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1955 Supreme(Cal) 6
HIGH COURT OF CALCUTTA
P. N. MUKHERJEE
MRITYUNJOY CHATTERJEE - Appellant
Versus
STATE - Respondent
Criminal Ref. 45 Of 1954
Decided On : JANUARY 11, 1955
Jatish Chandra Banerjee, Jogesh Chandra Sinha
A trial held in violation of Section 353, Criminal Procedure Code, is absolutely illegal and cannot be cured under Section 537 of the Code. However, an irregularity or illegality in a trial that does not go to the root of the Magistrate's jurisdiction to hold the trial can be cured under Section 537 if no prejudice is caused to the accused.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 353 - SECTION 537 - SECTION 540A - TRIAL IN ABSENCE OF ACCUSED - IRREGULARITY - PREJUDICE - SECTION 188, PENAL CODE - DISOBEDIENCE TO ORDER DULY PROMULGATED BY PUBLIC SERVANT - INJUNCTION ORDER UNDER SECTION 144, CRIMINAL PROCEDURE CODE - CIVIL COURT INJUNCTION - EFFECT.
Fact of the Case:
Five accused were charged under Section 188, Penal Code for disobeying an injunction order issued under Section 144, Criminal Procedure Code. One of the accused, Pulin Mondal, was absent during part of the trial, and the evidence against him was taken in his absence. The other four accused were present throughout the trial or were represented by lawyers.
Finding of the Court:
The trial of Pulin Mondal was held in violation of Section 353, Criminal Procedure Code, as he was not represented by a lawyer. The trial of the other four accused was not absolutely prohibited by the Code and could have been held legally if the Magistrate had made an order under Section 540a, second part, directing a separate trial in the case of Pulin. The defect in their trial was curable under Section 537 of the Code as they were not prejudiced by the absence of Pulin.
Issues: 1. Whether the trial of Pulin Mondal was held in violation of Section 353, Criminal Procedure Code? 2. Whether the trial of the other four accused was held in violation of Section 353, Criminal Procedure Code? 3. Whether the defect in the trial of the other four accused was curable under Section 537 of the Code? 4. Whether the injunction order issued under Section 144, Criminal Procedure Code, remained in force despite the issuance of an ex parte ad interim injunction by the Civil Court?
Ratio Decidendi: 1. Section 353, Criminal Procedure Code, prohibits the trial of an accused in his absence unless an exception is provided in the Code. In the present case, Pulin Mondal was not represented by a lawyer, and therefore, none of the exceptions applied. The trial of Pulin Mondal was, therefore, held in violation of Section 353. 2. Section 540a, second part, Criminal Procedure Code, empowers the Magistrate to order a separate trial of an absent accused. In the present case, the Magistrate failed to make such an order. However, the trial of the other four accused was not absolutely prohibited by the Code and could have been held legally if the Magistrate had exercised his powers under Section 540a. 3. Section 537, Criminal Procedure Code, cures an illegality or irregularity in a trial if no prejudice is caused to the accused. In the present case, the other four accused were not prejudiced by the absence of Pulin Mondal as they were present throughout the trial or were represented by lawyers. Therefore, the defect in their trial was curable under Section 537. 4. The injunction order issued under Section 144, Criminal Procedure Code, remained in force despite the issuance of an ex parte ad interim injunction by the Civil Court. The Civil Court injunction only restrained the complainant from catching fish in the disputed jhils and did not interfere with the injunction order issued against the accused.
Final Decision: The conviction and sentence of Pulin Mondal were set aside, and he was ordered to be re-tried. The conviction and sentence of the other four accused were upheld.
( 1 ) THIS Rule and the connected Reference case arise out of the same criminal proceeding started against five accused persons, three of whom figure in the Rule, and one in the Reference case, the remaining accused having been acquitted by the learned trying Magistrate.
( 2 ) THE offence alleged was under Section 188, Penal Code and, at the initial trial, four of the accused were convicted and sentenced to pay a fine of Rs. 25/- each, or in default, to suffer rigorous imprisonment for three weeks and one was acquitted under Section 245, Criminal P. C.
( 3 ) THERE was a motion to the learned Sessions Judge by the four convicted persons under Sections 435 and 436, Criminal P. C. for reference to this Court. But the learned Additional Sessions Judge who finally heard the application has made a Reference only in the case of one of the accused, Pulin Mondal, recommending a fresh trial in his case. This has given rise to the above Reference. The learned Additional Sessions Judge has rejected the prayer for reference in the case of the other three accused persons, convicted by the trying Magistrate, who have thereupon moved this Court and obtained the above Rule.
( 4 ) THE facts, material for the purpose of my decision, may now be stated and, in short, they stand as follows:
( 5 ) ON 17-4-1953, one Bejoy Krishna Das, describing himself as the complainant 1st party, applied before the learned Sub-Divisional Officer, Ali-pore, for 'inter alia', an injunction against the 2nd party who were six in number, namely, Mrityunjoy Chatterjee, Jiban Thakur alias Jiban Krishna Chatterjee, Kanai Lal Laskar alias Naskar, Pulin Mondal, Nilmoni Naskar and Kalipada Mondal, to restrain them from dispossessing him (the complainant) from certain lands which included two jhils. Upon receipt of the Police report, the learned Sub-Divisional Officer drew up proceedings under Section 144, Criminal P. C. on 24-4-1953, as there was apprehension of breach of the peace and restrained the 2nd party from entering upon the disputed plots.
( 6 ) THE second party's petition for a similar restraint order on the 1st party was rejected by the learned Sub-Divisional Officer on 4-5-1953, but the 1st party was directed not to alter the condition of the Jhils in any way and he was allowed to exercise only "his normal right of possession".
( 7 ) THE matter came up for final hearing on 22-6-1953, when the order under Section 144, Criminal P. C. was made absolute. Meanwhile, it appears, the 2nd party had filed a Title Suit in respect of the disputed plots and obtained an ex parte ad interim injunction against the 1st party, restraining him "from catching fish from the disputed land".
( 8 ) ON 1-5-1953, when the Section 144 proceedings were pending, the 1st party alleged before the learned Sub-Divisional Officer that on 29-4-1953, the first five of the said 2nd party had disobeyed the order of injunction, issued against them under Section 144, Criminal P. C. , as aforesaid, in spite of service of the said injunction order upon them on the 26th of that month. Police Report having confirmed the allegation, the learned Sub-Divisional Officer made a complaint against the said five persons under Section 188, Penal Code before Sri D. N. Banerjee, Magistrate, First Class, Alipore. On being summoned, the accused appeared before the learned trying Magistrate and they were examined on two dates under Section 242, Criminal P. C, and were given bails of Rs. 100/- each. The case was eventually taken up by the successor of the learned trying Magistrate on 26-12-1953, when accused Pulin Mondal was found absent and a petition was filed by co-accused Kanai Laskar stating that Pulin was ill. Thereupon the learned Magistrate passed the following order. ". . . . Accused Pulin Mondal is absent. Petition filed by Kanai Laskar stating that he is ill. Let the trial proceed with the four accused persons. . " five P. Ws. were examined and cross-examined on that day when Pulin
