Statements of dead persons, though it did not relate to the cause of death, was wrongly admitted into evidence and the misreception of such evidence was sought to be corrected in the revision. It is held that in view of the provisions of Sub-section (2) of Section 397, Cr. PC the revision against such order was not tenable.
- The order concerning the admissibility of oral evidence is an interlocutory order and not the final order. This decision can mutatis mutandis be made applicable to the documentary evidence also.
From: Sessions trial no. 2 (1) /1978 Before Shri R. Mahapatra, additional sessions judge, 6th court, Alipore.
Ballygunge P. S. (sec. S) case no. 188
U/S 120B/328/201 IPC and 120b/302/109/201 IPC
Citation: 83 CWN 248
CALCUTTA HIGH COURT
Indra Nath Guha Vs State of West Bengal
Bench: Chief Justice Mr. Sankar Prasad Mitra and Mr. Justice Salil Kumar Datta
DATE: 28-11-1978
JUDGMENT
(1) This is a contested application which was originally heard by a division bench consisting of Barooah and S. C. Mazumdar, jj. Owing to the unfortunate death of mazumdar, j. The judgment could not be delivered. The matter was released by Barooah, j. On the 16th august, 1978.
His lordship state as follows: –
“as S. C. Mazumdar, j. Who heard this application along with me, died before the judgment could be delivered, let this matter be placed before the learned chief justice for cancellation of the part-heard and for assignment to an appropriate bench. “in this connection,I may mention that the hon’ble Mr. Justice A. N. Banerjee now sitting with me, is not inclined to take this matter on person grounds”.
(2) The above note of Barooah, j. was placed before me on August 21, 1978, when this bench was constituted.
(3) The petitioner Indra Nath Guha is an accused in sessions trial no. 2 (1) /1978 which is now proceeding before Shri R. Mahapatra, additional sessions judge, 6th court, Alipore. His petition is verified by an affidavit of his uncle Sachikanta Guha affirmed on the 26th july, 1978.
(4) The petitioner’s case, inter alia, is that on or about May 5, 1976, one Ramendra Mohan Mukherjee lodged a complaint with the officer – in – charge of the ballygunge police station alleging, that his daughter surupa guha was married to the petitioner in 1966; that since the marriage the petitioner’s mother started ill – treating her in all possible ways and made his daughter’s life miserable; that his daughter out of shame did not disclose about her ill – treatment and torture to the complainant or to his wife but when it became unbearable for her, she started complaining about her said ill treatment to the complainant and his wife; that as days passed by the petitioner at the instigation of his mother started ill – treating surupa so much that he used to get drunk and did not even spare to beat her; that at the instance of the informant surupa continued to live with her husband and mother – in – law and also started teaching in south point school; that on 4. 5. 76 at about 1. 30 p. M. The complainant received a telephone call in his office that his daughter Surupa had been removed to the s. S. K. M. Hospital as she was very sick; that the complainant immediately came to the hospital and on enquiry learnt that it was a suspected case of severe poisoning and her condition was critical; that from the attending physician the complainant came to learn that his daughter made a statement to the effect that she did not take any poison on her own and that she had taken only cucumber and lassi at the petitioner’s place as breakfast after coming from college; that in the hospital premises the petitioner’s father Satikanta Guha pointed to a bottle of Horlicks held by Mrs. Vincent (an employee of the south point school) and told the complainant and his brother that only Horlicks from that bottle was offered to Surupa during her breakfast; that the statement of Satikanta did not fit in with the dying statement of Surupa that she took cucumber and lassi; that the above facts indicated that Surupa after taking cucumber and lassi fell sick and died at about 11. 30 P. M. On 4. 5. 76; that considering the bad attitude of the petitioner’s mother as well as the attitude of the petitioner, the complainant felt that some kind of poison was mixed either with cucumber or with the lassi which was offered to Surupa, and that in view of these facts the complainant requested the officer – in – charge, Ballygunge police station, to take up the matter and make a thorough investigation to bring the culprits to book for the sake of justice.
(5) On the basis of the statement of Ramendra Mohan Mukherjee the Ballygunge p. S. (sec. S) case no. 188 dated 15. 5. 76 was started under section 120b/326/201 of the indian penal code. The petitioner Indra Nath, his parents Satikanta and Pritilata as well as two other persons, named Ramendra Nath Lahiri and Jhantu Charan Dutta were arrested. They were, however, subsequently released on bail.
(6) The ballygunge police station submitted charge sheet against Indranath and the four others on july 10, 1976 under section 120B/328/201 IPC.
(7) By order dated october 26, 1976 shri r. P. Samaddar, subdivisional judicial magistrate, alipore, committed the case to the court of sessions, 24 Parganas, Alipore, for trial. The sessions judge transferred the case to shri a. P. Bhattacharyya, additional sessions judge, 11th court, alipore, for trial. The case was registered as sessions trial no. 9 of May, 1977.
(8) At the time of framing of charge counsel on behalf of the petitioner contended, inter alia, that the materials on record which could be legally translated into evidence did not contain sufficient grounds for proceeding against the petitioner. The petitioner was, therefore, entitled to an order of discharge under section 227 of the cr. P. C. It was further contended that the statements of witness recorded under section 161 of cr. P. C. Could not be legally translated into evidence in view of the provisions of section 32 (1) and 54 of the Evidence Act.
(9) The sessions judge, however, by order dated the 3rd june, 1977 framed charges against Indranath, Satikanta and Pritilata under sections 120b/302/109/201 IPC. He also frame charge under sections 120b/302/201 IPC against the accused Jhatu charan dutta.
(10) Against the order framing charges, Indranath and all the other accused persons moved this court in its criminal revisional jurisdiction and obtained three different rules. The rules came up for hearing before R. Bhattacharyya, j. And R. K. Sharma, j. By their lordship’s judgments delivered on the 25th july, 1977, the additional sessions judge’s order framing charges against Satikanta and Pritilata was quashed and set aside. Their lordships’ judgments are reported in 81 calwn 1034 (Satikanta Guha and ors. V. State of West Bengal. Their lordships re – framed the charges against Indranath guha and Jhantu charan Dutta. The reframed charge against Jhantu charan dutta is:
“that you on or about the 4th day of may, 1976, at Hindustan road, calcutta, did commit murder by intentionally or knowingly causing the death of Surupa Guha, alias dola by administering poison to her through food or causing the same to be administered and thereby committed an offence punishable under section 302 of the indian penal code.”
(11) The charges against indranath guha were “first that you on or about the 4th day of may 1976 at Hindustan road, calcutta abetted the commission of the offence of murder of surupa guha alias dola by jhantu charan dutta whioch offence was committed in consequence of your abetment and supply of poison of administration of which the said surupa’s death was caused and you have thereby committed an offence punishable under section 302 read with sections 109 of the indian penal code.
“secondly that you on or about the 4th day of may, 1976 in calcutta, knowing or having reason to believe that an offence has been committed in respect of surupa guha alias dola by administration of poison to her at 10, hindusthan road, calcutta on the date above mentioned, caused evidence of the commission of that offence to disappear by removing from s. S. K. M. Hospital the bedsheet and the wearing apparels of the said surupa guha alias dola having traces of poison administered to her with the intention of screening the offenders including yourself from legal punishment and with the aforesaid intention you gave information to the officer – in – charge, Ballygunge p. S. Calcutta on the day mentioned hereinbefore to the effect that the said surupa guha by mistake, might have taken some deleterious substance as mentioned in your letter knowing or believing the said information to be false and thereby committed an offence punishable under section 201 of the indian penal code.”
