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2009 DIGILAW 372 (CAL)

Krishna Rabi Das v. STATE OF WEST BENGAL

2009-05-14

PARTHA SAKHA DATTA

body2009
ORDER: - The question is whether it is permissible to exercise inherent jurisdiction -under Section 482 Cr. P.C. so as to record an order of discharge when most of the witnesses have been examined in the course of trial. 2. The petitioner along with some other accused persons were charge-sheeted in connection with Purulia (T) Police Station Case No.9 of 2008 dated 11th June, 2008 under Section 395 Indian Penal Code read with Section 25/26 Arms Act. At the time of consideration of charge the petitioner made an application before the learned Additional Sessions Judge, Fast Track Court No.2 at Purulia on 12th January, 2009 praying for discharge from the case on the ground that he was not identified by any witnesses in the T.I. parade, nor was he named in the FIR, nor was there any incriminating material against him. At the time of consideration of charge, the learned Public Prosecutor submitted that no case was there against the present petitioner as he was not present at the scene of commission of dacoity but he referred to the statements of two witnesses, namely, Amar Nath Singh and Dr. Debendra Nath Sharma. The learned Judge recorded that the statements of the said two witnesses revealed that the petitioner supplied arms for dacoity but this portion of the statements under Section 161 ,Cr. P.C. which was written in the bottom of the statements were found interpolated later. Learned Judge decided to frame charge against the petitioner presumably taking into consideration that interpolation was made subsequently to the mischief of the prosecution and then trial proceeded after framing of charge. This order dated 15th January, 2009 whereby charge has been framed against the petitioner under Sections 395/120B of the Indian Penal Code and under Section 29(b) of the Arms Act is under challenge. Charges were also framed against certain other accused persons by the said order dated 15th January, 2009. 3. The petitioner took out this application under Section 482 of the Cr. P.C. praying for discharge after setting aside the order dated 15th January, 2009 on the ground that there was no material before the learned Judge to frame charges against the petitioner. 4. It has been submitted by Mr. Bagchi, learned advocate for the petitioner that in the copies of the statements of the witnesses supplied to the accused under Section 207 Cr. 4. It has been submitted by Mr. Bagchi, learned advocate for the petitioner that in the copies of the statements of the witnesses supplied to the accused under Section 207 Cr. P.C. the portion which was allegedly interpolated did not appear and accordingly no charge could have been rightly framed against the petitioner. Secondly, Mr. Bagchi submitted that subsequent to the filing of the case the trial proceeded with examination of 29 witnesses including the said two persons, namely, A. N.Singh and D. N. Sharma but they did not make any whisper in their evidence on oath before the Court against the present petitioner. Therefore, in absence of any statement against the petitioner in the evidence of the two witnesses it is clear that there is no material against the petitioner so as to compel him to face trial. Mr. Bagchi submits that in view of Section 482 of the Cr. P.C. the Court has inherent jurisdiction to quash the proceeding as against the present petitioner. 5. Mr. Debabrata Roy, learned advocate appearing for the State of West Bengal submitted that when charges have been framed against the petitioner and as many as 29 witnesses have been examined the petitioner cannot seek for discharge. 6. When this application under Section 482 Cr. P. C. was filed the witnesses were not examined. The petitioner took out this application praying for discharge questioning the alleged statements of A.N.Singh and Dr. D.N.Sharma. Now when the application was filed and moved there was direction for service of notice upon the O.P., namely, the State of West Bengal and no stay was granted by this Court in connection with the trial of the case. The trial proceeded and after examination of the 29 witnesses this Court is called upon to exercise its inherent jurisdiction so as to quash the proceeding as against the present petitioner. When trial has commenced and is on the verge of closure, the petitioner cannot take recourse to evidence on oath of the witnesses as an aid to the prayer for discharge which was made before the trial commenced. Inherent jurisdiction can be exercised only to secure the ends of justice but the Court has to observe some self-imposed limitations. The question of discharge is at stake when substantial number of witnesses have been examined. Mr. Inherent jurisdiction can be exercised only to secure the ends of justice but the Court has to observe some self-imposed limitations. The question of discharge is at stake when substantial number of witnesses have been examined. Mr. Roy has rightly submitted that prayer for discharge is misnomer when' it is moved with the aid of the evidence of the witnesses on oath and at this stage appropriate procedure would be to record an order of acquittal and that to by the trial Court, not by this Court by virtue of the power under Section 482 of the Cr. P.C. It is further submitted rightly too, that who knows that no evidence would be transpiring against the petitioner from the witnesses yet to be examined in view of the legal proposition that evidence of a witness in trial has not to be a mirror or replica of 161 Cr. P.C. statement. The provisions of Section 482 Cr. P.C., to my mind cannot be extended to make an order of discharge on the premise that during trial which is yet to be completed, no evidence did so far transpire against an accused. The decision in R.B. Kapoor -v-State of Punjab or State of Haryana v. Bhajanlal is with respect to quashing of a petition of complaint or the FIR. The guidelines laid down in Bhajanlal are the guidelines which are to be taken into consideration while considering the application for quashing of a proceeding. Here in this instant case, charge-sheet has been submitted against the petitioner along with others. Rightly or wrongly, learned Trial Court framed charges against the petitioner upon healing the submission of the learned Public Prosecutor and the learned defence Advocate. Learned Judge was not inclined to believe that there were no materials against the petitioner and the relevant statements of the two witnesses, namely, A.N.Singh and Dr. D.N.Sharma were found to be subsequently interpolated and acting on the statements of the two witnesses, charges were framed and as many as 29 witnesses have been examined. I am told that only 9 witnesses are yet to be examined. When 29 witnesses have been examined and few are yet to be examined, I am not prepared to accept the proposition that provision of Section 482 of the Cr. P.C. can still be resorted to so as to record an order of discharge. I am told that only 9 witnesses are yet to be examined. When 29 witnesses have been examined and few are yet to be examined, I am not prepared to accept the proposition that provision of Section 482 of the Cr. P.C. can still be resorted to so as to record an order of discharge. When once trial has commenced the prosecution has to, be terminated to its logical conclusion and in the midst• of trial application for discharge is inappropriate. 7. Accordingly, the application is dismissed. 8. Urgent Xerox certified copy, if applied for, be given to the parties as expeditiously as possible. Application dismissed.