RAFIK BISWAS vs STATE OF WEST BENGAL

IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon’ble Justice Chaitali Chatterjee (Das)

CRR 3131 of 2018
With
IA No. CRAN 1 of 2019 (Old No. CRAN 117 of 2019)
+
CRAN 3 of 2026
Rafik Biswas
Vs.
The State of West Bengal

For the petitioner : Mr. Prabir Majunder, Adv.
Mr. Snehansu Majumder,Adv.
Ms. Sangeeta Chakraborty,Adv.
Ms. Anindita Kundu,Adv.

For the State : Mr. Gurudas Mitra,Adv.
Mr. Utsav Dutta, Adv.

Heard on : 03.9.2026
Judgment on : 03.9.2026
Uploaded On : 08.9.2026
Chaitali Chatterjee(Das), J.:-
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1. The instant revisional application has been filed against the judgment
and order dated 14.9.2018 passed by the learned Additional Sessions
Judge, Fifth Court, Krishnagar, Nadia in Criminal Appeal No.04 of 2017
upholding the order of conviction and sentence against the petitioner
passed by the learned Judicial Magistrate, 3rd Court, Krishnagar, Nadia
in G.R. Case No.167/2002 under Sections 241/325/34 of the IPC, for
commission of offence under Section 325 of the IPC and sentence the
petitioner to suffer rigorous imprisonment for one and pay fine of
Rs.2,000/- in default to suffer rigorous imprisonment for one month.
2. The factual matrix of the case unveils on January 26, 2002 at 7 a.m. the
informant’s father Nipen Karmakar was going to his land and when he
reached near the land of one Bhanu Halder, all on a sudden, Rafik
Biswas and Nirmalendu Biswas of the same village obstructed Nripen
Kumar the father of the complainant on his way and the appellant
started assaulting him on both of his legs with a bamboo stick as a
result, he fell down and sustained injury on one of his leg and also on
his back and left arm. One Akcher Mondal of the same village had
rescued the informant’s father and took him to the house in his bicycle.
On the basis of the written complaint lodged by the de facto complainant,
a case being, Chapra P.S. Case No.21 of 2002 was started under Sections
341/325/34 of the IPC.
3. In order to bring home the charges, the Prosecution has examined as
many as 8 witnesses including the doctor and the police personnel. The
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rd
learned Judicial Magistrate, 3 Court, Krishnagor, Nadia after assessing
the evidences adduced before the Court and after hearing both the
learned counsel passed order of conviction.
4. Assailing such order, the appeal was filed before the Additional Sessions,
th
Judge, 5 Court, Krishnagore, Nadia and vide the judgment and order
dated September 14, 2018, the order of conviction has passed by the
Learned Court of Magistrate was affirmed.
5. Learned counsel representing the petitioner argued that the informant
was not the eye witness and there are sufficient discrepancies found in
the evidences adduced by PW 4, who would even disclose name of the
accused persons before the Doctor. The first Medical Officer of the
Bethuadahari Hospital was not examined. The injured PW 4 claimed to
be rescued by one Absar Mondal, PW 2 who did not support this
contention. The Learned trial Court as well as the appellate Court failed
to consider the discrepancy and that the allegation was not proved
beyond all reasonable doubt.
6. It is further argued that the present petitioner already suffered custodial
trial for ninety days and sentence was given for one year and therefore, it
ought to have been considered by the learned Trial Court as well as the
learned Appellate Court either to extend the benefit of Section 4 of the
probation of Offenders Act or by exercising provision of Section 360 and
Section 361 of the Code of Criminal Procedure.
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7. It is further submitted that the petitioner had no criminal antecedents
and more than 24 years have elapsed, the petitioner is facing the
prosecution case and, accordingly, prayed for setting aside the order of
conviction as passed by the learned Magistrate as well as affirmed by the
learned Appellate Court.
8. Learned advocate for the petitioner relied upon the decisions of
Chellammal & Anr. Vs. State Represented by the Inspector of Police
reported in 2025 SCC OnLine SC 870 , wherein it was held that the
learned Court must discuss as to why such probation of Offender Act
was not extended in favour of the petitioner or whether Section 360 of the
Code of Criminal Procedure is applicable or not.
9. He further relied upon the decision of Chandreshwar Sharma Vs. State
of Bihar reported in (2009) 9 SCC 245 where also the sentence was
passed in respect of Section 379 on recovery of non-ferrous metal from
the appellant’s possession. It was held by the Hon’ble Supreme Court
that the mandatory duty is cast upon the Court to record its judgment
specific reasons for not granting the benefit of Section 360 to an accused
persons, where it could have been dealt with the accused thereunder.
10. Further relied upon the decision of Om Prakash & Anr. Vs. State of
Haryana reported in (2001) 10 SCC 477 , wherein it was held by the
Hon’ble Supreme Court that the provisions of Section 360 of the Code of
