Matiur Biswas vs State of West Bengal

S.K. Gupta, J.—This revisional application has boon filed u/s 401 and 482 of the Cr.PC praying for quashing of the proceeding being Raghunathgunj P.S. Case No. 84/2001 dated 09.08.2001 and the order dated 07.08.2004, passed by the Id. Additional Sessions Judge of the 1st Fast Track Court, Jangipur, Murshidabad, whereby he directed to frame charge against the accused/petitioner.

The case of the petitioner is that one civilian, named Safique Sk. a resident of Mahaldarpara Village, expired at Lalgola Hospital as a result of gun shot injuries and for that Murshidabad P.S.UD Case No. 66 of 2001 dated 08.08.2001 was started against BSF officials and other personnel involved in the said firing incident. In order to counter the said case, on 09.08.2001 S.N. Goswami, company commander of the BSF lodged a complaint over the alleged incident. On the basis of that. Raghunathgunj P.S. Case No. 84 of 2001 was started against the accused persons. It has been alleged in the said FIR that while the BSF intercepted some persons, who were involved in cow smuggling, at that time the accused persons assaulted the BSF personnel with the intention to kill them and as such finding no other way out, the BSF officials opened fire and as a result of that one civilian died. After completion of the investigation, chargesheet was submitted against the accused persons including one Matiur Rahaman. The present petitioner''s name is Matiur Biswas and not Matiur Rahaman and he is a member of the Gram Panchayat. Be that as it may, on the basis of the said chargesheet, ld. Sessions Judge was pleased to frame charge under Sections 147 148 149 186 353 333 307 of the Indian Penal Code against the petitioner and others, although there is no material whatsoever against the present petitioner. Being aggrieved by and dissatisfied with, the said order of framing of charge against the present petitioner and against the continuation of the said proceeding so far as the present petitioner is concerned, this revisional application has been filed praying for quashing of the entire proceeding or setting aside the order of framing of charge, so far as the present petitioner is concerned.

I have heard the submissions of the ld. Advocate for the petitioner and the ld. Advocate for the State. According to the Id. Advocate for the State, the Id. Additional Sessions Judge was perfectly justified in framing the charge against the accused/petitioner, as there were materials against him. He further submits that from the statements of all the witnesses, as recorded u/s 161 Cr.PC, it will appear that there is strong suspicion against the present petitioner so far as the commission of the offence is concerned. In this respect he has cited decision reported in State of Bihar Vs. Ramesh Singh, . As against this ld. Advocate for the petitioner cited decision reported in Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, , wherein this decision reported in State of Bihar Vs. Ramesh Singh, was also considered. Be that as it may, the main contention of the petitioner is that although there is no material whatsoever against the present petitioner, still the Id. Additional Sessions Judge was pleased to frame the charge against him. In the decision reported in State of Bihar Vs. Ramesh Singh, it has been held :

But at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

By citing this portion of the decision Id. Advocate for the State argued that if there is a strong suspicion disclosed in the papers, as submitted u/s 173 Cr.PC, then it, will be incumbent upon the Court to hold that there is a prima facie case for going to the trial and so he is duty-bound to frame the charge. As such, Mr. Mallick submits that there is no illegality in the order passed by the ld. Court below. But if we look into the other portion of the said judgment then it will appear that it has been clearly laid down therein to the effect:

If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

Same view has been taken by the Hon''ble Supreme Court in the decision reported in Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, . It has been decided to the effect:

It seems well-settled that at the Sections 227-228 stage i.e., stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

So, from both the decisions, it is clear that the Court at the time of consideration of charge must look into the documents on which the prosecution wants to rely and to come to a decision as to whether there is a prima facie case against the particular accused which, if unrebutted, will lead to the conviction of the said accused. Keeping the ratio in mind, as decided by the Hon''ble Supreme Court in those two cases, let us now consider whether there is any prima facie material against the present accused or not, so far as this case is concerned. Ld. Advocate for the petitioner/accused has filed copy of the 161 statements, as recorded by the I.O., so far as the present case is concerned. The ld. Advocate for the State did not dispute the authenticity of these documents. As such, I prefer to take into consideration those papers. I have perused those 161 statements carefully. It appears that in almost in all the statements names of some of the accused persons have been mentioned. There are statements of Umed Singh, Mahinder Kumar, Amar Singh, Ajit Lal, Korian Yohannan, Lalaw Bhai, Rajesh Kumar, Styendra Pal Singh, Abdul Rajak, Indradew Paswan, K.S. Nishak, Kabul Singh and Abinash Kumar. It appears that none of those witnesses have mentioned the name of the present petitioner as the person who took part in the commission of offence. But, it appears that there are two other statements made by Jaswant Kumar and S.N. Goswami. In their statements these two witnesses besides mentioning specifically the names of the persons who allegedly committed the offence also mentioned therein that they suspected that one Matiur Rahaman was also involved in connection with the commission of the said offence. The statement of J. Kumar runs as follows:

(I think that Motiur Rahaman was also involved in the incident)

The witness S.N. Goswami stated:

(I think that Motiur Rahaman is also involved in the incident)

So it appears that these two witnesses also could not he definite about the involvement of the petitioner in the commission of offence. Besides mere suspicion there is nothing against the petitioner so far as the statements of these two witnesses are concerned. It appears that these two witnesses clearly mentioned the names of the persons who were allegedly involved with the offence. If these two witnesses were of firm, conviction that present accused/petitioner was also involved in the commission of the offence, then certainly they would have specifically mentioned his name along with other persons. There is reason to believe that in order to unnecessarily involve the accused/petitioner in this case, these two statements have been recorded. There cannot be any doubt that on the basis of this suspicion, as expressed by these two witnesses, the accused/petitioner cannot be convicted even if those statements are not challenged in cross-examination. It is the settled principle that on the basis of suspicion one person cannot be held guilty for the commission of an offence. So, from my above discussion, it is very much clear that the prosecution has failed to make out a prima facie case, so far as the present accused/petitioner is concerned and to my mind, the ld. Additional Sessions Judge was not at all justified in not considering this fact while framing the charge against the accused/petitioner. The order, as passed by the ld. Court below regarding framing of charge against the accused/petitioner appears to me highly improper and it has certainly caused failure of justice. If on the basis of the statements of those two witnesses the criminal proceeding is allowed to be continued against the accused/petitioner, then I have got no hesitation to hold that it will be an abuse of the process of the Court.

Therefore, from my above discussion, I am of opinion that there is merit in the revisional application and it is a fit case where order dated 07.08.2004, passed by the ld. Court below directing framing of the charge against the accused/petitioner, should be set aside.

In the result, the revisional application is allowed on contest. The order dated 07.08.2004, as passed by the ld. Court below for framing charge against the accused/petitioner is set aside. The accused be discharged from this case at once, if not wanted in any other case. Ld. Court below is directed to proceed with the trial of the other accused persons in accordance with law.

Send a copy of this order at the Court below at once.

Xerox certified copy, if applied for, may be handed over to the parties on urgent basis.