Sankar Acharyya, J. - (1.) Initially, three petitioners filed this revisional application on 05.03.2014 under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) for setting aside the order no. 10 dated 9th January, 2014 passed by learned Sessions Judge in Cr. Misc. Case No. 1141 of 2013 under Section 408, Cr.P.C. in connection with Ketugram P.S. Case no. 110 of 2000 corresponding to G.R. Case No. 428 of 2000 under Section 342/350/323/334/114 of the Indian Penal Code (in short I.P.C.), pending in the Court of learned Additional Chief Judicial Magistrate, Katwa, district Burdwan. They prayed for withdrawal and transfer of the GR Case No. 428 of 2000 from the Court of learned Additional Chief Judicial Magistrate, Katwa to the Court of learned Chief Judicial Magistrate, Burdwan. During pendency of this case on prayer of petitioner nos. 2 and 3 the name of petitioner no. 1 Joynal Abedin Khan has been struck out as he was reported dead filing CRAN 564 of 2015 (disposed of on 02.02.2016).
(2.) According to the revisional application, aforesaid Joynal Abedin Khan, since deceased, filed Title Suit No. 32 of 1994 for partition of landed property and obtained final decree of partition against defendants including the opposite party nos. 1 and 2. Thereafter, Title Execution Case no. 4 of 2000 was filed by decree-holder. For executing the decree learned advocate commissioner along with Process Server and others went to the decreetal property on 19.11.2000. At the time of execution the judgment debtors obstructed the delivery of possession, confined the process Server in a room and forced him to sign on some papers, kicked out the drummer, snatched drum of the drummer and assaulted the men of the decree-holder. Said matter was subsequently complained before learned Civil Judge, (Senior Division), Katwa by learned advocate commissioner, Process Server and decree-holder in T.Ex. 4 of 2000. Learned Civil Judge sent the written complaints to officer in charge of Ketugram Police Station and then the criminal case was started. Opposite party no. 1 Kadar Sk. was arrested by police in that case and was produced in Court. After remaining in judicial custody for 43 days Kadar Sk. was enlarged on bail. In that case charge-sheet was submitted against accused persons. Copy of the charge-sheet has been annexed to the revisional application. Be it noted that petitioners have described that opposite party nos. 1 and 2 as Kadar Sk. alias Maniruddin Sk. and Adar Sk. alias Akibuddin Sk. but in the charge-sheet they have not been described as Maniruddin Sk. and Akibuddin Sk. and names of Kadar Sk, and Adar Sk, have been mentioned as accused. Petitioners have alleged that Kadar Sk. is the nick name of Maniruddin Sk. Said Maniruddin Sk. subsequently joined in West Bengal Police suppressing the fact that he is accused in a case. Aforesaid Joynal Abedin Khan complained against such joining of Kadar Sk. in Government service before the concerned authorities since 2004. It is reflected in the order no. 39 dated 13.04.2006 that learned A.P.P. submitted before learned Additional Chief Judicial Magistrate that the person appeared in the name of accused Kadar Sk. is not actual Kadar Sk. Investigating Police Officer expressed on 29.08.2006 in Court that it is not possible for him to identify Kadar Sk. Petitioner nos. 2 and 3 being listed witnesses of the charge-sheet filed vakalatnama and submitted that the person appeared in Court is not real accused Kadar Sk. On 29.08.2006 learned APP also reversed his earlier stand and submitted that since the learned defence counsel identified the accused as Kadar Sk. said person should be accepted as Kadar Sk. and accordingly learned Magistrate accepted the person as accused Kadar Sk. and framed charge against accused persons despite the fact that real accused Kadar Sk. was not present. Said order of learned Additional Chief Judicial Magistrate was challenged in this High Court filing CRR 3462 of 2006. A co-ordinate Bench of this High Court held that the learned A.C.J.M. should not in such circumstances have proceeded to frame charge against the accused persons when the identity of one of the accused person was not at all resolved. The order of learned Magistrate was set aside with certain directions upon learned Additional Chief Judicial Magistrate regarding proper identification of accused Kadar Sk. before proceeding with the trial. Thereafter, learned Additional Judicial Magistrate passed order no. 45 dated 10.09.2007 and directed to Ram Prasad Ghosh, Process Server to appear in Court with his two sons for identification of Kadar Sk. Said order was also challenged in this High Court filing CRR 3800 of 2007 by the petitioners of this case. In that case Hon'ble Justice Partha Sakha