Criminal Procedure are beneficial to the accused only when the accused
is first offender and also age of the accused is more than 21 years of age.
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Section 361 of the Code of Criminal Procedure indicates that if the Court
decided not to exercise its jurisdiction under Section 360, then it must
record reasons as to why the benefit of Section 360 of the Code of
Criminal Procedure is being denied.
11. Lastly, relied upon the decision of learned co-ordinate Bench passed in
CRA 662 of 2018 (Jagabandhu Biswas Vs. State of West Bengal) on
August 31, 2022, where the offence was under Section 325 of the IPC and
considering the age of the accused, which was found to be 65 years on
09.10.2018 and that the accused was arrested and produced in the year
2015 and in absence of any material to suggest that the appellant is
having criminal antecedents or misused while on bail during the time of
trial, Section 360 of the Code of Criminal Procedure was extended in
favour of the petitioner.
12. Learned Prosecution, on the other hand, raises strong objection and
argued that the Prosecution was able to prove the case beyond the
shadow of all reasonable doubt by adducing evidence including the
Doctor, who treated the injured. That apart, the injured himself adduced
evidence and on analyzing the evidences as well as the medical report,
both the learned Court were of the same view and the order of
conviction, as passed by the learned Magistrate was sustained which
warrant no interference . Accordingly, prayed for dismissal of the instant
appeal.
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13. Heard the rival submissions as advanced by both the appellant and
prosecution. On careful perusal of the record, primarily it appears that
the revisional application has been filed challenging the order of the
appellate court, which has affirmed the order of conviction passed by the
learned Court of Judicial Magistrate whereby the order of conviction was
passed against the present petitioner.
14. The incident occurred on January 26, 2002. The evidences and the
victim herself deposed as PW 2 and Doctor Susanta Kumar Biswas/PW 5.
The learned Appellate court considered how the evidences were assessed
by the learned Trial Court and was of the view that the learned
Magistrate rightly passed the order of conviction under Section 325 of the
IPC on appreciation of the evidences both oral and documentary. The
Learned Court passed the order of conviction against the appellant s but
also acquitted the other accused, who is the father of the appellant from
the charge under Section 341/325/34 of the IPC.
15. It is the settled proposition of law that the scope and ambit of the
revisional Court to interfere with the order of conviction, which has been
affirmed by the Appellate Court is very limited. It was laid down by the
Hon'ble Supreme Court in the case of Malkeet Singh Gill v. State of
Chhattisgarh , (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC
OnLine SC 786 that a revisional court is not an appellate court and it
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can only rectify the patent defect, errors of jurisdiction or the law. It was
observed at paragraph 10: -
" 10. Before adverting to the merits of the contentions, at the
outset, it is apt to mention that there are concurrent findings of
conviction arrived at by two courts after a detailed appreciation
of the material and evidence brought on record. The High Court
in criminal revision against conviction is not supposed to exercise
the jurisdiction like the appellate court, and the scope of
interference in revision is extremely narrow. Section 397 of the
Criminal Procedure Code (in short " CrPC ") vests jurisdiction to
satisfy 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. The
object of the provision is to set right a patent defect or an error of
jurisdiction or law. There has to be a well-founded error which is
to be determined on the merits of individual cases. It is also well
settled that while considering the same, the Revisional Court does
not dwell at length upon the facts and evidence of the case to
reverse those findings.
16. The Hon'ble Supreme Court in the case of Manju Ram Kalita v. State
of Assam reported in (2009) 13 SCC 330 , while dealing with the scope
of reappreciation of evidence by higher court in criminal revision
observed in para 9 as under:-
“9. …It is a settled legal proposition that if the courts below have
recorded the finding of fact, the question of reappreciation of
evidence by the third court does not arise unless it is found to be
totally perverse…”
17. On close scrutiny of the facts and circumstances, this Court do not
find any such observation or analysis which can be said to perverse in
nature and hence do not finds that the judgment delivered by both the
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learned Courts warrants any interference . The injured himself before
the Court, who suffered fractured injury adduced evidence whose
evidence is sufficient to be based upon being trustworthy and merely
