- (1.) All the aforesaid four revisional applications have been preferred before this Court challenging the same order dated 16.9.2000 passed by the learned Additional Sessions Judge, 1st Court, Barasat in Criminal Appeal No. 4 of 1996 thereby setting aside the judgment and order of conviction and sentence dated 19.1.96 passed by the learned Judicial Magistrate, 3rd Court, Barrackpore in G.R. Case No. 3601/1983. C.R.R. No. 954/2001 and C.R.R. No. 955/2001 have been preferred by the C.B.I. against the aforesaid order and the other two revisional application being C.R.R. No. 2912/2000 and C.R.R. No. 2709/2000 have been preferred by the two accused persons. Since similar point of law is involved in the aforesaid four revisional applications, those are taken up for disposal analogously.
(2.) The two accused persons namely, Mrinal Kanti Ghosh and Bhabesh Chowdhury were put up on trial before the learned Judicial Magistrate, 3rd Court, Barrackpore to meet a charge under Sections 120-B/408/471/477-A of the Indian Penal Code. On completion of the trial the accused persons were found guilty of the offences under Sections 408/471/477-A and 1206 of the Indian Penal Code and they were convicted there under. Each of them was sentenced to suffer R.I. for 2 years for the offence under Section 408 I.P.C. R.I. for 1 year for the offence under Section 471 I.P.C., R.I. for 2 years for the offence under Section 477-A I.P.C. and R.I. for 2 years for the offence under Section 120-B I.P.C. The sentences were directed to run concurrently
(3.) Challenging the aforesaid judgment and order of conviction and sentence two separate appeals were preferred by the two accused persons before the learned Sessions Judge, North 24 Pargans at Barasat. When the appeal was taken up for hearing by the learned Additional Sessions Judge, 1st Court, Barasat it was argued by the learned Advocate appearing on behalf of the defence that the charge framed against the accused persons in the case was defective as the said charge was framed in violation of the provision of Section 212 of the Code of Criminal Procedure. Since the charge was defective, the order of conviction and sentence cannot be sustained. In the present case the accused persons were charged for entering into a criminal conspiracy during the period May, 1981 to November, 1982 and in pursuance of the said conspiracy they committed criminal breach of trust to the tune of Rs. 41,000/- of the I.S.I. Calcutta by showing false disbursement of salary to the employees. So the learned Judge, on being satisfied that the period during which the alleged offence was committed was beyond the period of 12 months, was of the view that the charge framed against the accused persons was a defective charge as the said charge was framed in violation of the provision of Section 212(2) of the Code of Criminal Procedure. But the learned Additional Sessions Judge at the same time was of the view that such defect in framing of charge is curable and the same cannot vitiate the trial. But although the learned Judge was of the view that such defect in the framing of charge is curable and the same cannot vitiate the trial, the learned Judge decided to send back the matter on remand to the learned Magistrate with a direction for holding a de novo trial after framing fresh charge in accordance with law.;