Page 1

NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.273 OF 2006

Sujoy Kumar Chanda ... Appellant

Vs.

Damayanti Majhi & Anr. … Respondents

AND CRIMINAL APPEAL NO.274 OF 2006

Sasanka Sekhar Banerjee … Appellant

Vs.

Damayanti Majhi & Anr. … Respondents

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. Both these appeals are directed against Judgment and  

Order dated 7/6/2005 passed by the Calcutta High Court in  

C.R.R. No.3140 of 2004 and, hence, they are being disposed  

of by this common order.  

2. The facts which give rise to this judgment need to be  

shortly stated.

Page 2

One  Khagen  Majhi  was  killed  in  the  early  hours  of  

30/4/1997. He was shot dead. On the same day P.S. Kalyani  

registered Case No.50 of 1997 under Sections 147, 148, 149,  

353, 307 and 326 of the Indian Penal Code (“the IPC”) and  

Sections  25  and  27  of  the  Arms  Act  against  unknown  

persons.  On  17/5/1997,  a  complaint  was  filed  by  Smt.  

Damyanti  Majhi,  the  mother  of  deceased  Khagen  Majhi  

against SI Sankar Chatterjee, ASI Ajay Roy, appellant - S.K.  

Chanda,  appellant  -  S.S.  Banerjee  and  one  Kartik  Sarkar  

under Sections 302, 201 and 120B read with Section 34 of  

the IPC which was registered as Case No.138C of 1997. In  

this  case,  between  21/8/1997  to  6/6/2000,  12  witnesses  

were examined prior to the issue of process under Sections  

200 and 202 of the Criminal Procedure Code (“the Code”)  

by learned SDJM., Kalyani, Nadia.  

3. It appears that Association for Protection of Democratic  

Rights,  Ranaghat  Branch,  made  a  complaint  to  the  West  

Bengal Human Rights Commission alleging that some police  

officers  had  shot  down  Khagen  Majhi.  The  West  Bengal  

2

Page 3

Human  Rights  Commission  by  its  Order  dated  21/1/1998  

recommended that prosecution should be started against SI  

Shankar  Chatterjee  and  ASI  Ajoy  Roy.  The  Commission  

directed  that  displeasure  of  the  Commission  should  be  

communicated,  in  writing,  to  the appellant  -  S.K.  Chanda,  

SDPO,  Kalyani  for  having  attempted  to  mislead  the  

Commission by his Report which was not in alignment with  

facts.  There  was  no  direction  as  against  appellant  -  S.S.  

Banerjee.   On  22/5/2000,  pursuant  to  the  above  

recommendation of the Commission, P.S. Kalyani, registered  

Case No.78 of 2000 against SI Shankar Chatterjee, ASI Ajoy  

Roy and Kartick Sarkar under Sections 147, 148, 149, 353,  

307 and 326 of the IPC read with Sections 25 and 27 of the  

Arms Act. On 4/6/2000 upon investigation, charge-sheet was  

submitted against the abovementioned accused persons. On  

31/7/2000, learned SDJM, Kalyani found sufficient ground to  

proceed  against  SI  Shankar  Chatterjee,  ASI  Ajoy  Roy  and  

Kartick Sarkar under Sections 302 read with Section 120B or  

Section 304 read with Section 120B and Section 201 read  

with Section 34 of the IPC.  Learned SDJM, however, refused  

3

Page 4

to  issue  process  against  appellant  -  S.K.  Chanda  and  

appellant  -  S.S.  Banerjee.  Since  over  the  same  incident,  

there was a police case also against  those three accused  

persons,  learned  Magistrate  directed  that  Complaint  Case  

No.138C of 1997 be tagged with Police Case No.78 of 2000  

for further proceedings. On 25/8/2000, the complainant filed  

a  revisional  application  against  the  said  Order  dated  

31/7/2000 passed by learned SDJM being C.R.R. No.2174 of  

2000 in  the Calcutta High Court.  The appellants were not  

party to this revisional application. On 23/7/2001, the High  

Court set aside the Order of the learned Magistrate clubbing  

the complaint case with the police case and directed that the  

complaint  case be committed  to  the Court  of  Sessions.  It  

would be appropriate to quote the relevant paragraphs from  

the Order of the High Court:-

“Taking  into  account  the  entire  facts  and   circumstances of the instant case, I am of the view   that the learned Magistrate’s Order directing that   both the cases should be clubbed together under   Section 210 of the said Code cannot be sustained   and  accordingly,  the  Revisional  Application  is   allowed.   The order  dated 31/7/2000  passed by  the  learned  Magistrate  is  set  aside  and  the   

