Swapan Chandra Mahato & Ors. vs State Of West Bengal

Siddhartha Roy Chowdhury, J

This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the petitioners suffering an order of conviction for committing offence under Section 498A of the I.P.C.

Briefly stated, the petitioner no. 1, Swapan Chandra Mahato is the husband of Durga Mahato while the other petitioners are his parents. The marriage between Swapan and Durga was solemnized on 27th Ashar, 1403 B.S. according to Hindu Rights and Rituals and they started  living  together  as  man  and  wife.  Durga  set  the  criminal administration of justice into motion by informing the Officer-in-charge of Hura Police Station about her plight in the matrimonial home. It was alleged that Durga was tortured both physically and mentally by inmates of her matrimonial home and by her husband in order to make her meet their unlawful demand of dowry. The information disclosed offence cognizable in nature the F.I.R. was registered, police took up investigation which culminated into submission of charge sheet against the petitioners. The case was transferred to learned Judicial Magistrate, 3rd Court, Purulia for disposal being G.R. Case No. 641 of 1997.

Learned Judicial Magistrate, 3rd Court, Purulia having considered the evidence adduced by the witnesses on record was pleased to record an order of conviction against all three accused persons for committing offence under Section 498A of the I.P.C. The convicts were sentenced to suffer imprisonment for six months and to pay of Rs. 500/- each with a default clause.

The said order of conviction passed by learned Trial Court was challenged in appeal and learned Additional District and Sessions Judge, Fast Track, 1st Court, Purulia was pleased to dismiss the appeal by order dated 13th January, 2003 and thereby the order of conviction passed by learned Trial Court was upheld.

The present petition under consideration is filed by the petitioners for quashing the judgement of affirmance passed by learned Additional District and Sessions Judge, Fast Track, 1st Court, Purulia.

Mr. Himanshu De, learned Senior Counsel for the petitioners, at the outset, submits that the petitioner no. 2 and 3 both have left the universe during pendency of the proceeding, therefore they are now beyond penal or procedural law.

While imposing sentence admittedly learned Trial Court as well as learned Appellate Court did not look into the provision of Section 360 of the Cr.P.C. Section 361 of the Code of Criminal Procedure indicates that if the Court decides not to exercise its jurisdiction under Section 360 of the Cr.P.C. then it is obligatory to record the reasons as to why the benefit of provision of Section 360 Cr.P.C. is being denied. The provision of Section 361 is peremptory in nature and by not indicating such provision of Section 360 of the Cr.P.C. both learned Trial Court and learned Appellate Court committed grave mistake resulting into miscarriage of justice.

In this regard, I rely upon the decision of Hon’ble Supreme Court in the case of OM PRAKASH & ORS. VS. STATE OF HARYANA reported in (2001) 10 SCC 477.

Concurrent findings of learned Trial Court and learned Appellate Court towards culpability of the petitioner in committing the offence, persuade me to consider the critical question of sentence. Admittedly offence was committed sometime in 1996-97 and the petitioners were found guilty on 14th February, 2000. The order of conviction was affirmed by learned Appellate Court on 3rd January, 2003. Therefore, the petitioners are suffering the proceeding for nearly 22 years.

In DILBAG SINGH VS. STATE OF PUNJAB reported in AIR 1979 SC 680 Hon’ble Justice V.R. Krishna Iyer observed:-

“1. xxxxxx

Surely, 'the law must keep its promises.' Justice Holmes expressed the obvious when he said this, but the breach of promise by the law on delivering criminal justice is daily experience, from police arrest to prison trauma. The focus in this case is on the sentencing alternatives in the Criminal Procedure Code; and the grievance pressed by counsel, when traditional grounds on the merits failed, was that the compassion of Section 360 professionally suffering benign neglect, be kindled and he be released. Enacted law is guilty of inaction, because its obscure presence on the statute book escapes the vigilance of the Bar. Where even the court ignores what is vital to the little man the guarantee of sentencing legality becomes a casualty. This case is an instance in point.”

Having regard to the facts and circumstances of the present case and particularly taking into consideration the fact that the petitioner herein, found to have committed offence within the meaning of Section 498A of the I.P.C. I am not inclined to interfere with order of conviction. But both the Courts below since failed to act in consonance with the legislative mandate engrafted in Section 360 and 361 of the Cr.P.C. I am of the view that ends of justice would be met if the sentence imposed upon the petitioner is altered and the petitioner since not a habitual offender, is directed to be released on his entering into bond in the sum of Rs. 5000/- with one surety of like amount to be furnished before the learned Chief Judicial Magistrate, Purulia to appear and receive sentence when called upon during the period of one year and in the meantime, to keep the peace and be of good behaviour, which I accordingly do.

The case is thus disposed of. Interim order, if any, stands vacated.

Let a copy of this judgement be sent down to learned Court below along with L.C.R. for information and necessary action.

Parties to act on server copy of the order, duly downloaded.

Urgent Photostat certified copy of this judgement, if applied for, should be made available to the parties upon compliance with the requisite formalities.