Dr. Bijaya Goswami and Ors. vs State of Assam on 20 June, 2006
Overview of the Case
Citation 2007 (2) GLR 509, 2006 (4) GLT 703
Judgement Date June 20, 2006
Court Guwahati High Court
Judges Biplab Kumar Sharma, J.
Issue-Code of Criminal Procedure, 1973 (CrPC) – Sections 2, 170, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 227, 228, 319, 323, 465, 482; Indian Penal Code (45 Of 1860) (IPC) – Sections 34, 201, 299, 304, 304A
Facts of the Case:
In this case, one of the informants, on behalf of his learned lawyer, told the Pan bazar police station on October 25, 2013 that his wife Smt died due to negligence on October 24, 2014 in the operating room. An FIR has been registered in the name of Paltan Bazar R.S. Case No. 347/2004 under IPC Section 304(A)/34, Related Case No. 4308/2004 to G.R.
The police started an investigation into the incident and finally registered that a prima facie case was registered under Section 304 (II) / Section 34 of the Islamic Penal Code against the accused/petitioner on 24 October 2005. Indictment No. 125/05 was filed. Therefore, according to the aforementioned regulations, they were sent to the court.
Mr. Kamrup, a learned CJM, by his first order dated February 16, 2006, found that the relevant evidence constituted a case under Section 304(A)/34 IPC and the charge sheet contained sub-section 304(A)/34. that the reference to section 304(11) was an inadvertent error. Division IO accordingly, the charge under section 304(a)/34 was read and explained to the appellants and the appellants pleaded not guilty and filed suit. The informant objected to this order through his committed lawyer, and for this reason, the learned CJM had no choice but to refer the case to the Sessions Court according to the provisions of Section 209 of the Islamic Penal Code. Order. Learned CJM took up this issue on 5th September, 2006 for further consideration.
ISSUES:
Whether they are held liable under CrPc 209?
Argument:
The decision relied upon by the learned counsel for the informant, viz., Raj Kishore Prasad (ibid.), indeed dictates the fundamental questions which concern us. This case was about the addition of one more person as an accused in addition to the committed person, but the fundamental questions about the powers and jurisdiction of the Magistrates under Section 209 CrPC were also answered. Referring to the report of the Judicial Commission on the recommendation to change the commitment procedures, the Supreme Court said:
Therefore, Section 209 is currently the result of the aforementioned expert deliberations and subsequent legal practice. Thus, in cases heard in the Courts of Session, it is significant that the preliminary inquiry, then known as the ‘commitment procedure’, was abolished. Therefore, the role that the judge must play, such as issuing a copy for setting up the books, notifying the public prosecutor, etc., has a primary or ministerial aspect. Of course, it is true that at that time the judge had some kind of fulfilment, but he was not merely a judge, but a preparatory work as a facilitator for the filing of cases in the courts of the United States. Therefore, within the limited scope of the judge’s duties, he applies his head to decide the question presented, to judge someone guilty or innocent, or to declare the truth of any other case, obviously not. Therefore, the Judge’s role is only to ensure that the packets sent to the Sessions Court are appropriate, ready and complete in accordance with the requirements of Sections 207 and 208. The provisions of the Criminal Procedure Law. Therefore, such proceedings are not squarely within the ambit of “investigations” as defined in Section 2(g) of the Code of Criminal Procedure. The Criminal Procedure Law defines: “Investigation means any investigation other than a trial conducted under this law.” The reason “by a judge or court” is that it cannot “comply with the necessary conditions”. As already mentioned, the context requires that the proceedings before the courts are formal and, in that sense, almost coercive, and section 319 may apply. And therefore, at the stage of 209 Cr.P.C, it is justified for the judge to come to the conclusion that: it is prohibited to deal with the merits of the matter and determine whether the accused should be added or subtracted for trial at the hearing.
We therefore hold that the power of summoning a new offender under the second observation I have come to think is not given to the Magistrate for want of “investigation.” ‘evidence’. If no such power has been conferred, his refusal to exercise it cannot be corrected by the Court on reasonable grounds which the Court of Session may correct in any case. A revisional court can itself be a court of sessions pending a suit on an undertaking., (sic) the accused to be tried and the accused who were supposed to be tried before.
Judgement:
In the present case, Kamrup, a learned CJM, initially worked on the basis that Section 304(II) was irrelevant to the IPC. After going through the material in the case, he came to the conclusion that the case was under Section 304(A)/34 IPC. As held in the above case, a CJM found under Section 209 CrPC had no obligation to conduct an inquiry into the factual verification of the allegations against the petitioner-accused. The provisions of Section 304 are conveniently referred to as Parts I and II. In this regard, the indictment refers to paragraph 304 as paragraph 11 of 304. The relevant clauses are quoted above. The CJM has learned to review material like orders imposed, if the IO, after examining and submitting the reports, finds that the offense disclosed is an apparent violation which is not within the jurisdiction under Section 304 (Part II). Toward the prosecution framework for concluding that an offense constituted under section 304(a) is a crime.
Perhaps recognizing the lack of inherent jurisdiction, Kamrup, a learned CJM, issued a letter dated 5th September, 2006 to correct himself to the correct procedure envisaged under Section 209 CrPC. issued a sentence of conviction. As to whether he could have taken such action for the purpose of reviewing his order, that question is discussed at length in relation to the true meaning and purpose of Section 209 CrPC, there is no need to confine us. Finally, by passing the order of conviction dated 5th September, 2006, the learned CJM upheld the basic principles of Section 209 CrPC. Even after referring the case to the learned Sessions Judge Kamrup, Assam, the accused-appellants maintain that they are entitled to liberty and/or that this is a case under Section 304 (Part II). No, but you will have plenty of time. To assert one’s right to freedom is under Section 304(A).
Criminal complaints are answered in the manner described above. Judge Dana Sessions Campbell will now hear the matter as a matter of law. The accused petitioner must appear before him. It goes without saying that they have all the legal protections provided in the relevant provisions of the law.
The criminal petition stands disposed of in terms of the above order.
Before parting with the case records, I place on record my appreciation for the services rendered by Mr. K. Agarwal, learned advocate towards assisting the court.
REFERENCE:
https://indiankanoon.org/doc/1609989/
https://vlex.in/vid/dr-bijaya-goswami-and-655159385
This article is written by Naman Jain of Galgotias University, Intern Under Legal Vidhiya
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