Calcutta High Court (Appellete Side)
Ebrahim Momin @ Sofi & Ors vs The State Of West Bengal on 9 April, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Subhasis Dastupta
C.R.R. No. 159 of 2019
Ebrahim Momin @ Sofi & Ors.
Vs.
The State of West Bengal
For the Petitioners : Mr. Asish Sanyal, Sr. Adv.
Ms. Sudipta Ganguly, Adv.
Mr. Avinaba Patra, Adv.
Mr. Dipayan Kundu, Adv.
For the State : Mr. Avishek Sinha, Adv.
For Judgement : 09.04.2019
Subhasis Dasgupta, J.:-
Impugned Order No. 24 dated 10th December, 2018 passed by the learned
Additional Sessions Judge, 5th Court, Malda in Sessions Case No. 404/2017
under Sections 147/ 148/ 149/ 323/ 325/ 326/ 332/ 333/
353/186/379/427/435/436/506 rejecting the prayer for discharge is the subject matter of challenge in this revisional application under Section 482 of the Code of Criminal Procedure.
Learned advocate for the revisionist submitted that in course of investigation no strong materials could be collected against the revisionists revealing their involvement in the instant crime. Thus in the absence of any strong incriminating materials being collected during investigation, it would be an abuse of the process of the Court, if accused persons were made to face trial with insufficient materials. It was also contended by the revisionists that investigating agency proceeded to bank upon statement of witnesses collecting their statements about eight(8) months after the date of registration of the case, and those witnesses are pocket witnesses of the investigating agency, and no credence could be attached on their statements for their criminal backgrounds. The materials thus collected against the revisionists were highly improbable, from which a reasonable presumption of commission of offence against the revisionists/petitioners, could not be easily drawn, without which the revisionists/petitioners ought not to be put up for trial for sustaining the agony of trial. Thus revisionists proposed for discharge.
Learned advocate representing the State repelling the submission raised by the revisionists submitted that enough materials were there, which were collected during the course of investigation, revealing a prima facie case to exist against the revisionists/petitioners justifying rejection of prayer for discharge, and it was rightly done by the learned Court below.
On the basis of suo motu complaint, police took up investigation and ultimately submitted chargesheet against as many as 52 accused persons. And in this case three (3) revisionists have sought for discharge alleging their non- involvement in the offence complained of together with insufficient materials being collected against them for putting them to trial.
Learned Court below proceeded to frame charge against accused persons under Sections 147/ 148/ 149/ 323/ 325/ 326/ 332/ 333/ 353/186/379/427/435/436/506/411/307/120B of the Indian Penal Code under Sections 3 /4 of Prevention of Damage to Public Property Act upon rejection of prayer for discharge of revisionists/petitioners.
The Trial Judge is in the midst of collecting evidence and in the mean while evidence of two witnesses has already been collected.
This is a case where accused persons with some unknown others forming an unruly mob attacked Kaliachak police station compound being armed with deadly weapons. In course of attacking such police premises, accused persons indulged in pelting brick bats upon the police personnel, ransacked police station, police quarter buildings, caused damage to valuable items, document maintained in the police station, caused grievous injuries to police personnel and set ablaze four (4) police vehicles, causing serious damage to public property. The police personnel posted at the police station chased the violent unruly mob of accused persons, and subsequently miscreants were dispersed.
Argument was raised by learned advocate for petitioners that police had not produced strong and sufficient materials against the revisionists, and further the petitioners were falsely implicated in this case for their name being transpired during the investigation in the statement of witnesses, collected about eight (8) months after the registration of the case, against whom several criminal cases were pending for their criminal backgrounds rendering the entire prosecution case highly improbable at least against petitioners.
From the chargesheet, it appears that the name of revisionist appeared in serial No. 31, 38 and 40, out of 52 persons chargesheeted. From the copy of the materials collected during the course of investigation, as produced by the learned advocate for the State, it appears that name of the revisionists/petitioners could be transpired in the statement of as many as three (3) witnesses namely Nausad Ali, Mozahar Sk and Hasmat Sk. . There was recovery of one iron made improvised pipe gun from revisionist/petitioner no.3, while ammunition from revisionist/petitioner no.2. The name of the revisionists/petitioners could transpire from the statement of two persons, who claimed themselves to have witnessesed, the incident at the material point of time providing thereby their circumstances to witnesses and know about the incident complained of. It is, thus not the position that there was nothing recovered from the possession of revisionists/petitioners. Further the name of the revisionists having successfully transpired in the statement of witnesses, it cannot be concluded with all certainty that the involvement of the witnesses in the instant crime was a product of a doubtful episode. Where the statement of witnesses, sought to be relied upon by the prosecution was attempted to be discredited for their criminal backgrounds, in an honest effort to establish that the prosecution story was highly improbable, the Court is of the view that it may give rise to a good defence, which might be put up during trial, being conducted by the learned Trial Judge, but the same cannot be taken to be a ground for discharging the accused persons.
The Power available under Section 482 Cr. P.C may be excisable by the Court under three circumstances.
(i) to give effect to an order contained in the Code.
(ii) To prevent abuse of the process of the Court.
(iii) To secure the ends of justice otherwise.
It is settled proposition of law that while exercising the power under Section 482 Cr. P.C., the Court is under obligation to embark upon an inquiry from the materials produced to the extent, it is necessary for finding it out whether a prima facie case is made out or not. At this stage evaluation of the statement and weighing of the statements has got no scope to be employed, when the name of the accused persons successfully transpired during the course of investigation, and when arms and ammunitions were recovered from petitioners upon execution of the statement of witnesses. It would be quite reasonably sufficient to reveal the existence of prima facie case revealing the presumption of the commission of offence against the accused persons. Keeping in view the nature of materials being collected against the revisionists/petitioners, the Court is constrained to hold that there would be an abuse of the process of the Court, if the revisionists/petitioners were made to face trial. The learned Trial Judge committed no illegality in rejecting the prayer for discharge. When there has already been commencement of the trial, it is expected that the trial would probably and necessarily leave clues showing involvement of the petitioners in the instant crime, if therebe any, upon collection of the evidence to be adduced by either of the parties to this case. The Impugned Order No. 24 dated 10th December, 2018 passed by the learned Additional Sessions Judge, 5th Court, Malda in Sessions Case No. 404 of 2017 rejecting the prayer for discharge of the petitioner does not call for any interference.
The revisional application fails being without any merits. Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.
(Subhasis Dasgupta, J.)