S.K. Kuddus vs Haque Middha and Another

Ranjan Kumar Mazumdar, J.—The instant Criminal revisional application u/s 432 of the Code of Criminal Procedure is directed against the order dated 6.8.96 passed in G. R. Case No. 308/94 by learned Judicial Magistrate, First Court. Suri, Birbhum and also against the order dated 15.12.98 passed by the learned Additional Sessions Judge, First Court. Suri, Birbhum in Criminal Motion No. 70/96. The case of the petitioner (de facto complainant) was in brief that he lodged a FIR with Suri Police Station, Birbhum alleging inter alia that under (he instigation of O. P. No. 1. the other accused persons formed an unlawful assembly on 9.5.94 at 11 a.m. and seriously assualted one Isad at Village Kankuria under P. S. Suri. When the petitioner and others rushed lo the place of occurrence, the accused persons hurled bombs and attacked the house of the petitioner and lasted various articles and ornaments from the said house On the basis of the said FIR the police made investigation into the case(sic) and submitted a charge-sheet against O. P. No. 1 and many others. Unfortunately, at the time of framing of charge against the accused persons, learned Judicial Magistrate, First Court. Suri, Birbhum passed an order on 6.8.96 in G. R. Case No. 308/94 discharging O. P. No. 1 from the said case on the ground that there was no prima facie case or evidence against O. P. No. 1. Being aggrieved by the said order, the petitioner moved learned Additional Sessions Judge, First Court, Suri, Birbhum in revision for redressal of his grievance, but here, too the learned Court concerned dismissed the revisional application of the petitioner and affirmed the order passed by the learned Judicial Magistrate. Hence, the present case. I have had the opportunity of hearing learned Counsels for all parties at length.

The only question requiring consideration in this case was whether the orders passed by the learned Judicial Magistrate in G.R Case No. 308/94 on 6.8.96 and also the order passed by the learned Additional Sessions Judge In Criminal Motion No. 70/96 on 15.12.96 should be set aside or not.

Aft the time of hearing, learned Counsel for the petitioners (sic)ementry (sic) that although his client (de facts (sic)) specifically (sic) one of the accused (sic) by him on (sic) Magistrate (sic) the said O.P. No. 1 from the case and as such the said order was wrong. He further (sic) that O. P. No. 1 was also named (sic) the charge-sheet filed by the police after investigation. Bui (sic) O.P. No. 1 was discharged from the case. It was further submitted that being aggrieved by the said order of the learned Judicial Magistrate, his (sic) moved the learned Additional Sessions Judge, Suri, but the said learned Court also did not set aside the order passed by the learned Judicial Magistrate.

Learned Counsel for O. P. No. 1 submitted, on the other hand, that at the time of framing of charge against the accused persons, learned Court of Judicial Magistrate, found that there was no sufficient prima facie evidence against O. P. No. 1 in the (sic) recorded by the police u/s 161 of the Code and hence, the said (sic) barged O. P. No. 1 from the case. He further submitted that in (sic) Additional Sessions Judge. Suri, also affirmed the said order of leaned Judicial Magistrate as there was no prima facie material or evidence against the O. P. No. 1 in the statements of witnesses recorded by the police u/s 161 of the Code.

I have also heard learned Counsel for the State in the matter.

It appears from record that O. P. No. 1 filed a petition before the learned Court below for discharging him from the said case on the ground that there was no prima facie evidence against him. It also appears from record that learned Court below heard all sides in the matter and in that connection considered statements of the various witnesses recorded by the police u/s 161 of the Code. According to the said Court there was no prima facie evidence in respect of any (sic) against O. P. No. 1 and hence he discharged O. P. No. 1 from the said case. According to him, although charge-sheet was submitted against O. P. No. 1 and others, there was no material at all to show that O. P. No. 1 had any involvement in the commission of the crime as alleged.

It also appears from record that the learned Additional Sessions Judge, Suri while considering the case of the petitioner came to the conclusion that the petitioner (de facto complainant) did not see the incident at all and was not at all present at the scene of occurrence. Again the said learned Court observed in the impugned order that witnesses Anarul Rahaman, Nur Ala, and Nur Islam did not see O. P. No. 1 at the time of incident. The said learned Court also discussed some other aspects of the matter and with an eye to the statements of the witnesses recorded by the police u/s 161 Criminal Procedure Code that O. P. No. 1 was not at all present at the scene of occurrence, the said Revisional Court confirmed the order of the learned Judicial Magistrate by way of dismissing the Criminal revisional application.

The law enjoins that before discharging an accused from a case, learned Court concerned must assign reasons for such discharge. In the instant case, it appears that the learned Judicial Magistrate, Suri, has duly recorded reasons in the impugned order dated 6.8.96 for not framing charge against O. P. No. 1. In revision the learned Additional Sessions Judge. Suri, also assigned reasons for affirming the order of the learned Judicial Magistrate. Both the learned Courts below found no materials on record to frame a charge against O. P. No. 1 and hence, the order was passed in favour of discharging O. P. No. 1 from the case. Accordingly, I find nothing wrong with the two impugned orders dated 6.8.96 and 15.12.98 respectively. Moreover, it transpires from record that although the first revisional application of the petitioner was dismissed by the learned Additional Sessions Judge vide order dated 15.12.98 yet the petitioner filed the present second revisional application for setting aside the impugned order of the learned Judicial Magistrate dated 6.8.96. It is pertinent to mention in this connection that the law is well-settled in this regard inasmuch as it has been held by Hon''ble Supreme Court in the case of Rajan Kumar Machananda vs. State of Karnataka reported in 1990 (Supp) Supreme Court Cases 132, that where a revisional application is dismissed by the Court of Sessions, a second revisional application did not lie before the High Court. It has further been held in the said case that merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked, the statutory bar could not have been overcome and if that was to be permitted, every revisional application facing a bar of Section 397(3) of the code could be labelled as one u/s 482 of the Code. In view of the said ruling of the Hon''ble Supreme Court, this Court had no jurisdiction to entertain the present second revisional application on the self-same incident. Again it was well-settled that the inherent power u/s 482 of the Code should be exercised very sparingly and only in the rarest of rare cases to prevent abuse of the process of the Court or otherwise to secure the ends of Justice. The instant revisional application was, therefore, misconceived and not maintainable.

In the facts and circumstances of the case, I find no impropriety, irregularity or illegality in the two impugned orders dated 6.8.96 and 5.12.98 respectively. The instant Criminal revisional application is. therefore, liable to be dismissed and the same is hereby dismissed.