Sec.200 , 204, 208 and 210 and sec.319 of Cr.P.C. - Private complaint against 5 accused under
Sections 302, 201 and 120B read with Section 34 of the IPC - Police killed her son - meanwhile human rights directed to register a case against accused police on complaint of human rights activists - FIR registered under Sections 147, 148, 149, 353, 307 and 326 of the Indian Penal Code (“the IPC”) and Sections 25 and 27 of the Arms Act . - Magistrate took cognizance against 3 accused and refused to take cognizance as the Human right commission not order for registration of FIR against those - and further directed to Tag the complaint with the FIR under sec. 210 of Cr.P.C.- High court in revision - set aside the order of Magistrate and directed the Magistrate to commit the case to sessions court under sec.208 of Cr.P.C. with observation if necessary the sessions court can take cognizance against them under sec.319 of Cr.P.C. - but the Magistrate issued arrest warrant wrongly against all, against it the aggrieved persons filed appeal before the sessions court - Sessions court rightly interpreted the orders of High court - but in revision, the High court set aside the orders of the Sessions court and passed disparage remarks against him - Apex court set aside the orders of High court and set aside the disparage remarks also stating that no court should pass adverse remarks against Lower authorities =
Apex court conclusion
The Complaint Case No. 138C of 1997 is remitted to the learned
Additional Chief Judicial Magistrate, Nadia. The Additional Chief Judicial
Magistrate shall commit it to the Court of Sessions, Nadia in accordance
with the provisions of the Code. Learned Sessions Judge, Nadia shall
immediately proceed with the case in accordance with the provisions of the
Code. Needless to say that if in the course of trial, it appears to learned
Sessions Judge from the evidence that any person has committed any offence
for which he could be tried together with the accused, he may proceed
against such person for the offences which such person appears to have
committed. Needless to say further that if from the evidence, it appears to
learned Sessions Judge that the present appellants have committed any
offence, he would be free to proceed against them. We, however, make it
clear that we have not expressed any opinion on the merits of the case as
to whether any case is made out against the present appellants for
summoning them or not. It is for learned Sessions Judge to decide this
question independently and in accordance with law. Considering the fact
that this matter is pending since 1997 and involves alleged encounter
killing, we direct learned Sessions Judge to dispose of the case as
expeditiously as possible.
Against disparage remarks
14. Before parting, we wish to add a rider. We feel that the High Court
should not have passed such harsh comments on learned Sessions Judge. This
Court has repeatedly stated that the superior courts should not pass
caustic remarks on the subordinate courts. Unless the facts disclose a
designed effort to frustrate the cause of justice with malafide intention,
harsh comments should not be made. Bonafide errors should not invite
disparaging remarks. Judges do commit errors. Superior courts are there
to correct such errors. They can convey their anxiety to subordinate
courts through their orders which should be authoritative but not
uncharitable. Use of derogatory language should be avoided. That
invariably has a demoralizing effect on the subordinate judiciary.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41250
RANJANA PRAKASH DESAI, MADAN B. LOKUR
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.273 OF 2006
Sujoy Kumar Chanda ... Appellant
Vs.
Damayanti Majhi & Anr. … Respondents
AND
CRIMINAL APPEAL NO.274 OF 2006
Sasanka Sekhar Banerjee … Appellant
Vs.
Damayanti Majhi & Anr. … Respondents
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Both these appeals are directed against Judgment and Order dated
7/6/2005 passed by the Calcutta High Court in C.R.R. No.3140 of 2004 and,
hence, they are being disposed of by this common order.
2. The facts which give rise to this judgment need to be shortly stated.
One Khagen Majhi was killed in the early hours of 30/4/1997. He was
shot dead. On the same day P.S. Kalyani registered Case No.50 of 1997 under
Sections 147, 148, 149, 353, 307 and 326 of the Indian Penal Code (“the
IPC”) and Sections 25 and 27 of the Arms Act against unknown persons. On
17/5/1997, a complaint was filed by Smt. Damyanti Majhi, the mother of
deceased Khagen Majhi against SI Sankar Chatterjee, ASI Ajay Roy, appellant
- S.K. Chanda, appellant - S.S. Banerjee and one Kartik Sarkar under
Sections 302, 201 and 120B read with Section 34 of the IPC which was
registered as Case No.138C of 1997. In this case, between 21/8/1997 to
6/6/2000, 12 witnesses were examined prior to the issue of process under
Sections 200 and 202 of the Criminal Procedure Code (“the Code”) by learned
SDJM., Kalyani, Nadia.