(12) The petitioner before us has placed strong reliance in paragraph 11 of his petition on certain observations of R. Bhattacharyya, j. In paragraph 11 of his lordship’s judgment at page 1040 of 81 CWN. His lordship has said
“it appears that the learned judge finds that the statements of some persons related to the deceased show that surupa said something relating to the circumstances of her death. The statements of those witnesses say that indranath and pritilata in particular treated cruelly with surupa and that pritilata told surupa to commit suicide. The date for such suggestion for suicide does not appear to be near about the date of death of surupa. It cannot be said that the learned judge was correct to hold in dealing with section 32 (1) of the evidence act that surupa made any statement as to the cause of her death or as to any circumstances of the transaction which resulted in her death. Under certain circumstances such statement may have tremendous effect on the mind of a judge and may be a reliable piece of evidence. This finding in the present case might have greatly influenced the mind of a judge against pritilata and indranath.”
(13) Ramendra Nath Mukherjee the father of surupa who was the complainant to the ballygunge police station, ultimately filed an application under Article 136 of the constitution against the judgment of R. Bhattacharyya, j. And R. K. Sharma, j. To the Supreme Court. Indranath also moved another application under article 136. The supreme court in slp (grl) no. 170/78 (1) Ramendra Mohan Mukherjee v. Satikanta Guha and anr.) passed the following order on the 10th april, 1978: –
“counsel for the petitioner urges that the order of the High Court discharging respondents nos. 1 and 2 (that is satikanta and pritilata) is unwarranted since there is enough material in the statement under section 161 cr. P. C. To justify framing of charges against them. We decline to investigate this matter and interfere with the order of the high court.
However, we make it clear that it is open to the sessions court, in case there is evidentiary warrant for it to frame charge under section 109 Cr. P. C. By conspiracy under section 120B Cr. P. C. As between the servant (Jhantu Dutta) and the husband (Indra Nath Guha).
Counsel for the petitioner further contends that since the effect of the high court’s order is only a discharge under section 227 cr. P. C. It is perfectly within the jurisdiction of sessions court to frame charges against the discharged accused in the event of sufficient additional material coming in the course of the trial. He states that this is the correct legal position. We are not called upon to investigate and do not pronounce upon the soundless of this position. If the sessions court does frame charges on this basis, it will be open to the parties to have the point of law canvassed and decided. With these observations, we dismiss the petition.”
(14) After the supreme court’s order of the 10th april, 1978, the trial commenced against indranath guha and jhantu charan dutta before shri R. Mahapatra, additional sessions judge, 6th court, Alipore.
(15) In course of the trial the prosecution has examined three witnesses in full and the evidence of the 4th witness has been partially recorded.
(16) In the examination of prosecution of witness no. 3 Rabindra Mohan Mukherjee, the prosecution sought to introduce some alleged statements of the deceased made to the witness in reply to questions put to him which, according to the petitioner, as to the cause of Surupa’s death or as to any of the circumstances of the transaction which resulted in her death and, as such, they are not admissible under section 32 (1) of the Evidence Act. Similar answers were sought to be elicited from p. W. 4. The mother of the deceased in course of her examination – in – chief.
(17) Rabindra Mohan Mukherjee, the grandfather of Surupa, who was the prosecution witness no. 3 stated before the additional sessions judge that the deceased had told him about 8/10 days before her death that cruelty (atyachar) upon her had increased more than ever. She said that her father – in – law, her mother – in – law and her husband did so. She said further that cruelty (atyachar) upon her was heartrending and if she told all that to her grandfather her grandfather’s heart would fail.
(18) Amiya Mukherjee the mother of Surupa, who was p. W. 4, also stated in her evidence that surupa, “objected,; to the disagreement between her and indranath. Surupa said to the witness that indranath used to come back daily in drunken condition and oppress surupa (atyachar korto). On the 12th April, 1976 surupa told the witness that indranath would go to gauhati on the 14th and she was accompanying him by force. This witness also narrated an incident when one chhaya sen asked the witness to suggest the name of a suitable bridegroom for Chhaya Sen’s daughter on the 10th april, 1976. Surupa was present at that time. She said to the witness that the witness should not intervene in the matter of anyone’s marriage. Surupa said further that the witness had ruined surupa’s life by marrying her to diamond’ gold and wealth and should not spoil the life of any one else.
(19) The admissibility of these alleged statements of the deceased was raised before the learned additional sessions judge. It was urged on behalf of indranath that these statements did not relate to the cause of surupa’s death nor did they relate to any of the circumstances of the transaction which resulted in her death. They are not admissible under section 32 (1) of the evidence act. The learned additional sessions judge’s attention was also drawn to the high court’s judgment referred to above. It was pointed out that the question of admissibility of the alleged statements of surupa had already been decided by the high court and the additional sessions judge was not competent to reopen the same.
(20) The additional sessions judge overruled these objections by his impugned orders and allowed the prosecution to question the witnesses about the alleged statements which the deceased had made and recorded the answers of these witnesses. The additional sessions judge while disposing of the objections raised has stated, inter alia, as follows: –
“in the instant case so far as the prosecution allegations suggest, Surupa’s death was the final event, and that final event resulted from the transaction of which the alleged supply of poison was a part. Again, the charge against indranath being one of abetment of the murder of surupa and the consequence of the alleged abetment being supply of poison the alleged intention inspiring the abetment as well as the alleged cruelty on the part of indranath as a pointer to such intention was a circumstance of the transaction of which the alleged supply of poison was a part which resulted in the final event of the death of surupa. Viewed in this perspective and also having regard to section 6 of the evidence act, the statement of the deceased surupa 8/10 days before her death (as alleged in the evidence of p. W. 3) would be relevant under section 32 (1) of the indian evidence act without presenting any conflict relied upon by the learned defence lawyer. It would be relevant also within the limited ambit of the expression “circumstances of the transaction which resulted in his death “as used in section 32 (1) of the indian evidence act. “
(21) These observations were made by the additional sessions judge in order no. 12 dated 18. 7. 78 which is under challenge. It appears that the additional sessions judge has pronounced upon the admissibility of alleged statement of surupa to her grandfather Rabindra Mohan Mukherjee 8/10 days before her death on two grounds. According to the learned trial judge these alleged statements are admissible under section 32 (1) read with section 6 of the indian evidence act. Secondly, they are also admissible within the limited ambit of section 32 (1).
(22) The other orders under challenge are order nos. 15, 16 and 17 dated the 20th july, 1978. In order no. 16 the learned trial judge has dealt with the admissibility of some portions of the evidence of p. W. 4. Mrs. Amiya mukherjee, the mother of surupa. Learned counsel appearing for the defence contended before the additional sessions judge that the evidence was inadmissible on the ground that in paragraph 11 of the judgment of r. Bhattacharyya, j. Which we have already referred to, the statements of the deceased surupa were held to be inadmissible. The learned trial judge did not accept this contention. He has referred to the preceding sentences in Bhattacharyya, j. ‘s judgment. Bhattacharyya, j. Has said : “the statements of those witnesses say that indranath and pritilata in particular treated with cruelty surupa and that pritilata told surupa to commit suicide. The date for such suggestion for suicide does not appear to be near about the date of death of surupa”. The learned trial judge has also referred to other portions of the high court’s judgment and proceeds to state as follows: – “therefore, i cannot persuade myself on a reading of the aforesaid decision as a whole that the hon’ble high court has debarred this court from considering the question of admissibility into evidence of any statement of deceased surupa and from admitting any such statement into evidence, if it is found admissible under the rules of evidence. The point raised in this regard by the defence is disposed of with this observation”.
(23) The additional sessions judge has noted that objection raised by the defence have been duly recorded in the depositions and the petition filed in this regard on behalf of the defence shall also be kept on record.
(24) In order no. 16 the defence objections to surupa’s alleged statements about her marriage to diamond, gold, etc. Have been discussed. It was argued on behalf of the defence that in the charge against indranath nothing has been stated about “sustained cruelty”. The learned trial judge’s view is ” “having regard to the word “intentionally’ as used in the third clause of section 107 i. P. C. And the prosecution allegation about indranth’s cruelty having gone to the making of an intention on his part in the matter of abetment, i regard the aforesaid statement of surupa as an admissible statement of a circumstance of the transaction which resulted in her death. The absence of the words ‘sustained cruelty’ in the charge, in my opinion, makes no difference to the situation. The objection raised is disposed of with this observation. “
(25) In order no. 17 the additional sessions judge has disposed of a petition filed on behalf of indranath that he should be granted two week’s time to move the high court against orders nos. 15 and 16 as well as some earlier orders. The principal contention of the defence was that by admitting the alleged statements of the deceased under section 32 (1) of the evidence act, the additional sessions judge has gone against the high court judgment. The learned trial judge after giving his reasons has allowed the defence prayer to enable indranath to come to this court under section 482 cr. P. C. Indranath, therefore, cannot complain against this order.
