Calcutta High Court (Appellete Side)
Anand Kumar Mistry @ Sharma vs The State Of West Bengal & Anr on 9 April, 2019
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
C.R.R. 1607 of 2018
Anand Kumar Mistry @ Sharma
-Vs-
The State of West Bengal & Anr.
For the Petitioner : Mr. Swapan Kumar Mallik,
Mr. P.N. Sharma,
Mr. Santosh Kumar Pandey,
Ms. Sudeshna Das,
For the State : Mr. Ranabir Roychowdhury,
Mr. Mainak Gupta,
Mr. Pratick Bose,
For Opposite Party No.2 : Mr. Sandipan Ganguly,
Mr. Somnath Banerjee,
Mr. Pronojit Roy,
Mr. Arijit Bakshi,
Mr. Dipanjan Dutt,
Heard on : 13.3.2019, 15.3.2019
Judgment on : 09.04.2019
Tirthankar Ghosh, J. :-
The revisional application has been filed challenging the order dated 29th
March 2018 passed by the learned Additional District & Sessions Judge, Fast
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Track Court No.2, Barasat North 24 Parganas, in Criminal Revision no. 162 of
2017 arising out of the order dated 28.06.2017 passed by the learned
Additional Chief Judicial Magistrate, Bidhannagar in GR Case No.263 of 2013.
The brief facts of the case relate to a letter of complaint which was
addressed to the Inspector-in-charge Lake Town Police Station by Ramuna
Mistry, alleging that:
"Today at about 11.15 AM while my grandson namely Master
Shubham Sharma, aged about 07 years, was returning back from his
school along with his father Mr. Anand Sharma, a Chevrolet Spark car
bearing registration no. WB06A 8056 driven by a lady (along with
another person sitting beside the said lady), who seemed to have been
learning to drive the said car and who did not had (have) any driving
licence, suddenly hit the said minor child with full impact and crashed
the said car along with the minor child on a nearby wall and thereby
causing (caused) severe injuries to the said child. Subsequently Mr.
Anand Sharma the child's father immediately took him, in a severely
injured condition, to the nearby Daffodil Nursing Home and was declared
dead by the said hospital. The said incident took place in front of House
no.330, Canal Street, Kolkata - 700048. The said lady was learning to
drive the car, in bright daylight, on a heavily trafficked road in spite of
having full knowledge and being fully aware of the consequences of her
actions".
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On the basis of the aforesaid letter of complaint Lake Town Police Station
Case no. 283/13 dated 05.10.2013 under Sections 279/304 of the Indian
Penal Code was registered for investigation.
Investigating agency on completion of investigation submitted charge-
sheet against the accused Shreya Sarbadhikari under Section 279/304 of
Indian Penal Code, citing 10 witnesses and number of documents in support of
their contention. After submission of charge-sheet and compliance of the
relevant provisions of Section 207 of Criminal Procedure Code the instant case
was committed to the Court of the learned District & Sessions Judge, Barasat.
The case was thereafter transferred to the Court of the learned Additional
Sessions Judge, 4th Court Barasat, North 24 Parganas. From the order dated
8.9.2015passed by the learned Sessions Court it is seen that a discharge petition was preferred by the accused/opposite party no.2. The learned Sessions Court on consideration of the submissions made by the learned Advocate for the accused and the learned Public Prosecutor-in-charge was pleased to hold that the offence committed by the accused were under Section 279/304A of the Indian Penal Code which are Magistrate triable offence and accordingly remitted the case back to the learned ACJM Bidhannagar for trial, after framing charges under Section 279/304A of the Indian Penal Code. It would be pertinent to state over here that the learned Public Prosecutor-in- charge conceded to the submissions made by the learned Advocate for the accused/opposite party and did not apprise the learned Court regarding the materials collected by the investigating agency. It is further surprising that the 3 learned Sessions Court without analysing the statement of the relevant eye witnesses observed:
"I do not find any material either in the materials in the C.D. or in the materials in the L.C.R. that the act of the accused by which the death is caused is done with the intention of causing death or with the knowledge that it is likely to cause death of the victim and the act of the accused by which death is caused is nothing but a rash and negligent act not amounting to culpable homicide."
