Calcutta High Court (Appellete Side)
(251)Rp In Re.: Bablu Sahu & Another vs The State Of West Bengal on 13 September, 2011
1
CRM no. 8314 of 2011
13.9.2011
(251)rp In Re.: Bablu Sahu & Another - Petitioners.
Shri Subir Ganguly
Shri Sumanta Ganguly ... for the Petitioners.
Msst.Fariha Hossain ... for the State.
Re: Application under Section 438 of the Code of Criminal Procedure filed on 02.9.2011 in connection with Murarai Police Station Case No.219/2010 dated 01.10.2010 under Sections 302/34 of the Indian Penal Code.
_____________________________________________________________________ Earlier, it has been stated at the Bar, that a prayer in respect of these Petitioners were refused under Section 438 of the Code of Criminal Procedure. However, although it has been stated in the paragraphs likewise; but there is no mention of the same in the Case Diary.
We take it on the basis of the stand taken at the Bar that this is a second Application. Obviously to entertain the same one has to overcome the hurdle as laid down by the Special Bench in Sri Sudip Sen Vs. The State of West Bengal :: (2010)3 C Cr.LR (Cal) 314 in paragraph 31.
Shri Ganguly for the Petitioners has submitted that initially when the prayer was refused the allegation was under Section 302 of the Indian Penal Code; but, later on Charge Sheet has been submitted under Section 306 of the Indian Penal Code. As such, on the basis of the same he was of the view that there is a change in the circumstance and on the ambit of the Special Bench decision in Sri Sudip Sen's case (supra) he has preferred this Application.
According to Shri Ganguly the death was suicidal and not homicidal. As such, it means a lot of difference. He has submitted that the deceased died on account of consumption of Calpol tablets and when it has come to the State that the initial allegation that the deceased was done to death on the basis of which their earlier prayer was refused by the Division Bench under Section 438 of the 2 Code of Criminal Procedure having been changed, this Application should be heard on merit.
Msst. Fariha Hossain for the State has produced the Case Diary before us. She has placed before us the relevant portion showing the materials which constitute the relevant offence for which the Petitioners have been booked in the present case. According to Msst. Hossain even though there has been a change in the Section the nature of allegation ie. with regard to the unnatural death of the deceased remain unaltered. She has referred to the post-mortem examination of the deceased. She has submitted that according to the autopsy surgeon "Death was due to the effects of poisoning which is antemortem in nature." In view of the same she felt that even though Charge Sheet was submitted under Section 306 of the Indian Penal Code, no final conclusion can be reached till the matter attains its finality during the Trial.
Disputing the contention of Shri Ganguly that there is a change in the circumstance and the prayer would be maintainable, she was of the view that the basic allegation with regard to the unnatural death having remained unaltered, there was no scope for this fresh application.
After having heard both Shri Ganguly for the Petitioners and Msst. Hossain for the State and perusing the materials in the Case Diary, we are of the opinion that sub-para (1) (c) of Para 31 of the Special Bench decision in Sri Sudip Sen's case (supra) has to be understood very carefully. Their Lordships had concluded that a second application would be maintainable "on the ground of substantial change in the facts and circumstances of the case due to subsequent events." This is the basic formula upon which the entire Sri Sudip Sen's case (supra) rotates.
We feel that the question of death has remained static. It is also an unaltered and undisputed fact that such death was unnatural in nature. Fact remains that initially the Investigating Agency has proceeded on the basis that the allegations were homicidal in nature. Subsequently they have submitted a report in final form on the premises that it was suicidal in nature. This is a subjective satisfaction on the basis of formation of opinion on a bundle of facts of 3 the Investigating Agency which is of course subject-matter of being tested at the time of Trial and simply, the opinion of the Investigating Agency cannot be deemed to be conclusive and final in nature.
From a sum total of the entire situation and in our reading of Paragraph 31(1) of the Full Bench decision of the Sri Sudip Sen's case (supra), we cannot rush to the conclusion that there is a substantial change in the facts and circumstances of the case due to subsequent events i.e. change in the nomenclature of the Sections that have been found fault with by Shri Ganguly.
In our considered view, the situation does not fall within the definition of sub-paragraph (1) (c) of paragraph 31 of the Special Bench decision in Sri Sudip Sen's case (supra).
Accordingly, we regret the prayer made by Shri Ganguly in this Application.
However, we may hasten to add that as required under the law the Petitioners should submit themselves to the jurisdiction of the regular court whereupon the latter would have to take a decision in respect of the prayer which is within the ambit of Sections 437/439 of the Code of Criminal Procedure. Fact remains that Charge Sheet has already been submitted and as to whether their custodial detention would be necessitated although is within the discretion of the latter.
By way of the aforesaid observation, we accordingly dispose of the Application.
(Amit Talukdar, J.) (Raghunath Bhattacharya, J.)