Goni Sk @ Abdul Goni v. State of West Bengal — 1979 DIGILAW 111 (CAL)

JUDGMENT B. N. Maitra, J: The petitioner no. 1 filed a complaint in the court of the S.D.J.M., Kandi, on the allegation that on 4.6.1977 at about 6 a. m., he bad been constructing a bundh on his own place. Kalu Sheikh, Lalu Sheikh and Abol Sheikh protested. They and Irsad Sk. Chhalai Sk. Taribat Sk. Soad Sk. Khudu Sk. Ioynal Sk. Shahadat Sk. Mafizul Sk. Kanukura Sk. and Fora Sk. attacked him. Serious bleeding injuries were caused. The injured received treatment at Burwan Health Centre for several days. The learned Magistrate forwarded the complaint to Burwan Police Station to treat the same as F.I.R. The case was investigated into by the police and on 19-8-1977, charge-sheet was submitted under Ss.147/448/324/380/323/307 and 326 of the Code against six of the petitioners. All the other petitioners were discharged. Then on 18-10-1977, Kalu Sk filed a fresh petition of complaint against those six persons and against eleven others, who had been discharged. The learned S.D.J.M., Kandi, dismissed the petition of complaint stating that if sufficient materials were available against the petitioners in the course of the trial, he had ample power to take cognizance against all of them and if necessary he could commit the accused to Sessions if it transpired that a Sessions Trial offence had been made out. Against that order of dismissal of complaint, the Sessions Judge, Murshidabad was moved. He allowed the criminal motion and directed the Chief Judicial Magistrate, Murshidabad, to hold further enquiry into the complaint filed by the petitioner. Kalu Sk. Thereafter warrants were issued by the C.I.M., Berhampore, against the petitioners and thus the present revisional application has been filed. 2. The learned Advocate appearing on behalf of the petitioners has contented that the case is not at all covered by the provisions of S. 210 of the Criminal Procedure Code. The learned S D J.M. took the right view because if proper evidence be adduced against the petitioners. he had ample power to pass necessary orders. The learned Sessions Judge, Murshidabad, went out of the way in allowing the criminal motion without issuing any notice whatever to the present petitioners. It has, thus, been contended that the order of the learned Sessions judge and of the C.J.M. cannot be sustained. 3. The learned Advocate appearing on behalf of the opposite parties supported the order of the learned Sessions Judge. It has, thus, been contended that the order of the learned Sessions judge and of the C.J.M. cannot be sustained. 3. The learned Advocate appearing on behalf of the opposite parties supported the order of the learned Sessions Judge. Reference has been made to the cases of Abhtnandan Jha v. Dinesh in AIR 1968 SC 117 to show that where the police submits a report under S. 169 of the Criminal Procedure Code that no case was made out for sending up the accused for trial the Magistrate bas no power to call upon the police to submit a charge-sheet. But the Magistrate can take cognizance under S. 190(1)(c) or may order further investigation under S. 156(3) of the Code. The case of Tularam v. Kishore in AIR 1977 SC 2401 has also been cited to show that where the Magistrate order investigation by the police before taking cognizance under S. 156(3) of the Criminal Procedure Code, he can issue process under S. 204 of the Code after recording the statement of the .complainant and of his witnesses. The learned Magistrate obviously made a mistake in dismissing the petition of complaint without examining the complainant and his witnesses. Hence the order of the learned Sessions Judge should be upheld by this Court. The learned Public Prosecutor has stated that the court should not overlook the rule of double jeopardy. The aforesaid six persons are also facing trial. By the order of the learned Session Judge, those six persons together with eleven others are facing trial in the court of the C.J.M., Murshidabad, on the self same facts. 4. It appears that the petitioners have not challenged the order of the learned Sessions Judge. Is has been contended for them that there are various reasons for not challenging that order because the learned Sessions Judge did not issue any notice to the petitioners. There is no denial that no such notice was issued. So the rules of natural justice were violated by the Sessions Judge, Mursbidabad and hence, that order bas no value in the eye of law, so far as the petitioners are concerned. But we cannot lose sight of the fact that the second petition of complaint filed by Kalu Sk was dismissed without examining the complainant and his witnesses, So, there is difficulty either way and a solution is called for. 5. But we cannot lose sight of the fact that the second petition of complaint filed by Kalu Sk was dismissed without examining the complainant and his witnesses, So, there is difficulty either way and a solution is called for. 5. It bas been rightly contended on behalf of the petitioners that the provisions of the S. 210(1) of the Criminal Procedure Code are not applicable because the police did not move in the matter first. 6. The two cases cited for the O.Ps. have no application to the facts of this case. Section 319(1) of the Criminal Procedure Code wilt furnish the answer to a case of this type. That sub-section shows that where in 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. We can refer to the observations of Mr. Justice Tulzapurkar in the latest case of Joginder Singh v. State of Punjab in AIR 1979 SC 339 to show that the expression "any person not being the accused" occurring in S. 319 clearly covers any person, who is not being tried already by the court and the very purpose of enacting such a provision like S. 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court, are included in the said expression. The Supreme Court has further pointed out that both unc1er Ss. 193 and 209, the commitment is of the case and not of the accused whereas under the equivalent provisions of the old Code, viz., the S. 193(1) and S. 207A, it was 'the accused" who was committed and not 'the case'. It has been further pointed out that once the case in respect of the offence qua those accused who are before the court is committed. then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of S. 193 would be out of the way. It has also-been observed that otherwise the conferral of the power under S. 319(1) upon the Sessions Court would be rendered nugatory. ''7. then the cognizance of the offence can be said to have been taken properly by the Sessions Court and the bar of S. 193 would be out of the way. It has also-been observed that otherwise the conferral of the power under S. 319(1) upon the Sessions Court would be rendered nugatory. ''7. We have taken notice of the fact that the rule of double jeopardy should be avoided. In the circumstances discussed above, the principles embodied in S. 319(1) of the Criminal Procedure Code will be invoked. We are, therefore, of opinion that the learned Sub-Divisional Judicial Magistrate's order is the correct one. If necessary, after taking evidence he can pass proper orders. Since the entire matter is before this Court, we can suo motu set aside the order of the learned Sessions Judge. 8. The Rule is, therefore, made absolute the order passed by the learned Sessions Judge be hereby set aside. The consequential proceedings pending before the C.J.M., Murshidabad, are aim quashed. The case will proceed before the learned S.D.J.M., Kandi. P. C. Borooah, J.- I agree. Rule made absolute.