3. It appears that Association for Protection of Democratic Rights,
Ranaghat Branch, made a complaint to the West Bengal Human Rights
Commission alleging that some police officers had shot down Khagen Majhi.
The West Bengal Human Rights Commission by its Order dated 21/1/1998
recommended that prosecution should be started against SI Shankar
Chatterjee and ASI Ajoy Roy. The Commission directed that displeasure of
the Commission should be communicated, in writing, to the appellant - S.K.
Chanda, SDPO, Kalyani for having attempted to mislead the Commission by his
Report which was not in alignment with facts. There was no direction as
against appellant - S.S. Banerjee. On 22/5/2000, pursuant to the above
recommendation of the Commission, P.S. Kalyani, registered Case No.78 of
2000 against SI Shankar Chatterjee, ASI Ajoy Roy and Kartick Sarkar under
Sections 147, 148, 149, 353, 307 and 326 of the IPC read with Sections 25
and 27 of the Arms Act. On 4/6/2000 upon investigation, charge-sheet was
submitted against the abovementioned accused persons. On 31/7/2000, learned
SDJM, Kalyani found sufficient ground to proceed against SI Shankar
Chatterjee, ASI Ajoy Roy and Kartick Sarkar under Sections 302 read with
Section 120B or Section 304 read with Section 120B and Section 201 read
with Section 34 of the IPC. Learned SDJM, however, refused to issue
process against appellant - S.K. Chanda and appellant - S.S. Banerjee.
Since over the same incident, there was a police case also against those
three accused persons, learned Magistrate directed that Complaint Case
No.138C of 1997 be tagged with Police Case No.78 of 2000 for further
proceedings. On 25/8/2000, the complainant filed a revisional application
against the said Order dated 31/7/2000 passed by learned SDJM being C.R.R.
No.2174 of 2000 in the Calcutta High Court. The appellants were not party
to this revisional application. On 23/7/2001, the High Court set aside the
Order of the learned Magistrate clubbing the complaint case with the police
case and directed that the complaint case be committed to the Court of
Sessions. It would be appropriate to quote the relevant paragraphs from the
Order of the High Court:-
“Taking into account the entire facts and circumstances of the
instant case, I am of the view that the learned Magistrate’s Order
directing that both the cases should be clubbed together under Section
210 of the said Code cannot be sustained and accordingly, the
Revisional Application is allowed. The order dated 31/7/2000 passed
by the learned Magistrate is set aside and the learned Magistrate is
further directed to commit the case immediately after proper
compliance of the provisions of law and soon reach the stage of
section 208 of the said Code”
xxx xxx xxx xxx
“It would be also open to the Learned Sessions Judge, upon
commitment of the arrayed Accused/Opposite Parties during the Trial to
arraign the other accused who has been left out by the Learned
Magistrate, if the situation so demands in exercise of his power under
Section 319 of the said Code in accordance with the steps known to law
without being guided by the disposal of this Application.”
4. It may be stated here that the said Order has not been challenged by
the State or any of the parties.
5. It appears that Learned SDJM interpreted this order to mean that the
High Court had issued a direction to it to proceed against the present
appellants as well and on 5/1/2002, he issued warrant of arrest against the
appellants and one Kartick Sarkar for offences under Sections 302, 201 and
120B read with Section 34 of the IPC. On 14/1/2002, the appellants
preferred a revisional application before the learned Sessions Judge
challenging Order dated 5/1/2002. By his Order dated 24/9/2004, learned
Sessions Judge modified the Order of learned Magistrate dated 5/1/2002.
6. Learned Sessions Judge considered all the facts in proper perspective
and noted that learned Magistrate had by his earlier order dated 31/7/2000
refused to issue process against S.K. Chanda and S.S. Banerjee (the
appellants herein) and had passed order of clubbing the complaint case with
the police case. This order was challenged by Smt. Damayanti Majhi. The
High Court set aside the clubbing of both the cases. Learned Sessions
Judge further noted that the High Court directed learned Magistrate to
commit the case immediately after compliance of the provisions of the Code
and reach the stage of Section 208 of the Code. Learned Sessions Judge
further observed that the High Court had clarified that it would be open to
learned Sessions Judge, upon commitment of the case, to summon those
accused who have been left out by learned Magistrate in exercise of his
powers under Section 319 of the Code. Relevant observations of learned
Sessions Judge need to be quoted.
