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1953 Supreme(Cal) 172
HIGH COURT OF CALCUTTA
GUHA RAY,DEBABRATA MOOKERJEE, JJ.
State
Versus
Abdul Rahaman Mandal
Criminal Reference No.2 of 1953 and Appeal No.132 of 1953
Decided On : 07-08-1953
N.K. Sen, for the State; Annada Majumdar, for Appellant.
Sections 211 and 212, Cr.P.C., are not imperative in character and their non-compliance does not vitiate the trial unless it occasions a failure of justice.
Headnote:
CRIMINAL PROCEDURE CODE - Section 211 and 212 - Whether mandatory or directory - Effect of non-compliance - Whether vitiates the trial - Held, that Ss. 211 and 212, Cr.P.C., are not imperative in character and their non-compliance does not vitiate the trial unless it occasions a failure of justice.
Fact of the Case:
The accused was convicted of murder by a jury and sentenced to death. He appealed, and the High Court confirmed the conviction but commuted the sentence to transportation for life.
Finding of the Court:
The High Court held that Ss. 211 and 212, Cr.P.C., are not imperative in character and their non-compliance does not vitiate the trial unless it occasions a failure of justice. In this case, the accused did not suffer any prejudice as a result of the Magistrate's failure to require him to furnish a list of defence witnesses, and the trial was therefore not vitiated.
Issues: Whether Ss. 211 and 212, Cr.P.C., are mandatory or directory.
Ratio Decidendi: The High Court held that Ss. 211 and 212, Cr.P.C., are not imperative in character and their non-compliance does not vitiate the trial unless it occasions a failure of justice. The Court relied on the following reasoning: * The provisions of Ss. 211 and 212 are intended to serve a two-fold purpose: (1) to give the accused the right to have the witnesses cited by him summoned at the trial, and (2) to provide a safeguard against an unnecessary trial. * The provisions do not go to the root of the matter or the jurisdiction of the Magistrate committing the accused for trial. * The trial will be vitiated only if the commitment is totally invalid in law. * Section 537, Cr.P.C., which provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the proceedings, applies to final orders such as convictions and sentences, but not to interlocutory orders such as commitment orders. * Therefore, the non-compliance with Ss. 211 and 212, while it may entitle the aggrieved party to have a commitment quashed, will not entitle the aggrieved person to challenge the final order of a conviction unless that has occasioned a failure of justice.
Final Decision: The High Court rejected the Reference under S.374, Criminal P.C., dismissed the appeal of Abdul Rahaman, and confirmed the conviction of the appellant under S.302, Penal Code, subject to the modification that the sentence of death passed on him was commuted to transportation for life.
GUHA RAY, J.:- Abdul Rahaman Mandal alias Rahim Mandal was put on his trial before an Addl. Judge, 24 Parganas, sitting with a Special Jury under S.302, I.P.C., and convicted under that Section on the unanimous verdict of the jury and sentenced to death. The proceedings have been submitted to this Court under S.374, Cr.P.C., for confirmation of the death sentence and Abdul Rahaman Mandal has also preferred an appeal so that the entire case is now before us.
2. The case for the prosecution briefly is that Abdul Rahaman Mandal used to stay in a south-facing pucca room along with his son Fate Ali aged about 12, and Arfan Bibi, his daughter, used to stay in another hut in the same compound with her husband Miajaddin Mondal. On 4-2-1953, in the afternoon Moslem Mondal of Bishnupur who was the husband of a sister of Miajuddins father visited the house of Abdul Rahaman Mandal, took his meal there at night and slept on a separate bed in the same room where the accused Abdul Rahaman Mandal slept with his son Fate Ali on a different bed. At about 1.30 a.m. that night Fate Ali woke up on hearing a groaning sound and in the light of the hurricane lantern burning inside the room he saw his father striking. Moslem Mandal with a Hesho which is a kind of dao. On seeing that he started crying out and his father asked him not to cry out like that and at the same time threatened to kill him if he went on doing so. He then caught hold of Fate Ali by the hand but Fate Ali somehow succeeded in opening the door with his left hand. His cries had meanwhile brought Arfan Bibi and Miajaddin near the room where the incident took place.
When Miajaddin saw the accused catching hold of Fate Ali he released him from his grip and Fate Ali went outside and raised a hue and cry. The accused then struck Miajaddin with a baton and Miajaddin fell down on the court-yard while the accused sat upon his chest and tried to throttle him. Meanwhile some neighbours of the accused came along on hearing the hue and cry raised by Fate Ali and his sister Arfan Bibi, released Miajaddin from the grip of the accused and tied him to a plantain tree with a rope. Moslem Mandal had died on his bed inside the room as a result of the injuries he had received and a bloodstained spade (Ex.I), a blood-stained Hesho (Ex.II), and a Chheni (Ex.III) were found lying close to the dead body of Moslem Mandal. To the neighbours who had assembled on hearing the cries of Fate Ali and Arfan Bibi, Fate Ali is alleged to have stated that it was his father who had killed Moslem Mandal. One of the neighbours was Narendra Krishna Halder. He sent for the Chowkidars and when the Chowkidars arrived he himself left for Rajarhat Police Station which was about 5 miles away and reported the occurrence at 4.30 a.m. The Sub-Inspector after having recorded the first information report arrived at the place of occurrence next morning, held an inquest on the dead body of Moslem Mandal which was lying inside the room of the accused and sent it for post mortem examination to Basirhat. The Sub-Inspector found the accused tied to a plantain tree with a rope, took him into custody, seized the blood-stained spade and the bloodstained Hesho, Exhibits I and II respectively, and the Chheni, Ex. III, and certain other Alamats. Miajaddin who had been roughly handled by the accused, and the accused himself were also sent for examination of their injuries by a Doctor of Rajarhat viz., Dr. Taranath Bhattacharya, and the blood-stained clothings etc., were sent to the Chemical Examiner for examination and report. The Police after investigation submitted a charge sheet against the accused.
3. The defence of the accused was that he was not guilty. In the cross-examination of the witnesses various suggestions were thrown out viz., that the occurrence did not take place in the room of the accused as alleged by the prosecution and that Moslem Mandal was murdered elsewhere and that the accused was falsely implicated at the instance
