BIMAL CHAND DHANDHIA Vs. STATE

JUDGEMENT

(1.) THESE two rules arising out of the same case are directed against an order dated 9 -8 -75 passed by the learned Chief Metropolitan Magistrate, Calcutta. By the said order charges under Section 414/511, I.P.C. were framed against the petitioners. Facts leading on to the framing of such charges may be briefly stated as follows: On 22 -7 -74 Sm. Ranu Mukherji of 7, Harington Street, Calcutta, informed in writing the police that on Saturday 13 -7 -74 she by mistake left a very valuable large sapphire ring on her dining table and she discovered the loss on the next morning. She immediately searched the dining table and room but did not succeed in getting it though she had combed the whole house. The description of the ring was given as one oval shaped sapphire, surrounded by 18 diamonds and four claws. On the basis of this information the police started a case of theft under Section 380, I.P.C. by filing in a formal F.I.R. form on 24 -7 -74. It was on that day, the accused No. 1 Pritamdas Lal -chand Mahatani came to Sm. Mukherjee at the Academy of Fine Arts building, Calcutta, to show a ring for her choice as she wanted such a ring from him a few days back. Sm. Mukherji identified the ring as her own which was stolen away from her residence. On her identification, the accused No. 1, Pritamdas Lalchand Mahatani was arrested. On the same day, the accused No. 2, Ruitambar Rochiram Kripalani, the petitioner in Revision Case No. 1002/75 and the accused No. 3, Bimal Chand Dhandia, the petitioner in Revision Case No. 1001/75, surrendered before the police. The accused No. 4, Chandulal Parekh was subsequently arrested by the police. It appears from the police papers that Sm. Ranu Mukherji along with one Jean Maurie went to a big jewellery shop inside the New Market, Calcutta on 23 -7 -74 and asked for inspection of a big sapphire stone ring. Some rings were shown to her but was not approved by her. Thereafter, on 24 -7 -74 at about 6 -30 p.m. the accused No. 1, who is one of the shop keepers of that shop went to Academy Fine Arts building as arranged previously with another middle aged man and showed Sm. Mukherji one ring which was identified by her as her stolen ring. After completion of investigation the police submitted charge sheet against all the four accused persons under Section 414/511, I.P.C. The Ld. Chief Metropolitan Magistrate by his impugned order framed a charge under Section 411, I.P.C. against the accused No. 1 Pritamdas Lalchand Mahatani and Section 414/511, I.P.C. against all the four accused persons. In so far as the petitioner Bimal Chand Dhandia is concerned the charge against him is that he attempted to voluntarily assist in disposing of one ring having four claws and set with 18 pieces of diamonds encircling one big sapphire which he knew or had reason to believe to be a stolen property and in such attempt did a certain act towards the commission of the said offence to wit, handed the aforesaid ring to Pitambar Rochiram Kripalani (accused No. 2) for procuring a buyer for the said ring. The charge against the petitioner accused No. 2 Pitambar Rochiram Kripalani is that he attempted to voluntarily assist in disposing of the said ring which he knew or had reason to believe to be a stolen property and in such attempt did a certain act towards the commission of the said offence to wit, handed the aforesaid ring to accused No. 1, Pitambar Das Lalchand Mahatani for procuring a buyer. The other two accused persons are not before me. It appears that the accused No. 1 was charged under Section 414/511, I.P.C. for offering the same ring for sale to Sm. Mukherji while the accused No. 4 Chandulal K. Parekh was charged under Section 414/511, I.P.C. for handing over the said ring to the accused No. 3 Bimal Chand Dhandia for procuring a buyer for the said ring. It is thus apparent that the two petitioners before this Court and the accused Chandulal K. Parekh have been charged under Section 414/511, I.P.C. in the manner as indicated above on the allegation of their handing over the same ring from one to another for the purpose of procuring a buyer. In framing such charges the learned Chief Metropolitan Magistrate thought that he was entitled to look into the petitions filed by the accused persons in court along with the documents mentioned in Sections 173 and 207 of the Code of Criminal Procedure 1973.