“It appears from order dated 31.7.2000 that Ld. Magistrate has left
out the accd. No.3 S.K. Chanda and accd. No.4 S.S. Banerjee while
proceeding as per provisions of section 204 Cr.P.C. Therefore in such
circumstances and in view of specific observations of Hon’ble Court
stated above, the said left out accd. persons may be arraigned during
trial by the Ld. Sessions Judge U/s 319 of Cr.P.C. after commitment of
the arrayed accd./O.Ps. i.e. accds. Sankar Chatterjee, Ajoy Roy and
accd. Kartick Sarkar since absconding who may be sent up during trial
if arrested. But it appears from the impugned order dated 5.1.2002
Ld. Magistrate has passed the order to issue W.A. against all named 5
accd. persons including said S.K. Chanda and S.S. Banerjee who have
been left out by order dated 31.7.2000 as observed by the Hon’ble
Court.”
xxx xxx xxx
“Considering all these facts and circumstances and specific
observations direction of the Hon'ble Court discussed above this Court
find no reason to disagree with the aforesaid submissions of Ld.
Lawyer of the Petitioner/revisionist and accordingly it is held that
the impugned order dated 5.1.02 issuing W.A. Against the petitioner
and another is illegal and without jurisdiction and in gross violation
of the direction of the Hon'ble Court and as such the said Order dated
5.1.02 is not sustainable in law so far as the case of the petitioner
and another i.e. accd. No.3 S.K. Chanda and accd. No.4 S.S. Banerjee
is concerned and the impugned order is to be modified to that effect
through interference by this revisional court. The instant Cr. Motion
is fit to be allowed.”
7. Having perused this order, we are of the opinion that the learned
Sessions Judge was right in saying that the order passed by learned SDJM
dated 5/1/2002 was without jurisdiction and in violation of the High
Court's earlier Order dated 23/7/2001. In the facts of this case, learned
SDJM having once refused to issue process against the appellants, he could
not have recalled that order by a subsequent order. In this connection, we
may refer to the judgment of this Court in Bindeshwari Prasad Singh v.
Kali Singh[1], where this Court has clarified that there is absolutely no
provision in the Code empowering the Magistrate to review or recall an
order passed by him. This view has been reiterated by this Court
thereafter in several authoritative pronouncements.
8. We are also of the view that the High Court in its order dated
23/7/2001, did not issue any direction to the learned Magistrate to proceed
against the appellants. The High Court only set aside the order of
clubbing of the complaint case with the police case and observed that after
commitment of the case, learned Sessions Judge could, if the situation so
demands in exercise of his powers under Section 319 of the Code, summon
other accused persons who have been left out by learned Magistrate. Thus,
learned Magistrate was to commit the case to the Sessions Court and the
Sessions Court in its discretion could have summoned other accused under
Section 319 of the Code, if found necessary. Learned Magistrate appears to
have misconstrued the High Court’s order dated 23/7/2001 and taken it as a
direction to issue process against all the accused.
9. The complainant being aggrieved by Order dated 24/9/2004 passed by
the Sessions Court filed a revisional application before the High Court
against Order dated 24/9/2004 of learned Sessions Judge. By the impugned
order, the High Court set aside the order of the Sessions Court and
restored the order of learned Magistrate dated 5/1/2002. It is this order,
which is challenged before us.
10. While setting aside the order of learned Sessions Judge, the High
Court has passed caustic comments on him, which in our opinion, are
unwarranted. Learned Sessions Judge rightly interpreted the High Court
order dated 23/7/2001. We have already stated the reasons for this
conclusion drawn by us. In fact, learned Sessions Judge was of the view
that the High Court’s order dated 23/7/2001 was not followed by learned
Magistrate and in that anxiety, he modified the said order. We do not see
either any disrespect being shown to the High Court or any casual approach
being adopted by learned Sessions Judge.