(26) From what we have stated above it is clear that before the learned trial judge objections were raised to the admissibility of alleged statements of surupa to her grandfather and to her mother on two grounds. Firstly, they did not relate to any of the circumstances of the transaction which resulted in supra’s death, and as such, they were inadmissible under section 32 (1) of the indian evidence act. Secondly, the alleged statements of the deceased have already been held by Bhattacharyya and Sharma, jj. To be inadmissible and the learned additional sessions judge by allowing those statements, in spite of objections, to be recorded was going against the high court’s judgment.
(27) The present application was made under section 482 cr. P. C. But in course of arguments learned counsel for indranath has relied on section 297 as well.
(28) Section 482 Cr. P. C. Runs thus:
“482. Saving of inherent powers of the high court – nothing in this code shall be deemed to limit or affect the inherent powers of the high court to make such orders as may be necessary to give effect to any order under this code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.”
(29) Let us turn to section 397 (1) and (2). The relevant provisions are:
“397. Calling for records to exercise powers of revision. (1) the high court or any sessions judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. (2) the powers of revision conferred by subsection (1) should not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.”
(30) The high court’s revisional powers under section 397 (2) and its inherent power under section 482 have recently been considered in two supreme court judgments. Many other cases were cited before us on this point but, for the purpose of disposal of this application, it would not be necessary for us to refer to those cases. In (2) amarnath v. State of haryana, air 1977 sc 2185 a bench of the supreme court consisting of untwalia, murtaza fazal ali, jj. Has expressed the view that section 482 contains the inherent powers of the court and does not confer any new powers but preserve the powers which the high court already possessed. A harmonious construction of section 397 and 482 would lead to the irresistible conclusion, says the supreme court that, where a particular order is expressly barred under section 397 (2) and cannot be subject of revision by the high court, the provisions of section 482 would not apply.
(31) In amarnath’s case the supreme court has also reiterated the view that it is well settled that the inherent powers of the court can ordinarily be exercised when there is no express provision on the subject matter. When there is an express provision barring a particular remedy, the court cannot resort to the exercise of inherent powers.
(32) The judgment in amarnath’s case was delivered by murtaza fazal ali j. And untwalia, j. Concurred with it.
(33) In amarnath’s case, therefore, the supreme court’s view was that if an application was not maintainable under section 397 (2) , the court would not be entitled to exercise its inherent powers under section 482. In (3) Madhu limaye v. State of Maharashtra, air 1978 s. C. 47 three learned judges of the supreme court were of opinion that the previous view in amarnath’s case was “not quite correct and needs some modulation”. The judgment in Madhu limaya’s case was delivered by Untwalis, j. Who was a party t the previous judgment. Paragraph 8 at page 50 of this judgment is as follows: –
“under section 435 of the 1898 code the high court had the power to ‘call for and examine the record of any proceeding before any inferior criminal court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior courts, and then to pass the necessary orders in accordance with the law engrafted in any of the section following section 435. Apart from the revisional power, the high court possessed and possesses the inherent powers to be exercised ex debito justitise to do the real and substantial justice for the administration of which alone court exists. In express language this power was recognized and saved in section 561a of the old code. Under section 397 (1) of the 1973 code revisional power has been conferred on the high court in terms which are identical to those found in section 435 of the 1898 code. Similar is the position apropos the inherent powers of high court. We may read the language of section 482 (corresponding to section 561 of the old code) of the 1973 code. It says: “. “
(34) At the outset the following principles ay be noticed in relation to the exercise of the inherent power of the high court which have been followed ordinarily and generally, almost invariably, barring a few exceptions.
1. That the power is not to be resorted to if there is a specific provisions in the code for the redress of the grievance of the aggrieved party; 2. That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice; 3. That it should not be exercised as against the express bar of law engrafted in any other provision of the code. “
(35) The present position in law, therefore, appears to be that an application may not be maintainable under section 397 cr. P. C. , yet high court is entitled to invoke its inherent powers under section 482 cr. P. C. And give appropriate relief in proper cases. The inherent power under section 482 cannot be exercised at all, if there is a specific provision in the cr. P. C. For the redress of the grievance complained of. The inherent power has to be exercised with caution and in exceptional cases (a) to prevent the abuse of the process of any court or (b) to secure the ends of justice. The inherent power should not be exercised against any express bar that may have been imposed by the cr. P. C. Itself.
(36) We have said that this application has been made under section 482 of the cr. P. C. We shall examine further at a later stage what is meant by abuse of the process of court of securing the ends of justice. In course of this arguments, as we have already stated, learned counsel for the petitioner relied extensively on section 397 cr. P. C. As well. The learned special public prosecutor did not raise any objections to the petitioner’s reliance on section 397. For the sake of convenience, therefore we propose to discuss the arguments advanced before us on the basis of section 397 before we come to section 482. We have already seen that sub section (2) of section 397 has laid down in explicit terms that the high court’s or the sessions judge’s revisional powers cannot be exercised in relation to any interlocutory order. We have, therefore, to determine what is meant by an interlocutory order and whether the impugned orders herein were interlocutory orders.
(37) According to counsel for the petitioner the impugned orders are not interlocutory orders at all as the learned trial judge has given his final decision on the question of admissibility of the deceased’s statement. Section 136 of the evidence act provides, inter alia, that when either party proposes to give evidence of any fact, the judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. Counsel for the petitioner has urged that in the instant case the learned trial judge has admitted the impugned evidence under section 136 of the evidence act and his order admitting such evidence are final and not interlocutory orders.
(38) We are not inclined to accede to this contention of learned counsel for the petitioner. In the (4) Central bank of India. V. Gokal Chand, air 1967 sc 799, a few specific examples of interlocutory orders have been mentioned and for the purpose of this application these examples are of considerable significance. The supreme court was dealing with certain sections of the delhi rent control act, 1958. In paragraph 3 at page 800 the supreme court observed, inter alia,:
“in a pending proceeding, the controller may pass many interlocutory orders under ss. 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders”
.
(39) The supreme court, therefore, is clearly of opinion that an order relating to the admissibility of a document or the relevancy of a question is an interlocutory and not a final order and it does not affect any right or liability of the parties. If an order concerning the relevancy of a question or the admissibility of documentary evidence is an interlocutory order it is obvious that an order concerning the admissibility of oral evidence is also an interlocutory order.
(40) The observation of the supreme court which we have quoted above, have been specifically relied on in paragraph 7 at page 2189 of the supreme court’s judgment in amarnath’s case reported in air 1977 s. C. At page 2185. And in madhu limaya’s case also (air 1978 s. C. 47) there does not appear to be any departure from those principles. We have, therefore, to reach the conclusion that the impugned orders herein are interlocutory orders which cannot be assailed under sub – section (2) of section 397 of the code of criminal procedure, 1973.
(41) This view of ours can be supported by other provision of law as well. Mr. Banerjee for the petitioner drew our attention to section 136 of the evidence act; but section 167 of the same act says that the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.
(42) It appears to us that failure of procedural justice and improper admission of evidence, if any, are two distinct conceptions. Section 465 of the criminal procedure code makes provisions for reversal of a finding or a sentence by reason of error, omission or irregularity. Sub – section (2) of section 465 has prescribed that in determining whether any error, omission or irregularity in any proceeding under this code, or any error, or regularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could or should have been raised at an earlier stage in the proceedings. With regard to error, omission or irregularity in a proceeding under the code which may be succinctly called ‘prejudice in procedure’ an objection should be taken at the earliest possible moment. In the instant case there is no dispute that the proper procedure is being followed at the trial. The dispute is with respect to the admissibility of certain alleged statement of the deceased. This is, therefore, a case not of failure of procedural justice but of improper admission of evidence, if at all, in such a case the provision of section 167 of the evidence act cannot be overlooked.
