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2000 DIGILAW 187 (CAL)

Sampa Das v. State of West Bengal

2000-04-17

AMIT TALUKDAR

body2000
JUDGMENT Against an order dated 4.8.99 passed by the learned Sub-Divisional Judicial Magistrate, Howrah (Sadar) in G.R. Case No. 1035/97 thereby discharging the Accused/Opposite Party No.2 from the case, this Revisional Application has been taken out on behalf of the Petitioner who is the Complainant in this Case. The grievance of the Petitioner being that the Order Of discharge recorded by the learned Magistrate should not have been passed as the Opposite Party No.2 was very much involved and charge ought to have been framed against him also. It has been further -canvassed that the Investigation was done perfunctorily screening the Opposite Party No.2. Great stress was laid on the fact that notwithstanding the confinement of the Petitioner was in hospital since 3.6.97 to 15.7.97 for over 42 days her statement under Section 164 of the Code of Criminal Procedure was not recorded by the Investigating Agency and at the time of framing of charge the learned Magistrate entered into a meticulous discussion of the materials and erroneously passed the Order of discharge which he should not have otherwise done so. 2. Controverting all the issues raised on behalf of the Petitioner it was contended on behalf of the Opposite Party No.2 that the learned Magistrate rightly passed the Order of discharge as there are no sufficient materials to warrant framing of charge. It was also highlighted that the Opposite Party No.2 was falsely roped in at the instance of the Petitioner and as there were absolutely no materials, the Order impugned should be left undisturbed. 3. On behalf of the State the line taken up by the Petitioner was adopted. The Case Diary was also made available for perusal of this Court. 4. I have gone through the Lower Court Records and have also scrutinised the Case Diary in great details. I find that at least three witness-I. Santanu Dey, 2. Kaushik Mitra and 3. Sushil Kr. Dey have spoken about the involvement of the Opposite Party No.2. From their 161 statement recorded by Investigating Agency it appears that the complicity of the Petitioner very much transpires. The learned Magistrate at the time of arriving at his conclusion, in my view, did not take up this statement which would not have prompted him to pass the Order of discharge. From their 161 statement recorded by Investigating Agency it appears that the complicity of the Petitioner very much transpires. The learned Magistrate at the time of arriving at his conclusion, in my view, did not take up this statement which would not have prompted him to pass the Order of discharge. From the statement of Santanu Dey I find that he has stated that on the date of occurrence he received the news and came to the house of the Petitioner and found that both the Petitioner and her daughter suffered bleeding injury on their heads. He came to know that Mita Ganguly, their maid, hit them on their heads in the morning with a wooden baton. Thereafter, Mita Ganguly escaped and the people of the locality informed him that the Opposi1y Party No.2 who was the landlord of the Petitioner did not open the door when the local persons rushed to the house after hearing the noise: He further stated that had the Opposite Party No.2 not opened the door on time then the petitioner and her daughter could have been saved by the local people and Mita Ganguly could not have escaped. From the statement of Kaushik Mitra, it appears that after hearing the shouts from the house of the Petitioner he immediately reached there and found that the door of the room was closed from inside and there was shout 'BACHAO BACHAO'. When he attempted to break the door, the Opposite Party No.2 prevented him. . 5. Sushil Kr. Dey in his statement clearly stated that after hearing the news he came to the house of his daughter (Petitioner) and found his daughter and grand daughter in injured condition. He also stated that when his daughter (Petitioner) was shouting at that time the Opposite Party No.2 prevented local people from entering inside and did not want to open the door and that the Opposite Party No.2 knew everything and assisted Mita Ganguly in escaping. 6. The learned .Magistrate, I find had entered into a detailed discussion with regard to the materials-on-record being oblivious of the aforesaid statements which definitely involved the Opposite Party in the instant case. 6. The learned .Magistrate, I find had entered into a detailed discussion with regard to the materials-on-record being oblivious of the aforesaid statements which definitely involved the Opposite Party in the instant case. The learned Magistrate greatly harped that the Petitioner and her daughter named Rinku @ Mita Ganguly as their assailant losing sight of the fact that the Charge-Sheet was submitted against the Accused Rinku @ Mita Ganguly and as also the Opposite Party under Sections 326, 34 of the Indian Penal Code. At the stage of framing of charge, the detailed discussion on the merit is not desirable; even a strong suspicion founded upon materials is sufficient to frame a charge. I rely all the three-Judge Bench decision of the Supreme Court in the case of (1) State of Maharashtra and Others v. Som Nath Thapa and Others as reported in 1996 Supreme Court Cast's (Cr) 820, wherein the Apex Court has said that even if the Court thinks that the Accused might have committed the offence it can frame the charge and at such a stage probative value of the materials-an-record cannot be gone into. 7. After carefully considering the submissions of the parties and assessing the materials-an-record, I find that the learned Magistrate should not have passed the impugned Order of discharge in favour of the Opposite Party No.2 as his involvement very much transpires in the case. It is most apposite that the prosecution should be allowed to prove its case by way of adducing evidence against the Opposite Party No.2 and the Order of discharge definitely scuttles a part of the prosecution case at a premature stage which should not be allowed. 8. Accordingly, I allow this Revisional Application and set aside the impugned order dated 4.8.99 passed by the learned Sub-Divisional Judicial Magistrate, Howrah (Sadar) in G.R. Case No. 1035 of 1997 (T. R. No. 133 of 1998). 9. Let the copy of this order be communicated to the learned Magistrate forthwith along with the Lower Court Records which also must have to be sent down along side expeditiously. The Case Diary be returned to Shri Barindra Nath Roy, the learned Lawyer appearing on behalf of the State.