SANTOSH SAHA Vs. STATE

JUDGEMENT

(1.) This Rule is directed against an order dated July 1, 1972, passed by Sri D. B. Dutta Magistrate, First Class, Barrackpore, rejecting the application filed by the accused petitioner on December 8, 1971, purporting to be one under section 337, Criminal Procedure Code, and praying for issuing process against one Janaki Ballav Mukherjee as the co-accused and then proceed further with the enquiry.

(2.) The background of facts necessary for considering the points at issue may be stated briefly. A petition of complaint was filed on November 4, 1967, in the Court of the learned Sub-divisional Magistrate, Barrackpore, by the complainant opposite party No. 2, Sachindra Nath Das, against the present accused petitioner Santosh Kumar Saha under sections 408, 420 120, & 34 of the Indian penal Code containing a list of witnesses which included on Janaki Ballav Mukherjee as witness No. 20.The prosecution case, inter alia, is that in furtherance of a criminal conspiracy with Janaki Ballav Mukherjee, the accused, Santosh Kumar Saha dishonestly and fraudulently started cheating the complainant's company by submitting false bills, ghost bills and duplicate bills in respect of challans already paid for and in such other manner obtained by false and fraudulent inducement large sums if money purporting to be the price of waste paper supplied to the complainant's company and during the Bengali years 1370 to 1373 B. S. corresponding to 1963 to 1967, cheated the complainant's company to the extent of about Rs. 1,56,785. It was also alleged in para 8 of the petition that 'the accomplice of the accused Janaki Ballav Mukherjee had since admitted his guilt and made statements'. Cognizance was taken under section 420, Indian Penal Code, against the accused-petitioner Santosh Kumar Saha, but in view of the gravity of the offence the Court launched an enquiry under Chapter XVIII of the Code of Criminal Procedure and the same went on before the learned Munsif-Magistrate, First Class, Barrackpore. In course of the enquiry the complainant was examined on May 21, 1969, when he, inter alia, stated that Janaki Ballav Mukherjee admitted guilt to the complainant and others and, therefore, they did not lodge accusation against him but they will tender him in Court if the Court pardoned him and they will produce his as P. W. or in the alternative he will be made a co-accused for conspiracy with the accused. Following that statement on July 10, 1969, the accused Santosh Kumar Saha filed an application praying for summoning the aforesaid Janaki Ballav Mukherjee as a co-accused in the case or in the alternative for examining him as a witness on tendering pardon to him under section 337 of the Code of Criminal Procedure. The petition, however, was rejected by the learned Magistrate being the aggrieved thereby the accused moved the learned Sessions Judge for referring the matter to the High Court under section 438 of the Criminal Procedure Code with a recommendation for quashing the impugned order. The learned Sessions Judge, however, did not find any reason to interfere with the order impugned but made and observation that the learned Magistrate should make it clear that process, if necessary, be issued against the said Janaki Ballav Mukherjee or he may be summoned as a witness on tendering pardon at the stage. This closed the first chapter.

(3.) The matter came back to the Court below and on December 10, 1969, the accused-petitioner sought for a classification on the point from the learned Magistrate who was holding the enquiry at the time and passed an order dated December 10, 1969. The classification, as it appears there from, is to the effect that the Court wanted to examine the above-mentioned Janaki Ballav Mukherjee as a witness after tendering pardon in accordance with the procedure laid down under sec 337, Criminal Procedure Code, and not to proceed against him as a co-accused. This order again was impugned by way of a revisional application preferred in the High Court. The application failed, however, on the ground of limitation. The enquiry thereafter preceeded and P. W. 1 was cross-examined by the accused in part on July 10, 1970, and a date was going to be fixed for further cross-examination of the said P. W. and for recording other evidence that may be adduced on behalf of the prosecution under section 208, Criminal Procedure Code. At this stage the accused filed an application on December 8, 1971, purported to an application under section 337, Criminal Procedure Code, but without any prayer for examining the said Janaki Ballav Mukherjee as a witness on tending pardon. It was ultimately prayed that process might be issued against the said Janaki Ballav Mukherjee as one of the accused and the enquiry be proceeded with. Sri D. B. Dutta, Munsif-Magistrate, First Class, Barrackpore, who is the successor-in-office of the previous incumbent, ultimately rejected the said prayer by his order dated July 1, 1972, and issued summons on the aforesaid Janaki Ballav Mukherjee to appear in the Court for the purpose of being tendered [pardon under section 337, Criminal Procedure Code, and of being examined as a witness. This order has been impugned and forms the subject-matter of the present Rule.