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2006 DIGILAW 462 (CAL)

MUJIDA MONDAL v. STATE OF WEST BENGAL

2006-07-28

SADHAN KUMAR GUPTA

body2006
SADHAN KUMAR GUPTA, J. ( 1 ) THIS revisional application has been preferred against the order of discharge, as passed by the learned Sub-Divisional Judicial Magistrate, diamond Harbour in G. R. Case No. 863 of 1988 arising out of Mograhat P. S. Case No. 16 (7) of 1988 under Sections 148,149,342,326,307 and 302 of the indian Penal Code. ( 2 ) CASE of the petitioner is that she lodged a written complaint in the mograhat Police Station on 27/3/1988 stating therein that long standing dispute was going on between the petitioner's husband and the opposite party Nos. 2 to 8 and others. On that day at about 6. 30 a. m. when petitioner's husband went out of the room for washing his face, at that time the opposite party Nos. 2 to 8 and some others attacked him with lathi, dagger, gun etc. When brothers of the petitioner's husband, namely, Iman AH, Asraf and others came to the rescue of the petitioner's husband, at that time they assaulted Iman Ali and mohabbat Ali and as a result of that both of them died on the spot. Petitioner's husband sustained serious injury on his head and forehead. That apart, some other persons were also injured. Over this complaint, Mograhat P. S. Case No. 16 (7) of 1988 was started against the opposite party Nos. 2 to 8. The case was investigated and after completion of investigation, charge-sheet was submitted on 24/4/1992 against the private/opposite parties and the learned s. D. J. M. , Diamond Harbour, by his order dated 19/6/1902, took cognizance. Thereafter on 7/8/1993 the learned S. D. J. M. in-charge, Diamond Harbour discharged all the accused persons as per provisions of Section 167 (5) Cr. P. C, on the basis of the petition filed by the accused persons. The learned Magistrate was of the opinion that as the charge-sheet was submitted beyond the prescribed period of limitation, so the accused persons were entitled to be discharged as per said provision. Being aggrieved by and/or dissatisfied with the said order, this revisional application has been preferred by the petitioner. It has been mentioned in the revisional application that her husband also died as a result of the injury sustained by him at the hands of the accused persons. Being aggrieved by and/or dissatisfied with the said order, this revisional application has been preferred by the petitioner. It has been mentioned in the revisional application that her husband also died as a result of the injury sustained by him at the hands of the accused persons. In this revisional application it has been claimed by the petitioner that the learned Magistrate was thoroughly wrong in discharging the accused persons as per provisions of Section 167 (5) of the Cr. P. C. It has further been alleged that when the cognizance of the offence was taken by the learned Magistrate then the said Court had no jurisdiction to discharge the accused persons as was a sessions triable case. Moreover, it has further been alleged that the learned Magistrate did not issue any notice to the de facto complainant before discharging the accused persons. That apart, in view of the recent decisions of the Hon'ble Supreme Court as well as of this Court, the learned Magistrate was not at all justified in discharging the accused persons from the case. As such, by filing this revisional application the petitioner, being the de facto complainant, has prayed for setting aside the impugned order of the learned magistrate and to pass appropriate direction for trial of the case. ( 3 ) IT appears from the order dated 7/4/2006 that the Hon'ble Justice sankar Prasad Mitra admitted the revisional application and directed that the matter would appear for hearing as 'contested Application'. Pursuant to that, said revisional application is taken up for hearing. The opposite party/state of west Bengal has contested this revisional application. But the opposite party nos. 2 to 8 did not contest the said application. It appears from the order dated 14. 7. 2006 that the opposite party No. 2 and opposite party No. 3 are now deed as reflected from the postal endorsement. So far as other opposite parties are concerned, it appears that notices were duly served upon them. As inspite of that, those opposite parties are not coming forward, so the revisional application was taken up for hearing in their absence. . ( 4 ) LEARNED Advocate for the petitioner submitted that the learned magistrate was not at all justified in discharging the accused persons as per provisions of Section 167 (5) Cr. As inspite of that, those opposite parties are not coming forward, so the revisional application was taken up for hearing in their absence. . ( 4 ) LEARNED Advocate for the petitioner submitted that the learned magistrate was not at all justified in discharging the accused persons as per provisions of Section 167 (5) Cr. P. C. He further contended that when cognizance was taken then the learned Magistrate became functus officio and as the case was sessions triable, so it was only the Sessions Judge who has got the jurisdiction to pass any order of discharge. Moreover, it has further been argued by the learned Advocate for the petitioner that question of discharging the accused persons after the expiry of period of limitation for investigation, does not arise at all, as it has been held by the Hon'ble Supreme Court and other high Courts that instead of discharging the accused persons, the Court is to look into the evidence that has been collected during investigation which was done within the prescribed period of limitation. In support of his contention, learned Advocate for the petitioner relied upon the decision reported in (1998)2 cal HN page 136 : 1998 C Cr LR (Cal) 292 (Kalyan Kumar Das v. State of west Bengal, AIR 1998 SC page 2322 :1998 C Cr LR (SC) 216 (Nirmal Kanti roy v. State of West Bengal) and 1996 Cr LJ page 1137 :1996 C Cr LR (SC)203 (Durgesh Chandra Saha v. Bimal Chandra Saha and Ors. ). ( 5 ) MR. Mallick, learned Advocate for the State supported the contention of the learned Advocate for the petitioner. According to Mr. Mallick, learned magistrate was not at all justified in discharging the accused persons only because of the fact that the investigation could not be completed within the prescribed time limit. He fairly and frankly conceded that if the investigation could not be completed in time, then there was no bar for the Court to consider the materials which were collected during the prescribed