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2010 DIGILAW 871 (CAL)

Naba Kumar Singh v. The State of West Bengal

2010-07-27

KALIDAS MUKHERJEE

body2010
Judgment : KALIDAS MUKHERJEE, J: 1. This is an application under Section 401 read with Section 482 Cr.P.C. assailing the order dated 23.6.2008 and 5.7.2008 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Arambag, Hooghly in S.C. Case No. 32 of 2008 arising out of G.R. 250 of 2007 under Section 147, 148, 149, 326, 307, 395, 504, 506(2), 120B/34 of the Indian Penal Code rejecting thereby the prayer of the petitioners for discharge under Section 228 of the Cr.P.C. 2. The case of the prosecution, in short, is that on 25.5.2007 in the early morning the accused No. 1 Naba Singh called the complainant and when the complainant came out of the house accused Naba Singh, Himanshu Mallick, Subhranshu Mallik, Gurupada Mallik, Ajit Singh and 5/6 others started abusing the complainant and assaulted him by fists and blows. Himanshu and Gurupada assaulted him by means of lathi and Subhranshu with the help of a big knife assaulted him by the ‘butt’ of the knife in the right side of the ear. Being assaulted, the complainant was about to fall down on the earth and at that time his wife held him and rescued. When Himanshu tried to dash him to the ground, the wife and unmarried sister-in-law of the complainant came to rescue him. The local people assembled there. The information was lodged with the P.S. being G.D. entry No. 1151 dated 25.5.2007 and the complainant was referred to Arambag Hospital. He was examined there by the Doctor. The informant remained admitted in the hospital from 25.5.2007 to 29.5.2007. The x-ray was done and thereafter he was discharged. 3. The Arambag P.S. case No. 113 dated 15.6.2007 was registered. The learned Additional Sessions Judge, Fast Track Court, Arambag observed that there was reasonable ground for believing that the accused persons were involved in the commission of an offence punishable under Section 148/325/307/149 of the Indian Penal Code. By another order dated 05.7.2008 the learned Court below framed charge under Section 148/325/307/149 of the Indian Penal Code against the accused persons to which they pleaded not guilty and claimed to be tried. The learned Judge fixed a schedule for the examination of the P.Ws. 4. By another order dated 05.7.2008 the learned Court below framed charge under Section 148/325/307/149 of the Indian Penal Code against the accused persons to which they pleaded not guilty and claimed to be tried. The learned Judge fixed a schedule for the examination of the P.Ws. 4. The learned Counsel appearing for the petitioners submits that the injuries as appearing in the injury report are simple and it does not justify the framing of charge under Section 307 of the Indian Penal Code. The learned Counsel has also drawn my attention to the statement of the witnesses recorded under Section 161 Cr.P.C. It is submitted that the informant was allegedly assaulted by fists and blows and one accused allegedly assaulted him with the help of the ‘butt’ of the knife in the right side of the ear. It is submitted that the injury as appearing from the injury report and the statements of the witnesses recorded under Section 161 Cr.P.C. do not justify the framing of charge under Section 307 of the Indian Penal Code. It is contended that the charge at best can be framed under Section 323 of the Indian Penal Code which is triable by the Magistrate. 5. Mr. Mallick appearing on behalf of the State submits that at the stage of framing of charge the materials on record cannot be examined. Mr. Mallick has referred to and cited the decisions reported in 2007(2) SCC (Cri) 514 [Soma Chakravarty Vs. State through CBI] and 2009(3) SC (Cri) 996 [Indu Jain Vs. State of Madhya Pradesh and others]. 6. In the case of Indu Jain Vs. State of Madhya Pradesh and others] (Supra) it has been observed by the Apex Court that at the stage of framing of charge, the Court is not required to go into details of the investigation, but, to only arrive at a prima facie finding on the materials made available as to whether a charge could be sustained as recommended in the charge sheet. The holding of a mini trail at the time of framing of charge has been deprecated. 7. In the case of Soma Chakravarty Vs. State through CBI it has been held by the Apex Court that the Court has to see whether there was existence of materials on record to show a prima facie case against the accused. 8. The holding of a mini trail at the time of framing of charge has been deprecated. 7. In the case of Soma Chakravarty Vs. State through CBI it has been held by the Apex Court that the Court has to see whether there was existence of materials on record to show a prima facie case against the accused. 8. It appears that there is injury report issued by the hospital and it is on record that the informant was admitted in the hospital from 25.5.2007 to 29.5.2007. The X-ray was also done. So far as the charge under Section 307 of the Indian Penal Code is concerned, intention is the prime consideration. Intention depends on the circumstances of each case which can only be determined after recording evidence at the time of trial. At this stage I find that it would not be proper to examine the injury reports so as to determine whether the charge under Section 307 of the Indian Penal Code is applicable or not. 9. Relying upon the decisions cited above, I find that it is not a fit case for setting aside the order passed by the learned Trial Judge. The Revisional Application therefore, fails and the same stands dismissed. 10. Let a copy of this judgment be sent to the learned Court below immediately. 11. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.