Prasanta Kumar Goswami v. State of W. B. — 1999 DIGILAW 243 (CAL)

JUDGMENT : - D.P. Sengupta, J.: This revisional application is for quashing of proceeding being C.G.R. No. 622/96 (arising out of Alipore P.S. Case No.55/96 under section 304/34 of the Indian Penal Code) pending before the learned Sub-Divisional Judicial Magistrate, Alipore, South 24-Parganas. 2. Alipore P.S. Case No. 55/96 was registered on the basis of an information lodged by one Shyamal Kumar Roy, S.I. of police alleging commission of an offence under section 304/34 of the Indian Penal Code. In the F.I.R. it was alleged that having received a telephonic information that there was a firing at 6, Hastings Park Road, Calcutta, the informant along with other police officers had been to the place of occurrence and found a number of persons including a person with a double barrel gun wearing a security guard's uniform at the place of occurrence. On enquiry the informant came to know that the gun was issued in the name of Ratanlal Kobra of Fort Gloster Industries under Licence No. 2904 and the present petitioner No.1 is one of the retainers. It was learnt that the petitioner No.2 is the Deputy Commercial Manager of Fort Gloster Industries Ltd. and he ordered the petitioner No.1 to go to the place of occurrence with the gun and ammunition to attend a marriage ceremony (Barat) of co-accused Kamal Kishore Kothari. Accordingly the petitioner No.1 came to the place, i.e., at 6, Hastings Park Road with the said gun and ammunition. Before the departure of "barat" a "Tassa Party" (Music Party) came to the spot. At about 5 p.m. when the 'barat party', i.e., the bridegroom, the co-accused Kamal Kothari and others were about to leave the premises, the co-accused Kamal Kr. Kothari ordered the petitioner No.1 to fire with his gun in the air. Being so directed the petitioner No.1 fired two rounds from his gun in the air while the third bullet hit a member of the 'Tassa Party' namely Santosh Biswas who fell down with bleeding injuries. The injured was removed to S.S.K.M. Hospital by a vehicle belonging to Kothari family, where he succumbed to his injury. 3. On completion of investigation police submitted a charge-sheet on 30.12.96 in the court of learned Sub-Divisional Judicial Magistrate, Alipore, alleging commission of an offence punishable under section 304/34 of the Indian Penal Code. The injured was removed to S.S.K.M. Hospital by a vehicle belonging to Kothari family, where he succumbed to his injury. 3. On completion of investigation police submitted a charge-sheet on 30.12.96 in the court of learned Sub-Divisional Judicial Magistrate, Alipore, alleging commission of an offence punishable under section 304/34 of the Indian Penal Code. On the basis of the said charge-sheet the learned Magistrate by his order dated 13.1.97 took cognizance of the offence. 4. The present petitioner No.1 thereafter made an application before the learned Magistrate with a prayer for dropping of the impugned proceeding. In the said application it was stated that the allegations set forth in the charge-sheet and other accompanying documents do not disclose any offence under section 304/34 of the Indian Penal Code. There was no intention on the part of the petitioner to cause death of the victim or to cause such bodily injury as is likely to cause death of the victim. The act of the present petitioners is a part of a customary practice and the death of the victim was purely accidental. The act of the petitioner is not invested with requisite mensrea which is an essential ingredient of the alleged offence. 5. The aforesaid application filed by the petitioner No.1 was taken up for hearing by the learned Magistrate, who by his order dated 31.1.98 rejected the said application and fixed 16.2.98 for appearance of all the accused and commitment of the case to the Court of Sessions. Thereafter the instant revisional application was moved for quashing of the proceeding. 6. Mr. Sekhar Bose, learned Advocate appearing for the petitioners submits that from the charge-sheet and other accompanying papers under section 207 of the Code of Criminal Procedure no prima facie case under section 304 of the India Penal Code is made out. The learned Advocate draws my attention to the provision of section 209 of the Code of Criminal Procedure and submits that the provisions of section 209 come into operation only if it appears to the Magistrate that the offence is triable exclusively to the Court of Sessions. The learned Advocate draws my attention to the provision of section 209 of the Code of Criminal Procedure and submits that the provisions of section 209 come into operation only if it appears to the Magistrate that the offence is triable exclusively to the Court of Sessions. In a case instituted on a police report, it is submitted by the learned Advocate, the Magistrate should examine the police report and the documents mentioned under section 207 of the Code of Criminal Procedure and he should come to a conclusion whether the facts disclosed in the police report make out an offence triable exclusively by the Court of Sessions. It is the duty of the learned Magistrate at this stage to see whether a wrong section has been quoted to describe the offence. In support of his contention Mr. Bose relied on a judgment of the Apex Court reported in AIR 1980 SC 1510 , in which it was held as follows :- "It may not be accurate to say that the Committing Magistrate has no judicial function to perform under the 1973 Code of Criminal Procedure. The Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Sessions. If no offence is disclosed the Magistrate may refuse to take cognizance of the case or if the offence disclosed is one not triable exclusively by the Court of Sessions he may proceed to deal with it under other provisions of the Code. To that extent the Court of the Committing Magistrate does discharge a judicial function." 