On receipt of the case records from the Sessions Court the learned ACJM Bidhannagar after framing charges under Section 279/304A of the Indian Penal Code proceeded with the trial of the instant case. On or about 15th December, 2016 the examination-in-chief and cross-examination of PW-1 was over, thereafter the prosecution witness no.2 was examined-in-chief on 8th March, 2017. The examination-in-chief of PW-2 is set out as follows:
"Ramuna Mistry is my uncle. I know that he has filed this case against Seria Sarbadhikary. The accused person is present in the court room today. [Identified from dock] The incident took pace (place) on 5.10.2013 at about 11.15 AM infront of the house of the accused person. I along with my son was returning yo (to) the house from the school of his school. The accused person was in her car and she was talking with a person. While me and my son were crossing her garage the car suddenly came and dashed us. Due to that impact my son sat on there as he sustained injury. Then she went to the reverse. The 4 (then) she paused for a while and then again the car came and dashed my son. Thereafter she again backed the car and hit my (son) with the car for the third time. My son was severely injured and he was unconscious. Nobody came to my rescue. I informed my wife. She came there and then we went to the Daffodil Nursing Home. There we were informed that my son has died. I also sustained injury after we were .... by car for the first time. That is why I cannot save my son."
After completion of examination-in-chief of PW-2 i.e. the father of the deceased, he preferred an application under Section 323 of the Criminal Procedure Code, thereby praying for commitment of the case to the learned Sessions Court in view of the materials on record existing before the learned Trial Court on that date. The learned ACJM Bidhannagar (Trial Court) by an order dated 28.06.2017 was pleased to reject the said application. Being aggrieved by the order dated 28.06.2017 passed by the learned ACJM thereby rejecting the petition under Section 323 of the Criminal Procedure Code, the petitioner preferred a revisional application being Criminal Revision no.162 of 2017 before the learned Sessions Judge, Barasat. The said revisional application finally came up before the learned Additional Sessions Judge, Fast Track Court no.2, Barasat, North 24 Parganas. It was finally dismissed by a judgment and order dated 29th March, 2018 with the following observations:
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"In my considered view the instant Revisional Application is a premature one. I further opined (opine) that the Learned Magistrate has committed no error and passed the impugned order rightly after appreciating the perspective of Section 323 Cr. P.C. and after applying his judicial mind. I further hold that the impugned order suffers no illegality or material irregularity and does not require any interference."
Mr. Mallick, learned Advocate, appearing for the petitioner submits that the learned Magistrate did not take into consideration the application under Section 323 of the Code of Criminal Procedure in its true and proper perspective, particularly when the materials on record makes out a case under Section 304 Part II of the Indian Penal Code after the examination- in-chief of the PW-2 is over. The learned lawyer draws the attention of the Court to the copies relied upon by the prosecution under section 207 of the Code of Criminal Procedure alongwith the evidence of PW-1 and PW-2 (examination-in-chief) and further prays for invoking the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure. In order to support his contention he relied upon the following judgments:
i. Mosiruddin Munshi -vs- Mohd. Siraj & Ors. (2008) 3 Supreme Court Cases (Cri.) 525;
ii. Pankaj Garg -vs- Meenu Garg & Anr. (2013) 3 Supreme Court Cases (Cri) 124;
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iii. Popular Muthiah -vs- State Represented by Inspector of Police (2017) 1 C Cr L R (SC) 25.
In Mosiruddin Munshi (supra) relied upon by the peitioner, the facts of the case relate to quashing of the proceeding under Section 482 of the Criminal Procedure Code wherein the appellant was not impleaded as a party and the direction was issued by the High Court to implead the appellant as a party. The records of the said case reflected that although the appellant was incorporated as a party but no attempt was made to serve a copy of the notice upon the appellant and the High Court quashed the complaint. In such circumstances, the Hon'ble Apex Court was pleased to set aside the order passed by the High Court and remitted the case for a fresh decision by the High Court.
