Calcutta High Court (Appellete Side)
An Application Under Sections 397/401 ... vs Unknown on 8 August, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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95.
08.08.2014
m.b
C.R.R. 1421 of 2013
In the matter of: An application under Sections 397/401 read
with Section 482 of the Code of Criminal Procedure, 1973.
In re: Manu Kundu & Ors. .......petitioners
Mr. Arijit Ghosh ............for the petitioner
Mr. Subir Banerjee, learned counsel, who ordinarily appears
on behalf of the State, is requested to appear in the matter.
Let a copy of the revisional application be furnished upon Mr.
Banerjee in course of the day.
Order dated 06.02.2013 passed by the learned Additional
Sessions Judge, 4th Court, Howrah in S.T. No. 94 of 2011 arising out
of Liluah Police Station Case No. 165 dated 13.08.2009 framing
charge under Sections 498A/304B/34 read with Sections 3 /4 of the
Dowry Prohibition Act and alternatively under Section 302 of the
Indian Penal Code, has been assailed.
First Information Report was registered in the instant case
being Liluah Police Station Case No. 165 dated 13.08.2009 under
Sections 498A/306 of the Indian Penal Code. Upon conclusion of
investigation, charge sheet was filed against the petitioners under
Sections 498A/306 of the Indian Penal Code read with Sections 3 /4
of the Dowry Prohibition Act. The case being sessions triable was
committed to the court of the learned Sessions Judge, Howrah and
transferred to the court of the learned Additional Sessions Judge, 4th
Court, Howrah for enquiry and trial. By order dated 06.02.2013
charges were framed against the petitioners under Sections
498A/304B/34 of the Indian Penal Code read with Section 3 /4 of the
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Dowry Prohibition Act and alternatively under Section 302 of the
Indian Penal Code.
Learned counsel appearing for the petitioner submits that
there is no iota of material in the prosecution case that the death was
homicidal one. He accordingly prays for quashing of the charges.
Mr. Banerjee, learned counsel appearing for the State-
respondents opposes the prayer.
Having considered the materials on record I find charge sheet was filed under Sections 498A/306/34 of the Indian Penal Code. It is not recorded in the impugned order that prayer was made on behalf of the prosecution on the premise that death is a homicidal one. It is true that adding Section 302 of the Indian Penal Code may not amount to any prejudice to the accused person in any manner but framing of alternate charge is permissible where there is some doubt in the mind of the Court as to the cause of death.
In the facts and circumstances of the case, I am of the opinion that framing of charges under Sections 498A/304B/34 of the Indian Penal Code read with Sections 3 /4 of the Dowry Prohibition Act would suffice in the facts of the case and there is no necessity to frame charge under Section 302 of the Indian Penal Code.
Accordingly, charge framed under Section 302 of the Indian Penal Code is quashed. The learned Trial Court is directed to proceed with the trial in respect of the charges framed under Sections 498A/304B/34 of the Indian Penal Code read with Sections 3/ 4 of the Dowry Prohibition Act and conclude the trial at an early date.
With the aforesaid directions, the revisional application is disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all necessary formalities.
3(Joymalya Bagchi, J.)