4

Page 5

learned Magistrate is  further directed to commit   the case immediately after proper compliance of   the provisions of law and soon reach the stage of   section 208 of the said Code”

xxx xxx xxx xxx

“It  would  be  also  open  to  the  Learned   Sessions Judge, upon commitment of the arrayed  Accused/Opposite  Parties  during  the  Trial  to   arraign the other accused who has been left out   by  the  Learned  Magistrate,  if  the  situation  so   demands in exercise of his power under Section   319 of the said Code in accordance with the steps   known to law without being guided by the disposal   of this Application.”

4. It may be stated here that the said Order has not been  

challenged by the State or any of the parties.

5. It appears that Learned SDJM interpreted this order to  

mean that  the  High  Court  had issued a  direction  to  it  to  

proceed  against  the  present  appellants  as  well  and  on  

5/1/2002, he issued warrant of arrest against the appellants  

and one Kartick Sarkar for offences under Sections 302, 201  

and 120B read with Section 34 of the IPC. On 14/1/2002, the  

appellants  preferred  a  revisional  application  before  the  

learned Sessions  Judge challenging  Order  dated 5/1/2002.  

5

Page 6

By  his  Order  dated  24/9/2004,  learned  Sessions  Judge  

modified the Order of learned Magistrate dated 5/1/2002.

6. Learned  Sessions  Judge  considered  all  the  facts  in  

proper perspective and noted that learned Magistrate had by  

his earlier order dated 31/7/2000 refused to issue process  

against  S.K.  Chanda  and  S.S.  Banerjee  (the  appellants  

herein) and had passed order of clubbing the complaint case  

with  the police case.   This  order  was challenged by Smt.  

Damayanti Majhi.  The High Court set aside the clubbing of  

both the cases.  Learned Sessions Judge further noted that  

the High Court directed learned Magistrate to commit  the  

case immediately after compliance of the provisions of the  

Code  and  reach  the  stage  of  Section  208  of  the  Code.  

Learned Sessions Judge further observed that the High Court  

had clarified that it would be open to learned Sessions Judge,  

upon commitment of the case,  to summon those accused  

who have been left out by learned Magistrate in exercise of  

his  powers  under  Section  319  of  the  Code.   Relevant  

observations of learned Sessions Judge need to be quoted.  

6

Page 7

“It appears from order dated 31.7.2000 that Ld.   Magistrate has left out the accd. No.3 S.K. Chanda  and accd. No.4 S.S. Banerjee while proceeding as   per provisions of section 204 Cr.P.C.  Therefore in   such  circumstances  and  in  view  of  specific   observations  of  Hon’ble  Court  stated above,  the   said  left  out  accd.  persons  may  be  arraigned  during trial by the Ld. Sessions Judge U/s 319 of   Cr.P.C.  after  commitment  of  the  arrayed   accd./O.Ps. i.e. accds. Sankar Chatterjee, Ajoy Roy   and  accd.  Kartick  Sarkar  since  absconding  who  may  be  sent  up  during  trial  if  arrested.   But  it   appears from the impugned order dated 5.1.2002  Ld. Magistrate has passed the order to issue W.A.   against all named 5 accd. persons including said   S.K. Chanda and S.S. Banerjee who have been left   out by order dated 31.7.2000 as observed by the   Hon’ble Court.”

xxx xxx xxx

“Considering  all  these  facts  and  circumstances   and specific observations direction of the Hon'ble   Court discussed above this Court find no reason to   disagree  with  the  aforesaid  submissions  of  Ld.   Lawyer  of  the  Petitioner/revisionist  and  accordingly  it  is  held  that  the  impugned  order   dated 5.1.02 issuing W.A.  Against  the petitioner   and another is illegal and without jurisdiction and  in gross violation of the direction of the Hon'ble   Court and as such the said Order dated 5.1.02 is   not sustainable in law so far as the case of the   petitioner and another i.e. accd. No.3 S.K. Chanda  and accd. No.4 S.S. Banerjee is concerned and the   impugned order  is  to  be modified to that  effect   through interference by this revisional court. The   instant Cr. Motion is fit to be allowed.”