11. Having considered the facts of the case and the settled legal
position, we are of the opinion that it would be appropriate to remit the
matter to the Court of Additional Chief Judicial Magistrate, Kalyani, Nadia
for committal of the case to the Sessions Judge at District Nadia so that
the case can proceed after the evidence is led. If it appears to learned
Sessions Judge that involvement of any person is evident, he can summon the
appellants or any other persons under Section 319 of the Code. Hence, we
pass the following order:-
12. The impugned Order dated 7/6/2005 passed by the High Court at
Calcutta is set aside.
13. The Complaint Case No. 138C of 1997 is remitted to the learned
Additional Chief Judicial Magistrate, Nadia. The Additional Chief Judicial
Magistrate shall commit it to the Court of Sessions, Nadia in accordance
with the provisions of the Code. Learned Sessions Judge, Nadia shall
immediately proceed with the case in accordance with the provisions of the
Code. Needless to say that if in the course of trial, it appears to learned
Sessions Judge from the evidence that any person has committed any offence
for which he could be tried together with the accused, he may proceed
against such person for the offences which such person appears to have
committed. Needless to say further that if from the evidence, it appears to
learned Sessions Judge that the present appellants have committed any
offence, he would be free to proceed against them. We, however, make it
clear that we have not expressed any opinion on the merits of the case as
to whether any case is made out against the present appellants for
summoning them or not. It is for learned Sessions Judge to decide this
question independently and in accordance with law. Considering the fact
that this matter is pending since 1997 and involves alleged encounter
killing, we direct learned Sessions Judge to dispose of the case as
expeditiously as possible.
14. Before parting, we wish to add a rider. We feel that the High Court
should not have passed such harsh comments on learned Sessions Judge. This
Court has repeatedly stated that the superior courts should not pass
caustic remarks on the subordinate courts. Unless the facts disclose a
designed effort to frustrate the cause of justice with malafide intention,
harsh comments should not be made. Bonafide errors should not invite
disparaging remarks. Judges do commit errors. Superior courts are there
to correct such errors. They can convey their anxiety to subordinate
courts through their orders which should be authoritative but not
uncharitable. Use of derogatory language should be avoided. That
invariably has a demoralizing effect on the subordinate judiciary.
15. In this context, observations made by this Court in K.P. Tiwari v.
State of M.P.[2] may be usefully referred to.
“The higher courts every day come across orders of the lower
courts which are not justified either in law or in fact and modify
them or set them aside. That is one of the functions of the superior
courts. Our legal system acknowledges the fallibility of the judges
and hence provides for appeals and revisions. A judge tries to
discharge his duties to the best of his capacity. While doing so,
sometimes, he is likely to err... 'It is well said that a judge who
has not committed an error is yet to be born. And that applies to
judges at all levels from the lowest to the highest. Sometimes, the
difference in views of the higher and the lower courts is purely a
result of a difference in approach and perception. On such occasions,
the lower courts are not necessarily wrong and the higher courts
always right. It has also to be remembered that the lower judicial
officers mostly work under a charged atmosphere and are constantly
under a psychological pressure with all the contestants and their
lawyers almost breathing down their necks - more correctly upto their
nostrils. They do not have the benefit of a detached atmosphere of the
higher courts to think coolly and decide patiently. Every error,
however gross it may look, should not, therefore, be attributed to
improper motive.”
16. Again in Braj Kishore Thakur v. Union of India[3], this Court
observed as under:
“2. Judicial restraint is a virtue. A virtue which shall be
concomitant of every judicial disposition. It is an attribute of a
judge which he is obliged to keep refurbished time to time,
particularly while dealing with matters before him whether in exercise
of appellate or revisional or other supervisory jurisdiction. Higher
courts must remind themselves constantly that higher tiers are
provided in the judicial hierarchy to set right errors which could
possibly have crept in the findings or orders of courts at the lower
tiers. Such powers certainly not for belching diatribe at judicial
personages in lower cadre. It is well to remember the words of a
jurist that "a judge who has not committed any error is yet to be
born".
17. We need not burden our judgment by quoting similar observations made
by this Court in several other judgments. With this caution, we dispose of
the appeals.
………………………….J.
[Ranjana Prakash Desai]
………………………….J.
[Madan B. Lokur]
New Delhi
February 20, 2014.
