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2013 DIGILAW 84 (CAL)

Mir Md. Asfia v. Mir Md. Ismail

2013-02-11

ASIM KUMAR RAY

body2013
ORDER 1. This application under Section 401 read with Section 482 of Criminal Procedure Code is directed against an order dated 29-3-2004 passed in Criminal Motion No. 109 of 2003 by learned Additional District Judge, Second Court, Burdwan which arise out of an order dated 1-7-2003 passed in GR Case No. 852 of 1997 corresponding to Ausgram Police Station Case No. 52 of 1997 dated 23-6-2007 under Sections 143/147/148/447/379/411 of the Indian Penal Code by learned Sub-Divisional Judicial Magistrate, Burdwan. 2. The petitioner filed a petition of complaint against the opposite parties before the learned Chief Judicial Magistrate, Burdwan. It was sent to the Officer-in-Charge, Ausgram P.S. for investigation after treating the same as First Information Report under Section 156(3) of Cr. P.C. As a result Ausgram P.S. Case No. 52 of 1997 dated 23-6-2007 cropped up. On investigation charge-sheet was submitted against three opposite parties, namely Mir Md. Ismail, Mir Abdul Salim alias Mir Md. Salim and Mir Abdul Halim alias Mir Md. Halim. The rest opposite parties were not sent up as accused in the charge- sheet. They were discharged. 3. Charge under Sections 147/148/149/447/379 of Indian Penal Code was framed against the aforesaid three opposite parties. Two witnesses were examined in full. Petitioner was cited as prosecution witness No.3 and in course of his evidence /examination- in-chief he named the opposite parties Nos. 4 to 11 as accused persons who has committed mischief. Thereafter, the petitioner filed an application under Section 319 of the Criminal Procedure Code before the learned Sub-Divisional Judicial Magistrate, Burdwan to proceed against those opposite party Nos. 4 to 11. The learned Sub-Divisional Judicial Magistrate by an order dated 1-7-2003 rejected the application. Being dissatisfied with the said order the petitioner preferred a revisional application being Criminal Motion No. 109 of 2003 before the learned Sessions Judge, Burdwan. The learned Additional Sessions Judge, 2nd Court, Burdwan by an order dated 29-3-2004 dismissed the said revisional application, so this second revisional application before this Court. 4. Mr. Prabir Kumar Mitra, learned counsel appearing for the petitioner has contended that the mandatory provisions as prescribed under Section 173(2)(ii) of the Criminal Procedure Code was not complied with by the investigating officer. The petitioner was not intimated about the progress of the investigation and fact of discharge of the opposite party Nos. 4 to 11. 4. Mr. Prabir Kumar Mitra, learned counsel appearing for the petitioner has contended that the mandatory provisions as prescribed under Section 173(2)(ii) of the Criminal Procedure Code was not complied with by the investigating officer. The petitioner was not intimated about the progress of the investigation and fact of discharge of the opposite party Nos. 4 to 11. The learned Court below has failed to appreciate the same and has failed to construe a true and proper meaning of Section 319 of the Code of Criminal Procedure. The order passed by the learned Court below is illegal. It may be interfered with and set aside. Mr. Mitra, has cited a decision reported in 2001 SCC (Cri) 1090: ( AIR 2001 SC 2521 ) (Rakesh and another v. State of Haryana) to substantiate his submission. 5. Mr. Amarta Ghosh, learned counsel appearing for the opposite party No. 12/State of West Bengal has contended that the provisions laid down in Section 301(2) of Cr. P.C. has not been taken care of before filing the petition under Section 319 of Cr. P.C. by the petitioner. The learned Court below has passed a speaking order rejecting the said application. The citation placed by the learned counsel of the petitioner is based on different circumstances and not applicable to this matter. 6. Perused the impugned orders and the evidence in chief of the petitioner Mir Md. Asfia. Gone through the provisions laid down in Sections 301(2) and 319 of Cr. P.C. It is an admitted fact that petitioner being the de facto complainant in the midst of his examination as prosecution witness took out an application under Section 319 of Cr. P. C. 7. Section 319 of Cr. P. C. deals with power to proceed against other persons appearing to be guilty of offence. It reads as follows:- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. 8. Section 319, Cr. P.C. shows that the Court has power to implead an additional accused, only if it is found that he could be tried together with the accused who are already arrayed. 8. Section 319, Cr. P.C. shows that the Court has power to implead an additional accused, only if it is found that he could be tried together with the accused who are already arrayed. The power under Section 319 can be exercised by the Court being satisfied that there is evidence against the persons who are not on record as accused have committed the offence complained of for which those persons could be tried together with the accused who is on record and facing trial. The impugned order reflects that two witnesses were examined in full as prosecution witness No. 1 and prosecution witness No. 2 who did not state anything against the persons who are discharged and against whom there is a prayer for their addition as accused in the proceeding pending before the learned Court below. The petitioner as prosecution witness No.3 during his evidence in chief has stated that out of 11 accused persons only three are present and rest 8 are absent. Had they been present I could have identified them. The absent accused persons are Ramrup Bhattacharjee, Md. Ali, Robin Tudu, Sk. Omar Faruk, Sk. Monowar, Sk. Mujibar, Jajai Hazra and Sk. Abdul Karim. 9. On perusal of the afore-placed evidence it does not appear that the persons who are not accused also committed any offence for which such persons could be tried together with the present three accused persons. Power conferred under Section 319, Cr. P.C. to the Court is an extraordinary power and should be used very sparingly. It may be exercised only if compelling reasons exist for taking cognizance against the other persons against whom action was not taken earlier. Therefore, the spirit of the laws that some positive evidence must have to be there and that evidence should point to the specific guilt of the persons to be proceeded against. But the evidence of the petitioner/PW-3 does not satisfy this demand. It does not reveal that the person who are to be added as an accused have involvement and complicity in the offence alleged. 10. The order dated 1-7-2003 passed by the learned Sub-Divisional Judicial Magistrate, Burdwan reflect that petition under Section 319 of Cr. P.C. was filed by the de facto complainant/petitioner before the learned Court below through the State. Therefore, the argument placed by Mr. Ghosh regarding non-compliance of Section 301, Cr. P.C. does not arise. 11. 10. The order dated 1-7-2003 passed by the learned Sub-Divisional Judicial Magistrate, Burdwan reflect that petition under Section 319 of Cr. P.C. was filed by the de facto complainant/petitioner before the learned Court below through the State. Therefore, the argument placed by Mr. Ghosh regarding non-compliance of Section 301, Cr. P.C. does not arise. 11. The citation placed by the learned counsel of the petitioner is based on different circumstances and is not applicable to this matter specially when no materials came before the Court through the evidence on record from which the Court can prima facie arrive at a finding that the rest opposite party Nos. 4 to 11 were involved in the commission of the offence. 12. Taking the aforesaid factual background and the provisions of law outlined in the discussion I find that the order impugned does not suffer from any illegality and impropriety and, thus, does not call for any interference in it by this Court. 13. In the result, the revisional application stand dismissed. Interim order, if any stand vacated. Revision dismissed.