because PW 2 has been declared as hostile by the Prosecution, the entire
testimony of the injured victim cannot be ignored. There may be minor
discrepancies, which may not be fatal for the prosecution as otherwise,
the prosecution was able to prove the case beyond the shadow of all
reasonable doubt.
18. The Learned Advocate representing the appellant mostly harped upon
the non-application of mind by the learned Magistrate as no whisper was
made regarding applicability of section 360 and 361 Cr.PC read with
section 4 of the Probation of offenders Act and the Learned Appellate
Court did not assign any reason for non application of the provision when
the conviction was for a period of 1 year.
19. This court finds merit in the argument to that extent .The Court of
Magistrate did not consider as to why the Section 360 of the Code of
Criminal Procedure will be applicable in this case and no whisper was
made to that extent in the Judgement which is now mandatory since
the period sentence was for a year and also that there was no previous
criminal antecedents against the present petitioner.
20. Learned Appellate Court while passing the judgment affirming order of
conviction only observed that the Appellate Court after hearing the point
of sentence, did not incline to take lenient view in the matter of sentences
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him and only observed that the Court do not find this fit case to extent
benefit of Section 360 of the Code of Criminal Procedure to release the
convict on good conduct.
21. The observation of the Hon’ble Supreme Court in this regard can be
found from the judgment relied upon by the learned advocate of the
petitioner in Chandreshwar Sharma (supra) , wherein the order of
conviction was passed under Sections 379/411 IPC and was sentences
to suffer Rigorous Imprisonment for 1 year considered but none of the
court considered the question of applicability of Section 360 of the Code
of Criminal Procedure. It was held when the benefit is not extended a
specific reason must be assigned which was not done and court
overlooked the provision under section 360 and 361CrPC and it is the
mandatory duty cast on the Magistrate has not been performed.
22. In the case of Chellammal (supra) it was observed that parliament
has enacted the Probation of offenders Act in the year1958 with avowed
object of providing scope of reformation to the convicts who deserve such
benefit. On comparative study of both the provisions it was held that
section 4 of the Probation Act is wider and expensive in its coverage than
Section 360 of the Cr.P.C. and permits release of an offender more than
21 years old on probation when sentence to imprisonment for less than
seven years for fine.
23. In the instant case, the order of conviction was only for a period of one
year out which nine days has already spent in custody. Therefore the
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legal position stands as on date that an offender cannot seek an order for
grant of probation as a matter of right, but the mandatory duty cast upon
the court to discuss the applicability of section 360 or 361 of the Cr. P.C
or Sections 3 & 4 of the Probation of offenders’ Act considering the nature
and gravity of the offence.
24. In the judgment passed by the Learned Court of Magistrate nothing
was discussed to that extent and appellate Court mechanically observed
that the provision is not applicable without assigning any cogent reason.
25. Therefore, considering all aspect of the matter and the nature of
allegation and in absence of any materials to show that there was any
previous criminal antecedents attached with the petitioner this court is of
the considered view that both the Learned Courts failed to adhere to the
mandatory duty cast upon the court and hence the same warrants
interference.
26. In the light of above, the order of conviction has passed by the learned
Court of Magistrate affirmed by the learned Court is hereby affirmed by
this Court and the order of conviction is upheld.
27. However, the sentence as passed by the Learned Courts against the
petitioner is altered and directed to furnish good behavior bond of
Rs.5,000/- before the learned CJM, Krishnagore, Nadia. The petitioner
will appear once in a month before the said Court for a period of six
months. The Officer-in-Charge will send a report before the learned
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Judicial Magistrate once in and every two months within a period of six
months, which are reflected regarding his behavior of conduct.
28. Accordingly, revisional application being, CRR 3131 of 2018 is partly
allowed.
29. All connected pending applications are also disposed of.
30. The Department is directed to send back the TCR alongwith copy of the
judgment and communication the same to the learned concerned Court
for information and taking necessary application.
31. All parties shall act on the server copies of this order duly downloaded
from the official website of this Court.

[Chaitali Chatterjee (Das), J.]
(nb)
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