- (1.) These two appeals are directed against a judgment and order of acquittal of five accused persons, namely, (1) Ashit Gayen, (2) Sasti Gayen, (3) Kartick Das, (4) Subhas Bhoumik @ Baban and (5) Ramesh Mahato dated December 6, 2014 passed by the learned Additional District & Sessions Judge, Fast Track 1st Court, Howrah in S.T. No.88 of 2012 arising out of Bally Police Station Case No.205 of 2011 (G.R. Case No.2097 of 2011) dated May 6, 2011 under Sections 302/120B/34 of the Indian Penal Code (hereinafter referred to as the I.P.C.) read with Sections 25/27/35 of the Arms Act.
(2.) A separate charge sheet dated September 26, 2011 was filed against two other accused persons, namely, Santosh Singh and B. Raju under Sections 302/120B/34 of the I.P.C. read with Sections 27/35 of the Arms Act showing both of them as absconder before the learned Chief Judicial Magistrate, Howrah. Consequent thereupon, the names of the aforesaid two accused persons were "filed for the present" by an order dated March 22, 2012 passed by the aforesaid learned Chief Judicial Magistrate, Howrah. An application bearing CRMSPL No.1 of 2015 filed by the State of West Bengal against the aforesaid judgment and order of acquittal filed under Section 378 (1) (b) of the Cr.P.C. was allowed by an order dated April 6, 2015 granting special leave to prefer the appeal. Subsequently, the appeal bearing GA No.3 of 2015, the former one before us, was admitted by an order dated May 15, 2015.
(3.) The later appeal bearing CRA No.98 of 2015 preferred by Priyanka Dutta daughter of the deceased person Tapan Dutta under the proviso to Section 372 of the Cr.P.C. has been directed to be heard by an order dated April 8, 2015. At the very outset, a preliminary objection is raised by Mr. Sekhar Basu, learned Senior Advocate appearing on behalf of the accused persons with regard to the maintainability of the later appeal bearing CRA 98 of 2015. According to Mr. Basu, the above appeal has been filed by the appellant as a victim as defined under sub -section (wa) of Section 2 of the Cr.P.C. It is further contended by him that the right of questioning correctness of the judgment and order of acquittal by preferring an appeal to the High Court, under the proviso to Section 372 of the Cr.P.C., which is conferred upon the victim including the legal heir and others as defined under sub -section (wa) of Section 2 of the Cr.P.C., is subject to obtaining of a leave of the High Court as provided under sub -section (3) of Section 378 of the Cr.P.C. It is submitted by Mr. Basu that since the appellant failed to file an application praying for a leave to appeal under sub -section (3) of Section 378 of the Cr.P.C., there is no scope to hear the appeal on merit at this stage.;