- (1.) This revisional application under section 401 read with section 482 of the Code of Criminal Procedure (hereinafter called the Code) has been preferred by the petitioner assailing the order dated 17.1.04 passed by the learned Additional District and Sessions Judge, Fast Track Court No. 1 at Barasat in Sessions Trial No. 6(1) of 2004 corresponding to Sessions Case No. 31(5) of 2003 arising out of complaint case No. 982 of 1999 and thereby discharging the accused opposite parties 2 to 12 from the alleged offence under section 304 of the Indian Penal Code (hereinafter called the IPC) and rejecting petitioners prayer to frame charge under section 304 of IPC against the said accused persons.
(2.) Before entering into the merit of the case it would be fruitful to narrate the facts of the case, in short, which are as follows: The petitioner as complainant submitted a complaint before the learned Sub-Divisional Judicial Magistrate (hereinafter called as SDJM), Barrackpore against the accused opposite parties on 26.4.93 for sending the petition of complaint to O. C., Titagarh P. S. for investigation under section 156(3) of the Code treating the petition of complaint as FIR. It was alleged in the complaint that on 23rd April, 1993 the accused opposite parties lead by accused parties 2, 3, 4 and 8 were cutting and removing bamboos from bamboo grove of Baro Kanthalia Masjid compound when the complainant and his associates raised objection. The accused opposite parties started to assault Md. Ali, father of the complainant and the accused No. 1 made an attempt to assault Asraf Ali, the elder brother of petitioner with a sword but Asraf Ali sat down and the sword struck Abdul Gaffar @ Gopur who was standing nearby and he died at spot. Accused No. 1 thereafter assaulted Lutfar, another brother of complainant with sword which resulted severe injuries on his arm and accused No. 2 assaulted Jabbar Ali another brother of complainant with iron rod causing grievous injury on his left eye. All the injured persons were admitted at B. N. Bose Hospital at Barrackpore for treatment. In the complaint it was mentioned that on the date of occurrence at about 6.30 a.m. a diary was lodged at Titagarh Police Station by the complainant apprehending some disturbances over issue of cutting of bamboos. After the incident under the leadership of accused Nos. 1, 2, 3, 4 and 8 the accused opposite parties set fire to the cow-shed of complainant and looted away household articles and gold ornaments worth of Rs. 20,000/-. Learned SDJM sent the petition of complaint to O.C., Titagarh P.S. for investigation under section 156(3) of the Code treating the complaint as FIR and on the basis of it Titagarh P.S. Case No. 134 of 1993 was registered for investigation.
(3.) After completing investigation the Investigating Officer (hereinafter called the I.O.) of the case submitted final report being final report No. 74 dated 28.2.94 in the Court of the learned SDJM, Barrackpore. After receiving the final report learned SDJM took cognizance of offence under section 2(d) of the Code under section 323 of the IPC. On 9th July, 1994 when the final report was submitted by the I.O. of the case and was accepted by the learned SDJM, the complainant was not heard at all. Being aggrieved by, and dissatisfied with, the order of learned SDJM dated 9.7.94 the complainant petitioner preferred a revisional application before this Court being CRR No. 2083 of 1994. By order dated 30.9.99 Justice D. P. Sarkar-J allowed the revisional application and observed that the order of the learned SDJM dated 9.7.94 was bad in law and the said order was set aside. Learned SDJM was directed to call upon the complainant and to file a naraji petition and to produce the complainant witnesses and other materials and thereafter to proceed with the case as provided under section 200 of the Code. Thereafter considering initial deposition adduced by 13 witnesses including the complainant, doctor, police constable and on perusal of the post-mortem report, G.D. Entry, injury report and the entire case record the learned Judicial Magistrate, 4th Court issued summons against all the 12 accused opposite parties under sections 148/ 149/ 325/ 326/ 307/304/ 120B of the IPC. Thereafter, on 26.7.01 the accused persons filed an application praying for dismissal or alteration of the order dated 31.5.01 passed by the learned Judicial Magistrate, 4th Court and to drop the proceeding under section 204 of the Code and the learned Judicial Magistrate, 4th Court, Barrackpore rejected their application by order dated 16.2.02.;