7

Page 8

7. Having perused this order, we are of the opinion that  

the learned Sessions Judge was right in saying that the order  

passed  by  learned  SDJM  dated  5/1/2002  was  without  

jurisdiction and in violation of the High Court's earlier Order  

dated 23/7/2001.   In  the facts  of  this  case,  learned SDJM  

having once refused to issue process against the appellants,  

he could not have recalled that order by a subsequent order.  

In  this  connection,  we may refer  to  the  judgment  of  this  

Court  in  Bindeshwari  Prasad  Singh   v.   Kali  Singh  1  ,  

where  this  Court  has  clarified  that  there  is  absolutely  no  

provision in the Code empowering the Magistrate to review  

or  recall  an  order  passed  by  him.   This  view  has  been  

reiterated by this  Court  thereafter  in  several  authoritative  

pronouncements.

8. We are also of the view that the High Court in its order  

dated 23/7/2001, did not issue any direction to the learned  

Magistrate  to  proceed  against  the  appellants.   The  High  

Court only set aside the order of clubbing of the complaint  

case  with  the  police  case  and  observed  that  after  1 (1977) 1 SCC 57

8

Page 9

commitment of the case, learned Sessions Judge could, if the  

situation so demands in exercise of his powers under Section  

319 of the Code, summon other accused persons who have  

been  left  out  by  learned  Magistrate.   Thus,  learned  

Magistrate was to commit the case to the Sessions Court and  

the Sessions Court in its  discretion could have summoned  

other  accused  under  Section  319  of  the  Code,  if  found  

necessary.   Learned  Magistrate  appears  to  have  

misconstrued the High Court’s  order  dated 23/7/2001 and  

taken  it  as  a  direction  to  issue  process  against  all  the  

accused.   

9. The  complainant  being  aggrieved  by  Order  dated  

24/9/2004 passed by the Sessions Court  filed a  revisional  

application  before  the  High  Court  against  Order  dated  

24/9/2004  of  learned  Sessions  Judge.  By  the  impugned  

order,  the High Court  set  aside the order  of  the Sessions  

Court  and restored  the  order  of  learned Magistrate dated  

5/1/2002. It is this order, which is challenged before us.

9

Page 10

10. While setting aside the order of learned Sessions Judge,  

the High Court has passed caustic comments on him, which  

in  our  opinion,  are  unwarranted.   Learned Sessions Judge  

rightly  interpreted  the  High  Court  order  dated  23/7/2001.  

We  have  already  stated  the  reasons  for  this  conclusion  

drawn by us.  In fact, learned Sessions Judge was of the view  

that  the  High  Court’s  order  dated  23/7/2001  was  not  

followed  by  learned  Magistrate  and  in  that  anxiety,  he  

modified the said order.  We do not see either any disrespect  

being shown to the High Court or any casual approach being  

adopted by learned Sessions Judge.  

11. Having considered the facts of the case and the settled  

legal  position,  we  are  of  the  opinion  that  it  would  be  

appropriate to remit the matter to the Court of Additional  

Chief Judicial Magistrate, Kalyani, Nadia for committal of the  

case to the Sessions Judge at District Nadia so that the case  

can  proceed  after  the  evidence  is  led.   If  it  appears  to  

learned Sessions Judge that  involvement  of  any person is  

evident, he can summon the appellants or any other persons  

10

Page 11

under  Section  319  of  the  Code.   Hence,  we  pass  the  

following order:-

12. The  impugned  Order  dated  7/6/2005  passed  by  the  

High Court at Calcutta is set aside.  

