Calcutta High Court (Appellete Side)
Sajid Khan & Anr vs The State Of West Bengal & Anr on 3 December, 2018
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
1 03.12.2018
C.R.R. No. 635 of 2018 Sajid Khan & Anr.
-Vs-
The State of West Bengal & Anr.
Mr. Debasish Roy Mr. Saibal Mondal Mr. Arnab Ray ........ For the Petitioner Mr. Ranabir Ray Chowdhury ..........For the State The instant revision has been preferred by the petitioners/accused persons praying for quashing of the proceedings of Sessions Case No. 91 of 2015 arising out of Park Street P.S. Case No. 510 dated December 26, 2014 under Sections 380 /120B / 419/420 /468/ 471/ 354/354A/376/376D/363/342/384 of the Indian Penal Code and 25/27 of the Arms Act pending before the court of Learned Additional Sessions Judge, 2nd Fast Track Court, Bichar Bhaban, Calcutta including the charge sheet submitted therein as also the order framing of charges against the petitioners dated February 13, 2018.
Mr. Debasish Roy, learned advocate appearing for the petitioners submitted that the petitioners were 2 neither named in the FIR nor in the statement of the victim girl recorded under Section 164 Cr.P.C. and they are in no way connected with the offence alleged against them. He also submitted that petitioner No. 2 was not even identified by the victim girl during T.I. Parade. According to Mr. Roy though the victim identified the petitioner No.1 but no allegation was made against him during the T.I. Parade. He further submitted that there was a delay of one month in lodging the FIR which raises doubt with regard to the prosecution story but inspite of all these I.O. has wrongly submitted charge sheet against the petitioners. According to Mr. Roy, materials on record did not call for framing of any charge against the petitioners. Mr. Roy further submitted that the impugned order is completely silent with regard to the findings of the materials on record and satisfaction of the court to frame a charge which itself reflects non application of judicial mind in framing of charge against the petitioners and further that impugned order is totally silent with regard to framing of any charge under Section 384 of the Indian Penal Code though form of charges shows framing of charge under that Section. According to Mr. Roy, petitioners have no role to play in the commission of the offence alleged against them and as such the continuation of the proceeding against the petitioners will be an abuse of process of law and as such the instant proceeding is liable to be quashed. 3
Mr. Ranabir Roy Chowdhury, learned advocate appearing for the State by producing the Case Diary submitted that the victim girl is a foreign national who had come to India on a tourist visa and she was violated by the miscreants. Mr. Roy Chowdhury further submitted that petitioner No. 1 is the brother of the principal accused Javed Khan and he was even identified in the TI Parade by the victim and she also specifically stated his involvement in the commission of the offence along with his brother during recording of her statement under Section 161 Cr.P.C. He also submitted that owner of the vehicle, used for taking the victim to Bodh Gaya, has clearly stated in his statement recorded under Section 164 Cr.P.C. about the involvement of petitioner No.2 and he also identified him during T.I.Parade to be the person who drove the vehicle. According to Mr. Roy Chowdhury there are sufficient materials collected during investigation which clearly show prima facie involvement of the petitioners in the commission of the offence and the learned trial judge on being satisfied framed charges against the petitioners. Mr. Roy Chowdhury further submitted that any omission in stating the section shall not be regarded as material unless it has occasioned a failure of justice and court has ample power to amend the charge at any stage.
I have considered the submissions of the learned counsels appearing for the respective parties and gone 4 through the materials on record including the revisional application,the document annexed thereto and the Case Diary.
It is apparent from the record that the victim is a Japanese national and she lodged the FIR against one Sanjay @ Shabir and others on December 26, 2014 for the commission of the offence occurred some time on or after November 23, 2014. Apparently there appears some delay in lodging the FIR but such delay cannot be the sole ground for quashing of the proceeding. It is true that victim did not allege by naming the petitioners in the FIR or during recording her statement under Section 164 Cr.P.C. but the same clearly speaks of involvement of several persons in the commission of the offence including the brother of the principal accused Javed Khan. It is not expected from a foreign tourist like the victim to narrate the name of each and every miscreants unless she had got well acquaintance with them. Petitioner No. 1 is the brother of the principal accused Javed Khan and the statement of the victim recorded under Section 164 Cr.P.C. speaks of involvement of brother of the principal accused of Javed Khan and she even identified him in the T.I. Parade. The name of the petitioner no.2 figured in the statement of the owner of the vehicle recorded under Section 164 Cr.P.C. and he also identified him during T.I. Parade. The materials in the Case Diary collected during investigation against the 5 petitioners are sufficient to stand for their trial in the case. I do not find any merit in the claim of the petitioners that there was no material to frame any charge against them. Moreover, the points raised in the instant revision are question of facts which cannot be decided at this stage in this revision.
Learned trial judge after considering the entire circumstances and the Case Diary found prima facie materials against the petitioners to frame charge against them and accordingly framed charges. There appears no illegality in the same.
However, there appears an omission of Section 384 IPC in the order-sheet though the Charge Form shows framing of charge under that section. It seems that such omission has occasioned due to typographical error. However, section 215 Cr.P.C. specifically provides that no error or omission to state the offence shall be regarded as material unless the accused was in fact mislead by such error or omission and it has occasioned a failure of justice. In the case herein Charge Form clearly speaks of framing of charge under Section 384 Indian Penal Code which was duly read over and explained to the accused person including the petitioners. So, there can't be a question of prejudice. Furthermore, as per Section 216 Cr.P.C. court may alter charge at any time before the judgment is pronounced but every such alteration or addition shall be read over 6 and explained to the accused while Section 217 Cr.P.C. speaks of recalling of witnesses when charge is altered or added after commencement of trial. So, the trial court has been vested with the ample power to act accordingly in accordance with the provisions referred to above.
Therefore, considering the entire facts and circumstances the case and the materials in the Case Diary, I find no merit in the claim of the petitioners to quash of the proceeding of the Case.
Accordingly, the instant revision being No. CRR 635 of 2018 stands dismissed. No order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance with the necessary formalities in this regard.
(Md. Mumtaz Khan, J.)