Convicting Accused Persons After 36 Yrs Would Disturb Balance Of Convenience & Result In More Injustice: Calcutta High Court

The Calcutta High Court on Friday set aside an order of acquittal in connection with a criminal case under Sections 147/380/427 of the IPC (punishment for rioting, theft in dwelling house, mischief causing damage).

However, Justice Moushumi Bhattacharya was of the view that passing an order of conviction, after a gap of 36 years since the charges were framed, would disturb the balance of convenience and cause injustice, especially since the accused had not even been represented in the appeal.

Accordingly, it remitted the matter to Trial Court for re-consideration.

The Bench was adjudicating upon an appeal against acquittal from a case registered against the accused persons back in May 1980 wherein vide an order dated March 19, 1986, they had been acquitted from the aforesaid charges.

"Since the incident occurred and the Case was registered against the accused persons in May, 1980 and the impugned judgment is of 19th March, 1986, this Court is of the view that convicting the accused persons under the charges framed against them after a gap of 36 years would disturb the balance of convenience and result in more injustice being caused in the matter. It is not even clear whether the accused persons are still alive or available after 36 years. This information can only be provided by the local police station", the Court observed. 

The Court further opined that the accused persons had not been represented during the appellate proceedings and thus it would be inequitable to convict the accused persons and sentence them after 36 years. 

"The records also show that the accused persons were never represented in the present appeal. None of the parties were represented before this Court during the hearing of the matter by reason of which the Court had to appoint an Amicus Curiae. It would hence be inequitable to convict the accused persons and sentence them after 36 years particularly when the accused persons were not heard or represented in the appeal", the Court observed further. 

In the instant case, the grandfather of the appellant had executed a deed of gift in favour of the appellant before his death in respect of a tin-shed house together with some land property. On May 20, 1980, the respondents, armed with deadly weapons had allegedly attacked the appellant, trespassed inside the tin shed house and tried to steal articles. Thereafter, the appellant had been assaulted when she raised an alarm after which the respondents dislocated the tin-shed from the roof of the house. 

Upon a perusal of the record, the Court noted that there are several reasons for believing the case made out by the prosecution. It was further noted that doubt with regard to the genuineness of the case made out by the complainant is not substantiated from the records or the reasons given in the impugned judgment. 

Reliance was also placed on the Supreme Court judgment in Union of India v. Dafadar Kartar Singh wherein the Apex Court had observed that judgments of acquittal may be reversed or otherwise interfered with when the court has substantial and compelling reasons like when the trial court has ignored the evidence or material documents or misread the material evidence.

"The absence of reasons for disbelieving the case made out by the prosecution in the impugned judgment and the lack of credible grounds for accepting the case of the defence amounts to an instance where the judgment in Dafadar Kartar Singh would apply in full force", the Court observed further. 

Accordingly, the Court observed that the appeal should be allowed and thus set aside the impugned judgment. 

Furthermore, the Court directed that the concerned Judicial Magistrate should reconsider and decide the case in terms of the observations made by the Court and after obtaining the report from the local police station as to the availability and whereabouts of the accused persons. 

Case Title: Sova Rani Misra v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 181

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