S.K. Golam Gous vs State of West Bengal

Ranjan Kumar Mazumdar, J.—The instant criminal revisional application u/s 401 read with Section 482 of the Code of Criminal Procedure is directed against the order dated December 24, 1990 passed by the learned Sub-Divisional Judicial Magistrate, Ghatal in case No. 230C of 1990 and this is at the instance of the accused-Petitioner Nos. 1 to 7.

The case of the Petitioners was in brief that opposite party No. 2 filed an application before the Court of learned Sub-Divisional Judicial Magistrate, Ghatal against them and some others under Sections 147, 323, 342, 307, 504 and 120B of the Indian Penal Code alleging inter alia that on December 16, 1990 at about 8.30 p.m. when opposite party No. 2, a member of the local Pahchyat, was proceeding along with the village read after discharging his duties, the accused Petitioners surrounded him and then accused-Petitioner No. 1 asked him to resign from the post of President of the Illiteracy Removal Committee. But when opposite party No. 2 declined to do the same, accused-Petitioner No. 1 hit opposite party No. 2 on his head with an iron rod. As a consequence opposite party No. 2 fell down on the ground and shouted for help. In such an eventuality, Petitioner No. 2 assaulted him with lathis. Thereafter opposite party No. 2 was treated by the Medical Officer, Khirpai Primary Health Centre. Over the said incident opposite party No. 2 lodged a written complaint with the learned Sub-Divisional Judicial Magistrate, Ghatal. During the enquiry proceeding before the learned Sub-Divisional Judicial Magistrate, Ghatal, opposite party No. 2 named nine witnesses including the Medical Officer, Khirpai Primary Health Centre, who treated the opposite party No. 2, but the said Medical Officer was not examined by the learned Sub-Divisional Judicial Magistrate. According to the accused-Petitioners the said. Medical Officer, Khirpai Primary Health Centre, who treated opposite party No. 2 after the alleged incident ought to have been examined by the learned Sub-Divisional Judicial Magistrate inasmuch as the said complaint case filed by opposite party No. 2 against the Petitioners was a concocted and false one. According to the Petitioners since learned Sub-Divisional Judicial Magistrate, Ghatal took cognizance without examining the Medical Officer concerned the order passed by the learned Sub-Divisional Judicial Magistrate on December 12, 1990 in complaint case No. 230C of 1990 was bad and illegal and was liable to be quashed.

The only question requiring consideration was whether the impugned order passed by the learned Sub-Divisional Judicial Magistrate, Ghatal on December 24, 1990 suffered from any irregularity, illegality, impropriety or other jurisdictional error as alleged by the accused-Petitioners.

At the time of hearing, learned Counsel for the accused-Petitioner Nos. 1 to 7 vehemently submitted that the impugned order dated December 24, 1990 was totally bad and illegal inasmuch as while taking cognizance of the offences under Sections 147, 323, 342, 307 and 120B of the Indian Penal Code and proceeding further against the accused-Petitioners, learned Sub-Divisional Judicial Magistrate ought to have examined the Medical Officer of Khirpai Primary Health Centre, who treated opposite party No. 2 on the date of occurrence after the alleged incident. To be specific, it was the submission of the learned Counsel for the accused-Petitioners was that no incident took place on the date of occurrence at all as alleged by the opposite party No. 2 and had the Medical Officer, who treated opposite party No. 2, been examined in this case the truth would have been elicited that opposite party No. 2 did not suffer any injury at all at the hands of the accused-Petitioners as alleged. Learned Counsel for the accused-Petitioners, therefore, submitted that it was a case of failure of justice and hence the impugned order should be set aside and that the learned Sub-Divisional Judicial Magistrate should be directed to examine the Medical Officer concerned and then to pass an appropriate order.

Learned Counsel for the opposite party No. 2 Shri Milon Mukherjee submitted on the other hand, that mere non-examination of the Medical Officer, Khirpai Primary Health Centre by the learned Court below did not vitiate the proceeding. He further submitted that in or the petition of complaint, his client cited two doctors as witnesses and out of them only one doctor was examined and since prima facie case was made out, there was no need for examination of the other doctor. According to Shir Mukherjee it was, therefore, not a case of failure of justice and hence the provisions contained in Section 465 of the Code was not attracted in this case. Hence, according to Shri Mukherjee, the instant prayer for quashing the impugned order as prayed for by the accused-Petitioners should be dismissed.

It appears from lower court records that on December 20, 1990, the complaint of the instant case was filed by O.P. No. 2, who was present in Court with five witnesses and that they were all examined on that date. It also appears from the order dated December 20, 1990, that on that date O.P. No. 2 made a prayer for allowing him to examine more witnesses and such a prayer was allowed by the learned S.D.J.M. and December 24, 1990, was fixed as the next date. The order passed on December 24, 1990, by learned S.D.J.M. indicated that on that date O.P. No. 2 was present with three witnesses including one Medical Officer Dr. Sasanka Chowdhury and they were all examined on that date. The said order also showed that the learned Magistrate was satisfied that a prima facie case under Sections 147, 323, 342, 307 and 120B Indian Penal Code was established and hence he issued warrants of arrest against the accused persons. Needless to mention that Section 200 of the Code enjoined inter alia that a Magistrate taking cognizance of an offence on compliant made by a party before him shall examine on oath the complainant and the witnesses present, if any, before him. In the instant case it appears that on receiving the complaint from O.P. No. 2, learned S.D.J.M, Ghatal took cognizance of the offences and examined six witnesses including the complainant on December 20 1990. Besides, it appears that he fixed a further date (December 20, 1990,) for examining the remaining witnesses. The order passed on December 24, 1990, indicated that on that date learned S.D.J.M. examined three more witnesses including one doctor, namely, Dr. Sasanka Chowdhury and since a prima facie case was made out in respect of offences under Sections 147, 323, 342, 307 and 120B Indian Penal Code, he issued warrants of arrest against the accused persons. I find no irregularity, impropriety or illegality or jurisdictional error in this order dated December 24, 1990. Accordingly I am of the clear view that the instant Criminal revisional application is liable to be dismissed and the same is hereby dismissed. The case is thus disposed of.

Interim order of stay as granted by this Court is hereby vacated. Learned S.D.J.M. Ghatal is directed to proceed with this case and dispose of the same according to law at an early date.

Let the lower Court records be sent down immediately to the learned Court.

There will be no order as to costs.