13. The Complaint Case No. 138C of 1997 is remitted to the  

learned  Additional  Chief  Judicial  Magistrate,  Nadia.  The  

Additional  Chief  Judicial  Magistrate  shall  commit  it  to  the  

Court of Sessions, Nadia in accordance with the provisions of  

the Code. Learned Sessions Judge, Nadia shall immediately  

proceed with the case in accordance with the provisions of  

the Code.  Needless to say that if  in the course of trial,  it  

appears to learned Sessions Judge from the evidence that  

any person has committed any offence for which he could be  

tried  together  with  the  accused,  he  may  proceed  against  

such person for the offences which such person appears to  

have committed.  Needless  to  say further  that  if  from the  

evidence,  it  appears  to  learned  Sessions  Judge  that  the  

present appellants have committed any offence, he would be  

free to proceed against them. We, however, make it clear  

11

Page 12

that we have not expressed any opinion on the merits of the  

case as to whether any case is made out against the present  

appellants  for  summoning  them  or  not.  It  is  for  learned  

Sessions Judge to decide this question independently and in  

accordance with law. Considering the fact that this matter is  

pending since 1997 and involves alleged encounter killing,  

we direct learned Sessions Judge to dispose of the case as  

expeditiously as possible.

14. Before parting, we wish to add a rider.  We feel that the  

High Court should not have passed such harsh comments on  

learned Sessions Judge.   This  Court has repeatedly stated  

that the superior courts should not pass caustic remarks on  

the subordinate courts.  Unless the facts disclose a designed  

effort  to  frustrate  the  cause  of  justice  with  malafide  

intention, harsh comments should not be made.  Bonafide  

errors  should  not  invite  disparaging  remarks.   Judges  do  

commit  errors.   Superior  courts  are there to  correct  such  

errors.  They can convey their anxiety to subordinate courts  

through their orders which should be authoritative but not  

12

Page 13

uncharitable.   Use  of  derogatory  language  should  be  

avoided.  That invariably has a demoralizing effect on the  

subordinate judiciary.  

15. In this context, observations made by this Court in K.P.  

Tiwari  v.  State of M.P.2 may be usefully referred to.

“The  higher  courts  every  day  come across   orders of the lower courts which are not justified   either  in  law or  in  fact  and modify them or  set   them aside.  That  is  one of  the functions  of  the   superior  courts.  Our  legal  system acknowledges   the fallibility of the judges and hence provides for   appeals and revisions. A judge tries to discharge   his duties to the best of his capacity. While doing   so, sometimes, he is likely to err... 'It is well said   that a judge who has not committed an error is   yet to be born. And that applies to judges at all   levels from the lowest to the highest. Sometimes,   the difference in views of the higher and the lower   courts  is  purely  a  result  of  a  difference  in   approach and perception. On such occasions, the   lower  courts  are  not  necessarily  wrong  and  the  higher  courts  always  right.  It  has  also  to  be   remembered that the lower judicial officers mostly   work  under  a  charged  atmosphere  and  are   constantly under a psychological pressure with all   the  contestants  and  their  lawyers  almost   breathing down their necks - more correctly upto   their nostrils.  They do not have the benefit  of a   detached atmosphere of the higher courts to think  coolly and decide patiently. Every error, however   

2 1994 Supp. (1) SCC 540

13

Page 14

gross  it  may  look,  should  not,  therefore,  be  attributed to improper motive.”

16. Again in  Braj Kishore Thakur  v.  Union of India3,  

this Court observed as under:

“2.  Judicial  restraint  is  a  virtue.  A  virtue  which  shall be concomitant of every judicial disposition.   It is an attribute of a judge which he is obliged to   keep refurbished time to time, particularly while   dealing  with  matters  before  him  whether  in   exercise  of  appellate  or  revisional  or  other   supervisory  jurisdiction.  Higher  courts  must   remind themselves constantly that higher tiers are   provided  in  the  judicial  hierarchy  to  set  right   errors  which  could  possibly  have  crept  in  the   findings or orders of courts at the lower tiers. Such   powers  certainly  not  for  belching  diatribe  at   judicial  personages  in  lower  cadre.  It  is  well  to   remember the words of a jurist that "a judge who   has not committed any error is yet to be born".

17. We need not burden our judgment by quoting similar  

observations made by this Court in several other judgments.  

With this caution, we dispose of the appeals.

………………………….J. [Ranjana Prakash Desai]

3 (1997) 4 SCC 65

14

Page 15

………………………….J. [Madan B. Lokur]

New Delhi February 20, 2014.  

15