-----------------------
[1] (1977) 1 SCC 57
[2] 1994 Supp. (1) SCC 540
[3] (1997) 4 SCC 65
-----------------------
13
Sections 302, 201 and 120B read with Section 34 of the IPC - Police killed her son - meanwhile human rights directed to register a case against accused police on complaint of human rights activists - FIR registered under Sections 147, 148, 149, 353, 307 and 326 of the Indian Penal Code (“the IPC”) and Sections 25 and 27 of the Arms Act . - Magistrate took cognizance against 3 accused and refused to take cognizance as the Human right commission not order for registration of FIR against those - and further directed to Tag the complaint with the FIR under sec. 210 of Cr.P.C.- High court in revision - set aside the order of Magistrate and directed the Magistrate to commit the case to sessions court under sec.208 of Cr.P.C. with observation if necessary the sessions court can take cognizance against them under sec.319 of Cr.P.C. - but the Magistrate issued arrest warrant wrongly against all, against it the aggrieved persons filed appeal before the sessions court - Sessions court rightly interpreted the orders of High court - but in revision, the High court set aside the orders of the Sessions court and passed disparage remarks against him - Apex court set aside the orders of High court and set aside the disparage remarks also stating that no court should pass adverse remarks against Lower authorities =
Apex court conclusion
The Complaint Case No. 138C of 1997 is remitted to the learned
Additional Chief Judicial Magistrate, Nadia. The Additional Chief Judicial
Magistrate shall commit it to the Court of Sessions, Nadia in accordance
with the provisions of the Code. Learned Sessions Judge, Nadia shall
immediately proceed with the case in accordance with the provisions of the
Code. Needless to say that if in the course of trial, it appears to learned
Sessions Judge from the evidence that any person has committed any offence
for which he could be tried together with the accused, he may proceed
against such person for the offences which such person appears to have
committed. Needless to say further that if from the evidence, it appears to
learned Sessions Judge that the present appellants have committed any
offence, he would be free to proceed against them. We, however, make it
clear that we have not expressed any opinion on the merits of the case as
to whether any case is made out against the present appellants for
summoning them or not. It is for learned Sessions Judge to decide this
question independently and in accordance with law. Considering the fact
that this matter is pending since 1997 and involves alleged encounter
killing, we direct learned Sessions Judge to dispose of the case as
expeditiously as possible.
Against disparage remarks
14. Before parting, we wish to add a rider. We feel that the High Court
should not have passed such harsh comments on learned Sessions Judge. This
Court has repeatedly stated that the superior courts should not pass
caustic remarks on the subordinate courts. Unless the facts disclose a
designed effort to frustrate the cause of justice with malafide intention,
harsh comments should not be made. Bonafide errors should not invite
disparaging remarks. Judges do commit errors. Superior courts are there
to correct such errors. They can convey their anxiety to subordinate
courts through their orders which should be authoritative but not
uncharitable. Use of derogatory language should be avoided. That
invariably has a demoralizing effect on the subordinate judiciary.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41250
RANJANA PRAKASH DESAI, MADAN B. LOKUR
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.273 OF 2006
Sujoy Kumar Chanda ... Appellant
Vs.
Damayanti Majhi & Anr. … Respondents
AND
CRIMINAL APPEAL NO.274 OF 2006
Sasanka Sekhar Banerjee … Appellant
Vs.
Damayanti Majhi & Anr. … Respondents
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Both these appeals are directed against Judgment and Order dated
7/6/2005 passed by the Calcutta High Court in C.R.R. No.3140 of 2004 and,
hence, they are being disposed of by this common order.
2. The facts which give rise to this judgment need to be shortly stated.
One Khagen Majhi was killed in the early hours of 30/4/1997. He was
shot dead. On the same day P.S. Kalyani registered Case No.50 of 1997 under
Sections 147, 148, 149, 353, 307 and 326 of the Indian Penal Code (“the
IPC”) and Sections 25 and 27 of the Arms Act against unknown persons. On
17/5/1997, a complaint was filed by Smt. Damyanti Majhi, the mother of
deceased Khagen Majhi against SI Sankar Chatterjee, ASI Ajay Roy, appellant
- S.K. Chanda, appellant - S.S. Banerjee and one Kartik Sarkar under
Sections 302, 201 and 120B read with Section 34 of the IPC which was
registered as Case No.138C of 1997. In this case, between 21/8/1997 to
6/6/2000, 12 witnesses were examined prior to the issue of process under
Sections 200 and 202 of the Criminal Procedure Code (“the Code”) by learned
SDJM., Kalyani, Nadia.
