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Calcutta High Court · body

2016 DIGILAW 50 (CAL)

Akbar Sk. v. State of W. B.

2016-01-15

R.K.BAG

body2016
JUDGMENT : R.K. BAG, J. The petitioners have preferred this revision under Section 401 read with Section 482 of the Code of Criminal Procedure challenging the order dated March 25, 2014 passed by learned Sessions Judge, Nadia in S.T. No. III of March, 2014, by which learned Sessions Judge directed the petitioners to appear before the court to face the trial along with the accused Sultan by invoking the provision of Section 319 of the Code of Criminal Procedure. 2. Learned counsel for the petitioners submits that the opposite party no.2 being the de facto complainant of the criminal case raised objection before the court of learned Magistrate against the investigation carried out by the Investigating Officer and as such learned Magistrate directed for further investigation under Section 173(8) of the Code of Criminal Procedure. Learned counsel further submits that the opposite party no.2 also raised the objection before the court of learned Magistrate after submission of the report of further investigation by another Investigating Officer, but the said objection was not entertained by learned Magistrate. According to learned counsel for the petitioners, the opposite party no.2 did not make any specific allegation against the petitioners in his statement recorded under Section 161 of the Code of Criminal Procedure during investigation of the criminal case. Accordingly, the order of issuance of summons by learned Sessions Judge against the present petitioners on the basis of evidence given by the opposite party no.2 as P.W. 1 before the trial court is not justified under the law. 3. Mr. Basu, learned counsel appearing on behalf of the Opposite Party/State submits that the opposite party no. 2 (as P.W. 1) has specifically stated in his evidence before the trial court that the present petitioners surrounded the deceased while the co-accused Sultan gave the blow of “Dao” on the shoulder of the deceased and thereby the deceased fell down on the ground with bleeding injury and subsequently succumbed to those injuries. According to Mr. Basu, the above findings given by the opposite party no.2 before the trial court is sufficient for issuance of summons to the present petitioners to face the trial along with the co-accused persons under Section 319 of the Code of Criminal Procedure. He further submits that the present petitioners will get opportunity to cross-examine the opposite party no.2 (P.W.1) before the trial court. 4. He further submits that the present petitioners will get opportunity to cross-examine the opposite party no.2 (P.W.1) before the trial court. 4. Learned counsel representing the opposite party no.2 has adopted the submission made by learned counsel for the State. 5. It appears from the materials on record that the present petitioners were not charge sheeted by the Investigating Officer and no charge was framed against the present petitioners by the trial court. It also appears from record that the accused Sultan was facing trial on the allegation of committing murder of the brother of the opposite party no.2 under Section 302 of the Indian Penal Code. The opposite party no.2 has mentioned the name of the present petitioners in his statement under Section 161 of the Code of Criminal Procedure, though he has not made any specific allegation against the present petitioners during investigation of the case. The opposite party no.2 has specifically stated in his evidence before the trial court that the present petitioners surrounded his brother with deadly weapons and the accused Sultan gave the fatal blow with a “Dao” on the shoulder of the brother of the opposite party no.2 and thereby he died. 6. On perusal of provision of Section 319 of the Code of Criminal Procedure I am of the view that learned Judge of the trial court can summon any person to face the trial along with accused of the case if learned Judge of the trial court finds from the evidence on record any involvement of the said person in the offence for which the accused person is already facing the trial. Since the opposite party no.2 (P.W.1) has made specific allegation in his evidence about the role played by the present petitioners for commission of murder for which one Sultan is already tried under Section 302 of the Indian Penal Code, I do not find any illegality in the order passed by learned Sessions Judge in issuing summons to the petitioners to face the trial by invoking Section 319 of the Code of Criminal Procedure. It is relevant to point out that the petitioners will get ample opportunity to cross-examine the witness i.e. opposite party no.2 during the trial of the case. 7. With the above direction criminal revision is disposed of. 8. It is relevant to point out that the petitioners will get ample opportunity to cross-examine the witness i.e. opposite party no.2 during the trial of the case. 7. With the above direction criminal revision is disposed of. 8. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.