(2.) -3. Mr. R. C. Deb and Mr. Pra -sun Ghose, learned Advocates appearing with Mr. Bimal Chatterjee for the respective petitioners submitted that in framing such charges the learned Chief Metropolitan Magistrate had no materials before him and that he was wrong in taking into consideration the petitions filed by one of the accused persons at the time of framing the charges. Mr, N. C. Banerjee, learned advocate with Mr. Manoj Mukherji appearing for the State submitted in his fairness that the charges as framed by the Ld. Chief Metropolitan Magistrate were defective charges and there was no necessity for the learned Chief Metropolitan Magistrate to seek -in -aid the petitions filed by some of the accused persons in considering the question of framing charges against them inasmuch as there were enough materials collected at the time of the investigation on the basis of which proper charges could be framed against the accused persons. 4. Having heard the learned advocates of the respective parties and on a consideration of the materials before me, I am of the view that the charges as framed by the learned Chief Metropolitan Magistrate must be set aside and the matter should go back to him for re -consideration of the question whether there are grounds for presuming that the accused persons .have committed offence or offences triable by him. 5. It appears that the learned Chief Metropolitan Magistrate was more concerned with the satisfaction of the learned advocates for the accused persons than with his own satisfaction. Again, he attached more importance to a petition dated 7 -8 -74 filed by the accused No. 4 before him than with the requirements of Sections 239 and 240 of the Code of Criminal Procedure. It has already been pointed out that the accused No. 4 is not before this Court, It may be that in his petition dated 7 -8 -74 the accused No. 4 mentioned how the ring came to his possession in November 1973 and how thereafter, it was made over to the accused persons Bimal Chand Dhandia, Pitambar Rochiram Kripalani and Pritamdas Lal -chand Mahatani of Lalchand Dhalmal of Hogg Market, Calcutta, Such a petition was filed opposing the prayer of the de facto -complainant Sm. Ranu Mukherji for the custody of the ring. As there was dispute with regard to the identity of the ring and as there was apprehension of any prejudice being caused to the accused persons the Ld. Chief Metropolitan Magistrate by his order dated 8 -8 -74 directed the ring to be kept in the safe custody of the I. O. under sealed packet, using the court seal for sealing the packet in open court. The impugned order of the Ld. Chief Metropolitan Magistrate will not indicate whether there were materials as contemplated under Sections 239 and 240, Cr. P.C. for presuming that the accused persons have committed an offence or offences triable by him. He has as it appears relied more on the statement made in the petition of the accused No. 4 opposing the prayer of the de facto -complainant for the custody of the ring. In doing so, the Ld. Magistrate referred to a decision of this Court reported in : AIR1969Cal451 . It related to case under the Suppression of Immoral Traffic in Women and Girls Act and the question was whether the investigation was carried on by a police officer duly authorised under the said Act. In deciding that question the Ld. Judge held that it was open to the Magistrate to refer to 'remand petitions' to find out whether an authorised police officer investigated the case or not. That has nothing to do with the question before us. It is true that while deciding the aforesaid point the Ld. Judge considered the question of Section 251 -A, Cr. P.C. 1898 controlling Sections 540 and 178(2) of the Code. Those were obiter and were not required for proper determination of the question arising in that case. It is well -settled principle of law and when a certain procedure is prescribed for doing an act, such act must be done in accordance with the procedure so laid down or not at all. Under the provisions of Sections 239 and 240 of the Code of Criminal Procedure 1973 the Magistrate is required to take into consideration the documents referred to under Section 173 of the Code, to examine the accused if he considers it necessary and to hear both sides before coming to an opinion whether the charge against the accused is groundless or whether it can be presumed that the accused has committed any offence for which he can be tried by him. The documents referred to in Section 173 of the Code also must relate to such documents which can be subsequently translated into evidence at the time of trial. In the present case, the Ld. Chief Metropolitan Magistrate failed to proceed in accordance with the procedure established by law in framing the charges against the accused persons. In such circumstances, I am of the view that although two of the accused persons are not before me, the charges framed against all the accused persons must be set aside and the matter must be reconsidered by the Ld. Magistrate in accordance with the provisions of law. It would be open to the Ld. Magistrate to examine any of the accused persons if he considers it necessary and to give liberty to the prosecution to supply copies of all documents under Section 173 of the Code upon which the prosecution wants to rely and then to reconsider the question of framing charge if any. 6. In the result, the order dated 9 -8 -75 framing charges against the accused persons including the petitioners is hereby set aside and the matter is sent back to the Ld. Chief Metropolitan Magistrate, Calcutta for proceeding in the light of the observations made above and in accordance with the provisions of law from the stage it reached prior to passing of the order dated 9 -8 -75. 7. These two rules are thus disposed of. 8. Let the records go down as early as possible.