The facts of Mosiruddin Munshi (supra) and the law decided therein is no way applicable to the present case so far as the exercise of jurisdiction under Section 482 of the Criminal Procedure Code is concerned. In Pankaj Garg (supra) relied upon by the petitioner, in paragraph 4 it has been observed that:
"It is a settled position of law that an order which does not contain any reason is no order in the eye of the law. Therefore, the impugned judgment and order requires to be set aside and the matter requires to be remanded to the High Court for fresh disposal in accordance with law." 7
Although an inspiration can be derived from the aforesaid observation of the Hon'ble Apex Court yet the difficulty which arise in this case is not only the order impugned being the learned Sessions Court's order in revision arising out from the learned ACJM's order rejecting the application under Section 323 of the Criminal Procedure Code filed by the petitioner, but also the order dated 08.09.2015 passed by the learned Sessions Court while remitting the case to the learned ACJM, Bidhannagar. In fact the order dated 08.09.2015 of the learned Sessions Court and the observations made therein created an impediment for the learned ACJM Bidhannagar to arrive at his independent finding.
In Popular Muthaiah (supra) relied upon by the petitioner, the Hon'ble Apex Court arrived at the following findings:
In Paragraph 23:
"The High Court has inherent power under Section 482 of the Code of Criminal Procedure to correct errors of the Courts below and pass such orders as may be necessary to do justice to the parties and/or to prevent the abuse of process of Court."
In Paragraph 24:
"The Code of Criminal Procedure, thus, provides for a corrective mechanism at each stage, viz.(i) investigation; (ii) trial; (iii) appeal and (iv) revision."
In Paragraph 26:
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"It is also significant to note that whereas inherent power of a Court or a tribunal is generally recognised, such power has been recognized under the Code of Criminal Procedure only in the high Court and not in any other Court. The high Court apart from exercising its revisional or inherent power indisputably may also exercise its supervisory jurisdiction in terms of Article 227 of the Constitution of India and in some matters in terms of Section 483 thereof. The High Court therefore, has a prominent place in the Code of Criminal Procedure vis-a-vis the Court of Sessions which is also possessed of a revisional power".
Further in paragraph 32, the Hon'ble Apex Court held that in respect of the incidental or supplemental power, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings and such power can be exercised suo motu in the interest of justice, in the appellate or revisional jurisdiction without any formal application to file to that effect.
Mr. Ganguly, learned Senior Advocate appearing for the accused/opposite party No.2 submits that there is no infirmity in the order passed by the learned Trial Court or the Revisional Court. He submits that there was ample opportunity to the petitioner to redress his grievance when the learned Sessions Court passed the order dated 8.9.2015. Once the petitioner has accepted the said order he cannot indirectly pray for revival of the same order which was passed by the learned Sessions Judge while dealing with the discharge application. He further submits that this Court cannot invoke its inherent powers under Section 482 of the Code of Criminal 9 Procedure at this stage and in order to buttress his contention whether the High Court under Section 482 of the Code of Criminal Procedure can interfere for securing the ends of justice, relied upon the following judgments:
i. Arun Shankar Shukla -vs- State of U.P. & Ors. (1999) 6 SCC 146. ii. Gurunath Narayan Belgon AIR 1924 Bom. 48.
iii. Vandana Agarwal -vs- the State of West Bengal & Anr. (2005) 3 C.CR. L.R. (Cal) 872.
In Arun Shankar Shukla -vs- State of U.P. & Ors (1999) 6 SCC 146, the learned Lawyer relied upon paragraphs 2,9,10 & 11 of the said judgment. Now in Arun Shankar Shukla's case it is reflected from paragraph 3 of the judgment that the Sessions Court pronounced the judgment convicting three accused persons, one of the accused was absent and the other two accused persons went outside the court and did not return, as a result the case was posted on succeeding dates and since none of the accused turned up, the Sessions Court issued non-bailable warrant of arrest against the accused persons. The accused persons, thereafter, instead of surrendering before the Sessions Court preferred an application under Section 482 of the Criminal Procedure Code before Lucknow Bench of the High Court of Allahabad. It is seen that the Trial Court pronounced the judgment of conviction in the said case. In view of the same the Hon'ble Apex Court came to the conclusion that: 10
"Entertaining the petition of convicted accused under section 482 of the code is, on the face of it, illegal, erroneous and to say the least, unfortunate."
