Calcutta High Court (Appellete Side)
Item : Ad-1-2 (Namita Ghosh & Anr vs The State Of West Bengal) on 16 September, 2025
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1609 IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
2025
TUESDAY CRR 3453 OF 2025
CRAN 1 OF 2025
COURT : MB-07
ITEM : AD-1-2 (NAMITA GHOSH & ANR. VS. THE STATE OF WEST BENGAL)
STATUS : DO
BENCH ID : 266057 &
AR : NANDY
CRR 3077 OF 2025
(SANKAR GHOSH & ANR. VS. THE STATE OF WEST BENGAL)
MS. SIBANGI CHATTOPADHYAY, ADVOCATE
......for the Petitioners (in CRR 3453 of 2025)
MR. DIPANJAN CHATTERJEE, ADVOCATE
MR. ANIRBAN DUTTA, ADVOCATE
MS. RIMPA ADHIKARI, ADVOCATE
MR. PAPPU ADHIKARI, ADVOCATE
MS. KAKAN DAS, ADVOCATE
......for the Petitioners (in CRR 3077 of 2025)
MR. DEBASISH ROY, LD. PUBLIC PROSECUTOR
MR. JAYDEEP BISWAS, ADVOCATE
......for the Opposite Party/State
1.Both the revisional applications have been filed challenging the same order and, therefore, for having thematic coherence, they are taken up together for hearing.
2. The applications assail the order dated 02.07.2025 passed by the learned Additional District & Sessions Judge, FTC-I, Krishnanagar, Nadia in Sessions Case No. 560(12)2022, whereby three applications presented by accused persons under Section 319 of the Code of Criminal Procedure were rejected.
3. Before addressing the issue raised in these two criminal revisional applications, it would be prudent to advert to the essential facts leading to the presentation of these applications.
4. Following the incident of one person, namely Babusona, going missing from his locality, a complaint was initially lodged by one Shyamali Ghosh. On the basis of the said complaint, Dhubulia Police Station Case No. 332 of 2022 dated 24.08.2022 was registered under Sections 365/120B of the Indian Penal Code. During investigation, it was alleged by the prosecution that, pursuant to information furnished by the present petitioners, the dead body of Babusona was recovered, whereupon Sections 302/201 IPC were added, and the present petitioners, namely Namita Ghosh along with three others, were P age |2 implicated in the case. Subsequently, upon conclusion of investigation, charge-sheet no. 410/22 dated 14.11.2022 under Sections 364/302/201/120B IPC was submitted against the accused persons. After completion of all formalities, including supply of copies, the case was committed to the Court of the learned Sessions Judge, Nadia, and was thereafter transferred to the Court of the learned Additional District & Sessions Judge, FTC-I, Krishnanagar, for trial.
5. To establish the charges, the prosecution examined as many as 31 witnesses. Upon completion of the examination of prosecution witnesses, the accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'the Code'), and they also adduced defence evidence. Thereafter, the prosecution concluded its arguments in May 2025. When the matter was posted for arguments on behalf of the defence, the petitioners filed three separate applications under Section 319 of the Code, praying, inter alia, that two persons, namely Mukti Ghosh and Sudhanya Ghosh, be added to the array of accused and tried together with the other accused persons.
6. By the order dated 01.07.2025, which is under challenge in these revisional applications, the learned Court below rejected all three applications. Aggrieved thereby, the present two revisional applications have been filed.