3. It appears that Association for Protection of Democratic Rights,
Ranaghat Branch, made a complaint to the West Bengal Human Rights
Commission alleging that some police officers had shot down Khagen Majhi.
The West Bengal Human Rights Commission by its Order dated 21/1/1998
recommended that prosecution should be started against SI Shankar
Chatterjee and ASI Ajoy Roy. The Commission directed that displeasure of
the Commission should be communicated, in writing, to the appellant - S.K.
Chanda, SDPO, Kalyani for having attempted to mislead the Commission by his
Report which was not in alignment with facts. There was no direction as
against appellant - S.S. Banerjee. On 22/5/2000, pursuant to the above
recommendation of the Commission, P.S. Kalyani, registered Case No.78 of
2000 against SI Shankar Chatterjee, ASI Ajoy Roy and Kartick Sarkar under
Sections 147, 148, 149, 353, 307 and 326 of the IPC read with Sections 25
and 27 of the Arms Act. On 4/6/2000 upon investigation, charge-sheet was
submitted against the abovementioned accused persons. On 31/7/2000, learned
SDJM, Kalyani found sufficient ground to proceed against SI Shankar
Chatterjee, ASI Ajoy Roy and Kartick Sarkar under Sections 302 read with
Section 120B or Section 304 read with Section 120B and Section 201 read
with Section 34 of the IPC. Learned SDJM, however, refused to issue
process against appellant - S.K. Chanda and appellant - S.S. Banerjee.
Since over the same incident, there was a police case also against those
three accused persons, learned Magistrate directed that Complaint Case
No.138C of 1997 be tagged with Police Case No.78 of 2000 for further
proceedings. On 25/8/2000, the complainant filed a revisional application
against the said Order dated 31/7/2000 passed by learned SDJM being C.R.R.
No.2174 of 2000 in the Calcutta High Court. The appellants were not party
to this revisional application. On 23/7/2001, the High Court set aside the
Order of the learned Magistrate clubbing the complaint case with the police
case and directed that the complaint case be committed to the Court of
Sessions. It would be appropriate to quote the relevant paragraphs from the
Order of the High Court:-
“Taking into account the entire facts and circumstances of the
instant case, I am of the view that the learned Magistrate’s Order
directing that both the cases should be clubbed together under Section
210 of the said Code cannot be sustained and accordingly, the
Revisional Application is allowed. The order dated 31/7/2000 passed
by the learned Magistrate is set aside and the learned Magistrate is
further directed to commit the case immediately after proper
compliance of the provisions of law and soon reach the stage of
section 208 of the said Code”
xxx xxx xxx xxx
“It would be also open to the Learned Sessions Judge, upon
commitment of the arrayed Accused/Opposite Parties during the Trial to
arraign the other accused who has been left out by the Learned
Magistrate, if the situation so demands in exercise of his power under
Section 319 of the said Code in accordance with the steps known to law
without being guided by the disposal of this Application.”
4. It may be stated here that the said Order has not been challenged by
the State or any of the parties.
5. It appears that Learned SDJM interpreted this order to mean that the
High Court had issued a direction to it to proceed against the present
appellants as well and on 5/1/2002, he issued warrant of arrest against the
appellants and one Kartick Sarkar for offences under Sections 302, 201 and
120B read with Section 34 of the IPC. On 14/1/2002, the appellants
preferred a revisional application before the learned Sessions Judge
challenging Order dated 5/1/2002. By his Order dated 24/9/2004, learned
Sessions Judge modified the Order of learned Magistrate dated 5/1/2002.
6. Learned Sessions Judge considered all the facts in proper perspective
and noted that learned Magistrate had by his earlier order dated 31/7/2000
refused to issue process against S.K. Chanda and S.S. Banerjee (the
appellants herein) and had passed order of clubbing the complaint case with
the police case. This order was challenged by Smt. Damayanti Majhi. The
High Court set aside the clubbing of both the cases. Learned Sessions
Judge further noted that the High Court directed learned Magistrate to
commit the case immediately after compliance of the provisions of the Code
and reach the stage of Section 208 of the Code. Learned Sessions Judge
further observed that the High Court had clarified that it would be open to
learned Sessions Judge, upon commitment of the case, to summon those
accused who have been left out by learned Magistrate in exercise of his
powers under Section 319 of the Code. Relevant observations of learned
Sessions Judge need to be quoted.
