SURITA BHATTACHARJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Both these matters, one purportingly a reference under section 395(2) Cr.PC and the other an application under section 439 Cr.PC for bail are being disposed of by this order.

(2.) Sm. Surita Bhattacharjee, the petitioner herein praying for bail, was facing trial in the 4th court of the Additional Sessions Judge at Barasat on a charge under section 302 IPC along with the co-accused Rajib Ghosh who was charged under section 302/120B IPC. The oral argument of both sides in the sessions trial in the court below was concluded on 15.1.99 when both the accused persons were on bail. On that date 15.2.99 was fixed for delivery of judgment. On 2.2.99 a written argument was submitted on behalf of the defence but the court below directed the same not to form part of the record as it was filed before the conclusion of the oral argument in compliance with section 314 Cr.PC. Judgment however could not be delivered on 15.2.99 as both the accused remained absent on that date and prayed for adjourment. The next date fixed for judgment was 24.2.99. In the meantime on 22.2.99 the accused Surita filed a revisional application under section Cr.PC in this court being CRR 271/99 for transfer of the sessions case from the trial court in view of publication of some news item in a newspaper. Subsequently on 22.6.99 the accused Surita filed another application under Article 227 in this court numbered as AST 29/99 praying for direction on the trial court to accept the written argument earlier filed by her and to make the same a part of the record. No order of stay was however granted by this court in any of those matters. In the meantime the sessions case which was ready for delivery of judgment suffered several more adjournments in the trial court for bringing stay order from this court, in default for delivery of judgment. Ultimately the trial court on 28.5.99 delivered judgment under the proviso to section 353(6) Cr.PC after rejecting the prayer for further adjournment made on behalf of the accused Surita who remained absent on that day although the co-accused Rajib was present. By that judgment the trial court acquitted Rajib but convicted Surita under section 302 IPC. The trial court fixed 14.6.99 for surrender of Surita. She did not surrender on that date. Subsequently on 28.6.99 she filed before the trial court a lawyer's letter informing that an order was passed by S.K. Tewari, J. on 23.6.99 in CRR 271/99 by which the learned Judge directed the trial court to treat the written argument of the accused as one filed under section 314 Cr.PC and to hear out the argument of the parties afresh and then to dispose of the case. The learned Judge also directed Surita to surrender in the court below within a fortnight. In view of such order passed by S.K. Tewari, J. on 23.6.99 both CRR No. 271/99 and A.S.T. 29/99 stood disposed of accordingly. It appears that in the meantime the accused Surita filed an application on 8.6.99 before the trial court praying for sending the case record to the Copying Department so that she could obtain certified copy of the order and judgment passed by the trial court on 28.5.99. From the text of the present reference made by the trial court it appears that the trial court in its order dated 14.6.99 expressed the view that incomplete judgment without pronouncing the sentence after hearing the convict can not be forwarded to the Copying Department in violation of rule 250(b) of the Calcutta High Court Criminal (Subordinate Courts) Rules, 1985 and also forwarded a copy of the order dated 14.6.99 to the Judge-in-charge of the Copying Department for taking a decision accordingly.

(3.) Ultimately on 5.7.99 the accused Surita surrendered in the court below and relying on the aforesaid order of S.K. Tewari, J. dated 23.6.99 pressed for rehearing of the argument and also prayed for allowing her to continue on the same bail. The trial judge in the last paragraph of his order dated 5.7.99 recorded that if Surita was an accused he could consider her bail prayer and if she was treated as a convict under section 302 IPC he could not grant her any bail which according to him, was barred by law, and accordingly her bail prayer was considered and rejected at that stage and she was remended to jail custody. By that order dated 5.7.99 the trial judge Sri S.K. Chakraborty, Additional District & Sessions Judge, 4th court, Barasat thought it necessary to make the present reference to this court under section 395(2) Cr.PC for seeking 'appropriate clarification'. This is how the present reference is before us. The points of reference as formulated by the Additional Sessions Judge are as follows :