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1999 DIGILAW 644 (CAL)

Sk. Kuddus v. Haque Middha

1999-12-15

RANJAN KUMAR MAZUMDAR

body1999
JUDGMENT 1. The instant Criminal revisional application under Section 482 of the Code of Criminal Procedure is directed against the order dated 6.8.1996 passed in G.R. Case No. 308 of 1994 by learned Judicial Magistrate, First Court, Suri, Birbhum and also against the order dated 15.12.1998 passed by the learned Additional Sessions Judge, First Court, Suri, Birbhum in Criminal Motion No. 70 of 1996. The case of the petitioner (de facto complainant) was in brief that he lodged a FIR with Suri Police Station, Birbhum alleging inter alia that under the instigation of Opposite Party No.1, the other accused persons formed an unlawful assembly on 9.5.1994 at 11 a.m. and seriously assaulted one I sad at Village Kankuria under P.S. Suri. When the petitioner and others rushed to the place of occurrence, the accused persons hurled bombs and attacked the house of the-petitioner and looted various articles and ornaments from the said house. On the basis of the said FIR, the police made investigation into the case and submitted a charge-sheet against Opposite Party No.1 and many others. Unfortunately, at the time of framing of charge against the accused persons, learned Judicial Magistrate, First Court, Suri, Birbhum passed an order on 6.8.1996 in G.R. Case No. 308 of 1994 discharging Opposite Party No.1 from the said case on the ground that there was no prima facie case or evidence against Opposite Party No.1. Being aggrieved by the said order, the petitioner moved learned Additional Sessions Judge, First Court, Suri, Birbhum in revision for redressal of his grievances, but here, too the learned Court concerned dismissed the revisional application of the petitioner and affirmed the order passed by the learned Judicial Magistrate. Hence, the present case. 2. I have had the opportunity of hearing learned Counsels for all parties at length. 3. The only question requiring consideration in this case was whether the orders passed by the learned Judicial Magistrate in G.R. Case No. 308 of 1994 on 6.8.1996 and also the order passed by the learned Additional Sessions Judge in Criminal Motion No. 70 of 1996 on 15.12.1996 should be set aside or not. 4. 3. The only question requiring consideration in this case was whether the orders passed by the learned Judicial Magistrate in G.R. Case No. 308 of 1994 on 6.8.1996 and also the order passed by the learned Additional Sessions Judge in Criminal Motion No. 70 of 1996 on 15.12.1996 should be set aside or not. 4. At the time of hearing, learned Counsel for the petitioner vehemently submitted that although his client (de facto complainant) specifically named Opposite Party No.1 as one of the accused in the FIR lodged by him on 9.5.1994 yet learned Judicial Magistrate concerned discharged the said Opposite Party No.1 from the case and as such the said order was wrong. He further submitted that Opposite Party No.1 was also named in the charges sheet filed by the police after investigation. But nonetheless Opposite Party No.1 was discharged from the case. It was further submitted that being aggrieved by the said order of the learned Judicial his Magistrate, his client moved the learned Additional Sessions Judge, Suri, but the said learned Court also did not set aside the order passed by the learned Judicial Magistrate. 5. Learned Counsel for Opposite Party No.1 submitted, on the other hand, that at the time of framing of charge against the accused persons, learned Court of Judicial Magistrate, found that there was no sufficient prima facie evidence against Opposite Party No.1 in the statements recorded by the police under Section 161 of the Code and hence, the said Court rightly discharged Opposite Party No.1 from the case. He further submitted that in revision learned Additional Sessions Judge, Suri, also affirmed the said order of learned Judicial Magistrate as there was no prima facie material or evidence against the Opposite Party No.1 in the statements of witnesses recorded by the police under Section 161 of the Code. 6. I have also heard learned Counsel for the State in the matter. 7. It appears from record that Opposite Party No.1 filed a petition before the learned Court below for discharging him from the said case on the ground that there was no prima facie evidence against him. It also appears from record that learned Court below heard all sides in the matter and in that connection considered statements of the various witnesses recorded by the police under Section 161 of the Code. It also appears from record that learned Court below heard all sides in the matter and in that connection considered statements of the various witnesses recorded by the police under Section 161 of the Code. According to the said Court there was no prima facie evidence in respect of any offence against Opposite Party No.1 and hence he discharged Opposite Party No.1 from the said case. According to him, although charge sheet was submitted against Opposite Party No.1 and others, there was no material at all to show that Opposite Party No.1 had any involvement in the commission of the crime as alleged. 8. It also appears from record that the learned Additional Sessions Judge, Suri, while considering the case of the petitioner came to the conclusion that the petitioner (de facto complainant) did not see the incident at all and was not at all present at the scene of occurrence. Again the said learned Court observed in the impugned order that witnesses Anarul Rahaman, Nur Ala and Nur Islam did not see Opposite Party No.1 at the time of incident. The said learned Court also discussed some other aspects of the matter and with an eye to the statements of the witnesses recorded by the police under Section 161 Cr. P.C. that Opposite Party No.1 was not at all present at the scene of occurrence, the said Revisional Court confirmed the order of the learned Judicial Magistrate by way of dismissing the Criminal revisional application. 9. The law enjoins that before discharging an accused from a case, learned Court concerned must assign reasons for such discharge. In the instant case, it appears that the learned Judicial Magistrate, Suri, has duly recorded reasons in the impugned order dated 6.8.1996 for not framing charge against Opposite Party No.1. In revision the learned Additional Sessions Judge, Suri, also assigned reasons for affirming the order of the learned Judicial Magistrate. Both the learned Courts below found no materials on-record to frame a charge against Opposite Party No.1 and hence, the order was passed in favour of discharging Opposite Party No.1 from the case. Accordingly, I find nothing wrong with the two impugned orders dated 6.8.1996 and 15.12.1998 respectively. 10. Both the learned Courts below found no materials on-record to frame a charge against Opposite Party No.1 and hence, the order was passed in favour of discharging Opposite Party No.1 from the case. Accordingly, I find nothing wrong with the two impugned orders dated 6.8.1996 and 15.12.1998 respectively. 10. Moreover, it transpires from record that although the first revisional application of the petitioner was dismissed by the learned Additional Sessions Judge vide order dated 15.12.1998 yet the petitioner filed the present second revisional application for setting aside the impugned order of the learned Judicial Magistrate dated 6.8.1996. It is pertinent to mention in this connection that the law is well-settled in this regard in as mush as it has been held by Hon'ble Supreme Court in the case of Rajan Kumar Machananda vs. State of Karnataka, 1990 (Supp) SCC 132, that where a revisional application is dismissed by the Court of Sessions, a second revisional application did not lie before the High Court. It has further been held in the said case that merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked, the statutory bar could not have been overcome and if that was to be permitted, every revisional application facing a bar of Section 397 (3) of the Code could be labeled as one under Section 482 of the Code. In view of the said ruling of the Hon'ble Supreme Court, this Court had no jurisdiction to entertain the present second revisional application on the self-same incident. Again it was well-settled that the inherent power under Section 482 of the Code should be exercised very sparingly and only in the rarest of rare cases to prevent abuse of the process of the Court or otherwise to secure the ends of Justice. The instant revisional application was, therefore, misconceived and not maintainable. In the facts and circumstances of the case, I find no impropriety, irregularity or illegality in the two impugned orders dated 6.8.1996 and 5.12.1998 respectively. The instant Criminal revisional application is, therefore, liable to be dismissed and the same is hereby dismissed.