- (1.) THIS Rule is at the instance of the Superintendent and remembrancer of Legal Affairs, West bengal, on behalf of the State of West bengal, praying that the Sessions Trial, arising out of G. R. Case No. 100 of 1972, now pending before the City Sessions court, may be tried under Section 9 (1a)of the City Sessions Court Act, 1953 by the learned Judge, City Sessions Court, himself without a jury.
(2.) THE facts leading on to the Rule can be put in a short compass. The prosecution case, inter alia, is that on the 29th March, 1971, at about 19. 00 hours all the accused persons including the absconding accused Amarendra Nath pal and Shyamdas and one Timir Cuba (now approver) entered into a criminal conspiracy at the residence of the accused Jadav Dutt at 38, Balaram Majumdar street, Calcutta, to commit the murder of Nepal Roy, M. L. A. and in pursuance thereof, they took positions on the next day, id est, the 30th March 1971 at about 12. 30 hours, in the vicinity of the office of the said Nepal Roy at 292/6. Upper chitpur Road (Rabindra Sarani ). It is alleged that the absconding accused amarendra @ Broomballs rushed into the said office room with an unlicensed improvised revolver and fired a shot at nepal Roy who was then seated on a chair and talking to visitors and thereafter each of the accused Shambhu, monoranjan and Bimal, at the instruction of, the accused Swapan threw a bomb successively into the room causing injuries to one Ajit Chakraborty and damage to his properties. Nepal Roy was immediately removed to the Medical College Hospital at about 13. 00 hours where he was declared dead. On investigation the police submitted a charge-sheet under Section 120b read with section 302 I. P. C. against nine accused persons, of whom two were absconding and one turned an approver as mentioned above. Following an enquiry under Section 207a, Criminal Procedure code, Sri P. Ghatak, Presidency Magistrate, 9th Court, Calcutta, by his order dated the 17th November, 1972 committed all the six accused opposite-parties to stand their trial in the City Sessions court on charges under Sections 302 read with 120b Indian Penal Code, and 302 read with 109 Indian Penal Code against all; and the accused Shambhu alias Shankar Hela and Monoranjan alias Mantu Das on a further charge under Section 3 of the Explosive Substances Act. The Superintendent and remembrancer of Legal Affairs, West bengal on behalf of the State of West bengal thereafter moved an application under Section 9 (1a) of the City Sessions Court Act, 1953, stating inter alia that there are no less than 82 witnesses including several witnesses to the occurrence and as such the trial is not likely to be concluded within two weeks from its commencement; and that the case involves consideration of evidence of a highly technical nature, relating to Fire arms and Explosive Substances Act, and as such the case should be tried by the learned Judge himself without a jury. The present Rule was thereupon issued.
(3.) MR. Rajesh Chandra Ghosh, deputy Legal Remembrancer (with Mr. Promode Ranjan Roy, Jr. Govt. Advocate) appearing in support of the Rule on behalf of the Superintendent and Remembrancer of Legal Affairs, West bengal, made a two-fold submission. Mr. Ghosh contended in the first instance that in view of the volume and complexity of the evidence to be adduced in the case, the trial is not likely to be concluded within two weeks from its commencement and as such it is desirable that it should be tried without a jury. The second branch of Mr. Ghosh's contention is that the trial would involve a consideration of evidence of a highly technical nature rendering it undesirable that it should be tried by a jury. In this context he referred to the charge under the Explosive Substances Act and also the general nature of the case involving serious offences and submitted ultimately that this is a fit and proper case coming within the bounds of Section 9 (1a) of the City sessions Court Act, 1953. Mr. Niharendu Dutt Majumdar, Senior Advocate (with Mr. Shib Sankar Sarkar, Advocate), appearing on behalf of the Opposite Party No. 6, joined issue. Mr. Dutt majumdar submitted that the grounds raised on behalf of the prosecution are more technical than real, inasmuch as in the first instance most of the witnesses are formal witnesses and therefore the trial is not expected to take a considerable time; and secondly, the law relating to Fire Arms and Explosive Substances act is not of such a highly technical nature that a trial by jury should not take place. Besides giving his reply to the two-fold contention of the learned deputy Legal Remembrancer, in support of the Rule, Mr. Dutt Majumdar also raised a preliminary objection challenging the vires of sub-section (1a) to section 9 of the City Sessions Court act, 1953. The objection is of two dimensions. The first dimension of the objection is that the said provisions are bad, being repugnant to the earlier provisions laid down under Section 9 (1)of the City Sessions Court Act, 1953 and as such are in non-conformance to procedure established by law. Mr. Dutt majumdar in this context urged that the accused has a vested right in procedure, viz. a trial by the jury, as enjoined under Session 9 of the City Sessions Court act, 1953 and a non-conformance thereto amounts to a non-conformance to procedure established by law, vitiating the ultimate trial. The second dimension of Mr. Dutt Majumdar's objection to such maintainability relates to the vires of sub-section 1 (A) to Section 9 of the City Sessions Act, 1953 on the ground of reasonableness under articles 14 of the Constitution of India which provides for enabling powers without laying clown any regulating standard for a reasonable application thereof, without any discrimination. Mr. Dutt majumdar ultimately submitted that a jury trial is a precious right conferred on the citizens of the State and the denial thereof is not only a denial of justice but also of a proper opportunity to the accused to establish his innocence before the world. Mr. Ashim Kumar mukherjee, Advocate, appearing on behalf of the Opposite Party No. 4, adopted the arguments put forward by shri N. Dutt Majumdar, Sr. Advocate.;