in respect of the offences under Sections 366 and 120B/366 of the Indian Penal Code was upheld but an observation was made that the prosecution might very well file a chargesheet before the Alipore Magistrate having territorial jurisdiction regarding those offences. It may be mentioned! that the difficulty about territorial Jurisdiction in respect of offences under Sections 366 and 120B/366 of the Indian Penal Code was felt in view of the Full Bench decision of this Court in the case Jiban Banerjee v. State reported in : AIR1959Cal500 (FB), which decision has since been overruled by the Supreme Court; but that was after the commencement of present proceedings in the court of the Magistrate at Alipore. Before the said Full Bench decision was overruled by the Supreme Court and in those circumstances inspector Bamdeb Das filed a complaint in the court of the police Magistrate at Alipore alleging offences under Sections 366 and 120B/366 of the Indian Penal Code, against the four persons Moni Prava Majumdar alias Moni Bala, Ganesh Chandra Dey, Chittaranjan Das and Anil Chatterjee and upon that complaint processes were issued by the learned Magistrate at Alipore on 29th February, 1900 giving rise to the proceedings for quashing of which, the present Reference has been made.

(2.) IN the meantime the proceedings in the court of the Presidency Magistrate, Calcutta for offence under Sections 370 and 376/109 of the Indian Penal Code against Chittaranjan Das and Ganesh Dey had continued and order of commitment was made ana those two persons were tried in the City Sessions Court and they had been. convicted in that trial and were sentenced to rigorous imprisonment of 4 years each. from that conviction an appeal was taken to the Hon'ble Supreme Court of India which had remained pending when the present Reference was made by the learned Additional Sessions Judge on. 15th December, 1962, That appeal in the Supreme Court has since been disposed of, the appeal having been dismissed and the orders of conviction and sentences affirmed against Chittaranjan Das and Ganesh Dey.

(3.) THE records of the case were received back by the court of Magistrate at Alipore in June 1062. The learned Magistrate took steps for furnishing - copies as directed toy this Court and fixed 6th August, l962 and succeeding days for evidence. It appears that on 6th of August, 1962 a prayer was made before the learned Magistrate for stay of the proceedings in view of the pendency of the appeal of the two accused persons In the Supreme Court but that prayer was refused and the learned Magistrate directed to proceed to take evidence on the next day. On the next day, however, the learned Magistrate was informed that the court of Sessions had been moved and the proceedings before the Magistrate had been stayed by an order of the learned Sessions Judge. It appears from the record that the Sessions Judge had been moved against the order refusing to stay the proceedings and notices had been issued and Interim stay had been granted by the Sessions Judge but at the hearing of that application the learned Additional Sessions Judge Shri B. Pal held that The issues in evidence in the two cases are completely divergent... Having regard to all this I conclude that no case of stay of proceeding of the enquiry against the petitioner till disposal of the appeal from the order of conviction and sentence passed on the petitioner in the previous trial pending before the Hon'ble Supreme Court on appeal has been made out and there is no Impropriety or illegality in the order of rejection of the petition by the learned Magistrate for which a report may be made to the Hon'ble High Court. That application for revision was, therefore, rejected.