A K BASU Vs. STATE

JUDGEMENT

(1.) On the complaint of one Ram Narayan Jadav there was a commitment proceeding against the Petitioners and the learned Magistrate discharged the Petitioners under Section 209(1) of the Code of Criminal Procedure. Opposite Party No. 2 made an application before the Sessions Judge under Section 437 of the Code against this order of discharge and an Additional Sessions Judge at Midnapore set aside the order of discharge and directed the Magistrate to commit the Petitioners to the Court of Session for their trial under Section 330 of the Indian Penal Code. The Petitioners have now obtained this Rule against this order of the Additional Sessions Judge.

(2.) The allegations are in short as follows:

(3.) Some witnesses were examined on behalf of the complainant and the Petitioners also examined some witnesses. The learned Magistrate as I have said, discharged the Petitioners under Section 209 of the Code of holding that there was no sufficient ground to commit the Petitioners to the Court of Session for trial. The learned Additional Sessions Judge has found fault with the order of the learned Magistrate saying that the learned Magistrate had weighed the evidence of the prosecution witnesses and disbelieved their testimony. It does not appear, however, that the learned Magistrate had said that he had disbelieved the prosecution witnesses or the prosecution case. The learned Magistrate appears to have recorded the" infirmities in the prosecution evidence and then said that, in view of that, he found no sufficient ground to commit the accused persons for trial. This is not really disbelieving the prosecution witnesses or the prosecution case. The learned Magistrate has to find out if there are sufficient grounds to commit the accused persons for trial or hot and for that he has to weigh the prosecution evidence. He has not to weigh the prosecution evidence for disbelieving the same but he has to weigh the prosecution evidence for finding out if there are sufficient grounds for committing the accused persons for trial to the Court of Sessions. The learned Magistrate does not appear to have done anything more than that. He has never used the words that 'he has disbelieved either the prosecution witnesses or the prosecution case'. Be that as it may, I have looked into the materials brought on record on behalf of the prosecution. These materials are to be considered in the light of the fact that when the first complaint was made by Ram Narayan Jadav on June 14, 1966, no allegation of the use of force or assault on opposite party No. 2 was there. This petition of complaint fell through and the present proceeding is based on a subsequent petition of complaint filed in December 1966. The allegation of use of force and assault on opposite party No. 2 was contained for the first time in this fresh petition of complaint. Mr. Adhya no doubt explains that, when the first petition of complaint was filed, Ram Narayan Jadav had not till then met opposite party No. 2, but he met opposite party No. 2 shortly after the first petition of complaint was filed. But, still even though he knew that this allegation of assault was not there in the first petition of complaint, no fresh complaint was filed till December 1966. There does not appear to have been any sufficient ground for this delay. On the defence evidence it appears that some quantities of stolen Railway properties were recovered from the godown of the firm on the instant date. Under these circumstances, it is difficult to hold that the order of the learned Magistrate discharging the Petitioners under Section 209 of the Code was not justified.