(43) We have also to refer to section 235 of the cr. P. C. Sub – section (1) of section 235 clearly lays down that after hearing arguments and points of law (if any) , the judge shall give a judgment in the case. The learned special public prosecutor has conceded and in our opinion, he has rightly conceded that, the point of law as to the admissibility of any evidence in the context of the totality of the evidence can be urged at the final argument on behalf of the defence before the judge pronounces his judgment. And the impugned orders cannot would not stand in the way of arguments that may be advanced against admissibility. This is another reason why the impugned orders appear to us to be interlocutory orders only. In fact in the instant case the learned trial judge has given an indication that he was expressing his tentative view in order no. 12 of the 18th july 1978. In the opening sentence of the second paragraph of this order he said : “the point before me at the present moment arises in the following way. ” this shows that he was conscious of the fact that at the final stage of arguments he has to hear the parties on all points of law as enjoined by section 235 (1) of the cr. P. C.
(44) For all the reasons aforesaid we are of opinion that the impugned orders are interlocutory orders and by reason of sub – section (2) of section 397 of the cr. P. C. We have not revisional jurisdiction to interface with them.
(45) Assuming, however, for the sake of argument that these are final orders, it is worth while discussing the circumstances in which interference under section 397 of the cr. P. C. Is possible.
(46) Sections 435 and 439 of the cr. P. C. Of 1898 were the sections which dealt with (a) powers of higher courts to call for records of inferior courts and (b) the high court’s powers of revision. In the code of 1973 the provisions of these sections have been incorporated with certain modifications in section 397 and 401. The supreme court in (5) amar chand agarwala v. Shanti bose, air 1973 s. C. 799 at page 804 (paragraph 20) pronounced upon the circumstance in which the high court’s power of revision could be exercised under section 439 of the code of 1898. The supreme court said :
“the jurisdiction of the high court is to be exercised normally under section 439, criminal procedure code, only in exceptional cases, when there is glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.”
(47) It does not seem to use that the new sections in the 1973 code have made any charges in regard to the broad principles of invocation of the high court’s revisional powers. These powers can be exercised in exceptional cases only to correct a glaring defect in the procedure or a manifest error law resulting in a flagrant miscarriage of justice.
(48) We have already referred to the provisions of section 167 of the evidence act. The judicial committee considered this section in (6) abdul rahim v. Emperor, air 1946 p. C. At page 82. At page 85 lord macmillan says :
“the first question submitted relates to the effect of the misreception of evidence. It has been found by the high court that in the present case material evidence was improperly admitted. What are the powers and what is the duty of the high court in such circumstances? it was contended for the appellant that the evidence improperly admitted might have so seriously prejudiced the mind of the jury as to have brought about a failure of justice and he was entitled on a new trial to have the verdict of a jury on proper evidence. To this submission section 167 evidence act affords a complete and conclusive answer. The improper admission of evidence is thereby expressly declared not to be a ground of itself for a new trial. The appellate court must apply its own mind to the evidence and after discarding what has been improperly admitted decide whether what is left is sufficient to justify the verdict. But the appellate court is satisfied that there is sufficient admissible evidence to justify the verdict is plainly entitled to uphold it. If the misreception of evidence is an irregularity within the meaning of section 537, criminal p. C. (1898) , on which their lordships find it unnecessary to pronounce an opinion it plainly has not occasioned a failure of justice where, as here, the appellate court obeying the injunction contained in section 167, evidence act, has found that there is sufficient admissible evidence to justify the verdict.”
(49) We have quoted the above observations of the privy council to emphasize that the high court’s revisional powers can be exercised in exceptional cases where there has been flagrant miscarriage of justice. Misreception of evidence, if any, does not necessarily involve failure of justice and therefore the high court should be reluctant to use its powers under section 397 and section 401 of the cr. P. C. Of 1973 on this ground when the trial is still proceeding.
(50) While we are on the subject of glaring defect in procedure or manifest error of law resulting in flagrant miscarriage of justice it is convenient to discuss the respective contentions of the parties before us on the evidence which the learned trial judge has admitted in spite of objections raised on behalf of the petitioner. We would first read the impugned evidence of p. W. 3 rabindra mohan mukherjee and p. W. 4 amiya mukherjee. We have been given copies of their evidence bearing numbers of the questions put to them. Rabindra mohan mukherjee was the grand father of surupa guha, deceased. Surupa’s nick name was dola. Questions 16 to 25 of rabindra mohan mukherjee asked in examination – in – chief are as follows: –
Q. 16. When did dola last visit you before her death? a. 8/10 days before her death. Q. 17. Did she come alone on that day to you or with her daughter? a. She came with her daughter as she used to do always. Q. 18. How old was her daughter then? a. She was born in 1970 q. 19. What was the name of dola’s daughter? a. Baby. Q. 20. How many children has dola? a. She had only one child. Q. 21. How did you see dola on the last day of her visit to you? a. I saw her perturbed and sad and morose. Tears were rolling down her eyes. Q. 22. Did you ask dola anything on seeing this? a. I asked her what the matter was with her. I asked her why she was having such a health. I asked her further what the matter was with her father – in – law’s place. I asked her also whether the earlier state of things had changed. Q. 23. What did she reply? (question is objected to on behalf of accused jhantu and accused indranath). Continued on 18. 7. 98 a. She told me that cruelty (atyacher) upon her had increased more than ever. Q. 24. Did she tell you who did so? (objected to). A. She told me that both her father – in – law and mother – in – law and her husband did so (objected). She told me further that cruelty (atyachar) upon her was heartrending. Q. 25. What happened thereafter? a. Thereafter, surupa said that if she told all that, my heart would fail.
(51) In the examinatioin – in – chief, therefore, the alleged statements of the deceased which the learned trial judge had admitted were said to have been made 8/10 days before her death. Mr. Banerjee for the petitioner complained that “8/10 days” were introduced for the first time during the trial. This was not said by the witness in his statement recorded under section 161 of the cr. P. C. Whether or not the learned trial judge would believe rabindra mohan mukherjee is a matter for him to decide. At the present moment we are concerned with alleged statements of the deceased made 8. 10 days before her death which have been recorded in course of the examination – in – chief, in cross – examination, however, certain statements were extracted from the witness which are indeed interesting. Mr. Banerjee cannot complain against the recording of the witness’s evidence in cross – examination. Let us know read qs 36 to 48 in cross – examination and the answer to those questions.
Q. 36. When did you notice surupa looking sad, despondent and morose after her marriage? a. In the early period of 1972. Q. 37. There was discussion between you and surupa in the matter? a. Yes. Q. 38. According to you, surupa told you that cruelty (atyachar) was being done? a. Yes. Q. 39. She did not give you the details of the way in which she was being maltreated? a. She did not. Q. 40. Did you ask for the details? a. Yes. Q. 41. Did she give you details when you asked for the same? a. No. Q. 42. Did she give you the reason why she did not give you details? a. She told me that she would mend maters having regard to her daughter. Q. 43. Did she tell you that she did not like to tell you anything, and that if she told you, you, being 80 years old might die of heart failure? a. Yes. Q. 44. This happened in the year 1972. A. Yes. Q. 45. Never was any discussion thereafter between you and surupa over her maltreatment by indranath? a. 8/10 days before her death she came to me in a perturbed condition and there was a discussion between me and her. Q. 46. Did you tell police that 8/10 days before her death you had a discussion with her? a. Yes, then says i did not tell “8/10 days before her death”. Volunteers i stated ‘later”. Q. 47. Again, no details were given by surupa? a. No details were given. Q. 48. I put it to you that after 1972 there was no discussion between you and surupa about her maltreatment? a. I had discussion with her about it in 1972 as well as afterwards.