7. Ms. Chattopadhyay, learned Advocate appearing for the petitioners in CRR 3453 of 2025, drawing my attention to the deposition of PW-14, submits that the evidence reveals a long- standing dispute between the family of Namita Ghosh and that of Suddhanya Ghosh. She further submits that Namita Ghosh had earlier lodged a complaint alleging that certain papers containing obscene material were thrown into her house. Pursuant to this incident, a General Diary (GD) was lodged and the police-initiated investigation. According to her, had the matter been properly investigated, the Investigating Officer could have unearthed materials indicating that Mukti Ghosh and P age |3 Suddhanya Ghosh ought to have been tried in the present case along with the other accused persons. She also points out that Suddhanya Ghosh has prior criminal antecedents, and in support thereof produced a document showing his arrest in connection with Dhubulia Police Station Case No. 54/2023 dated 09.02.2024 under Sections 447/325/326/307/34 of the Indian Penal Code. Thus, according to Ms. Chattopadhyay, there is no basis to conclude that Suddhanya Ghosh is an innocent citizen.
8. Mr. Dipanjan Chatterjee, learned Advocate appearing for the petitioners in CRR 3077 of 2025, submits that the present petitioners have been undergoing a custody trial. He contends that, if the persons namely Mukti Ghosh and Suddhanya Ghosh are tried along with the present accused, thereby causing a delay in concluding the trial, the petitioners alone would suffer serious prejudice. He further submits that the prosecution bears the burden of proving that the petitioners had a motive to commit the alleged offence and to eliminate Babusona; however, the prosecution has failed to establish the existence of such motive. He also submits that the materials on record indicate that an enquiry should be conducted against Mukti Ghosh and Suddhanya Ghosh along with the present petitioners.
9. In rebuttal, Mr. Ray, learned Public Prosecutor appearing for the State, vehemently opposes the submissions advanced on behalf of the petitioners. Although such applications are generally filed by the prosecution, in the present case three separate applications under Section 319 of the Code were filed by the accused persons.
10. He submits that there is no evidence to suggest that Mukti Ghosh and Suddhanya Ghosh had committed the offence. He further argues that enmity is a double-edged weapon: while it may serve as a motive to commit an offence, it may equally result in the false implication of a person in a criminal case with an intent to harass. Therefore, he contends, it is necessary to examine whether the long-standing enmity has prompted the petitioners to file the present petition solely with the intention of P age |4 harassing them. He argues that absence of proof of motive is not fatal.
11. Mr. Ray further submits that the petitioners had received copies of all materials and documents which the prosecution intended to rely upon against the accused persons, and such materials were available to them much earlier. Despite this, the petitioners never sought any order for re-investigation or further investigation of the case. He contends that, after completion of the prosecution evidence and even after the conclusion of arguments advanced by the prosecution, the petitioners filed three separate applications under Section 319 of the Code solely to delay the proceedings, seeking to array two additional persons as accused. According to him, these applications were devoid of substance, and the learned Court below rightly rejected those applications.
12. However, Mr. Ray submits that if this Court is of the view that an opportunity should be afforded to the defence to advance their arguments before the learned Trial Court, the same may be granted, but strictly within the time fixed by the learned Trial Court, i.e., 20.09.2025.
13. Heard the learned Advocate for the respective parties. Perused the materials-on-record.
14. In the decision reported in (2014) 3 SCC 92 (Hardeep Singh v.
State of Punjab & Ors.), the Hon'ble Supreme Court of India explained the doctrine judex damnatur cum nocens absolvitur, which means 'the judge is condemned when the guilty is acquitted.' This maxim serves as a beacon light in elucidating the scope, ambit, and spirit underlying Section 319 of the Code of Criminal Procedure. The underlying purpose of incorporating this provision in the Code is to ensure that, if for any reason the Investigating Agency fails to array a culprit as an accused, the Court is not rendered powerless but can summon such person to face trial.
15. However, Mr. Ray submits that if this Court is of the view that an opportunity should be afforded to the defence to advance their P age |5 arguments before the learned Trial Court, the same may be granted, but strictly within the time fixed by the learned Trial Court, i.e., 20.09.2025.
