- (1.) This Revisional Application is directed against the order dt. 19-9-1998 passed by the ld. Additional Sessions Judge, 11th Court, Alipur in S. T. No. 2 (8) of 1998 (Sessions Case No. (2) of 1998) which arose out of Gariahat P.S. case No. 176 dt. 20/07/1996 u/s. 302/34 of the IPC whereunder ld. Judge allowed an application under Section 307 of the Cr. P.C. filed by one Panchami Palta, the mother of the O.P. No. 1, Khokan Palta who was one of the accused persons of the said case.
(2.) The relevant facts may be summarised as follows. The petitioner Raj Ambarish Sen along with the O.P. No. 1 was arrested in connection with the abovementioned sessions case by police on 17/11/1997 and subsequently on completion of investigation police submitted a charge-sheet against him under Section 302/34 IPC before the Ld. SDJM, Alipur who took cognizance of the offence and after observing the formalities committed the accused Raj Ambarish, to the Court of Session. In August, 1998 the ld. Addl. Sessions Judge framed charge against the petitioner under Section 302/34 IPC when the petitioner pleaded not guilty and thereafter the case was fixed for trial. It is to be noted that the O.P. No. 1 Khokan Palta, was found to be juvenile at the time when the alleged incident took place and hence his case was split up and was sent to the ld. Magistrate-in-Charge of the Juvenile Court for disposal in accordance with the law while the petitioner, Raj Ambarish Sen, continued to face his trial at the said Court of Addl. Sessions Judge. Thereafter while the case as against the O.P. No.2 Khokan Palta was pending before the Court of Ld. Magistrate-in-Charge of Juvenile Court, an application was preferred by Sm. Panchami Palta, the mother of the said accused Khokan Palta, in terms of the sections 306-307 of the Cr.P.C. on behalf of her son praying for pardon and an order treating him as an approver and witness on behalf of the prosecution. Since the Ld. Magistrate was not competent to hear such an application, it was transmitted to the Court of Ld. Addl. Sessions Judge for disposal. Having come to know about such application the petitioner filed a written objection there against challenging its maintainability in law. Thereafter the Ld. Judge after hearing ld. counsel allowed this application by passing the impugned order dt. 19-9-1998. This order according to the revisional applicant suffers from illegality, impropriety and incorrectness and, therefore, should be set aside.
(3.) It has been contended on behalf of the petitioner that the impugned order is a glaring example of the abuse of the process of Court and it would cause great miscarriage of justice in holding the O. P. No. 2 Khokan Palta as a co-accused accomplice of the petitioner on the basis of his statement recorded under Section 164 of the Cr. P.C., inasmuch such a statement cannot be treated as a confessional statement its contents being totally exculpatory. It is his further case that even if it is assumed for the sake of argument that the mother of the accused Khokan Palta had the authority to make such an application on behalf of her son since the provisions of Section 306 or 307 Cr. P.C. are applied to a person who has not been committed to the Court of Session, nor he was being tried by that Court along with the petitioners, the Court of session had no jurisdiction to pass such order granting pardon and in such circumstances the application filed by the mother of that O.P. No. 2 Khokan Palta under Section 306/307 of the Code will be bad in law. Thus, by passing the impugned order allowing the petition under Section 306/307 Cr. P.C., Ld. Judge has committed serious miscarriage of justice and the same is liable to be set aside.;