Dutta modified his lordship's earlier order passed in CRR 3462 of 2006 to the extent that the question of identification shall be resolved by the learned Magistrate in presence of Joynal Abedin Khan. Thereafter, said Joynal Abedin Khan filed documents and affidavit claiming that the person appearing in Court is not Kadar Sk. but he is Adar Sk., the brother of Kadar Sk. On 24.09.2008 learned Additional Chief Judicial Magistrate passed order directing the person appeared in Court to file affidavit and his self attested photograph stating his claim that he is Akibuddin Sk. @ Kadar Sk. by 05.11.2008. On 05.11.2008 learned Magistrate passed order for consideration of prayer of Joynal Abedin Khan later. On 11.11.2008 learned Magistrate directed the Inspector-in-Charge of Ketugram P.S. to enquire the matter by a competent S.I. of police with a direction to submit report on 19.11.08. Report of police was submitted, copy of which has been annexed to the application by the petitioners. As per said report the photograph filed by the person appearing in Court as Kadar Sk. is photograph of Akibuddin Sk, whose pet name is Kadar Sk. It was also reported that Adar Sk. is pet name of Maniruddin Sk. who is brother of Kadar Sk. In an unambiguous language it was stated in the report that Akibuddin Sk. and Kadar Sk. is the same and identical person. Learned Additional Chief Judicial Magistrate passed order dated 27.11.2008 that Akibuddin Sk, is Kadar Sk. The petitioners of this case filed CRR 4403 of 2008 in High Court challenging the order dated 27.11.2008. In that revisional application Hon'ble Justice Partha Sakha dutta set aside the order dated 27,11.2008 passed by learned Magistrate and directed the learned Additional Chief Judicial Magistrate to launch a full fledge enquiry by himself with reference to evidence oral and documentary and then to decide the point strictly in accordance with law. Then learned Additional Chief Judicial Magistrate recorded oral evidence of seven witnesses of the petitioners and two witnesses of the other side. On 15.02.2010 learned Magistrate passed order for collection of specimen signature and LTI of the person who claimed himself as Kadar Sk. on 3.3.2010. On 3.3.2010 these petitioners prayed for time and made prayer to call for some case records and documents wherein signature and LTI of Kadar Sk. exist. Earlier also petitioners filed such petition which was kept pending for consideration later. Petitioners filed another petition earlier on 26th November, 2009 for examination of documents by handwriting expert which was also kept pending for consideration on completion of recording oral evidence. On 23rd March, 2010 learned Magistrate concluded the hearing rejecting prayer of the petitioners for adjournment. On 31st March, 2010 learned Magistrate passed order for hearing arguments on 8th April, 2010. On 9th April, 2010 the petitioners filed a petition for issuing summons to Kadar Sk. @ Maniruddin Sk. for his appearance for obtaining his specimen signature and LTI. Learned Magistrate passed order that no stay order is pending and petitioners to bring stay order (it is not stated by petitioners whether the petition dated 9th April, 2010 was disposed of or not). Orders dated 23.4.2010, 21.3.2010 and 8.4.2010 passed by learned Additional Chief Judicial Magistrate were challenged by the petitioners in this High Court filing CRR 1341 of 2010 and aforesaid impugned orders were set aside with certain directions by a co-ordinate Bench of this High Court. Getting such order of the High Court learned Additional Chief Judicial Magistrate heard both sides on 27th June, 2012 and directed the petitioners to supply case number of civil suit from which original signatures of the parties would be available and learned Magistrate asked the learned advocate for the petitioners to assist the Court. Learned Magistrate, knowing fully well about direction of this High Court upon the Court of learned Additional Chief Judicial Magistrate to act promptly in order to avoid delay heard the information petition dated 16th October, 2012 filed by petitioner and fixed further date on 27th February, 2013. On 3rd January, 2013 petitioner filed a petition for preponing the date but hearing both sides learned Magistrate rejected that prayer on 03.01.2013. Under such circumstances, petitioners filed application under Section 408, Cr.P.C. being Criminal Misc. Case No. 114/2013 in the Court of learned Sessions Judge, Burdwan. On 9th January, 2014 learned Sessions Judge, Burdwan rejected that application after hearing. Said order of rejection has been challenged in this case.
(3.) Moot question for determination in this case is whether the impugned order is bad in law and caused miscarriage of justice.;