7. From the judgment as referred to above it becomes clear that the Committing Magistrate has got a judicial function to perform and he has to be satisfied that an offence is prima facie disclosed and the offence is exclusively triable by the Court of Sessions. If the offence so disclosed is not triable exclusively by the Court of Sessions; the Magistrate may proceed to deal with it under the provision of the Code. 8. Mr. Ranjan Roy, learned Advocate appearing for the State submits that at the time of taking cognizance the learned Magistrate has to consider only the averments made in the complaint or in the charge-sheet. At that stage it is not open to the Magistrate to appreciate the evidence. In support of his contention Mr. 8. Mr. Ranjan Roy, learned Advocate appearing for the State submits that at the time of taking cognizance the learned Magistrate has to consider only the averments made in the complaint or in the charge-sheet. At that stage it is not open to the Magistrate to appreciate the evidence. In support of his contention Mr. Roy relies on a judgment reported in 1997 SCC (Cr.) 415. In the said judgment it was held by the Hon'ble Apex Court as follows : "At the time of taking cognizance of the offence, the Court has to consider only the averments made in the complaint or in the charge sheet filed under section 173, as the case may be. It is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing the process, to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters. If it is a charge-sheet filed under section 173 of the Code, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the court to proceed further in the matter. Thus it is not the province of the court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not." 9. I have carefully gone through the judgment as referred to above and in my view the said judgment was delivered by the Hon'ble Apex Court in a different context with reference to sections 190, 173, 200 and 202 of the Code of Criminal Procedure. The provision of section 209 was not dealt with in the said judgment. 10. I have carefully gone through the judgment as referred to above and in my view the said judgment was delivered by the Hon'ble Apex Court in a different context with reference to sections 190, 173, 200 and 202 of the Code of Criminal Procedure. The provision of section 209 was not dealt with in the said judgment. 10. In my opinion, it is the bounded duty of the learned Magistrate to examine at the stage of commitment under section 209 Cr.P.C. the police report (charge-sheet) and the documents mentioned under section 207 of the Code of Criminal Procedure and he must come to a conclusion whether the facts disclosed in the police report and the documents under section 207 of the Code of Criminal Procedure make out an offence exclusively triable by the Court of Sessions. It is the duty of the learned Magistrate at the stage of commitment to see whether a wrong section has been quoted in the charge-sheet by the police to describe the offence. If at that stage the learned Magistrate finds that an offence is disclosed which is triable exclusively by the Court of Sessions, he has no' other alternative but to commit the case to the Court of Sessions. But if after examining the police report the Magistrate finds that the offence so disclosed is not triable exclusively by the Court of Sessions or a wrong section has been quoted by the police to describe the offence, he may refuse to commit the case to the Court of Sessions and may proceed to deal with the matter under other provisions of the Code. 11. I have gone through the charge-sheet the statements recorded by the police under section 161 of the Code of Criminal Procedure, the statement of the accused/petitioner No.1 recorded by the learned Judicial Magistrate under section 164 of the Code of Criminal Procedure, extract of the G.D. Entries and other documents. 11. I have gone through the charge-sheet the statements recorded by the police under section 161 of the Code of Criminal Procedure, the statement of the accused/petitioner No.1 recorded by the learned Judicial Magistrate under section 164 of the Code of Criminal Procedure, extract of the G.D. Entries and other documents. From all the documents as stated above it becomes evident that the crux of the prosecution case, as it appears from the charge-sheet and other documents, is that the accused/petitioner No.2 namely K.K. Tribedi, Deputy Commercial Manager of Fort Gloster Industries Ltd. ordered the gunman, i.e., the accused petitioner No.1 Prasanta Goswami to go to the residence of Dawdayal Kothari at 6, Hastings Park Road with the said gun to attend the marriage ceremony (Barat) of Kamal Kishore Kothari, the younger brother of the said Dawdayal Kothari. When the bridegroom Kishore Kothari and his relatives were about to leave the house with 'barat', Kamal Kothari (petitioner No.2) ordered the gunman to fire from his gun in the air. Being so ordered Prasanta Goswami (petitioner No.1) fired two rounds from his gun in the air but one bullet hit one of the' members of 'Tass a Party', who fell down with bleeding injury. The injured was removed to S.S.KM. Hospital, where he succumbed to his injury. 12. Now, from a careful consideration of all the materials as referred to above I am of the opinion that the act of the petitioners was a part of a customary practice and the death of the victim is purely an accidental death. There was no intention on the part of the petitioners to cause death of the victim or 'to cause such bodily injury as was likely to cause death. The act of the petitioner was not invested with requisite mensrea which is an essential ingredient of the alleged offence. 13. In my considered opinion the facts and circumstances of the case and the materials on record do not disclose an offence which is exclusively triable by the Court of Sessions. The allegations do not make out any case under section 304/34 of the Indian Penal Code and the case should not be committed to the Court of Sessions. 13. In my considered opinion the facts and circumstances of the case and the materials on record do not disclose an offence which is exclusively triable by the Court of Sessions. The allegations do not make out any case under section 304/34 of the Indian Penal Code and the case should not be committed to the Court of Sessions. But I make it clear that if the learned Magistrate after considering the police report and other accompanying documents finds that a prima facie case is made out under section 304A of the Indian Penal Code, he may proceed under the said section as per the provisions of the Code. 14. The revisional application is accordingly disposed of. Revisional application disposed of.