Calcutta High Court
Bidyut Saha vs State Of W.B. on 9 October, 2002
Equivalent citations: 2003CRILJ2678, 2003 CRI. L. J. 2678, (2003) 7 ALLINDCAS 564 (CAL), 2003 (7) ALLINDCAS 564, (2003) 1 CAL HN 327
ORDER Debiprasad Sengupta, J.
1. Present revisional application has been directed against an order dated 24-5-2002 passed by the learned Sub-Divisional Judicial Magistrate, Cooch Behar in G.R. Case No. 56/2001 under Section 306 of the Indian Penal Code.
2. It appears that on completion of investigation of Kotwali (Cooch Behar) P.S. Case No. 57 dated 22-2-2001 under Section 302/34, IPC., police submitted charge-sheet on 18-5-2002 against accused Bibekananda Saha and Binapani Saha under Section 306, IPC. In the said charge-sheet the investigating Officer recommended discharge of the present petitioner, namely Bidyut Saha. The learned Magistrate after considering the materials in the case diary and hearing the A.P.P. was satisfied that sufficient materials are there against the said accused Bidyut Saha and there are sufficient grounds for proceeding against him. Accordingly the learned Magistrate rejected the prayer of the Investigating Officer for discharge of Bidyut Saha and directed the Surity to produce him on the next date fixed. It is at this stage the petitioner has come up before this Court challenging such order as also praying for quashing of the proceeding.
3. It is the contention of the petitioner's learned Advocate that there is absolutely no material against the accused Bidyut Saha. The learned Magistrate passed the Impugned order without going through the case diary and without applying his Judicial mind. It is the further contention of the petitioner's learned Advocate that although the incident took place on 24-1-2001 the FIR was lodged about a month after the said incident and there is no explanation of such delay. Such unexplained delay, according to Mr. Guptoo, casts a grave doubt in the reliability of the prosecution case.
4. In support of his contention Mr. Guptoo relied on a judgment of the Hon'ble Supreme Court reported in 1996 Cal Ori LR 8 (SC) : (1996 Cri LJ 607) (Balwinder Singh v. State of Punjab). But in my considered view the said judgment is not applicable in the present case as the said judgment was delivered by the Hon'ble Apex Court at the appellate stage against the order of conviction and sentence under Section 302/201, IPC. In the present case the proceeding is at the very initial stage when the learned Magistrate has only taken cognizance of the offence. Such point raised by the petitioner can only be decided by the trial Court after recording evidence.
5. "Mr. Guptoo, learned Advocate also relies on a Judgment of this Court reported in 2002 Cr LR 543 (Cal) (Debabrata Mondal v. State of W.B. In my view the said judgment is also not applicable in the present case because of the reasons stated above.
6. Case diary of the present case was called for and the same was produced before this Court by the learned Public Prosecutor. It is submitted by the learned Public Prosecutor that there are materials against the present petitioner which are sufficient for the purpose of proceeding further against him.
7. I have heard the learned Advocates of the respective parties. I have also gone through the case diary and on perusal of the same I find some materials are there against the present petitioner to justify further proceeding in the matter against him. The prosecution should be given an opportunity to prove its case by adducing evidence during trial. In my considered view it will not be proper for this Court to quash the proceeding against the petitioner of this initial stage only on the grounds as agitated by the petitioner in the present application.
8. Accordingly I dispose of the present application and direct the learned Magistrate to proceed with the matter in accordance with law. Liberty is given to the petitioner to agitate all the points, which are raised in the present revisional application, in the trial Court at the appropriate stage of the trial.
9. Present application is accordingly disposed of.
10. The interim order earlier granted by this Court stands vacated.