(52) We, therefore, find that before the trial court alleged statements of the deceased said to have been made 8/10 days before her death have been recorded in examination – in – chief. In cross – examination however, some of her alleged statements made about four years prior to her death have gone in.
(53) We would now discuss the evidence of p. W. 4 amiya mukherjee the mother of surupa. The questions objected to are qs. 48 to 51, 62 and 63 and 77 and 78. These are all questions put in examination – in – chief. Let us now read the relevant portions of the evidence of amiya mukherjee including the questions objected to.
Q. 46. What kind of married life did surupa have? a. Initially, it was a happy married life. Q. 47. By saying ‘initially’ what did you mean to say? a. By ‘initially’ meant ‘after marriage’. Q. 48. What happened thereafter? a. Thereafter the nature of indranath did not agree with the nature of dola. Q. 49. Did surupa put up with this disagreement or did she object? (objected to). A. She objected. Q. 50. What was the objection? (objected to). A. He used to come back daily in drunken condition to oppress her (attachyar karto). (objected to). (objection is raised on behalf of the accused indranath u/s. 54 of indian evidence act). Q. 51. For how long did it continue? a. Till the last day of surupa’s life. (objected). Q. 62. In march/april, 1976 did anything in particular happen in the matter of the relationship between indranath and surupa? a. On 12th april, 1976 dola came and told me that indranath would go to gauhati on 14th april next. (objected to) (objection overruled). Q. 63. Did dola tell anything else? a. She told me further that she was accompanying him by force to gauhati. (objected to). (objection overruled). Q. 64. Was indranath going alone? a. No. He was going there with a lady. Dola accompanied him by force along with her baby. Q. 73. When did you last see chhaya sen at your residence prior to the death of surupa? a. On 10th april in the evening. Q. 74. 10th april of which year? a. Of 1976. Q. 76. What happened on the 10th april, 1976? a. In the evening that day surupa also came. Q. 76. Thereafter what happened? a. Chhaya sen asked me to suggest a good bridegroom for her daughter. Q. 77. Thereafter what happened? a. On hearing this surupa aid that i should not intervene in the matter of anyone’s marriage. (objected to). Q. 78. Did surupa say anything else? a. Surupa said further i had ruined her life by marrying her to diamond, gold and wealth and that i should not spoil the life of anyone else. (objected to).
(54) It is to be observed that in qs. 48 to 51 amiya mukherjee p. W. 4 did not refer to any statements made by the deceased. An objection was raised to the answer to question 50 not on the ground of its inadmissibility as a statement of the deceased but under section 54 of the evidence act which says that in criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant. We are not, at the moment, concerned with objections to admissibility on the basis of section 54, of the evidence act.
(55) In qs. 62 and 63 certain alleged statements of the deceased made on the 12th april, 1976 have been recorded. In qs. 77 and 78 the statements alleged to have been made by her on the 10th april, 1976, have been recorded. She died on the 4th may, 1976. Both the alleged statements, therefore, were made it at all, about three weeks before her death.
(56) At this stage it is relevant to refer to the provisions of the evidence act on which the learned special public prosecutor has relied to support his contention that all the statements of the deceased alleged to have been made to p. W. 3 and p. W. 4 and recorded in the examination – in – chief of these two witnesses admissible.
(57) Section 3 of the evidence act lays down, inter alia, what a ‘fact’ is. It says:
1. Any thing, state of thing, or relation of things, capable of being perceived by the senses; 2. Any mental condition of which any person is conscious. Illustrations. (c) that a man said certain words, if a fact. (c) that a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(58) Section 3 also defines “facts in issue”. The provision is: “the expression facts in issue” means and includes any fact from which, either by itself or in connection with other facts, the existence, non – existence, nature, or extent of any right, liability, or disability asserted or denied in any suit or proceeding, necessarily follows: illustrations. A is accused of the murder of b. At his trial the following facts may be in issue: -. That a intended to cause b’s death;. .
(59) Section 3 is in part i of chapter i of the evidence act, chapter ii of part i is the chapter “of the relevancy of facts”. Chapter ii contains all the sections which have been placed before us at the hearing of this application. Section 5 in chapter ii prescribes: “evidence may be given in any suit or proceeding of the existence or non – existence of every fact in issue and of such other facts as are hereinafter declared to be relevant and of no others. Illustrations:
(a) a is tried for the murder of b by beating with a club with the intention of causing his death. At a’s trial the following are facts in issue: -. A’s intention to cause b’s death.
Section 6 provides:
“facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.”
Illustrations:. .
(c) a sues b for a libel contained in a letter forming a part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d) the question is, whether certain goods ordered from b were delivered to a. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact. “
Section 7 runs thus:
“facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or the facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.”
(60) The learned special public prosecutor has submitted to us that the prosecution’s case is that sustained cruelty was an occasion or cause of the murder of surupa. When sustained cruelty failed, the murder was committed.
(61) Section 8 of the evidence act is as follows: “any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
“the conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, in relevant, if such conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or subsequent thereto.”
Explanation 1: – the word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy under any other section of this act. Explanation 2: – when the conduct of any person is relevant, any statement made to him or in his presence or hearing which affects such conduct, is relevant. Illustrations: (j) the question is whether a was ravished. The fact that shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (i) of as corroborative evidence under section 157.
(62) Section 9 of the evidence act runs thus:
“facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by which any such fact was transacted, are relevant in so far as they are necessary for that purpose.”
Section 11 lays down:
“facts not otherwise relevant are relevant: – (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other fact they make the existence or non – existence of any fact in issue or relevant fact highly probable or improbable.”
Section 14 provides:
“facts showing the existence of any state of mind such as intention, knowledge, good faith, negligence, rashness, ill – will or good – will towards any particular person, or showing the existence of any state of body or bodily feeling are relevant, when the existence of any such mind or body or bodily feeling, is in issue or relevant.”
Explanation 1. – a fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question. Explanation 2. – but where, upon the trial of a person accused of an offence, the previous commission by accused of an offence is relevant within the meaning of this section the previous commission by the accused of an offence is relevant within the meaning of this section the previous conviction of such person shall also be a relevant fact. Illustrations: 1. The question is, whether a’s death was caused by poison,. Statements made by a during his illness as to his symptoms, are relevant facts. “
(63) Lastly, we come to section 32 (1) on which the principal arguments of the parties have been based. It runs thus: – section 32 (1).
“statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases: – (1) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
(64) We have purposely quoted the relevant provisions of the evidence act on which reliance was placed by counsel for the parties in order that the arguments that they had advanced may be better appreciated to enable us to determine (a) whether we should make any pronouncement as to the admissibility of the impugned evidence at this point of time when the trial has just commenced and (b) whether interference by us either under section 397 or under section 482 cr. P. C. Is called for.
(65) The learned trial judge has considered various decision in his impugned orders. We have already noted that in one of the orders, namely order no. 12 dated 18. 7. 78 he has stated, inter alia;
“having regard to section 6 of the indian evidence act, the statement of the deceased surupa 8/10 days before her death (a alleged in the evidence of pw 3) would be relevant under section 32 (1) of the indian evidence act without presenting any conflict relied upon by the defence lawyers. It would be relevant also within the limited ambit of the expression ‘circumstances of the transaction which resulted in his death’, as used in section 32 (1) of the indian evidence act.
.(66) The alleged statements of surupa, therefore, about which pw 3 rabindra mohan mukherjee has deposed which she made 8/10 days before her death has been held to be admissible under section 32 (1) read with section 6 of the evidence act and also under section 32 (1) alone. The learned special public prosecutor has submitted to us that the trial judge took the same view with regard to surupa’s alleged statements on the 10th april, 1976 and the 12th april, 1976 about which p. W. 4 amiya mukherjee the mother of surupa has deposed.
