Syamal Kanti Chakrabarti, J. - (1.) THE present application under Section 401 read with Section 482 Cr.P.C. is directed against order no. 12 dated 16.06.2008 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Lalbagh, Murshidabad.
(2.) BY the said order the learned Court below has disposed of a petition dated 20.03.2008 filed by the prosecution under Section 319 Cr.P.C. for adding and summoning four accused persons namely, Chand Sadagor, Sadek Ali, Usuf Nabi and Mofakkarul @ Mofajjarul Islam and allowed the same on the grounds stated therein. Being aggrieved by and dissatisfied with such order the aforesaid added four accused persons against whom summons have been issued for appearance have filed this revisional application contending inter alia, that in the FIR lodged by the defacto complainant Ajijul Rahaman against fifteen accused persons including the four petitioners herein it was alleged inter alia, that on 29.06.2003 at about 3:15 p.m. all the fifteen accused persons being armed with fire arms and deadly weapons entered into the house of one Mojaffar Sk. and accused Chand Sadagor assaulted the father of the said complainant with knife as a result of which his father succumbed to his injuries instantly and accused Mainul, Sadek Ali and Khos Mohammad assaulted Ashinur Bewa, sister of the complainant with knife causing injury on her person and accused Moffajjrul Islam and Usuf Nabi assaulted Tajibur Rahaman with dagger causing injury in his person. Both the injureds were shifted to K. P. Hospital for treatment from where they were referred to Berhampore N. G. Hospital. On the basis of such complaint the Lalgola P.S. case no. 127 of 2003 dated 29.06.2003 under Section 147/148/149/326/302 IPC was started. Upon completion of investigation the IO submitted charge sheet against twelve accused persons excluding the present petitioners and accused Farhad Ali and Milan Sk. Accordingly, the learned Court below took cognizance of the offence against twelve charge sheeted accused persons and the present four petitioners as well as accused Farhad Ali and Milan Sk. were discharged from the case. It is further submitted that after commitment of the said case before the learned Additional Sessions Court for trial and upon subsequent transfer of the same to the Court of learned Additional Sessions Judge, 2nd Fast Track Court, Lalbagh, charge sheet was framed against twelve charge sheeted accused persons and some witnesses had already been examined. At this stage the learned Public Prosecutor filed an application under Section 319 Cr.P.C. containing, inter alia, that sufficient incriminating materials against the present FIR-named accused are forthcoming in the statement of witnesses recorded under Section 161 Cr.P.C. and in the testimony of PWs 2, 3 and 4. So he made a prayer to the learned Trial Court for inclusion of names of these accused persons and to issue summons against them which has been allowed and is now being challenged.
(3.) IT is contended on behalf of the aforesaid petitioners that the learned Trial Judge has not diligently exercised his discretionary power under Section 319 Cr.P.C. and the same is arbitrary. At the time of filing charge sheet there was no allegation against the four petitioners and at the time of taking cognizance and framing of charge by the learned Trial Court there was no prima facie material against these accused persons and the IO also made a prayer for their discharge. Learned committing and trial Courts below remained silent so long regarding the above matter and as such at a belated stage it is not just and proper to implead the present accused persons. At the time of allowing such prayer and issuing the process the learned Trial Judge has ignored the ratio of the Hon"ble Apex Court in the case of Joginder Singh and Anr. "Vs.- State of Punjab and Ors., AND The Municipal Corporation of Delhi "Vs.- Ramkrishna and Ors. and as such the said order is bad in law and is liable to be quashed. From the impugned order of the learned Sessions Judge it will appear that while considering the prayer he has held inter alia, that four petitioners herein are all named in the FIR and the IO concerned is silent regarding their conduct at the time of filing the charge sheet and did not pray for their discharge. At that stage the case was committed and trial began. In course of examination of four witnesses tangible materials regarding involvement of these four petitioners transpired and therefore, in view of the principles laid down in (2006) 2 C Cr L R (SC) 131 he has entertained the prayer having been satisfied with the sufficient incriminating materials against present petitioners also and so they should face the trial and as such added them as co-accused. Moreover, in view of the ratio in (2005) 2 C Cr L R (Cal) 190 before discharging the FIR-named accused the Court ought to have issued notice to the defacto complainant which has not also been complied with in the instant case leaving the issue undecided so far. Considering all these aspects he has exercised his discretionary power and allowed the prayer under Section 319 Cr.P.C.;