- (1.) The Judgment of the Court was as follows : The present revision petition has been filed under Sections 397/401 read with Section 482 of Code of Criminal Procedure praying that the order dated 26.9.2011 passed by the Court of learned Additional Sessions Judge, Re-designated Court, Paschim Midnapore in connection with ST. Case No. XIV/August/2011 arising out of Case No. R.C. 3(5) 2011, Kolkata, be quashed. It is canvassed that the learned trial Court committed grave error in declining the prayer made by the petitioners for their discharge.
(2.) Before the prayer made by the petitioner is appreciated, it will be necessary to give brief gist of the facts as it emerges from perusal of the charges framed against the petitioner. According to the prosecution all the petitioners on the night intervening 6th and 7th of June, 2011 had fired at a mob which resulted into death of 9 (nine) persons which included 4 (four) females. They also injured 28 persons who suffered simple and grievous injuries. Injury suffered by some of the prosecution witnesses fall under the ambit of Section 307 of the Indian Penal Code as it was opined by the Medical Officer that the injuries could have resulted into death in case timely medical aid was not provided. The occurrence led the CID department of the State police to register the Case No. 4 of 2011 dated 7.1.2011 at Police Station Lalgarh, District Medinipur under Sections 148/149/326/307/302 of the Indian Penal Code read with Section 24 of the Arms Act. Later on the intervention of the Division Bench of this Court investigation of case was transferred to the CBI who after conclusion of investigation had filed a separate charge-sheet. On the basis of report so submitted nine charges were drawn against the present petitioners by the trial Court. Shri Milon Mukherjee assisted by Mr. Biswajit Manna, has assailed the order of framing charge on various grounds. The submission put forward can be recapitulated as under :- a) that on the application filed by the accused after framing of the charge 161 statements of 33 witnesses recorded by the State police were furnished to the accused. It is stated that these statements contained version, which was diametrically opposite to the statements recorded by the CBI, of the very same witnesses, under Section 161 of the Code of Criminal Procedure. Shri Mukherjee has very forcefully contended had these statements which were subsequently provided to the petitioners been taken into consideration by the Trial Judge, charge would not have been framed against the petitioners; b) That the Trial Judge while framing the charges has acted in a mechanical manner without requisite application of mind. It is stated by Shri Mukherjee by pointing out various discrepancies and errors in the charge that if those are taken to its logical conclusion, the prejudice is writ large on the record. Hence, Mr. Mukherjee has prayed that accused should be discharged by this Court by accepting the present revision petition. The discrepancies, errors and criticism to the charge shall be noticed little later.
(3.) To controvert the submissions made by Shri Milon Mukherjee, learned Senior Counsel, Shri Razack, learned Additional Solicitor General, Government of India has urged as follows : (a) that 33 witnesses who have been examined and cited by the CBI, are the same witnesses who were earlier examined by the CID department of the State Government. He has stated that if both statements i.e. recorded by the CID department and CBI under Section 161 of the Code of Criminal Procedure are compared, the version contained in both the statements in nut shell is same except for the little discrepancies here and there and the same shall fall within the domain of appreciation of the evidence by Trial Judge. This Court in revisional jurisdiction cannot assess the truth and veracity of the statements, so to say that because of contradictions, they are to be ignored. (b) Shri Razack has further referred to Section 464 of the Code of Criminal Procedure. He submits that any error or omission or discrepancy in the framing of charge is not to be taken note of by the Court until it causes any prejudice to the accused. Shri Razack has also contended that prejudice whether caused or not is a question of fact. It can only be determined by the trial Court after the witnesses are examined by the trial Court.;