M.M.BANERJEE, J. - (1.) The opposite party no.2 herein filed a complaint in the Court of the Ld. Addl. Chief Judicial Magistrate, Diamond Harbour on 26th July, 2007 with prayer for a direction upon the police to register a case under Section 156(3) Cr.P.C. Such prayer was allowed and police registered F.I.R. no. 82 of 2007 starting a case under Section 376/313/317 and 120B I.P.C. against accused Pratap Paik and Dr. Aloke Jaldata. It may be mentioned that Dr. Aloke Jaldata is the petitioner in the revisional application.
(2.) It further appears that on completion of investigation police submitted charge -sheet under Section 376 I.P.C. against accused Pratap Paik. The other accused Dr. Aloke Jaldata was not sent up in the charge -sheet, rather the I.O. made a prayer for his discharge. It also appears that although the opposite party no.1 hereinafter referred to as the prosecutrix initially filed a 'Naraji' petition but that was subsequently not pressed. Be that as it may, the case was committed to the Court of Sessions. Charge under Section 376 I.P.C. was framed and the prosecutrix gave evidence as P.W.1 in the Court of the Ld. Addl. District & Sessions Judge, Fast Track, 3rd Court, Diamond Harbour in Sessions Trial No. 10(7) of 2009. On the prayer of the prosecution to proceed against the present revisionist/petitioner under Section 319 Cr.P.C., the Ld. Court below in terms of the impugned order dated 07.09.2009 passed the following order: "Heard. Perused the evidence adduced by victim, i.e., P.W.1. It appears from the evidence of this victim that this Doctor had terminated her pregnancy without taking her consent so this is a fit case where the prayer of the prosecution to issue warrant of arrest should be allowed".
(3.) Aggrieved by dissatisfied with the aforesaid order the revisionist/petitioner Dr. Aloke Jaldata has filed this revisional application for setting aside the impugned order on various grounds but the Ld. Senior Advocate Mr. Sekhar Basu appearing for the revisionist/petitioner argued that the matter veers round a question of law as to whether a person who was subjected to investigation and was not sent up in the charge -sheet or in other words, discharged from the case can be proceeded against under Section 319 Cr.P.C. Mr. Basu, the Ld. Senior Counsel argued that although there is no specific order made by the Ld. Magistrate taking cognizance of the offence or committing the case to the Court of Session for discharge of the revisionist/petitioner but when the 'Naraji' petition filed on behalf of the prosecutrix was rejected as being not pressed that is tantamount to an order of discharge and so the revisionist/petitioner could not be proceeded against in terms of the provision under Section 319 Cr.P.C.;