period of limitation and to proceed with the trial. ( 6 ) I have heard the submissions of the learned Advocates for both the sides. It appears that so far as the present case is concerned, it is the prosecution case that three persons were murdered, allegedly by the accused persons. ( 6 ) I have heard the submissions of the learned Advocates for both the sides. It appears that so far as the present case is concerned, it is the prosecution case that three persons were murdered, allegedly by the accused persons. There cannot be any doubt that the offence is highly serious in nature and it is expected that the learned Magistrate, while passing any order in such a case, would be absolutely careful. From the certified copy of the order-sheet of the learned Magistrate it appears that charge-sheet was submitted and cognizance was taken by the said Magistrate. I have already pointed out that it is a sessions triable case. So when cognizance of such case was taken, then the Magistrate looses his jurisdiction in passing an order of discharge and it is for the Session Judge to pass appropriate order. But Inspite of the fact that cognizance was taken, learned Magistrate preferred to discharge the accused persons solely on the ground that the investigation could not be completed within the prescribed time limit. This order of the learned Magistrate appears to be palpably illegal and without jurisdiction. ( 7 ) THAT apart, it is the settled position that whenever such a discharge order is passed on the ground that the investigation could not be completed within the prescribed time limit, then it is the normal rule that de facto complainant should be given a notice before passing such order. In the decision reported in (1998)2 Cal HN page 136 (supra) it has been clearly laid down by the Full Bench of this Court that, notice to informant and affording opportunity to be heard to the injured or relatives of the victim of murder is mandatory. But the learned Magistrate, as it appears, did not follows his course and as such the impugned order should be set aside on this ground also. ( 8 ) IT further appears that the learned Magistrate discharged the accused persons solely on the ground that the investigation could not be completed within the prescribed period of three years and as such on the basis of the charge-sheet cognizance could not be taken and so he was pleased to discharge the accused persons. ( 8 ) IT further appears that the learned Magistrate discharged the accused persons solely on the ground that the investigation could not be completed within the prescribed period of three years and as such on the basis of the charge-sheet cognizance could not be taken and so he was pleased to discharge the accused persons. But I have already pointed out that since the learned Magistrate already took cognizance, so he had no jurisdiction over the mater and the Session Judge of the Sessions Division had only jurisdiction to that effect. On this ground also the order of the learned Magistrate cannot be supported. That apart, it is now settled position that discharge or an accused in such a case on the ground that investigation could not be completed within the prescribed time limit, cannot be automatic. Law has been well settled in various decisions of the Apex Court as well as of this Court to the effect that there is no bar for the Court to proceed with the trial even if the investigation could not be completed within the prescribed time limit. In that event it is always open for the Court to take into consideration, the materials that were collected during the prescribed time limit and to proceed with the trial. As such, it is very much clear that under no circumstances there should be an order of discharge of an accused solely on the ground that the investigation could not be completed within the prescribed time limit. On this ground also the impugned order of the learned Magistrate cannot sustain. ( 9 ) MR. Mallick, learned Advocate for the State, fairly and frankly conceded to this legal proposition and he submitted that the order of the learned magistrate should be set aside and the learned Court below should be directed to proceed with the trial without any further delay in accordance with law. While accepting the version of the learned Advocate for the petitioner and the learned Advocate for the State, I must add one thing more to the effect that it is surprising that machinery of the State remained silent for these long years without taking any step against the palpably illegal order of the learned magistrate. While accepting the version of the learned Advocate for the petitioner and the learned Advocate for the State, I must add one thing more to the effect that it is surprising that machinery of the State remained silent for these long years without taking any step against the palpably illegal order of the learned magistrate. We should not be oblivion to the fact that three persons were murdered in connection with the incident and the machinery of the State, mainly the police administration, did not take any appropriate step either for completing the investigation within the prescribed time limit or for taking further step in accordance with law when the order of discharge was passed by the learned magistrate. The entire matter is absolutely shocking and 1 think it is my duty to draw the attention of the appropriate authority so that necessary steps for proper conducting of the trial can be taken. ( 10 ) THEREFORE, from my above discussion, I am of opinion that there is merit in this revisional application and the impugned order, as passed by the learned Magistrate is liable to be set aside. ( 11 ) IN the result, the revisional application succeeds on contest. The order of the learned Magistrate dated 7/8/1993 is set aside. The learned magistrate is directed to take the accused persons in custody and since they were previously released on bail, learned Magistrate is directed to allow them to remain in the existing bail bond and after appearance of all the accused persons the learned Magistrate is directed to take immediate steps for committing the case to the Court of Sessions for trial. After the commitment is made, the learned Sessions Judge is directed to take appropriate steps for expeditious trial of the case as the matter has already been delayed. ( 12 ) SEND a copy of the order to the learned Sub-Divisional Judicial magistrate, Diamond Harbour (now re-designated as Additional Chief Judicial magistrate, Diamond Harbour) for information and taking immediate action as indicated above.