The facts of the aforesaid case relied upon by the learned Lawyer for the opposite party no.2 therefore is clearly distinguishable as specific provisions are available in the code for preferring an appeal against judgment of conviction, so an application under Section 482 of the Criminal Procedure Code is not maintainable, while the case with which this court is concerned relates to a misconceived charge being framed and the same being at the instance of a Court superior to that of a Trial Court.
The next judgment relied upon by the opposite party No.2 is In Re:
Gurunath Narayan Belgon AIR 1924 Bom 485. In this case the facts relate to attachment of a property wherein it was claimed that as the petitioner was not in his village he did not know regarding the attachment of the property and immediately on his return when it came to his knowledge he preferred an application for restoration of the said property. It is further contended that under Section 89 of the Criminal Procedure Code the application for restoration was to be made within two years and there was a delay in the application, further the Bombay High Court categorically held that, the order made by the Magistrate appears to be correct.
The observation made by the Bombay High Court in the aforesaid judgment clearly distinguishes it from the situation dealt with in the instant case. In the instant case the correctness of the order dated 08.09.2015 passed 11 by the learned Sessions Court thereby remitting the case to the court of learned ACJM, Bidhannagar is itself an issue for which invoking of the provisions of Section 482 of the Criminal Procedure Code is being dealt with. The aforesaid judgments therefore, do not help the private/opposite party no.2 while dealing with application of the provisions of Section 482 Criminal Procedure Code is concerned.
The last judgment cited by the accused/opposite party no.2 is Vandana Agarwal -vs- the State of West Bengal & Anr. reported in (2015) 3 C Cr L R(Cal)
872. In paragraph 5 of the said judgment the Hon'ble Court framed the following points of law:
i. "Whether the inherent powers of the High Court under Section 482 of the Code can be invoked when the petitioner could have approached this Court or the Sessions Court by preferring a Revisional Application under Section 397 of the code.
ii. Whether the instant Revisional Application filed by the petitioner in invoking the powers of the High Court under Section 482 of the Criminal Procedure Code is maintainable in view of inordinate delay and laches on the part of the petitioner."
The aforesaid questions were formulated on the facts of the case which related to quashing of the proceedings of a complaint case wherein process was issued for alleged commission of offence under Section 500/501 of the Indian Penal Code. It is further seen from the factual context that the accused 12 entered appearance, she was released on bail and thereafter she was examined under Section 251 of the Criminal Procedure Code. Subsequently dates were fixed for recording evidence however the case was adjourned on those dates. Keeping in view the aforesaid facts the Hon'ble Court decided the issue observing that there was inordinate delay and laches on the part of the accused as the inherent power was invoked after four years and as such rejected the contention of the accused. The circumstances are, therefore, clearly distinguishable from the present case.
The learned Lawyer for the State draws the attention of this Court to the Case Diary and points out to the statement of eye witnesses. He further leaves it to the Court to decide whether the case is under Section 304A or 304 Part II of the Indian Penal Code and whether the case should be transmitted to the Sessions Court under Section 323 of the Code of Criminal Procedure at this stage.
This Court while scanning the records of the case took into consideration the order dated 8.09.2015 passed by the learned Additional Sessions Judge 4th Court, Barasat North 24 Parganas, order dated 28.6.2017 passed by the learned ACJM Bidhannagar, order dated 29th March, 2018 passed by the Additional District & Sessions Judge, Fast Track Court No.2, Barasat, the documents relied upon by the prosecution along with the case diary and the deposition of the PW-1 and examination-in-chief of PW-2. In State through PS Lodhi Colony, New Delhi -vs- Sanjeev Nanda, (2012) 3 SCC (Cri.) 899, the Hon'ble Apex Court was pleased to observe the following: 13
'38. We may profitably deal with the definition of "reckless" as defined in The Law Lexicon, which reads as under:
"Reckless.-Characterized by the creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash. Reckless conduct is much more than mere negligence: it is a gross deviation from what a reasonable person would do. (Blak's Law Dictionary, 7th Edn., 1999) 'Intention cannot exist without foresight, but foresight can exist without intention. For a man may foresee the possible or even probable consequences of his conduct and yet not desire them to occur; none the less if he persists on his course he knowingly runs the risk of bringing about the unwished result. To describe this state of mind the word "reckless" is the most appropriate. ...' "
In Alister Anthony Pareira -vs- State of Maharashtra, (2012)1 SCC (Cri.) 953 the Hon'ble Apex Court was pleased to observe the following:
"41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law-in view of the provisions of IPC-the cases which fall within the last 14 clause of Section 299 but not within clause "Fourthly" of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.
42. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC. There is no incongruity, if simultaneously with the offence under Section 304 Part II, a person who has done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 IPC.......
47. Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304-A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrongdoer to cause death, offence may be punishable under Section 302 IPC."
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The provisions of Section 323 of the Criminal Procedure Code state that:
323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.- If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the court of Session, he shall commit it to that court under the provisions hereinbefore contained [and thereupon the provisions of Chapter XVIII shall apply to the commitment so made].
It is revealed from the statements of the two eye witnesses namely Ananda Kr. Mistry and Rani Makal that the accused while driving has on three occasions hit the deceased child and on each occasion the accused reacted indifferently and repeated her act on two more occasions by hitting the child. The conduct of the accused could have been prima facie accepted to be that of "rash and negligent act" if the accused would have under the circumstances hit the child once and stopped there, the repeated act and/or action of the accused thereafter hitting twice on the deceased child at the stage of framing of charge cannot be considered to be without any "knowledge" as prescribed under Section 304 Part II of the Indian Penal Code.
The learned Sessions Court while considering the discharge application should have taken into consideration the said statements and come to a finding as to the difference between a "rash and negligent act" as prescribed under section 304A of the Indian Penal Code and the word "knowledge" as 16 used in section 304 Part II of the Indian Penal Code. The learned Sessions Court without taking the same into consideration erroneously held that:
"I do not find any material either in the materials in the C.D. or in the materials in the L.C.R. that the act of the accused by which the death is caused is done with the intention of causing death or with the knowledge that it is likely to cause death of the victim and the act of the accused by which death is caused is nothing but a rash and negligent act not amounting to culpable homicide."
These observations of the learned Sessions Court is against the material on record as there may not be an intention of a person while driving a car and hitting a child but the very fact that after she had first hit the child she went on repeating the same which should be within her knowledge that there is every likelihood of causing death to the victim child. This has been the view of the Hon'ble Apex Court in Alister Anthony Pareira -vs- State of Maharashtra, (2012)1 SCC (Cri.) 953.
In addition to the above another aspect has to be taken into consideration before dealing with the application under Section 323 of the Code of Criminal Procedure, that is whether the scheme of the Code of Criminal Procedure provides participation of the father of the deceased/next kin at the stage of hearing of an application under Section 227 of the Code of Criminal Procedure. In a session triable case there is no provision where the victim/next kin can participate or it is incumbent upon the court to issue notice and/or to give audience to the victim/next kin. The situation is such 17 that in all the cases it is the public prosecutor who represents the State and advances his reasons regarding the merits of the case keeping the interest of the State and if the victim/next kin/defacto-complainant so desire he/she can assist the Public Prosecutor. As there is no provision for issuing a notice to the victim/next kin/ defacto-complainant at this stage, so in most of the cases we find the public prosecutor who performs the duty helps the court to arrive at its findings, whether in a case at the stage of Section 227 of the Code of Criminal Procedure, an accused should be discharged or the case would continue under the section as prescribed in the charge-sheet or the case should be tried for a different set of offences are the reasons to be assigned by the Public Prosecutor. In the instant case from the order dated 8.9.15 passed by the learned Additional Session Judge, 4th Court, Barasat, North 24 Parganas, it is reflected that the learned Public Prosecutor conceded to the submission of the learned Advocate for the accused person and submitted that without discharging the accused from the case the same may be remitted to the learned ACJM Bidhannagar for trial. Here it would be pertinent to state that when the learned Public Prosecutor deviated from the charge-sheet so submitted by the investigating agency (i.e. under section 279/304 of Indian Penal Code) he should have assigned reasons for the same without expressing his opinion. This court finds that the order dated 8.9.2015 passed by the learned Sessions Court has created an impediment for the trial Court as the order dated 28.6.17 clearly carries an impression of the order dated 8.9.15 while disposing of the application under Section 323 of the Code of Criminal 18 Procedure, this is reflected from the following observations of the learned ACJM Bidhannagar in the order dated 28.6.17, which is as follows:
".....Being pioneered by the order dated 08.09.2015 passed by the Learned Additional District & Sessions Judge 4th Court, Barasat, trial commenced before the Learned Magistrate........
