Smt. Roopa Lall v. The State

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

CRR/12/2023 Smt. Roopa Lall ...Petitioner/Accused Person Vs.

The State ... Respondent/Complainant Mr. R.P. Gobind ... for the Petitioner Ms. A.S. Zinu ...for the Respondent October 17, 2023 [M.A.Mobin] Item No.3 The instant Criminal Revision has been preferred against the order dated 04.7.2023 passed by the learned Sessions Judge at Port Blair wherein the prayer for splitting/separating the case of the petitioner was turned down.

The brief fact of the case is that the present petitioner was committed to the Court of Sessions for trial for the allegation of offence committed under Section 228 (A) and 500 of the IPC along with the other accused persons charged with Sections 376 (D)/ 376 (C)/ 328/ 201/ 506/120(B) of IPC. An application was filed by the present petitioner before the learned Sessions Judge for splitting/separating her case from the other accused person and to send the same to the Court of learned Magistrate for trial. The prayer of the petitioner was turned down.

Hence the instant Criminal Revision.

The learned Advocate for the petitioner submits that the Investigating Agency has submitted a common charge sheet in this

case being Charge Sheet No.12 of 2023 dated 3rd February, 2023. He further argued that the charge sheet has specifically mentioned the allegation framed against the particular accused persons. The charge sheet in Para 32 has mentioned the allegation against the present petitioner which is under Section 228 (A)/500 IPC. It is the submission of the learned Advocate for the petitioner that the present petitioner being a woman cannot be stand in a trial before the Court of Sessions along with the other accused persons who were charged for a heinous offences under Section 376(D) IPC. He further argued that the present petitioner is no way connected with the allegation of heinous crimes. Thus the case may be split up as the alleged offences against the present petitioner is solely triable by the Magistrate.

Learned Advocate for the State submits that there are no legal provision before the learned Sessions Judge to consider the prayer of the petitioner. Without framing charge the learned Sessions Judge has no power to split up the case. She again argued that it is not possible at this juncture to assess the value of the evidences collected by the IO during the course of investigation. She further argued that there may have some implications of the present petitioner with the alleged heinous crime. So before trial it is not possible to say that the present petitioner is only charged for the offence triable by the Magistrate.

Heard the learned Advocates. Perused the materials on record. It appears that initially the FIR was lodged being FIR No.165 of dated 01.10.2022 under Section 376/376(C)/376(D)/354/328 of IPC against the accused nos.1,2

and 3. Present petitioner is also name in FIR. During the course of investigation it appears that the name of the victim was alleged to have been disclosed by the Accused No.4 i.e. the present petitioner for which the allegation under Section 228(A)/500 IPC was leveled against the present petitioner.

On perusal of the entire charge sheet it appears that the particular offence for which the present petitioner was charge sheeted is under Section 228(A)/500 IPC. It appears that a common investigation was conducted by the Police and common charge sheet has been submitted before the learned Court of Chief Judicial Magistrate. After submission of the final report and after completion of the service of copies the entire case was committed to the Court of Sessions under Section 209 of Cr.P.C. The learned Magistrate has not gone into the merit of the entire charge sheet and also not performed his duty to assess the entire charge sheet and committed of the accused person to the Court of Sessions. Before the framing of charge this application was filed by the present petitioner before the Court of Sessions. The learned Court of Sessions is of the view that at this juncture the splitting of the case is not possible.

The Chapter XVI of the Cr.P.C. has specifically enumerated the commencement of proceeding before the learned Magistrate. It contained the provisions of Section 204 to 209. Section 209 provides the commitment of case to the Court of Sessions when offence is exclusively troubled by the Court of Sessions. Before the commitment, it is the statutory duty of the Magistrate to hold an enquiry. The required enquiry has to be made by the learned

Magistrate before sending the case along with the accused persons to the Court of Sessions. The Section 209 has imposed a specific duty upon the Magistrate to look into the charge sheet and available materials to assess whether the particular case/accused person is liable to be committed before the Court of Sessions for trial.

In this case it appears to me that the learned Magistrate has failed to exercise his duty to assess the materials of the instant case record and committed of the accused persons to the Court of Sessions for trial.

However, the learned Court of Sessions has also committed error for receiving of the accused persons at the stage of commitment. Moreover, when the petitioner has approached the Court of Sessions for splitting the case the merit of the petition has to be looked into.

However, considering the same I think it necessary to hold that the Ld. Sessions Judge as well as Magistrate has committed error. The entire case has to be returned back to the learned Court of Chief Judicial Magistrate, Port Blair to re-assess his power and jurisdiction under Section 209 of Cr.P.C.

Considering the above observation the impugned order passed by the learned Sessions Judge is hereby set aside. The learned Sessions Judge is directed to send back the entire case record along with the accused person to the Court of learned Chief Judicial Magistrate, Port Blair to re-assess his power required to be exercised under Section 209 of Cr.P.C.

After such exercise if the learned Chief Judicial Magistrate finds that the allegation against the present petitioner is not exclusively triable by the Court of Sessions, the petitioner is not required to commit before the Court of Sessions for trial. On the above observation the instant Criminal Revision is disposed of.

This Court refrain itself to go into the merit of the entire materials of this Criminal case and the learned Trial Court as well as the Chief Judicial Magistrate to take decision independently in respect of the merit of this case according to the law. CRR 12 of 2023 is disposed of.

(Subhendu Samanta, J.)