ASWINI KUMAR DAS V/S RAMAN CHANDRA MOHANTA (1962)

ASWINI KUMAR DAS V/S RAMAN CHANDRA MOHANTA (1962)

FACTS OF THE CASE

The case was filed by the respondent before the S.D.M Dharamnagar against the petitioners Aswini Kumar Das for criminal trespass and assault and against Nalini Kumar Das for outraging the modesty of the complainant’s sister-in-law. After taking cognizance, the S.D.M transferred the case to Magistrate of second class Shri S.R. Chakravorty. While the case was pending, the new S.D.M Shri A. Bhattacherjee withdrew the case against both the accused and framed charges against them under the Sec 447 and 352, 354 of IPC. Later, Shri A. Bhattaacherjee ceased to be S.D.M but continued to be Magistrate of first class for Dharamnagar. He again examined the previous witnesses of prosecution and defence for the case and the accused were examined under Sec 342 with due time for examination of defence witnesses. On 9. 12.59, the defence stated that the examination of witnesses would not take place and the case for arguments was adjourned for 2.02.60. The case was later again adjourned for 10.03.60 where the Magistrate ordered transfer of the case to Magistrate of first class Shri W.U. Mulla for disposal. The reason for such a transfer is unclear. Magistrate Mulla heard final arguments and delivered judgement on 31.03.60 sentencing the petitioner Aswini to pay a fine of Rs. 15/- for each charge under Sec 447, 352 and petitioner Nalini to pay Rs. 15/- each for charges under Sec 447, 452 and 354.

Opposing the decision of the Magistrate, the petitioners filed a revision application in the court of Sessions Judge which was dismissed on 25.07.60. After dismissal, the Magistrate issued non-bailable warrants of arrest against the petitioner for realisation of fine. They further filed revision in the High Court of Tripura on 30.08.60.

CONTENTIONS OF THE PARTIES

The main contention raised by the petitioner is that Magistrate Bhattacherjee did not have the power to transfer the case to Magistrate Mulla. Also the subsequent proceedings before Shri Mulla were conducted without jurisdiction and the decision of the court was dismissed. The parties believed that Sec 529(f) is not meant to cure “careless cases and negligent transfers” but only for cases where the Magistrate makes a “bonafide error with due care and diligence”. The petitioner believed that the decision passed by the  Magistrate is unfair and goes against the rules of CrPc. This case raised questions of double jeopardy in a criminal trial. 

JUDGEMENT PASSED BY THE COURT

Following the contentions of the petitioner, the learned Session Judge held that Shri Bhattacherjee had no power to transfer the case. However, they pointed out that the irregularity would be Sec 529(2) of CrPc, by which they mean Sec 529(f) of the Code and that the subsequent proceedings before Shri Mulla are not vitiated. They believed that the transfer was made in good faith but erroneously by the court. The court added that not all transfers of cases are to be made under Sec 192 of CrPc as it only includes transfer from S.D.M. to a Magistrate of subordinate class and such was not the case here. It is seen that in Clause (2) of 192 CrPc, a DM may empower Magistrate of first class to transfer such cases he has taken cognizance for to any Magistrate that has the power to try such cases. In this case the cognizance was taken by Magistrate S.N. Roy had been transferred to Shri Chakravorty, so Shri Bhattacherjee had no power to take cognizance or transfer the case.

The High Court in this revision petition referred to various cases from the past to support their decision- Khudiram vs The State (1953) in this case the Calcutta HC stated that the Magistrate despite of being aware of provisions of Sec 192 still transferred the case under Sec 193 of CrPc with no good faith. It was done “consciously and erroneously”. In the case of Tulsibala Rakhit vs N.N. Khosal (1953) it was held that the words “erroneously and in good faith” do not negate negligence of the Code. 

The court in the revision application observed that a valid transfer was not made under the provisions of Sec 192 CrPc and hence the question of “curing defect of Sec 529 does not arise” and that a case cannot be transferred under Sec 192 after the trial has begun. The court also made reference to Jhakar Abir vs Province of Bihar (1944) which says the when a court has the jurisdiction to try a case, the issue of cognizance does not arise. They lay emphasis on the words “prior to commencement of trial” used in the judgement of the above case illustrating the principle laid down in Sec 192. The court also made clear that the subsequent proceedings before Shri Mulla were illegally transferred and were done so without jurisdiction and declared the conviction of the petitioners as void. 

Focusing on the fact of further trial, the court stated that the offence committed were petty in nature and that no physical assault or use of force was made against the sister-in-law of the respondent. The only offence made is showing off his private parts and this in itself does not fall under Sec 354 of IPC. The court added that though physical assault is not necessary, it does form an essential in the provisions under the Act. In conclusion to their statement, the court said that the procedure used by the Magistrate in this case was not up to par with the provisions laid down and was “thoroughly illegal”. Hence, the court allowed the revision petition and set aside the conviction of Aswini and Nalini Das under Sec 447, 352 and 354.

REFRENCES USED

Indiankanoon.org

Manupatra.com

This article is written by Ravishma Sharma, a student at Vivekananda Institute of Professional Studies, 4^th Year, an Intern at Legal Vidhya.

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