ABHOY PRADHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the judgment dated 12-11-1998 passed by the learned Assistant Sessions Judge, Diamond Harbour, South 24 Parganas in ST. No. 1(3) of 1997 convicting the appellant under Section 376, I.P.C. and sentencing him thereunder to suffer R.I. for eight years and to pay a fine of Rs. 5,000/-, and in default to undergo simple imprisonment for further two years. Appellant was also convicted under Section 420, I.P.C. and was sentenced thereunder to suffer R.I. for six years and to pay a fine of Rs. 5,000/- and in default to undergo simple imprisonment for further one year. Learned trial Court also directed that 75% of the fine, whenever realised, shall be paid to the victim girl Pratima Das as compensation.

(2.) After the hearing proceeded substantially and the argument of the learned counsel for the appellant was in fact concluded, Mr. S. Moitra, learned Addl. P.P. in the middle of his argument raised an objection against hearing and disposal of the appeal unless the PW-1 Pratima Das, in whose favour learned trial Court granted somecompensation, is notified and heard. He pointed out that the learned trial Court granted some amount of compensation in favour of PW-1 Pratima Das, being the victim girl, out of the fine whenever recovered. He further pointed out that PW-1 Pratima Das has been impleaded as one of the parties in this appeal. Yet no notice has been served upon her and hence, the appeal cannot be heard and disposed of without notice to her. According to learned Addl. P.P., PW-1 Pratima Das is entitled to notice and hearing before this appeal can be disposed of. To buttress the aforesaid contention, learned Addl. P.P. heavily relied upon an old decision of a Division Bench of this Court in Bharasa Naw v. Sukdeo, 27 WLJ 1086 : AIR 1926 Cal 1054. It is true that in somewhat similar circumstances it was held by this Court in the aforesaid decision that the complainant in whose favour a compensation was awarded, is entitled to notice and hearing before the appeal preferred by a convict can be heard and disposed of. It was further decided in that case that it is one of the fundamental principles of law that no order should be passed to the detriment of prejudice of party without giving him an opportunity of being heard in his defence. Therefore, although there was no provision in Cr.P.C. (old) providing for notice of an appeal by the accused being given to the complainant, yet it was the settled practice of this Court, in case where compensation was awarded to the complainant, to give notice of appeal to him and an acquittal in an appeal, in the absence of such notice, is liable to be set aside by the High Court in revision.

(3.) We are sorry to say that we are not aware of any such "settled practice" of this Court which existed in those days when the decision in the case of Bharasa Naw was rendered. Even if any such "settled practice" existed, same should not be followed anymore when an express provision in this respect has been incorporated in the new Code of Criminal Procedure. Section 385 of the new Code has incorporated clear provision as to who are entitled to notice and hearing before an appeal can be heard and disposed of. It clearly provides that in an appeal from a case instituted on a police report, only the representative of the State and the accused/convict are entitled to notice and hearing. When such clear provision has been made in the statute in unambiguous terms, there is absolutely no justification for us to adhere to the "Settled practice" of this Court. "Settled practice" of the Court, however, hallowed and sanctified same may be, cannot prevail over clear legislative mandate. Of course we are not very sure if any such practice/convention ever existed.