16. Heard the learned Advocates appearing for the respective parties and perused the materials on record.
17. For proper appreciation of the issue raised in the present applications, it would be apposite to reproduce the provisions of Section 319 of the Code, which read as follows:
S.319 Power to proceed against other persons appearing to be guilty of offence Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
1. Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
2. Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
3. Where the Court proceeds against any person under Sub-Section (1) then--
i) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
ii) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
18. A bare perusal of Section 319 of the Code indicates that, during the course of an inquiry or trial, if it appears from the evidence that any person not already arraigned as an accused has committed the offence and can be tried together with the existing accused, the Court may proceed against such person. The language of the provision thus delineates the scope of inquiry under Section 319, requiring the Court to examine the evidence collected and/or recorded during the inquiry or trial.
19. However, there were confusions and some contradictory decisions, what would be the test. Whether evidence before the Trial Court is to be such that if that evidence is left un-rebutted, the same will entail conviction against that person. However, it can be stated that the evidence must be stronger than mere prima facie evidence. However, it may fall short of that test if the evidence are laid un-rebutted, the same shall result in P age |6 conviction of those persons.
20. Needless to state, the power under Section 319 of the Code may be exercised by the Court suo motu or on an application made by any person, including an accused already before the Court. However, such power is to be exercised sparingly, and only when compelling and cogent reasons exist for proceeding against a person who was not earlier arraigned as an accused.
21. It is a well-settled proposition of law that mere reference to the name of any person in evidence is not sufficient. However, if in the course of evidence, the name of any person surfaces, the Court must ascertain whether the evidence recorded during the inquiry or trial indicates that such person has committed the offence.
22. As noted earlier, Ms. Chattopadhyay invited my attention to the evidence of PW-14, Assistant Sub-Inspector Surojit Chakraborty, who had occasion to investigate the incident leading to Dhubulia Police Station G.D. Entry No. 1083 of 2022 dated 28.07.2022. In the course of that investigation, Mr. Chakraborty came to know of a long-standing dispute between the family of Namita Ghosh and that of Sudhanya Ghosh.
23. Mr. Chattopadhyay was unable to point out any other evidence from which it could appear that Mukti Ghosh and Sudhanya Ghosh had committed the offence. It is pertinent to note that enmity is a double-edged weapon: while it may serve as a motive to commit an offence, it may equally be used as a tool to falsely implicate a person. Motive, being a malicious or wrongful intent, lies hidden in the mind of the perpetrator and is manifested only through subsequent conduct. It is on the basis of such conduct that a prudent person may draw an inference as to whether there existed a motive to commit the offence.
24. "Whether, in the present case, the prosecution has been able to establish that the accused persons had a motive to commit the offence is a matter to be determined upon evaluation of the evidence, and at this stage it would not be appropriate to offer any comment or deliberation on the issue. The mere fact that a P age |7 person has prior criminal antecedents cannot by itself lead the Court to conclude that there is sufficient evidence recorded during the inquiry or trial to hold that such person has committed the offence. In view thereof, I do not find any strong or cogent material to justify directing Mukti Ghosh and Sudhanya Ghosh to stand trial along with the existing accused. Accordingly, I find no merit in the applications.
25. Consequently, the order dated 2.07.2025 passed by the learned Court below in Sessions Case no. 560(12) 2022 is affirmed.
26. Ms. Chattopadhyay and Mr. Chatterjee conjointly prayed that an opportunity be afforded to the accused persons to advance their arguments. They submitted that, even on 20.09.2025, if such opportunity is granted, they are ready to advance their arguments
27. In view thereof, the learned Trial Court is directed to afford an opportunity to the accused persons to advance their arguments on 20.09.2025. However, if the accused persons fail to avail themselves of that opportunity, the learned Court below shall be at liberty to pass an appropriate order and/or judgment on the same date. If, on the other hand, the accused persons advance their arguments on 20.09.2025, the learned Trial Court shall make an endeavour to pronounce the judgment as expeditiously as possible thereafter.
28. With these order and observations, CRR 3453 of 2025 and CRR 3077 of 2025 are disposed of.
29. The Registry is directed to forward a copy of this order to the learned Court below forthwith.
(PARTHA SARATHI CHATTERJEE, J)