- (1.) The present revisional application is filed for quashing the entire proceeding in CGR Case no. 4213 of 2008 arising out of Ekbalpore P.S. Case No. 559 dated 28.11.2008 under Section 338 of the Indian Penal Code including order dated 05.05.2010 passed therein, which is now pending before the Court of the learned Chief Judicial Magistrate, Alipore.
(2.) The petitioner contends that his minor daughter aged about seven years was a student of Vidya Bharati (Mominpur). She was mercilessly beaten up by her Yoga Teacher Anita Das on 27.11.2008 on flimsy ground while her head got struck with a pillar and as a result she sustained cerebral haemorrhage. Though some symptom of her physical distress was manifested, she was forced to continue with the lesson till she became lost her sense. Then at a belated stage she was moved to CMRI hospital under deep coma where she died on 28.11.2008. He lodged a complaint to this effect to the Ekbalpore Police Station disclosing a cognizable offence but the Officer-in- Charge of the Police Station did not act in accordance with law. Following the death of his daughter the IO prayed for addition of the offence of Section 304A IPC in place of Section 338 IPC in the FIR which was allowed. The Child Welfare Committee also directed the IC of Ekbalpore Police Station on 08.12.2008 to start a case of negligence against the Yoga Teacher and the Headmistress of the school under Section 23 of the Juvenile Justice (Care and Protection of the Children) Act, 2000. But the investigation was not properly made and as such on 02.02.2009 the petitioner filed a writ petition before this Hon ble Court seeking for CBI enquiry against the mala fide investigation of the Ekbalpore Police Station, Public Prosecutor and the Chief Judicial magistrate concerned. But in the meantime the IO completed the investigation and submitted charge sheet. Therefore, the Hon ble Court by order dated 29.07.2009 disposed of the said writ application being W. P. No. 2270(W) of 2009 with the observation that the petitioner will be at liberty to take whatsoever step or remedies that may be available to them before the criminal Court, including objecting to the charges that may have been cited and that if the petitioner follow the due process as recognized under the Criminal Procedure Code it may not be necessary for the petitioners to pursue this petition. The matter was further considered by a Division Bench of this Hon ble Court in M.A.T. 833 of 2009 with C.A.N. 8232 of 2009 on 14.09.2009 and the appeal with C.A.N. was disposed of in view of the statements made by Mr. Nisith Adhikary, learned Additional Advocate General to the effect that in view of the peculiar circumstances of the case a Special Prosecutor will be appointed in this case before the Sessions Court so that complete justice is done to the parents of the deceased child. But no such prosecutor has been appointed by the State Government as per commitment of the learned Additional Advocate General. On the contrary the learned Chief Judicial Magistrate has proceeded with the case as per perfunctory report of the IO, who has tried to shield the Headmistress, and filed charge sheet on lesser Section so as to ensure release of the Yoga Teacher on bail by filing charge sheet on bailable Section.
(3.) Therefore, the petitioner de facto complainant filed three applications before the learned Chief Judicial Magistrate, Alipore which have been disposed of by him by order dated 05.05.2010 which is also now being challenged.;