Calcutta High Court (Appellete Side)
Manoj Kumar Gupta & Ors vs The State Of West Bengal & Anr on 23 July, 2010
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Ashim Kumar Roy
C.R.R. No. 1248 of 2010
Manoj Kumar Gupta & Ors.
versus
The State of West Bengal & Anr.
For Petitioners : Mr. Shataroop Purkayastha
For State : Mr. Swapan Kumar Mullick
Heard On : May 3rd, May 18th, May 19th & May 21st, 2010.
Judgment On : 23-07-2010.
In connection with a FIR registered at South Port Police Station, the police
after completion of investigation submitted charge-sheet under Sections
148/149/427/353/307 of the Indian Penal Code against the petitioners. After commitment of the case to the Court of Sessions, the same was transferred to the Court of the Learned Additional Sessions Judge, 9th Fast Track Court, Alipore, 24-Parganas (South) for trial, when on behalf of the petitioners an application under Section 227 of the Code of Criminal Procedure was moved for discharge as 2 far as the offence punishable under Section 307 of the Indian Penal Code is concerned. However, the Learned Judge rejected the said application.
Now, the petitioners' invoking Section 482 of the Code of Criminal Procedure moved this criminal revision for quashing of the same.
2. Now, having regards to the charge-sheet materials, I find it is the case of the prosecution, that on September 10, 2006 at about 21.50 hours in front of 49/5, Circular Garden Road, Kolkata - 23, a free fighting was ensued between two group of miscreants and having receipt of such information, when Sub-Inspector of Police S. K. Ghosh attached to the South Port Police Station, accompanied by his force arrived there and tried to disperse the mob, the petitioners attacked the police party and started throwing brickbats. At that time, the accused Manoj Gupta, the petitioner no. 1 instigated the mob by saying "Yei hai Ghosh Babu isko Mar Dalo", when someone from the mob hurled a brickbat towards the said Sub-Inspector of police, which hits on his shoulder causing grievous injury on his person.
3. However, having gone through the materials contained in the Case Diary produced before this Court on May 3, 2010, i.e. on the first date of hearing, this Court found the witness Matalub Khan and Md. Sohrab Alam stated nothing as against the present petitioners. However, the Sub-Inspector Sanat Kumar Ghosh in his statement alleged that while he arrived at the spot with force and tried to disperse the mob, the mob led by Manoj attacked him and Manoj instigated the mob by saying "Yei hai Ghosh Babu isko sala Mar Dalo'. Immediately, the witness was hit with a stone/brickbat on his collar bone and 3 suffered severe injuries and was removed to the Kolkata Police Hospital with fracture on his collar bone. But upon perusal of the injury report of the injured Police Officer, recorded at the Kolkata Police Hospital, on September 11, 2006, which is the part of the first Case Diary, this Court found that the attending doctor Asish Kumar Bhadra referred the injured to the S.S.K.M. Hospital for urgent X-ray for detecting if any fracture has been suffered by him or not. It further appeared from the said injury report that there was a specific note by the self-same doctor to the effect that at S.S.K.M. Hospital X-ray was done which showed fracture on left clavicle region and the patient was admitted at the Officers Ward of the Orthopedic Department of Kolkata Police Hospital. However, it appears from the contents of the said Case Diary the injured police officer on the very next day, i.e., on September 12, 2006 at 8.10 P.M. took admission at a private nursing home, Maple Nursing Home (P) Ltd. and was discharged from there on September 14, 2006 at 8 P.M. It further appears from the aforesaid injury report, the history of assault, according to the statement of the injured police officer, that while he was on duty for controlling a violent mob, at that time someone from a balcony of first floor building threw a brick, which hit on his shoulder. Thus, the statement of the injured police officer to the police and to the attending doctor at Kolkata Police Hospital, as to how he sustained injuries appears to be not same.
4. Since in the said Case Diary there was no medical papers as regards to the treatment meted out to the injured Sub-Inspector Sanat Kumar Ghosh at S.S.K.M. Hospital, which was the purported foundation of injury report issued by 4 the Kolkata Police Hospital, this matter was again brought in the list although earlier the same was made C.A.V. and the learned advocate of the State was apprised of the same. When on his prayer the order of C.A.V. was recalled and the matter was listed for further hearing. The matter was again taken up for hearing on May 21, 2010, on that day the Investigating Officer was personally present in Court and produced a supplementary Case Diary but the same was not the part of the charge-sheeted materials. It may be noted on the day when the first Case Diary was produced the said Sub-Inspector was also personally present in Court.
