- (1.) This revisional application under Section 401 read with Section 482 of Criminal Procedure Code preferred by the petitioners is directed against the order dated 6.2.02 passed by the learned Additional Sessions Judge, 1st Court, Siliguri in Criminal Revision No. 15 of 2000 thereby affirming the order dated 31.8.2000 passed by the learned Judicial Magistrate, 1st Court, Siliguri issuing process against the petitioners under Sections 325/34 of the Indian Penal Code (in short IPC) and also praying for quashing the criminal proceeding being complaint case No. C. R. 98 of 2000 now pending before the learned Judicial Magistrate, 1st Court, Siliguri.
(2.) Learned Advocates for the petitioners contended that on 26th March, 2000 at about 9 p.m. there was tension concerning a cricket match between India and Pakistan which was a day and night match. The police picked up two persons to stop the tension and brought them to police station. Thereafter, some persons of the locality of Ward No. 7 of Siligun Municipality went to the office of the A. P. D. R., Siliguri and reported to them about taking away of two persons to police station by police and thereafter men A. P. D. R. came at Siliguri Police Station and attacked the chamber of Officer-in-Charge and damaged properties of that room and also caused severe damage to the vehicles lying at thana compound. In order to disperse the said unlawful assembly and violent mob the police had to use force to drive them out of police station. Due to the attack of the unruly mob at least 10 police persons were injured and over that matter the police started a suo moto case being Siliguri P. S. Case No. 132 dated 27.3.2000 under Sections 147/148/149/4471 506/353/186/427/332/536 of Indian Penal Code read with Section 3 of the P. D. P. R Act and after completing investigation charge sheet has also been submitted against 10 accused persons out of which the opposite party No. 2, who is complainant of Cr. R. Case No. 98 of 2000 is an accused. The other injured person Ashim Chakraborty is also an accused in the said police case. Relating to incident dated 26.3.2000 opposite party No. 2 as complainant lodged the complaint in the Court of learned SDJM on 12.4.2000 against some of the police persons which was registered as case No. C. R. 98 of 2000 under Sections 147/148/149/323/341 /324/379/120B/114/115/34 of Indian Penal Code. After taking cognizance by order dated 12.4.2000 learned SDJM, Siliguri transferred the case to the Court of learned Judicial Magistrate, 1st Court, Siliguri. Thereafter, the learned Magistrate after taking statement of witnesses on oath under Section 200 of Criminal Procedure Code referred the matter to the S. D. O., Siliguri for investigation under Section 202(1) of Criminal Procedure Code to ascertain whether there is sufficient ground to proceed further before issuing process. The learned Magistrate received the enquiry report on 29.8.2000 and thereafter by order dated 31.8.2000 issued process against these two petitioners under Sections 325/34 of Indian Penal Code. Challenging the order of the learned Magistrate for issuing process without obtaining the sanction in view of provisions of Section 132 of Criminal Procedure Code and also under Section 197 Criminal Procedure Code the petitioners preferred a criminal revision in the Court of the learned Sessions Judge at Darjeeling and it was transferred to the Court of the learned Additional Sessions Judge, 1st Court, Siliguri for disposal. Learned Additional Sessions Judge by order dated 6.2.02 rejected the revision and affirmed the order of the learned Magistrate and being and aggrieved by dissatisfied with the said order petitioners have preferred the instant revision.
(3.) They further contended that the learned Magistrate did not consider the investigation report under Section 202(1) of Criminal Procedure Code properly and action of the learned Magistrate falling back to pre-enquiry stage is bad in law. Learned Magistrate did not consider that in the investigation report submitted by the S. D. O. under Section 202(1) of Criminal Procedure Code it was mentioned that the exact cause of injury to A. P. D. R. persons could not be ascertained. Besides that, the learned Magistrate did not consider the provisions of Sections 129/130/131/132 of Criminal Procedure Code and failed to realise that in order to disperse an unlawful assembly the Officer-in Charge of a police station can use civil force and in the discharge of such official duty to use civil force while dispersing the unlawful assembly any person of such unlawful assembly becomes injured no prosecution can be lodged against the police officers in view of provisions of Section 132 of the Criminal Procedure Code. Learned Magistrate also did not consider that Section 132 is more wider than provisions of Section 197 of Criminal Procedure Code and accordingly taking of cognizance and issuing process without sanction of the State Government was illegal and bad in law and that illegality cannot be cured in view of Section 465 of Criminal Procedure Code.;