- (1.)Both these appeals are directed against Judgment and Order dated 7/6/2005 passed by the Calcutta High Court in C.R.R. No.3140 of 2004 and, hence, they are being disposed of by this common order.
(2.)The facts which give rise to this judgment need to be shortly stated.
One Khagen Majhi was killed in the early hours of 30/4/1997. He was shot dead. On the same day P.S. Kalyani registered Case No.50 of 1997 under Sections 147, 148, 149, 353, 307 and 326 of the Indian Penal Code ("the IPC") and Sections 25 and 27 of the Arms Act against unknown persons. On 17/5/1997, a complaint was filed by Smt. Damyanti Majhi, the mother of deceased Khagen Majhi against SI Sankar Chatterjee, ASI Ajay Roy, appellant - S.K. Chanda, appellant - S.S. Banerjee and one Kartik Sarkar under Sections 302, 201 and 120B read with Section 34 of the IPC which was registered as Case No.138C of 1997. In this case, between 21/8/1997 to 6/6/2000, 12 witnesses were examined prior to the issue of process under Sections 200 and 202 of the Criminal Procedure Code ("the Code") by learned SDJM., Kalyani, Nadia.

(3.)It appears that Association for Protection of Democratic Rights, Ranaghat Branch, made a complaint to the West Bengal Human Rights Commission alleging that some police officers had shot down Khagen Majhi. The West Bengal Human Rights Commission by its Order dated 21/1/1998 recommended that prosecution should be started against SI Shankar Chatterjee and ASI Ajoy Roy. The Commission directed that displeasure of the Commission should be communicated, in writing, to the appellant - S.K. Chanda, SDPO, Kalyani for having attempted to mislead the Commission by his Report which was not in alignment with facts. There was no direction as against appellant - S.S. Banerjee. On 22/5/2000, pursuant to the above recommendation of the Commission, P.S. Kalyani, registered Case No.78 of 2000 against SI Shankar Chatterjee, ASI Ajoy Roy and Kartick Sarkar under Sections 147, 148, 149, 353, 307 and 326 of the IPC read with Sections 25 and 27 of the Arms Act. On 4/6/2000 upon investigation, charge-sheet was submitted against the abovementioned accused persons. On 31/7/2000, learned SDJM, Kalyani found sufficient ground to proceed against SI Shankar Chatterjee, ASI Ajoy Roy and Kartick Sarkar under Sections 302 read with Section 120B or Section 304 read with Section 120B and Section 201 read with Section 34 of the IPC. Learned SDJM, however, refused to issue process against appellant - S.K. Chanda and appellant - S.S. Banerjee. Since over the same incident, there was a police case also against those three accused persons, learned Magistrate directed that Complaint Case No.138C of 1997 be tagged with Police Case No.78 of 2000 for further proceedings. On 25/8/2000, the complainant filed a revisional application against the said Order dated 31/7/2000 passed by learned SDJM being C.R.R. No.2174 of 2000 in the Calcutta High Court. The appellants were not party to this revisional application. On 23/7/2001, the High Court set aside the Order of the learned Magistrate clubbing the complaint case with the police case and directed that the complaint case be committed to the Court of Sessions. It would be appropriate to quote the relevant paragraphs from the Order of the High Court:-
"Taking into account the entire facts and circumstances of the instant case, I am of the view that the learned Magistrate's Order directing that both the cases should be clubbed together under Section 210 of the said Code cannot be sustained and accordingly, the Revisional Application is allowed. The order dated 31/7/2000 passed by the learned Magistrate is set aside and the learned Magistrate is further directed to commit the case immediately after proper compliance of the provisions of law and soon reach the stage of section 208 of the said Code"

xxx xxx xxx xxx "It would be also open to the Learned Sessions Judge, upon commitment of the arrayed Accused/Opposite Parties during the Trial to arraign the other accused who has been left out by the Learned Magistrate, if the situation so demands in exercise of his power under Section 319 of the said Code in accordance with the steps known to law without being guided by the disposal of this Application."