5. The supplementary Case Diary now produced before this Court, contained the medical papers issued by the S.S.K.M. Hospital as regards to the treatment given to the Sub-Inspector Sanat Kumar Ghosh on September 11, 2006 on being referred by Kolkata Police Hospital as well as the treatment sheets of the injured at Kolkata Police Hospital until 6 P.M. on September 12, 2006, when he was discharged on risk bond. It appears from the said medical papers that on September 11, 2006 at 1.30 A.M. the injured was attended at S.S.K.M. Hospital and he was advised for X-ray of left clavicle and left shoulder joint A.P. lateral. It further appears at about 1.50 A.M. after X-ray the injured was again examined by the same attending doctor at S.S.K.M. Hospital and the doctor noted in the injury report "patient has bruises over left clavicular region. No fracture detected" and the patient was released and advised to attend the out door patient department. In the subsequent Case Diary a few X-ray plates were found but without any endorsement of any hospital as regards to the identity of 5 injured or the place where such X-ray was done and without any seizure list as regards to the same. Both the doctors of S.S.K.M. Hospital and Kolkata Police Hospital were not examined by the Investigating Officer for the reasons best known to him.
6. On the face of the aforesaid materials on record it is beyond comprehension, when according to the findings of the attending doctor of the S.S.K.M. Hospital, after X-ray, no fracture was detected except some bruises on the left clavicle region with an advice to attend Hospital out door as to how Dr. Asish Kumar Bhadra at Kolkata Police Hospital recorded that the X-ray done at S.S.K.M. Hospital showed fracture of left clavicle. Thus, it prima facie appears what have been recorded in the injury report of the patient Sanat Kumar Ghosh at Kolkata Police Hospital by his attending doctor Asish Kumar Bhadra that there was a fracture on left clavicle as per the X-ray done by the S.S.K.M. Hospital is incorrect and in all likely to fabricate false evidence.
It may not be out of place to note the Investigating Officer of the case submitted charge-sheet under Section 307 of the Indian Penal Code without seizure of injury report of the injured police officer at S.S.K.M. Hospital, although produced subsequently in a supplementary Case Diary and without examining both of the doctors at S.S.K.M. Hospital and at Kolkata Police Hospital. The withholding of the said medical papers which goes against the prosecution case that the injured police officer suffered fracture, although available and non- examination of the said doctors, as submitted by the Counsel of the party, raised serious doubts about the bona fide of the Investigating Officer of the case. 6
7. Now, having regards to the totality of the evidentiary materials on record, more particularly the injury report of the injured police officer issued by the S.S.K.M. Hospital, there is no scope for submission of charge-sheet under Section 307 of the Indian Penal Code against the petitioners nor the Learned Additional Sessions Judge was at all justified in rejecting the petitioners' prayer for discharge as regards to the offence punishable under Section 307 of the Indian Penal Code. The order impugned is set aside. This criminal revision stands allowed.
Since, rest of the offences for which charge-sheet has been submitted against the petitioners are all triable by any Magistrate, the Learned Additional Sessions Judge, Fast Track 9th Court, Alipore, 24-Parganas (South) is now directed to send down the records to the Court of the concerned Magistrate from where the case was committed to the Court of Sessions for trial.
8. Now, before parting with this Judgement, I feel that in this case an order must be made for an enquiry as to why the concerned doctor of the Kolkata Police Hospital made such incorrect note as aforesaid in the injury report of the concerned police officer and at whose behest and interest for which the petitioner was charge-sheeted and was going to be tried for a serious offence punishable under Section 307 of the Indian Penal Code for which imprisonment for life has been prescribed, on the allegation of causing an injury in the nature of fracture of clavicle region.
In this case the investigation was also done in a very perfunctory way, if not motivatedly. The injury report of S.S.K.M. Hospital as well as the bed 7 head ticket of the Kolkata Police Hospital were not seized by the police before filing of the charge-sheet and until this Court called for the same. At the same time the Investigating Officer seized and filed with the charge-sheet all the treatment documents of a private Nursing Home where the said police officer was purportedly treated after he left the Kolkata Police Hospital on a risk bond on the very next day of his admission. The Investigating Officer also has not examined both the doctors treated the injured police officer at Kolkata Police Hospital and at S.S.K.M. Hospital.
Accordingly, the Learned Additional Commissioner of Kolkata Police, who is in-charge of South Port Police Station is directed to personally cause an enquiry in the matter in accordance with law. He is directed to submit his report within a month from the date of communication of this order. In course of enquiry the opportunity of hearing must be given to the concerned persons in their defence.
This order be communicated to the Additional Commissioner of Police, Kolkata through the Learned Registrar General, High Court, Kolkata. He is further directed to take the charge of the Case Diaries and to hand over the same to the concerned Additional Commissioner of Police directly in a sealed cover.
Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
( Ashim Kumar Roy, J. ) 8