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2000 Supreme(Cal) 353
High Court of Calcutta
Nure Alam Chowdhury & P.K. Sen, JJ.
Ismile Seikh @ Khayapa
Vs.
State of West Bengal
Death Reference No. 5 of 1999 with Criminal Appeal No. 355 of 1999
Decided on : 19th July, 2000
Rash Behari Mahato, Sushil Mahato for the appellant
Kazi Safiullah, Sasanka Ghosh for the State
A charge framed by a trial court must specify the time and place of occurrence as required by Section 212 of the Code of Criminal Procedure. Failure to comply with this requirement can result in a failure of justice.
Headnote:
{'KEYWORD': 'Criminal Procedure Code', 'SUBJECT': 'Charge - Framing - Time and Place of Occurrence', 'ACT SECTION LIST': ['Section 212', 'Section 464(1)', 'Section 464(2)'], 'SUMMARY': 'The High Court quashed the conviction and sentence of the appellant in a murder case and remanded the case for de novo trial due to a defective charge that failed to specify the time and place of occurrence as required by Section 212 of the Code of Criminal Procedure.'}
Fact of the Case:
The appellant was convicted of murder and sentenced to death by the trial court. The appellant appealed the conviction and sentence, arguing that the charge framed by the trial court was defective because it did not specify the time and place of occurrence.
Finding of the Court:
The High Court held that the charge framed by the trial court was defective because it did not specify the time and place of occurrence as required by Section 212 of the Code of Criminal Procedure. The court found that this defect vitiated the entire trial and resulted in a failure of justice.
Issues: Whether the charge framed by the trial court was defective for not specifying the time and place of occurrence.
Ratio Decidendi: The High Court relied on Section 212 of the Code of Criminal Procedure, which requires the charge to contain particulars as to the time and place of the alleged offence. The court held that this requirement is mandatory and that a failure to comply with it can result in a failure of justice.
Final Decision: The High Court allowed the appeal, set aside the conviction and sentence of the appellant, and remanded the case for de novo trial.
Nure Alam Chowdhury, J.
This appeal on behalf of the appellant Ismile Seikh @ Khayapa is directed against the judgment and order dated 22nd September, 1999, passed by a Ld. Additional Sessions Judge, 2nd Court, Nadia, Krishnagar in Sessions Trial No. III (July) 99, [Sessions Case No. 6(12) 98], convicting the appellant under section 302 I.P.C. and sentencing him to death and directing under section 354(5) of the Cr. PC that the appellant be hanged by the neck till he is dead as also to pay a fine of Rs.2000/- in default to undergo rigorous imprisonment for two years. Ld. Additional Sessions Judge also submitted the proceedings before the Hon'ble High Court for confirmation of the sentence of death which has' been registered as Death Reference No.5 of 1999.
2. The aforesaid appeal registered as C.R.A. No. 355 of 1999, on a petition of appeal by the appellant through the Superintendent Dumdum Central Jail was admitted by order dated 2nd December, 1999 and directed to be heard along with the aforesaid Death Reference and the realisation of sentence .of fine was stayed and the Learned Public Prosecutor was directed to engage a senior lawyer as a Defence Lawyer at the cost of the Government.
3. It appears that the appellant was defended at the trial by a Ld. Advocate appointed by the Ld. Trial Judge at the cost of the State. In this court also we did not find any Ld. Advocate appearing on behalf of the appellant at the cost of the State when the appeal was taken up for hearing and as such Mr. Rashbehari Mahato, Ld. Advocate, with a junior of his choice has been appointed by this court to appear on behalf of the appellant at the cost of the State and accordingly Mr. Rashbehari Mahato, Ld. Advocate with his junior Mr. Sushil Kumar Mahato is appearing on behalf of the appellant at the cost of the State.
4. Mr. Rashbehari Mahato, Ld. Advocate appearing on behalf of the appellant narrated briefly the prosecution case, the defence case and the nature of the evidence and materials on record adduced in support of the prosecution and the findings of the Ld. Trial Judge on the basis of the evidence and the materials on record as well as the conclusion of the Ld. Trial Judge for awarding the sentence of death to the appellant.
5. Mr. Mahato next submitted that before making his submission in detail, he wants to raise a preliminary point regarding the defect in the charge vitiating the entire trial and necessitating a fresh trial on framing proper charge in accordance with law.
6. Mr. Mahato, ld. Advocate then placed the "charge" as framed by the Ld. Trial Judge which reads as follows :-
Charges With Three Heads
(No. XXVIII (II), Schedule V, Act V. 1898)
(Sections 221, 222, 223, Code of Criminal Procedure)
1. A. Saha, Additional Sessions Judge, Nadia, 2nd Court, Krishnagar, hereby charge you as follows:-
1. Ismile Sheikh @ Khayapa
First: That you, on or about the 7th day of August, 1998 at Dakshin Bahirgachi under Nakashipara P.S. within District Nadia committed murder by intentionally causing the death of Ahatan Bibi (65).
And thereby committed an offence punishable under section 302 of the Indian Penal Code, and within the cognizance of this court.
Secondly :- That you, on or about the 7th day of August, 1998 at Dakshin Bahirgachi under Nakashipara P.S. within Dist. Nadia committed murder by intentionally causing the death of Hasan Sheikh (8).
And thereby committed an offence punishable under section 302 of the Indian Penal Code, and within the cognizance of this court.
Thirdly:- That you on or about the 7th day of August, 1998 at Dakshin Bahirgachi under Nakashipara P.S. within Dist. Nadia committed murder by intentionally causing the death of Tahamina Khatoon (10).
And thereby committed an offence punishable under section 302 of the Indian Penal Code and within the cognizance of this court.
And I hereby direct that you be tried by the said court on the said charge.
The charges are read over and explained to the accused, to which he pleaded not guilt
