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2008 DIGILAW 518 (CAL)

Baijnath Singh v. STATE OF WEST BENGAL

2008-05-12

ARUNABHA BASU

body2008
Judgment :- (1.) THE revisional application under Section 482 of the Code of Criminal procedure is directed to quash the proceeding in connection with Sessions case No. 201/2007 arising out of G. R. Case No. 1039/2001 now pending before the Court of learned Additional Sessions Judge, Asansol. (2.) IT is the contention of the petitioner that in connection with the aforesaid case police after investigation submitted charge-sheet for commission of offence punishable under Section 498a/176/201/202/304b of the Indian Penal Code. (3.) IT appears from the certified copy of the charge-sheet produced along with the application, the police after conclusion of investigation submitted charge-sheet against six accused persons and the present petitioner is arrayed as one of the accused. (4.) IN the charge-sheet it is stated that so far as the petitioner is concerned, his involvement in the commission of offence could be gathered from the statement of witnesses recorded under Section 161 of the Code of criminal Procedure. (5.) IT appears from the record that inspite of the notice the private opposite Party No. 2 has not entered appearance and the matter is heard and decided after the hearing of the submission made by the learned advocate for the petitioner and learned Advocate for the State. During the course of hearing Case Diary was also produced in compliance with the direction passed by this Court. (6.) LEARNED Advocate for the petitioner during the course of his submission highlighted several features of this case in support of his contention that petitioner has been impleaded as an accused without there being any material against him collected during investigation. (7.) MR. Milon Mukherjee, learned Advocate for the petitioner submitted that initially First Information Report was lodged by the father of the deceased raising allegation against specific persons who are the relations of the deceased through marriage. (8.) IT appears from the First Information Report that informant is the father of deceased and the marriage between the deceased was solemnised with accused Bikash Yadav on 25th June, 1999. In the First Information report there is specific allegation that husband, father-in-law, mother-in-law and sister-in-law (Nanad) subjected deceased to cruelty and torture and ultimately informant was communicated over telephone that on 30th september, 2001 his daughter has expired and her dead body was also cremated. In the First Information report there is specific allegation that husband, father-in-law, mother-in-law and sister-in-law (Nanad) subjected deceased to cruelty and torture and ultimately informant was communicated over telephone that on 30th september, 2001 his daughter has expired and her dead body was also cremated. The informant after receiving the information came to the matrimonial house of his deceased daughter on 2nd October, 2001 and thereafter he lodged the First Information Report at Jamuria Police Station within the district of Burdwan. (9.) IN the First Information Report, no allegation is raised against the petitioner as one of the co-accused. (10.) LEARNED Advocate for the petitioner drew the attention of this court that certified copy of the order dated 30th May, 2002 where the petitioner along with another persons were produced before the Court of learned Magistrate with prayer to record their statement as witness under section 164 of the Code of Criminal Procedure. (11.) LEARNED Judicial Magistrate was directed to record the statement of witnesses and the petitioner herein declined to make any statement on the ground that he is not aware about the facts of the case and have nothing to say. The relevant portion of the order of the learned Magistrate is reproduced below :- "in reply, each witness stated that they are not aware of facts of this case and have nothing to say. In view of that the two witnesses declined to give statement under section 164 Cr. P. C." (12.) IT is evident that even though First Information Report was lodged on 2nd October, 2001 and investigation was in progress on and from that date, the Investigating Officer submitted a prayer before the learned magistrate that the petitioner is a witness to the occurrence and his statement may be recorded under Section 164 of the Code of Criminal Procedure. (13.) IT is the contention of learned Advocate for the petitioner that when the petitioner refused to make any statement on the ground that he has no knowledge about the case, then out of grudge he has been falsely implicated this case. (13.) IT is the contention of learned Advocate for the petitioner that when the petitioner refused to make any statement on the ground that he has no knowledge about the case, then out of grudge he has been falsely implicated this case. (14.) ON perusal of C. D. entry, it appears that Investigating Officer recorded in the entry dated 30th May, 2002 that such statement was recorded under Section 164 of the Code of Criminal Procedure which appears to be incorrect in view of the order dated 30th May, 2002 passed by the learned magistrate as mentioned above. (15.) IN the Case Diary, there appears to be statement of two witnesses recorded under Section 161 of the Code of Criminal Procedure, even though, at this stage the Court decline to enter into a detailed discussion about the materials collected during investigation but at the same time Court cannot ignore in exercise of its power under Section 482 of the Code of Criminal procedure that the materials collected during investigation whether the same is prima facie, satisfactory to implicate the accused with the commission of offence. The statement of witnesses available at page 9 and page 10 of the case Diary only implicates the petitioner on the basis of assumption. The only allegation raised against the petitioner that he approached the other witnesses along with the accused persons and went to the place where the body of the deceased was cremated. (16.) IT is evident from the statement of witnesses that both the witnesses as mentioned in page 9 and page 10 of the Case Diary also went with the petitioner herein and the accused persons to the place of cremation. Such being the position, there appears to be no material against the petitioner showing his involvement in the commission of offence. (17.) UNDER these circumstances, merely because charge-sheet is submitted against the petitioner, it cannot be stated that there is material to show even prima facie that he is involved in the commission of offence. (18.) SUCH being the position, I am of the view that further continuation of the proceeding being Sessions Case No. 201 of 2007, now, pending before the Court of learned Additional Sessions Judge, Asansol, so far as the petitioner is concerned, will be an abuse of the process of Court. (18.) SUCH being the position, I am of the view that further continuation of the proceeding being Sessions Case No. 201 of 2007, now, pending before the Court of learned Additional Sessions Judge, Asansol, so far as the petitioner is concerned, will be an abuse of the process of Court. (19.) THE revisional application is disposed of with the direction that proceeding in connection with Sessions Case No. 201 of 2007 now pending before the Court of learned Additional Sessions Judge, Asansol is hereby quashed so far as the petitioner is concerned. (20.) THERE shall be no order as to costs. (21.) CRIMINAL Section is directed to forward copy of the order to learned Court below. (22.) CRIMINAL Section is also directed to supply urgent certified copy of the order as and when applied for. Case Diary be returned.