“It appears from order dated 31.7.2000 that Ld. Magistrate has left
out the accd. No.3 S.K. Chanda and accd. No.4 S.S. Banerjee while
proceeding as per provisions of section 204 Cr.P.C. Therefore in such
circumstances and in view of specific observations of Hon’ble Court
stated above, the said left out accd. persons may be arraigned during
trial by the Ld. Sessions Judge U/s 319 of Cr.P.C. after commitment of
the arrayed accd./O.Ps. i.e. accds. Sankar Chatterjee, Ajoy Roy and
accd. Kartick Sarkar since absconding who may be sent up during trial
if arrested. But it appears from the impugned order dated 5.1.2002
Ld. Magistrate has passed the order to issue W.A. against all named 5
accd. persons including said S.K. Chanda and S.S. Banerjee who have
been left out by order dated 31.7.2000 as observed by the Hon’ble
Court.”
xxx xxx xxx
“Considering all these facts and circumstances and specific
observations direction of the Hon'ble Court discussed above this Court
find no reason to disagree with the aforesaid submissions of Ld.
Lawyer of the Petitioner/revisionist and accordingly it is held that
the impugned order dated 5.1.02 issuing W.A. Against the petitioner
and another is illegal and without jurisdiction and in gross violation
of the direction of the Hon'ble Court and as such the said Order dated
5.1.02 is not sustainable in law so far as the case of the petitioner
and another i.e. accd. No.3 S.K. Chanda and accd. No.4 S.S. Banerjee
is concerned and the impugned order is to be modified to that effect
through interference by this revisional court. The instant Cr. Motion
is fit to be allowed.”
7. Having perused this order, we are of the opinion that the learned
Sessions Judge was right in saying that the order passed by learned SDJM
dated 5/1/2002 was without jurisdiction and in violation of the High
Court's earlier Order dated 23/7/2001. In the facts of this case, learned
SDJM having once refused to issue process against the appellants, he could
not have recalled that order by a subsequent order. In this connection, we
may refer to the judgment of this Court in Bindeshwari Prasad Singh v.
Kali Singh[1], where this Court has clarified that there is absolutely no
provision in the Code empowering the Magistrate to review or recall an
order passed by him. This view has been reiterated by this Court
thereafter in several authoritative pronouncements.
8. We are also of the view that the High Court in its order dated
23/7/2001, did not issue any direction to the learned Magistrate to proceed
against the appellants. The High Court only set aside the order of
clubbing of the complaint case with the police case and observed that after
commitment of the case, learned Sessions Judge could, if the situation so
demands in exercise of his powers under Section 319 of the Code, summon
other accused persons who have been left out by learned Magistrate. Thus,
learned Magistrate was to commit the case to the Sessions Court and the
Sessions Court in its discretion could have summoned other accused under
Section 319 of the Code, if found necessary. Learned Magistrate appears to
have misconstrued the High Court’s order dated 23/7/2001 and taken it as a
direction to issue process against all the accused.
9. The complainant being aggrieved by Order dated 24/9/2004 passed by
the Sessions Court filed a revisional application before the High Court
against Order dated 24/9/2004 of learned Sessions Judge. By the impugned
order, the High Court set aside the order of the Sessions Court and
restored the order of learned Magistrate dated 5/1/2002. It is this order,
which is challenged before us.
10. While setting aside the order of learned Sessions Judge, the High
Court has passed caustic comments on him, which in our opinion, are
unwarranted. Learned Sessions Judge rightly interpreted the High Court
order dated 23/7/2001. We have already stated the reasons for this
conclusion drawn by us. In fact, learned Sessions Judge was of the view
that the High Court’s order dated 23/7/2001 was not followed by learned
Magistrate and in that anxiety, he modified the said order. We do not see
either any disrespect being shown to the High Court or any casual approach
being adopted by learned Sessions Judge.
