P.N. Sinha, J. - (1.) This revisional application has been filed by the accused Petitioners assailing the judgment and order dated 25.2.05 passed by the learned Additional Sessions Judge, 1st Court, Barasat in Criminal Appeal No. 19/03 and 6/04 thereby remanding back the G. R. Case No. 83/94 to the learned trial Court with a direction for fresh examination of accused Appellants under Sec. 313 of the Code of Criminal Procedure (in short Code) and to conclude the trial preferably within three months from the date of receipt of the record in the trial Court.
(2.) Mr. Joy Sengupta, learned advocate appearing for the Petitioners submitted that the accused Petitioners were convicted by the learned Chief Judicial Magistrate (in short CJM), Cooch Behar in G.R. Case No. 83/94 which arose out of Cooch Behar Kotawali P. S. Case No. 73 dated 28. 2. 94 under Sec. 461/379 of the Indian Penal Code (in short I.P.C.). Against the order of conviction and sentence the accused Petitioners preferred two separate appeals being criminal appeal Nos. 5/2000 and 6/2000 before the learned Sessions Judge, Cooch Behar. In view of the direction passed by this Court in CRR No. 1877/2000 the criminal appeal No. 6/2000 was transferred to the Court of the learned Sessions Judge, Jalpaiguri for disposal. There was another revision before this Court being CRR No. 2488/ 02 by the convict accused persons who preferred criminal appeal No. 6/2000 before the learned Sessions Judge, Cooch Behar. This Court in CRR No. 2488/02 passed the direction transferring the said appeal from the Court of the learned Sessions Judge, Jalpaiguri to the Court of the learned Sessions Judge, Barasat. Subsequently, one of the convict accused persons who preferred criminal appeal No. 5/2000 and which was pending before the learned Sessions Judge, Jalpaiguri preferred another revision before this Court being CRR No. 2532/2000 and this Court directed transfer of the said appeal also to the Court of the learned Sessions Judge at Barasat. After transfer of both the appeals in the Court of the learned Additional Sessions Judge, Barasat heard the appeals and disposed of both the appeals by order dated 25.2.05 and remanded back the case for retrial to the learned CJM with direction to examine all the accused persons afresh under Sec. 313 of the Code. Being aggrieved by and dissatisfied with the said order the accused Petitioners have preferred this revisional application.
(3.) Mr. Sengupta submitted that the order passed by the learned Additional Sessions Judge giving direction for fresh examination of accused persons under Sec. 313 of the Code is absolutely bad in law and illegal. The FIR was in the year 1994 and after so many years the learned Sessions Judge should not have directed fresh examination of accused persons under Sec. 313 of the Code when the accused persons are already facing the trial for over 11 years. The charge itself was defective and that itself was a ground of acquittal but the learned Sessions Judge did not consider that aspect at all. The learned CJM based his conviction mainly on the confession of co -accused which was bad in law. Confession of a co -accused cannot be used against other accused persons. The exculpatory statement of other accused persons were used against the Petitioners which is totally in violation of provisions of law.;