Calcutta High Court (Appellete Side)
Tultul Sk. @ Nure Hasan & Anr vs The State Of West Bengal on 30 March, 2016
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present :
THE HON'BLE JUSTICE SANKAR ACHARYYA
C.R.R. No. 1218 of 2010
In the matter of :
Tultul Sk. @ Nure Hasan & Anr.
Vs.
The State of West Bengal
For the petitioners : Mr. Antarikhya Basu; advocate.
For the State : Mr. Sekhar Barman; advocate.
Heard on : 13.08.2015, 26.08.2015, 09.12.2015,
06.01.2016, 24.02.2016, 03.03.2016.
Judgment on : 30.03.2016
SANKAR ACHARYYA, J.
This revisional application has been filed by Tultul Sk. alias Nure Hasan and Bulbul Sk. alias Nurezzaman both sons of Nure Islam under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.). Both the petitioners have been made accused in Nalhati Police Station Case No. 163 of 1991 dated 23.09.1991 under Sections 147/148/149/427/325/326/302/109 of the Indian Penal Code (G.R. Case No. 583 of 1991). Said case is now pending as Sessions Case No. 34 of 1996 in the Court of learned Additional District and Sessions Judge, Fast Track, 1st Court, Rampurhat, Birbhum. Petitioners have challenged an order dated 03.03.2010 passed by learned Additional District and Sessions Judge, Fast Track, 1st Court, Rampurhat, Birbhum in S.C. Case No. 34 of 1996.
In the said Fast Track Court both the petitioners claimed themselves as were minors on the date of alleged occurrence that is 23.09.1991 and so their case may be splitted up and decided before the concerned Juvenile Justice Board under the provisions of Juvenile Justice (Care and Protection of Children) Act. Inter alia, the petitioners have contended that the petitioners submitted relevant documents of their education before the learned Additional Sessions Judge and their ossification test was also done twice under orders of that learned Court to ascertain their age. Identity of the petitioners was also verified by the officer-in-charge of Nalhati Police Station under the order of learned Additional Sessions Judge and it revealed that petitioner Tultul Sk. and Nure Hasan are names of same person and petitioner Bulbul Sk. and Nurezzaman are the names of same person. In the impugned order learned Additional Sessions Judge rejected the prayer of the petitioners due to suspicion relating to the identity of the petitioners and thereby caused grave miscarriage of justice. Petitioners have prayed for setting aside the impugned order.
At the time of hearing this revisional application learned Advocate for the petitioner has drawn my attention to the impugned order dated 03.03.2010 and has argued that the learned Judge in the Fast Track Court did not make any finding about the age of the petitioners on the date of alleged occurrence which is obligatory for the Court as and when the petitioners claimed themselves as juveniles on the date of alleged occurrence. He relied upon a decision of the Hon'ble Supreme Court of India in the case of Ranjeet Goswami Vs. State of Jharkhand reported in 2013 (4) AICLR 600. Learned Advocate for the state respondent made his submission supporting the impugned order.
From the materials available on record and the revisional application it appears that in the pending case before the learned Additional Sessions Judge, Fast Track, 1st Court, Rampurhat, Birbhum the petitioners have been made accused as Tultul Sk. and Bulbul Sk. Their names Nure Hasan and Nurezzaman respectively are absent against their names as accused persons. In the impugned order learned Judge in the Fast Track Court expressed his doubt about identity of Tultul Sk. as Nure Hasan and Bulbul Sk. as Nurezzaman. Petitioners filed their educational documents including admit card in the name of Md. Nure Hasan in the West Bengal Board of Secondary Education for the Madhyamik Pariksha, 1994 and school certificate of Nurezzaman. In the absence of the name Tultul Sk. in the aforesaid admit card learned Judge did not believe it as admit card of accused Tultul Sk. As per said admit card the date of birth of Md. Nure Hasan has been mentioned as 27.09.1978. Learned Judge also expressed his suspicion against a certificate dated 01.10.2002 issued by the Head Master of Kaitha S.S. Junior High Madrasah showing the date of birth of Md. Nurezzaman as 04.02.1977. As per paragraph 11 (last line) of the revisional application the alleged occurrence took place on 23.09.1991. Had there been no suspicion of the learned Additional Sessions Judge, Fast Track Court about the admit card and school certificate of the petitioners, age of Tultul Sk. ought to have been considered as not more than 13 years and 4 days and the age of Bulbul Sk. ought to have been considered not more than 14 years and 7 months on the date of alleged occurrence. Petitioners have claimed that as per order dated 21.01.2008 passed by learned Additional Sessions Judge the identity of the petitioners was verified by the O.C. Nalthati Police Station and he submitted report dated 28.02.2008 in Court stating 'During inquiry it was known that Tultul Sk. and Nure Hasan, Bulbul Sk. and Nurezzaman are same persons'. Learned Advocate for the State did not deny that fact. There is no reflection of that report of O.C. Nalhati Police Station in the impugned order. Petitioners have claimed that their ossification test in S.D. Hospital Rampurhat was done twice on 15.02.2008 and 03.09.2008. Copy of said reports have been annexed to the revisional application. As per the latest report dated 03.09.2008 age of both the petitioners was ascertained as above 25 years on that date. This aspect has also not been reflected in the impugned order. There is no finding in the impugned order about the age of the petitioners on the date of alleged occurrence. Consequently, the inquiry held by the learned Additional Sessions Judge, Fast Track, 1st Court, Rampurhat, Birbhum does not appear to me as proper. The impugned order suffers from serious infirmity and it causes miscarriage of justice.
In the light ot my discussions made above the impugned order dated 03.03.2010 passed by learned Additional Sessions Judge, Fast Track, 1st Court, Rampurhat, Birbhum is hereby set aside. Let there be a direction on the trial Court for holding proper inquiry to ascertain the age of accused Tultul Sk. and Bulbul Sk. on the date of alleged occurrence and to pass a reasoned order mentioning the age of said two accused persons clearly on the date of alleged occurrence as would be determined by that Court. Said inquiry process shall be completed expeditiously and preferably within two months from the date of communication of this judgment.
This revisional application is disposed of accordingly.
Interim order, if any stands vacated.
A copy of this judgment be communicated to the learned Court below from the department forthwith.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record promptly observing all requisite formalities.
(SANKAR ACHARYYA, J.,)