SUPRIYO SARKAR Vs. SUNIL RANJAN SARKAR

JUDGEMENT

(1.) This Rule arises out of an order dated the 7th February, 1960 passed by Shri S. C. Roy, Additional Chief Presidency Magistrate. Calcutta, in case No. C/833 of 1968, upon an application filed by the accused-petitioner Shri Supriya Sarkar for dropping the prosecution, holding that the point raised in the said petition can only be decided by the High Court under Section 185(1) of the Code of Criminal Procedure and directing the accused-petitioner to move the said Court for the necessary decision,

(2.) The facts leading on to the present Rule can be put in a short compass. A novel named "Patak", written in Bengali by the accused No. 1, Shri Samaresh Basu, was printed and published by the present petitioner, Shri Supriya Sarkar in the Puja Number of the "Amrita" in the year 1375 B. S. In course of reading the said novel, the complaints concerned were of the view that the said novel contained several vulgar, indecent and obscene passages tending to corrupt the minds and morals of the young and to degrade the culture of the society. One such complaint was lodged under Sections 292/293 I. P. C. against two accused persons viz., Shri Samaresh Basu, the writer and Shri Supriya Sarkar, the printer and publisher of the magazine, by Shri Sunil Ranjan Sarkar, Advocate, who described himself as a litterateur and a lover of Bengali Literature, on 14-12-68 in the court of the Additional Chief Presidency Magistrate, Calcutta, being case No. C/833 of 1968. The case was sent for judicial enquiry and on a perusal of the same, summons was issued on the 6th January, 1969, by the learned Additional Chief Presidency Magistrate. Calcutta against the accused no. 1, Shri Samaresh Basu under Section 292, I. P. C. and the accused no. 2, Shri Supriya Sarkar, the present petitioner, under Sections 292 and 293, I. P. C. Another complaint, being case no. C. 3409 of 1968 was also filed in the Court of the Police Magistrate, Alipore, 24 parganas by Sri Deb Kumar Ghosh, Secretary, Nitya-nanda Library, ,Chetla and a member of the Cine Film Reform Association of India against the above-mentioned two accused and also Shri Tushar Kanti Ghosh the Editor of the "Amrita" under Sections 292 and 293 L P. C. read with Section 114, I. P. C. relating to the same novel called "Patak". The Police Magistrate, Alipore, examined the complainants on solemn affirmation and summoned all the three accused persons under Sees. 292/293 I. P. C. Both the cases thereafter have been pending respectively before the learned Additional Chief Presidency Magistrate. Calcutta and the learned Police Magistrate, Alipore, 24-Parganas, two subordinate courts under the jurisdiction of the same High Court. An application was filed on 25-1-69 by the co-accused Shri Supriya Sarkar in the case pending before the learned Additional Chief Presidency Magistrate, Calcutta, submitting inter alia that the offences alleged in both the cases being identical, there cannot be two separate proceedings over the same issue and accordingly the proceedings pending before the learned Additional Chief Presidency Magistrate, Calcutta, may be dropped. An objection thereto was made on behalf of the complainant opposite-party no. 1, Shri Sunil Ranjan Sarkar. After hearing both the parties the learned Additional Chief Presidency Magistrate, Calcutta, held by his order dated the 7th February 1969 that the continuance of the two different proceedings in the two different Courts over the same offence may lead on to double jeopardy tinder Article 20(2) of the Constitution of India and as the point involved in the petition can only be decided by the High Court, he directed the accused in the proceeding pending before him to move the Hon'ble High Court for a decision of the point under Section 185(1) of the Code of Criminal Procedure and in that view he adjourned the case to 25-3-69 for further orders. An application for revision was accordingly moved on the 10th March, 1969 and the present Rule was obtained by the accused-petitioner. After the matter was heard in part it transpired that Shri Samaresh Basu. the accused no. 1 in the case, was not added as a party by the petitioner and on the prayer of the learned Advocate appearing on behalf of the petitioner, and in the interests of justice, the said accused was directed to be added as the opposite-party no. 2. Shri Samaresh Basu, however, did not ultimately appear though he was served upon.

(3.) Mr. Prasun Chandra Ghosh, Advocate (with Mr. Birendra Nath Banerjee, Advocate) appearing on behalf of the accused no. 2, the petitioner, has made a two-fold submission. The first contention of Mr. Ghosh is that in view of the pendency of two separate proceedings over the same offence in two different courts, the same would only lead on to double jeopardy and as such the proceedings pending in the court of the Additional Chief Presidency Magistrate, Calcutta, as prayed for, by the petitioner, should be dropped. The second contention of Mr. Ghosh is that the dominant consideration for interference under Section 185(1) of the Code of Criminal Procedure is the ground of convenience of the accused and not the factum of earlier commencement as enjoined under Section 185(2) of the said Code. In this context and in support of his contention, Mr. Ghosh relied on the enunciation made in Article 705 in Kenny's Outlines of Criminal Law (19th Edn.) as also on the case of Charu Chandra Majumdar v. Emperor, reported in 21 Cal WN 320 = (AIR 1917 Cal 137) (FB). Mr. Monoranjan Das, Advocate (with Messrs. Dipankar Ghosal, Rabiranjan Roy, Gopal Chandra Ghosh, Advocates) appeared on behalf of the complainant opposite-party no. 1 after the arguments were heard in part but in the interests of justice, I adjourned the case to enable Mr. Das to make his submissions. An affidavit-in-opposition was also filed on behalf of the opposite-party no. 1 and was kept on the record. Mr. Das contended that the question of convenience of the accused is immaterial and the sine qua non for an interference under Section 185(1) of the Code of Criminal Procedure is as to which proceedings 'were first commenced' as enjoined under Section 185(2) of the Code of Criminal Procedure, The question, according to Mr, Das, is one of law and relates to the Interpretation of Section 185(1) of the Code of Criminal Procedure. In this context Mr. Das further submitted that the proceedings before the learned Additional Chief Presidency Magistrate. Calcutta, were started first as cognizance was taken on the 14th December, 1968 whereas in the case before the learned Police Magistrate at Alipore such cognizance was taken on the 18th December, 1968. Mr. Das also contended that the number of accused persons is not the determining factor for holding as to in which of the two courts, subordinate to the same High Court, an enquiry or trial for the offence shall go on. Mr. Dipak Kumar Sengupta, Advocate, appearing on behalf of the State has supported the Rule and has contended that the concept of an earlier commencement as enjoined under Section 185(2) of the Code of Criminal Procedure cannot be imported into Section 185(1) for the purpose of determining as to in which of the two subordinate courts, the enquiry or trial should go on. Mr. Sengupta further contended that it should not be overlooked that in the Alipore case there are three accused persons and not two as in the proceedings pending before the learned Additional Chief Presidency Magistrate. Calcutta and that the question being one of convenience of the accused, the proceedings in Alipore should continue as prayed for by one of the accused himself, and not objected to by the other.