.........The basic facts remain different and this difference has been accentuated by the order of the Learned Additional District & Sessions Judge, 4th Court, Barasat. When the Learned Additional District & Sessions Judge, 4th Court Barasat recorded its findings, the materials exposited in the C.D. were considered by the Learned Additional District & Sessions Judge, 4th Court Barasat. This includes the statement of the petitioner recorded under Section 161 of the Criminal Procedure Code 1973. As would be gleanable from the record. The statement recorded in examination in chief of PW-2 cannot be considered and/or treated as compelling and persuasive material to differ and deviate from the observation of the Learned Additional District & Sessions Judge, 4th Court Barasat which was recorded after considering the statements recorded under Section 161 of the Criminal Procedure Code, 1973."
Further, in the revisional application preferred before the learned Sessions Court the petitioner also faced the same impediment as the legality of the order was appreciated by the learned Sessions Judge in the background of the order dated 8.9.2015 passed in the application for discharge (under Section 227 of the Code of Criminal Procedure).
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That from the various orders passed in course of the proceedings it is found that the order dated 8.9.15 which is based on a wrong foundation, is creating an impediment to the independent thinking process of the Trial Court as well as the revisional court and as such this court feels that to secure the ends of justice the provisions of inherent power under Section 482 of the code of criminal procedure is to be invoked for the purpose of correcting the order dated 8.9.15 and regularising the proceedings of the court below (as provided under Section 397 of the Code of Criminal Procedure).
Under the aforesaid circumstances relying upon State of Maharashtra v. Salman Salim Khan, (2004) 1 SCC 525, where in the Hon'ble Apex Court was pleased to observe the following:
"4. The law governing the trial of criminal offences provides for alteration of charges at any stage of the proceedings depending upon the evidence adduced in the case. If the trial is being held before a Court of Magistrate, it is open to that court at any stage of trial if it comes to the conclusion that the material on record indicates the commission of an offence which requires to be tried by a superior court, it can always do so by committing such case for further trial to a superior court as contemplated in the Code of Criminal Procedure (the Code).....".
Relying upon the aforesaid dictum of the Hon'ble Apex Court, this court feels that the application under Section 323 of the Code of Criminal Procedure preferred by the PW-2 i.e. father of the victim should be allowed, setting aside the orders dated 28/6/17 passed by the learned ACJM Bidhannagar and the 20 order dated 29.3.18 passed by the learned Additional Sessions Judge, Fast Track Court no.2, Barasat North 24 Parganas, in Criminal Revision No.162 of 2017.
Accordingly the revisional application is allowed.
On receipt of this order the learned ACJM Bidhannagar is directed to transmit the records of GR Case No.897/13, immediately to the learned District and Sessions Judge Barasat, and the learned District and Sessions Judge Barasat is directed to either try the case himself or delegate the same to any Sessions Court within his jurisdiction as he think fit and proper. The Trial Court will start the case by framing charges under Section 279/304 Part II of Indian Penal Code and proceed from the stage of further examination-in-chief, if required, of PW-2 (Anand Kumar Mistry) and thereafter take the case to its logical conclusion.
The observations made hereinabove is based on the materials on record and in respect of the stage of the case before the High Court and the learned Trial Court will arrive at its independent finding at the end of the trial without being influenced by any observations made herein above. In the result, the revisional application being CRR No.1607 of 2018 is disposed of.
Urgent certified photocopy of this Judgement, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Tirthankar Ghosh. J) 21