(67) Mr. Sankar das banerjee, learned counsel for the petitioner has strongly urged that section 32 is the only section of the evidence act under which statements of a deceased person can be admissible. He has urged further that statements alleged to have been made by the deceased 8/10 days before her death or about three weeks before her death cannot be said to be of the circumstances of the transaction which resulted in her death. Mr. Banerjee has relied on a number of decisions. We shall refer to some of them just to indicate the nature of the controversy raised before us. In (7) Ravjappa v. Nilakant, AIR 1962 mysore 53, a division bench of the mysore high court has said that recitals in a document not inter parties are not ‘facts’ as mentioned in section 11 of the evidence act unless the existence of those recitals is itself a matter in issue. The mysore high court has observed further that section 32 is an exception to the rule f hearsay and it is not proper to read section 11 as an exception to section 32. Mr. Banerjee submits that this judgment supports his contention that the deceased’s statements are admissible only under section 32.
(68) On the question of proximity of the statements to the transaction resulting in death, mr. Banerjee relied on several calcutta decisions and a madras decision. In (8) gokul chandra chatterjee v. The state, air 1950 cal 306, harris c. J. And bachawat, j. Had to deal with letters written by a woman to members of her family during a period of five to nine months before her suicide. The letters showed that her state of mind was seriously affected by sustained and continuous cruelty of the accused gokul and his co – accused. The division bench has held that though the statements in the letters had some relations to the cause of her suicide, they were not sufficiently or closely enough connected with the actual transaction and could not be said to be circumstances of the transaction which resulted in death and hence were not admissible under section 32 (1).
(69) In (9) satish chandra saha v. The state, air 1954 cal. 379 mitter and sen jj. Were of the view that the statement of deceased that he was going to the accused to release his cow which the accused had confined made almost immediately preceding the quarrel over the recovery of the cow during the course of which the deceased had sustained an injury from the accused resulting in his death, was admissible in evidence under section 32 (1) as it related to the circumstances of the transaction which resulted in his death.
(70) In (10) nimoo pal v. The state, air 1955 cal. 559, mitter and renupada mujherjee, jj. Have said that a statement of the deceased as to some matter other than the cause and/or circumstances of his death made two days prior to his death is inadmissible and the fact that the object of introducing this piece of evidence was to furnish a background or indeed motive for the crime cannot excuse the reception of inadmissible evidence.
(71) In (11) public prosecutor v. Munigan, air 1941 mad. 359, burn and mockett, jj. Gave their decision in a murder case in which it was in evidence as an alleged motive for the murder that the accused had been on intimate terms with certain girl and the deceased was attempting to arrange the marriage of that girl with another person. The evidence for this alleged motive for the murder was derived from the statements said to have been made by the deceased prior to her death. It was held that these statements were inadmissible under section 32.
(72) Mr. Banerjee relied on these decisions and also referred to a few others to convince us that what surupa said to her grandfather 8/10 days before her death or what she aid to her mother on the 10th or 12th april, 1976 were inadmissible in view of the fact that these alleged statements had no connection with any of the circumstances of the transaction which resulted in her death.
(73) The learned special public prosecutor has, on the other hand, contended before us on the last day of the hearing on the 7th november, 1978 that the impugned evidence of p. W. 3 is admissible under section 6, section 8, section 14 and section 32 of the evidence act. His further contention is that the impugned evidence of p. W. 4 is admissible under sections 6, 7, 8, 9, 14 and 32. He has referred us to a number of decisions in support of his contention that section 32 is not exhaustive and the statement of a deceased may be admitted (a) under section 32. (b) under section 32 read with other sections of the evidence act and (c) under other sections of the evidence act. He has particularly drawn our attention to illustration (1) to section 14 which we have quoted above. He has also submitted that the question of “proximity” depends on the fact and circumstances in each case.
(74) We do not intend to refer to all the decisions he has cited; but only to some of them on which he ha advanced elaborate arguments. In (12) goloke behari v. Emperor, air 1938 calcutta, 51 mcnair and biswas jj, have said that in a trial for conspiracy to murder the deceased, a written complaint to the s. D. O. By the deceased stating that the complainant seriously apprehended danger to his life, liberty and reputation is admissible under section 8 as evidence of conduct of the deceased, an offence against whom was the subject for trial, such conduct being influenced by his fear of injury.
(75) In (13) allijan munshi v. State, air 1960 bom. 290, it has been observed by shah and naik, jj. That the admissibility of statements alleged to be made by persons who are not available to give evidence on account of circumstances set out in section 32 is not circumscribed by that section. If a statement made by a person since deceased, is admissible under a provision other than section 32, it can be admitted though it does not fall within the provisions contained in section 32. A complainant in writing made to the police by a person who dies some time thereafter, expressing apprehension of death at the hands of a certain person is admissible in evidence under sections 32 (1) and 8 of the evidence act, when the person whose conduct is the source of apprehension, is charged with the offence of murder of the person making the complaint. The statement is also admissible as relating to “the circumstances of the transaction which resulted in his death”, within section 32 (1). It cannot be held in such cases that there was no proximate connection between the death of the complainant and the complaint, from the fact that the complaint was made nearly two months before the death. In any event, the fact of the making of the complaint is admissible as explanatory of the conduct of the complainant under section 8. The fact that the deceased had made a complaint to the police against the accused charging him with serious offences may also be admitted as showing a motive under section 8. The bombay high court relied, inter alia, on the calcutta high court’s judgment in goloke behari’s case which we have already referred to.
(76) In (14) chinnavalayan v. The state of madras, (1959) 1 mad. Law journal, 246 somasundaram and ramaswami, jj. Have said that section 32 (1) of the evidence act refers to two kinds of statements; (1) when the statement is made by a person as to the cause of his death, or (2) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words “resulted in his death” do not mean ’caused his death”. Declarations are admissible only in so far as they point directly to the fact constituting the res gestae of the homicide; that is to say to the act of killing and to the circumstances immediately attended thereon like threats. Acts, declarations an incidents which constitute or accompany and explain the fact or transaction in issue are admissible for or against either party as forming parts of res gestae. The statements made by witnesses for the prosecution that the deceased told them that he had brought the vessel and arrack of the accused a little while ago would afford a motive for the accused to commit the crime and is admissible under sections 8 and 32 (1) of the evidence act.
(77) The case of (15) Pratima Dutta and anr. V. The state, (1977) calcutta high court notes, page 443, was a case of suicide by a girl called sumona by setting fire to her clothes. The prosecution case was that her husband and her mother – in – law treated her with utmost cruelty, tortured her and used to exhert her to die or leave the house. Certain letters of the deceased were admitted in evidence in the trial court. P. K. Chanda and sudhamay basu, jj. Heard the appeal against conviction. In the appeal the admissibility of sumona’s letters was called in question. It was argued that the statements in the letters were too remote in point of time and too indefinite to constitute abetment of suicide, the letters were at best general evidence of abuse and cruelty and cruelty, as such, does not constitute abetment of suicide. The division bench has taken the view that under section 32 of the evidence act, nor all statements of the deceased can be taken into account. Only such statements as relate to circumstances of transaction resulting in death can be proved. ‘the transaction’ in this case is systematic ill – treatment for years since the marriage of sumona with incitement to end her life. Circumstances of the transaction include evidence of cruelty which produces a state of mind favourable to commit suicide. Although that would not by itself be sufficient unless there was evidence of incitement to end her life, it would be relevant as evidence. It cannot be held that the letters covering a period of less than two years are entirely inadmissible in evidence.
(78) The leading case on the meaning of the phrase “circumstances of the transaction” in section 32 (1) is the case of (16) pakala narayon swami v. Emperor reported in air 1939 pc at page 47. At page 50 their lordships of the judicial committee have said:” ‘circumstances of the transaction’ is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in ‘circumstancial evidence’ which includes evidence of all relevant facts. It is on the other hand, narrower than ‘res gestae’. Circumstances must have some proximate relation to the actual occurrence though, as for instance, in a case of prolonged poinoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that ‘the circumstances ‘are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than the death of the declarant has ultimately been caused, for the condition of the admissibility, of the evidence is that ‘the cause of (the declarant’s death) comes into question’.