11. Having considered the facts of the case and the settled legal
position, we are of the opinion that it would be appropriate to remit the
matter to the Court of Additional Chief Judicial Magistrate, Kalyani, Nadia
for committal of the case to the Sessions Judge at District Nadia so that
the case can proceed after the evidence is led. If it appears to learned
Sessions Judge that involvement of any person is evident, he can summon the
appellants or any other persons under Section 319 of the Code. Hence, we
pass the following order:-
12. The impugned Order dated 7/6/2005 passed by the High Court at
Calcutta is set aside.
13. The Complaint Case No. 138C of 1997 is remitted to the learned
Additional Chief Judicial Magistrate, Nadia. The Additional Chief Judicial
Magistrate shall commit it to the Court of Sessions, Nadia in accordance
with the provisions of the Code. Learned Sessions Judge, Nadia shall
immediately proceed with the case in accordance with the provisions of the
Code. Needless to say that if in the course of trial, it appears to learned
Sessions Judge from the evidence that any person has committed any offence
for which he could be tried together with the accused, he may proceed
against such person for the offences which such person appears to have
committed. Needless to say further that if from the evidence, it appears to
learned Sessions Judge that the present appellants have committed any
offence, he would be free to proceed against them. We, however, make it
clear that we have not expressed any opinion on the merits of the case as
to whether any case is made out against the present appellants for
summoning them or not. It is for learned Sessions Judge to decide this
question independently and in accordance with law. Considering the fact
that this matter is pending since 1997 and involves alleged encounter
killing, we direct learned Sessions Judge to dispose of the case as
expeditiously as possible.
14. Before parting, we wish to add a rider. We feel that the High Court
should not have passed such harsh comments on learned Sessions Judge. This
Court has repeatedly stated that the superior courts should not pass
caustic remarks on the subordinate courts. Unless the facts disclose a
designed effort to frustrate the cause of justice with malafide intention,
harsh comments should not be made. Bonafide errors should not invite
disparaging remarks. Judges do commit errors. Superior courts are there
to correct such errors. They can convey their anxiety to subordinate
courts through their orders which should be authoritative but not
uncharitable. Use of derogatory language should be avoided. That
invariably has a demoralizing effect on the subordinate judiciary.
15. In this context, observations made by this Court in K.P. Tiwari v.
State of M.P.[2] may be usefully referred to.
“The higher courts every day come across orders of the lower
courts which are not justified either in law or in fact and modify
them or set them aside. That is one of the functions of the superior
courts. Our legal system acknowledges the fallibility of the judges
and hence provides for appeals and revisions. A judge tries to
discharge his duties to the best of his capacity. While doing so,
sometimes, he is likely to err... 'It is well said that a judge who
has not committed an error is yet to be born. And that applies to
judges at all levels from the lowest to the highest. Sometimes, the
difference in views of the higher and the lower courts is purely a
result of a difference in approach and perception. On such occasions,
the lower courts are not necessarily wrong and the higher courts
always right. It has also to be remembered that the lower judicial
officers mostly work under a charged atmosphere and are constantly
under a psychological pressure with all the contestants and their
lawyers almost breathing down their necks - more correctly upto their
nostrils. They do not have the benefit of a detached atmosphere of the
higher courts to think coolly and decide patiently. Every error,
however gross it may look, should not, therefore, be attributed to
improper motive.”
16. Again in Braj Kishore Thakur v. Union of India[3], this Court
observed as under:
“2. Judicial restraint is a virtue. A virtue which shall be
concomitant of every judicial disposition. It is an attribute of a
judge which he is obliged to keep refurbished time to time,
particularly while dealing with matters before him whether in exercise
of appellate or revisional or other supervisory jurisdiction. Higher
courts must remind themselves constantly that higher tiers are
provided in the judicial hierarchy to set right errors which could
possibly have crept in the findings or orders of courts at the lower
tiers. Such powers certainly not for belching diatribe at judicial
personages in lower cadre. It is well to remember the words of a
jurist that "a judge who has not committed any error is yet to be
born".
17. We need not burden our judgment by quoting similar observations made
by this Court in several other judgments. With this caution, we dispose of
the appeals.
………………………….J.
[Ranjana Prakash Desai]
………………………….J.
[Madan B. Lokur]
New Delhi
February 20, 2014.
-----------------------
[1] (1977) 1 SCC 57
[2] 1994 Supp. (1) SCC 540
[3] (1997) 4 SCC 65
-----------------------
13
