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Gauhati High Court
Sindhi Das (Debbarma) vs Kaizar Debbarma And Ors. on 19 September, 2000
Equivalent citations: 2001 CriLJ 20, II (2001) DMC 539
Bench: P Agarwal


JUDGMENT

1. Heard Shri P. Roy Barman, learned counsel for the petitioner. Also heard Mr. B.B. Deb, learned sr. counsel for the respondents.

2. This Criminal revision is directed against the impugned order dated 11.3.1997 passed by the Chief Judicial Magistrate, West Tripura in case No. 1122/96.

3. The facts leading to the present revision in brief are that on a complaint filed by Smt. Sindhi Das (Debbarma) C,R. case No. 1122 of 1996 was registered and after examination of the complaint and witnesses, process was issued against the accused-petitioners under section 376, 498-A IPC. During the pendency of the enquiry, a joint application was filed for withdrawal of the case on the plea that the matter has been compromised and the learned Chief Judicial Magistrate, vide impugned order allowed the prayer for withdrawal of the case against all the three accused-petitioners and discharged them. The present revision has been preferred by the complainant stating, inter alia, that the impugned order was passed by misrepresentation and impersonation. The petitioner has also brought certain allegations against the counsel engaged by her in the Court below.

4. In this case, I find that C.R. 1122 of 1996 pending before the Chief Judicial Magistrate, the Court had taken cognizance of the offence under section 376 1PC which is a sessions trial offence. The only action which the Chief Judicial Magistrate was required to take in the matter was under section 208 and 209 CrPC only, that is, to supply copies of the statements and documents to the accused persons and to commit the case to the Court of sessions. Shri B. B. Deb, learned sr. counsel for the respondents has fairly submitted that the offence under section 376 IPC is non-compoundablc in the view of the provisions contained in section 320 CrPC and there is no provision empowering the Chief Judicial Magistrate to allow the withdrawal of a sessions case instituted on a private complaint. The trial of sessions case is provided in Chapter 18 of CrPC and there is no provision for withdrawal pf the case. In the present case as stated above, the trial has not yet started as the case was not committed even. The provision of section 321 CrPC is also not attracted as the provisions of section 225 CrPC are not applicable at that stage and the application was also not filed by the Public Prosecutor or by the Assistant Public Prosecutor as required under the law.

5. Considering the facts of the case, I find that the Chief Judicial Magistrate had no jurisdiction to pass the impugned order allowing withdrawal of a sessions trial case in absence of any provision to that effect in the CrPC. Hence, the impugned order is incorrect and illegal and therefore liable to be set aside, which I hereby do.

6. Learned counsel for the respondents has submitted that there was sufficient circumstances for withdrawal of the case by the parties and a fresh innings will cause unnecessary hardship to the accused-person. But, as the impugned order was passed without the provisions of law, the same cannot be maintained. So far the allegations and counter allegations made by the parties are concerned, I do not propose to refer to them or giving a finding on the same. In order to save the accused-persons from unnecessary harassment, it is provided that the accused-persons shall be allowed to go on fresh bail if they desire or remain on bail, in case the bailer agrees to continue. The Chief Judicial Magistrate shall proceed to comply with the provisions under section 208 CrPC and commit the case expeditiously. The accused-persons are directed to appear before the Chief Judicial Magistrate, West Tripura district. Agartala on 23-10-2000.

7. Send down the lower court records immediately along with a copy of this order.

8. The Revisions stands disposed of.


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