(79) The privy council clearly laid down that the circumstances that are proved must have some proximate relation to the actual occurrence; but the privy council also said that there might be cases in which statements made even at a considerable distance from the date of occurrence might be admissible. From this point of view it would be worth – while remembering what Mookerjee and Richardson, jj. Stated in explaining the phrase ‘same transaction’ in (17) Amritalal Hazra v. Emperor, air 1916 calcutta, at page 188. The division bench explicitly laid down: “it is not possible to frame a comprehensive formula of universal application to determine whether two or more acts constitute the same transaction; but circumstances which must bear on the determination of the question in an individual case may be easily indicated; they are, proximity of time, unity or proximity of place, continuity of action and community of purpose or design.
(80) The guidance seems to be that the statements of the deceased which are admitted under section 32 (1) must be statements of circumstances intimately and inextricably connected with the transaction resulting in death. The date of dates on which the statements were made from the view point of admissibility must be judged in the light of their link with the transaction that resulted in death.
(81) We have discussed briefly the rival contentions of the parties to say that the admissibility of the impugned evidence is a debatable proposition on which we ought not to give our final opinion at the moment. Everything would depend on the totality of evidence that is adduced by the parties in the trial court. We refrain from making any observations on whether the alleged statements of surupa made 8. 10 days before her death or on the 10th and 12th april, 1976 are admissible either under section 32 or under other sections of the evidence act or under section 32 read with any other section or sections of the evidence act. All that we say now is that we have failed to discover any glaring defect in procedure or manifest or palpable error of law resulting in flagrant miscarriage of justice which entitles the petitioner to invoke the provisions of section 397 of the cr. P. C.
(82) We have, however, to examine another contention of mr. Sankar das banerjee, namely, that admissibility of surupa’s statements has been barred altogether by the judgment of bhattacharjee and sharma, jj. In (18) satikanta guha v state of west bengal, 81 cwn at page 1034.
(83) In the earlier part of this judgment we have referred to this decision in satikanta guha’s case. We have also set out the reframed charged against jhantu charan dutta and indranath guha. We have said that reliance was placed on behalf of the petitioner herein on certain observations of bhattacharyya, j. With respect to the statements of witnesses who stated that indranath and pritilata in particular treated surupa with cruelty and told her to commit suicide. Bhattacharyya, j. Was of the view that the date of suggestion for suicide did not appear to be near about the date of death of surupa and held that such statements were inadmissible under section 32 (1) of the evidence act. It is now urged before us that by reason of the division bench judgment in satikatna guha’s case the alleged statements of surupa made 8/10 days before her death or on the 10th or 12th april, 1976 are inadmissible under section 32 (1).
(84) We have to scrutinize the two judgments carefully to see whether this contention of mr. Banerjee is sound. The reframed charges have been set out by bhattacharyya, j. In paragraph 19 at page 1044. In the last few lines of paragraph 20 at page 1045 Bhattacharyya, j. Has said : we make it clear that the finding arrived at in these cases are based on materials collected during investigation and meant only for the purpose of framing charges. Whether an accused is guilty of an offence or not will be proved at the trial and the learned trying judge will come to his findings on the basis of the evidence that may be adduced and tested, facts and circumstances and on hearing the parties concerned. “
(85) To us it seems that the observations which Bhattacharyya, j. Has made in his judgment relating to admissibility of the deceased’s statements, are confined to the framing of charges alone. It may be that his lordship was of opinion tht pritilata’s suggestion to surupa to commit suicide made long before her death was inadmissible under section 32 (1) : but we have not found any observation of Bhattacharyya, j. That all statements of the deceased are inadmissible under section 32 (1). In paragraph 22 at page 1045 bhattacharyya, j. Has observed :
“the other two applications, filed by indranath guha and jhantu charan datta respectively for quashing the proceeding against them are rejected. The orders framing charges under section 120 B IPC. Against indranath guha and jhantu charan datta and also the charges under section 201 IPC against jhantu charan are set aside. The learned sessions judge, 24 parganas will transfer or assign the session case against indranath and jhantu charan to some additional sessions judge at alipore for their trial. The learned judge to whose file the case will be transferred for trial shall recast the charges in prescribed form under section 302 read with section 109 IPC and also under section 201 IPC against indranath and also the charge under section 302 IPC against jhantu charan as indicated in our judgment, read over the same to them, take their pleas and proceed according to law for trial on the date fixed or at any convenient day. The learned judge will see that there should be an expeditious trial.”
(86) We now come to the judgment of Sharma, j. Who delivered a concurring but a separate judgment in the case. In paragraph 25 Sharma, j. Has observed :
“as regards the case of jhantu charan datta and indranath guha, there are circumstances and materials which cannot be overlooked at this stage. The strength and timber of those materials as well as legitimate inferences to be drawn from some peculiar circumstances are matters which are required to be tested on the touch – stone of a full fledged trial. This is not the proper stage for liberal comments and observations on those materials. Be it also noted here that these materials painstakingly gathered by the investigating officer are of course under severe challenge. Therefore to dwell upon those materials at this stage and to subject there to fuller microscope scrutiny or to make inflating or deflating comments may prejudice the trial to follow. Any observation or comment made at this stage does not carry the stamp of final consideration. Hence i refrain from proceeding further in this direction. Suffice it to say that i find no justification to quash the charges framed against the aforenamed two accused persons entirely.”
(87) Sharma, j. Has explicitly stated that any observation or comment which he has made does not carry the stamp of final consideration. There are similar observations in the judgment of bhattacharyya, j. As well. In paragraph 15 of the judgment bhattacharyya, j. , inter alia, says
“the materials on record are in the crude form and at the time of trial the matters collected would be placed in the form of evidence as would be admissible according to the evidence act. At that time if any material collected cannot be used as evidence,that would be of no use. At the present stage for consideration if charges are to be framed, the question of strict admissibility of evidence does not arise. That question of admissibility of evidence according to law will be considered when evidence would be adduced at the trial.”
(88) It is clear, therefore, that the division bench has not debarred altogether statements made by the deceased if they are otherwise admissible. Mr. Banerjee repeatedly told us that surupa’s grandfather did not say in his statement under section 161 Cr. P. C. That surupa had stated anything to him 8/10 days before her death. But section 162 of the cr. P. C. Makes it clear that an omission in a statement under section 161 affects the reliability of the omission and not its admissibility.
(89) Upon reading the judgments of the two learned judges who were on the division bench in a satikanta guha’s case and the supreme court’s observations thereon our conclusions are as follows: –
1. The findings of the division bench are applicable only to the stage of framing of charges and not to the trial. 2. The observations in paragraph 11 of the judgment in which reference has been made to pritilata’s suggestion to surupa to commit suicide long before her death relate to the framing of charge under section 120b of the i. P. C. 3. In any event, the division bench judgment did not bar reception of evidence under section 32 (1) at the trial except the alleged suggestion of pritilata to surupa to commit suicide made long before surupa’s death. 4. The supreme court’s observations do not in any way depart from what the high court has stated. 5. The division bench has not considered at all the question of omission of any statement under section 161 of the cr. P. C.
(90) We are, therefore, unable to uphold mr. Sankardas banerjee’s contention that all statements of the deceased have been barred by the division bench of this court.
(91) Before the supreme court, counsel for the petitioner ramendra mohan mukherjee contended that since the effect pf the high court order was only a discharge under section 227 cr. P. C. It was within the jurisdiction of the sessions court to frame charges against the discharged accused in the event of sufficient additional material coming in the course of the trial. The supreme court has said:
“we are not called upon to investigate and do not pronounce upon the soundness of this position. If the sessions court does not frame charges on this basis, it will be open to the parties to have the point of law canvassed and decided.”
(92) A pronouncement of the supreme court as stated by their lordships on this issue was not necessary. Both the parties before us have drawn our attention to sub – section (1) of section 319, cr. P. C. Which runs thus:
“where, in the course of any enquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.”
