- (1.) This revisional application has been filed by the Superintendent and Remembrancer of Legal Affairs on behalf of the State of West Bengal against orders passed by the learned Sub-divisional Judicial Magistrate, Bongaon, 24-Parganas on 22.3.76 and 21.5.76 in connection with the G.R.Case No.683 of 1974 arising out of Bagda P.S. Case No.6 of 16.7.74 under S. 302 of the Indian Penal Code.
(2.) Facts relevant for our purpose may be stated in short. On 16.7.74 one Sohan Singh a Naiyak under 72 Bn. Border Security Force, Duttafuliya Base Camp. P.S. Bagda under orders of his Commanding Officer K. B. Singh lodged a First Information Report with the police station Bagda that L/MK No.66722632 Shambu Lama, a driver of the Commanding Officer of 72 Bn. B.S.F. shot at the Quarter Master Ram Dutta Khantwel at his room and Inspector P.N. Bhattacherjee in hi office room with a sten gun and as a result thereof they died instantaneously. It was further alleged that the said Shambu Lama also committed suicide thereafter by shooting himself with the said sten gun. The Officer-in-Charge of the thana who recorded the F.I.R. immediately started investigation, took charge of the dead bodies, held inquest over the corpses, collected alamats and sent the dead bodies for post mortem examination. On 25.7.74 C.I.D. West Bengal assumed control of the investigation. Ultimately under the order of the Inspector General of Police, West Bengal, B.B. Sengupta, Deputy Superintendent of Police, C.I.D. took up the investigation on and from 11.8.74. A charge-sheet dated 6.3.76 was, however, submitted after the investigation before the Sub-divisional Judicial Magistrate, Bongaon against K. B. Singh, Commanding Officer of the 72 Bn., B.S.F. under S. 302/182/109 I.P. Code, against Kashi Nath Chakraborty, a driver constable of 72 Bn. B.S.F. under S. 302/114/109 I.P. Code and against the informant Sohan Singh who lodged the F.I.R. under S. 182/302 I.P. Code. On receipt of the chargesheet and on consideration of the materials on record, the Sub-divisional Judicial Magistrate, Bongaon took cognizance of the offences as alleged and issued summons through the Inspector General, B.S.F. directing the said three accused persons to appear before the Court on 26.4.76. In the meantime, however, Inspector General, B.S.F., West Bengal by a letter dated 24th February, 1976 informed the Sub-divisional Judicial Magistrate that in exercise of the powers conferred on him under S. 80 of the B.S.F., Act, 1968, the proceedings against the personnel of 72 Bn., B.S.F., serving under his command who have been made accused in the case would be instituted under the said Act. In the said letter the Sub-divisional Judicial Magistrate was requested that all case papers might be forwarded to the Inspector General for proceeding further in the matter. It appears from the endorsement on the letter filed that the aid letter was seen by the Sub-divisional Judicial Magistrate on 27.2.76 and it was directed to be kept in the file.
(3.) The records of the learned Magistrate show that on 22.3.76 an order was passed by him on the basis of the letter of the Inspector General, B.S.F. that the entire case record lying with the Court be handed over to the Inspector General, B.S.F. or to any person duly authorized by him. The Investigating Officer was also directed to hand over all the papers lying with him in connection with the case to the Inspector General, B.S.F. or to any person duly authorized by him. It appears that all the judicial records of the case connected papers were handed over to a person duly authorized by the Inspector General, B.S.F. After the passing of that order, the Investigating Officer filed a petition on 10.4.76 before the Magistrate for recalling the order passed on 22.3.76 on the ground that the prosecution got no opportunity to be heard and in fact the learned Magistrate passed the order without hearing the Advocate on behalf of the State appearing in the case. The matter was ultimately heard on 21.5.76 the learned Magistrate rejected the prayer for recalling or resending the order dated 22.3.76. The learned Magistrate directed the Investigating Officer to hand over the case diary lying with him to the Inspector General, B.S.F. Against that order and the order dated 22.3.76 the present revisional application has been filed by the State.;