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2008 DIGILAW 685 (CAL)

Ali v. STATE OF WEST BENGAL

2008-07-14

DIPANKAR DATTA

body2008
Judgment :- (1.) ON the basis of a complaint lodged by one Amirullah Khan alleging murder of his son Amanullah Khan on 25th August, 2006 at about 7. 15 A. M. , Khardah Police (2.) STATION Case No. 235 dated 25th August, 2006 under Sections 147/148/326/302 of the Indian Penal Code was started against five accused persons. In course of investigation, involvement of the four petitioners came to light. They were sought to be apprehended, but since they were absconding, on the prayer of the investigating officer, the ACJM, Barrack pore, issued warrants of arrest. On conclusion of investigation, charge sheet vide Khardah P. S charge-sheet No. 346 dated 21st November, 2006 under Sections 147/148/325/302 of the Indian Penal code against ten accused persons (including the four petitioners) was filed showing the petitioners as absconders. (3.) THE first and the second petitioners applied for anticipatory bail before this court. On 9th April, 2007, their prayers were rejected by a Honble Division bench of this Court. On 17th April, 2007, another Honble Division Bench was pleased to reject the prayers for anticipatory bail of the third and fourth petitioners herein. (4.) IT is the claim of the petitioners in the present petition that they have been falsely implicated in the above-mentioned criminal case and, accordingly, they have prayed for direction on the police authorities to conduct further investigation under Section 173 (8) of the Code of Criminal Procedure (hereafter the Code). In support of such claim, the Courts attention has been invited to two documents at pages 27 and 29 of the petition. The first document is a certificate issued by the Manager (Personnel) of National Jute Manufacturers Corporation limited certifying that the first petitioner is a permanent workman in the mills of the Corporation and that on 25th August, 2006, he recorded his attendance at 6.10 A. M. in the "a" shift. The other document is dated 5th October, 2006 issued by the Assistant Manager (P and A) of Electro steel Castings Limited certifying that the second petitioner, an employee of the said company, attended duty on 25th august, 2006 with arrival time at 5. 53 A. M. and departure time being 1.55 P.M. It is recorded in the certificate that the same has been issued as per request of the spouse of the second petitioner. 53 A. M. and departure time being 1.55 P.M. It is recorded in the certificate that the same has been issued as per request of the spouse of the second petitioner. So far as the third and fourth petitioners are concerned, there is no document on record to establish any plea of alibi. It has been contended by Mr. Dutta, learned Counsel for the petitioners that in course of investigation, the investigating officer did not consider the above-referred certificates. The murder of Amanullah Khan allegedly was committed early in the morning on 25th August, 2006 and having regard to the fact that the first and the second petitioners were at their respective workplaces on the material date and at the relevant time, the certificates have the effect of disproving the case as made out in the charge-sheet by the investigating officer and, therefore, this Court ought to direct further investigation having regard to the law laid down in the decisions reported in (1979) 2 SCC 322 : Ram Lal narang "vs.- State (Delhi Admn.); (2008) 2 SCC 383 : State of Andhra Pradesh" vs.-A. S. Peter; 2004 CRI. L. J. 2018 : Hasanbhai Valibhai Qureshi -Vs.-State of gujarat and others and 2005 CRI. L. J. 4461 : Sonalal Soni "vs.- State of chhattisgarh and others. (5.) PER contra, learned Counsel for the respondents Mr. Das submitted that the petitioners are not entitled to any relief having regard to the fact that they have suppressed vital facts, viz. rejection of their anticipatory bail prayers. While opposing the petition, he has raised other points reference to which is not considered necessary for the purpose of disposal of the present case. There cannot be any doubt with regard to the proposition of law that further investigation even after submission of report in final form under Section 173 of the Code is not barred. The cited decisions are authorities on the point. However, the point raised by Mr. Dutta is squarely covered by the decision of the apex Court in. There cannot be any doubt with regard to the proposition of law that further investigation even after submission of report in final form under Section 173 of the Code is not barred. The cited decisions are authorities on the point. However, the point raised by Mr. Dutta is squarely covered by the decision of the apex Court in. While considering the question as to whether the Trial Court at the time of framing of charge can consider material filed by the accused, the Apex Court considered the provisions contained in Sections 227 and 228 of the Code together with Section 209 thereof and ruled that "no provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of trial. " (6.) IN paragraph 23, the Court concluded "as a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided." while considering the scope of Section 91 of the Code, it was held that "section 91 does not confer any right on the accused to produce document in his possession to prove his defence. " (7.) ACCORDING to Mr. Das, 30th April, 2008 was the date fixed for framing of charges. He, however, failed to enlighten this Court as to whether charges have been framed or not on such date. (8.) WHILE investigation of the case in question was being conducted by the investigating Officer, the petitioners absconded. It was only after the charge-sheet was filed that they applied for being released on anticipatory bail. Having regard to the law laid down in Debendra Kumar Padhi (supra) that an accused has no right to produce any document in support of his defence even at the time of taking cognizance of offence by the Trial Court, there is hardly any scope for this court to order further investigation. The certificates being relied on by the first and the second petitioners are intended to prove their alibi. The certificates being relied on by the first and the second petitioners are intended to prove their alibi. As and when the trial begins, it shall be open to them to raise such plea in order to obtain orders in their favour. Absolutely, no case has been made out by the third and the fourth petitioners in support of the relief claimed. No case for exercise of writ powers has been made out. The petition is without merit and stands dismissed. (9.) THERE shall be no order for costs.