RAJ TILAK MITRA Vs. HIMANGSHU CHATTERJEE AND ORS.

JUDGEMENT

(1.) This Rule arises on an application under section 481/482 of the Code and is directed against order dated 6th Feb., 1979, passed by Shri S.N. Maity, Judicial Magistrate, 4th Court, Alipore, in O.R. Case No. 1157 of 1976 under section 323/324/448 I.P.C. rejecting an application under section 319 of the Code of Criminal Procedure, 1973, filed on behalf of the prosecution.

(2.) The learned Sub-Divisional Judicial Magistrate directed the O.C., Tollygunge P.S. under section 156 of the Code to treat the complaint of that petitioner against Opposite Parties as the F.I.R. The police, on receipt of the complaint, started a case. After investigation, the police submitted challan against the accused Himangshu Chatterjee under section 324 I.P.C. The I.O. prayed for discharge of the two other accused Arunangsu Chatterji and Biswanath Chatterji. On behalf of the prosecution an 'application was filed on behalf of the State for summoning two other accused. After hearing the parties, the learned Magistrate held that there was prima facie evidence against two other accused under section 324 I.P.C. and issued summons. After hearing the parties and perusing all papers and considering the materials on record the learned Magistrate framed a charge under 324 I.P.C. against accused Himangshu and a charge under section 323 I.P.C against accused Arunangsu. The learned Magistrate considered the charge against accused Biswanath at groundless and discharged him under section 239 of the Code by his order dated 25.8.77. On 8.8.78 the de facto complainant was examined as P.W.I. The case was adjourned for cross examination of P.W.1 and for examination of P.W 2. On 22.11.78, on behalf of the State, an application was filed under section 319 of the Code for impleading the accused Biswanslh on the basis of the evidence of P.W.1. The learned Magistrate, after hearing the parties, rejected the said application. Hence, the present Rule. It may be mentioned that the State has not come up to this Court. It is only the de fecto complainant who has challenged the order passed by the learned Magistrate on the 6th Feb., 1979. Mr. Promode Ranjan Roy, learned advocate appearing on behalf of the de facto complainant contends that the learned Magistrate was wrong to think that as accused was discharged he cannot again be brought as an accused. Mr. Roy refers to the provision of section 319 of the Code. Sub-Clause (1) of the said section reads as follows:-

(3.) In support of his contention, Mr. Roy first refers to a decision, reported in AIR 1979 Supreme Court 339 (Joginder Singh and Another Vs. State of Punjab and Another). In this case, it has been held that "the expression 'any person not being the accused' occurring in section 319 clearly covers any parson who is not being tried already by the court and the very purpose of enacting such a provision like section 319(1) clearly shows that even persons who have been dropped by the police during investigation comes before the Criminal Court arc included in the said expression". Relying on this decision, Mr. Roy submits that a person who has been discharged, cannot be called an accused and he is. included in the expression 'any person not being the accused'. In this connection, Mr. Roy also refers to a decision, reported in 1979 (1) C.L.J. 119 (Indra Nath Guha Vs. The State of West Bengal). In paragraph 91 of the said decision, their Lordships quoted the observations of the Supreme Court about the effect of discharge under section 227 of the Code. The provisions of section 227 arc almost similar to the provision of section 239 of the Code. Before the Supreme Court, it was contended that since the effect of the High Court's order was only on the decision under section 227 of the Code, it was within the jurisdiction of the Sessions Court to frame charges against the discharged accused in the event of fresh additional material coming in the course of trial. The Supreme Court observed "we are not called upon to investigate and do not pronounce upon the soundness of this position. If the Sessions Court does frame charges on this basis, it will be open to the parties to have the point of law canvassed and decided". This decision, in my opinion, does not help the petitioner as the Supreme Court refrained from expressing any opinion on this issue as it was not necessary in that case. It is true that in the decision reported in A.I.R 1979 Supreme Court 339 their Lordships have laid down that a person who has been dropped by the police during investigation is included in the expression "any person not being the accused". But the present case is different. In the present case the police dropped this person on the prayer of the prosecution, this person was summoned.