(93) In the instant case p. W. 3 rabindra mohan mukherjee has deposed about surupa’s statements 8/10 days before her death on “atyacher” of her father – in – law, mother – in – law and her husband. The father – in – law and the mother – in – law have both discharged by the division bench; but section 319 (1) cr. P. C. Does not bar the admissibility of this evidence if it be otherwise admissible, chakravartti, c. J. Sitting with sarkar, j. In (19) sunil chandra roy v. The state, air 1954 cal. 305, said at page 320 in paragraph 41: “speaking for myself, i cannot imagine how a witness, who has sworn to tell ‘the whole truth’ and is asked to say ‘what happened next’, can omit to give the whole story which he still maintains to be true, although a previous prosecution in regard to a part of it may have failed”. Sarkar, j. Has concurred with this view. Most respectfully we accept the view as the correct position in law.
(94) In these circumstances on the grounds stated above we do not see any cause for interference with the impugned orders of the learned trial judge.
(95) Mr. Banerjee has another grievance. He says that the additional sessions judge has admitted the answers to question 50 put to amiya mukherjee in violation of section 54 of the evidence act. We have already noticed that section 54 provides that the previous had character of an accused is not relevant except in reply. Amiya mukherjee in answer to question 50 has stated that the indranath used to come back daily in drunken condition and oppress surupa. This statement of amiya mukherjee, according to mr. Banerjee, should have been expunged by the learned trial judge when objections were raised under section 54. We have already said that the learned special public prosecutor has told us that he would try to prove that sustained cruelty was practiced on surupa to turn her out of the house. And when that attempt failed it was decided to do away with her. If this be the case of prosecution, it is difficult for us to hold at this stage of the trial that amiya mukherjee’s answer to question 50 should have been expunged as soon as objection was raised under section 54. We may refer to a few relevant decisions on this point. In (20) mangal singh v. State of madhya bharat, AIR 1957 SC199, a similar question came up for consideration. The supreme court has held that the evidence which disclosed certain unpleasant things about the accused in the past was examined by the court in order to determining as to whether the accused were persons of bad character likely to commit murder.
(96) It depends, therefore, on the purpose for which a particular piece of evidence is used. If what is stated by amiya mukherjee in answer to question 50 is relevant to ascertain the motive for murder and not for determining whether indranath was of bad character, we cannot say, at the present moment, that the learned trial judge was in error in admitting the answer to question 50. The supreme court in (21) s. G. Mohite v. State of maharahtra, air 1973 SC 55, has indicated in paragraph 12 at page 60 that motive forms on of the links of a chain of circumstantial evidence. Mr. Banerjee relied on the case of (22) palvinder kaur v. The state of punjab, air 1952 SC 354 at page 358 paragraphs 18 and 19 to contend that motive by itself is not enough to prove the circumstances under which a person died or to prove the cause which resulted in death. These propositions are well – settled. All that we say is that in an appropriate case motive may be a link in the chain of circumstantial evidence and at this stage of the trial it would be improper for the high court to pronounce its verdict on amiya mukherjee’s answer to question 50. In this connection it would be worthwhile quoting the supreme court’s observatioins in (23) shivaji v. State of maharashtra, air 1973 sc 2622 at page 2627, paragraph 6. The supreme court inter alia, observes: “. It is true to say, with viscount simon, that ‘a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. “. In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. “.
(97) We next come to section 482, cr. P. C. Under which this application has been specifically made.
(98) We have already said that the supreme court in madhu limaye’s case has reversed its decision in Amar Nath’s case and has held that the bar of section 397 (2) is not an impediment to an application under section 482.
But the inherent power is to be exercised in accordance with the following principles: –
1. The power is not to be resorted to if there is a specific provision in the code for the redress of the grievance of the aggrieved party;
2. It should be exercised very sparingly to prevent abuse to process of any court or otherwise to secure the ends of justice, and 3. It should not be exercised as against the express bar of law engrafted in any other provision of the code.
(99) Before we invoke section 482, therefore, we have to see if there is specific provision in the code for the redress of the grievance of the aggrieved party. Mr. Chaudhury for the prosecution has invited our attention to sub – section (2) of section 395. This sub – section provides:
“a court of session or a metropolitan magistrate, may, if it or he thinks fit in any case pending before it or him to which the provisions of sub – section (1) do not apply refer for the decision of the high court any question of law arising in the hearing of such case.”
the learned special public prosecutor’s point is that the petitioner in the present application should have applied for a reference to the additional sessions judge before invoking this court’s inherent power under section 482. Since this specific provision was not availed of the application under section 482 should be rejected. Mr. Banerjee’s reply is that under section 395 (2) the aggrieved party has no legal right to apply for a reference. The trial court may make a reference of its own accord. We do not think mr. Banerjee’s proposition is sound. It is true there is no specific provisions for an application for reference by the aggrieved party in section 395 (2) ; but in section 482 also there is no such specific provision either. It is, therefore, idle to contend that an application under section 395 (2) could not be made at all. We do not, however, propose to dismiss this application on this ground without examining the other grounds on which section 482 can be invoked. We do not also intend to express our opinion on whether s. 395 (2) can be said to be a specific provision which bars the invocation of inherent jurisdiction.
(100) We have said that the high court can sparingly exercise its inherent power (a) to prevent abuse of the process of court and (b) to secure the ends of justice.
(101) Let us see what is meant by ‘abuse of the process of court’. In (24) r. Narapa reddy v. Jagarlamudi, air 1967. Ap 219, at page 230 in paragraph 70,it is observed. “abusing the process of the court is a term generally applied to a proceeding which is wanting the bonafides and is frivolous, vexations or oppressive. Making use of the process of the court as a device to help the jurisdiction of a civil court has been held to amount to an abuse of the process of the court. In (25) pramathanath talukdar v. Saroj ranjan sarkar, air 1962 sc 876 it has been held that where the first complaint was dismissed after considering evidence, the second complaint amounted to abuse of processes.
(102) From the principles enunciated above the only point relevant for our consideration is whether admission of the impugned evidence has been vexatious or oppressive to the petitioner. To us it seems that the observations we have already made in dealing with the impugned evidence provide complete answers to this point on the facts in the circumstances of the case. At this stage of the trial we cannot say that admission of the impugned evidence has been vexatious or oppressive to the petitioner.
(103) Let us now examine what is meant by securing “the ends of justice”. P. B. Mukharji, j. in Debendra Nath Dutt v. Satyabala Dasi and ors. , AIR 1950 cal. 217, has discussed the meaning of the expression ‘ends of justice’ in section 151 of the code of civil procedure. The learned judge has said that the words ‘end of justice’ in section 151 wide as they are, do not mean vague and indiscriminate notions of justice but justice according to the statutes and the laws of the land. They cannot mean that express provisions of the statute can be overridden at the dictates of what one might by private emotion or arbitrary preference call or conceive to be justice between the parties. The words ‘ends of justice’ do not, therefore, permit the court to take a step or procedure which defeats of statutory provision of the la of the land.
(104) The words ‘ends of justice’ used in section 482 cr. P. C. Must be understood in the same sense as that which was indicated by P. B. Mukherji, j. The court will use its inherent powers to secure the ends of justice where there has been a violation of the statutes and laws of the land. The court will not use its inherent power to defeat any provision of law.
(105) In the instant case we have given sufficient indications of the contentions of the parties before us on the question of admissibility of the impugned evidence and the propriety of the impugned orders. We are unable to hold at this stage of the trial that the learned additional sessions judge has violated any statute or any law of the land. We would not, be therefore, justified in exercising our powers under section 482 at all.
(106) For all the reasons aforesaid we are unable in the instant case to interfere with any of the impugned orders either under section 397 or under section 482 of the code of criminal procedure, 1973 at this stage of the trial and we accordingly dismiss this application. We direct that the records of the case be sent back to the trial court forthwith in order that the trial may proceed according to law.
Datta, j. : I agree. Appeal dismissed.
Date: 28 November 1978
Citation: 83 CWN 248 and 1979 Cri. L.J. NOC 129 (CAL.)