HEMANTA KUMAR MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By this revisional application the petitioner has challenged the order dated 15-6-88 passed by the learned Additional Sessions Judge, 2nd Court, Alipore in case No. S.C. 28(9) of 87 thereby framing charge against the accused petitioner under S.307/S.109 and 506 of the Indian Penal Code.

(2.) The main point urged before me by the learned counsel for the petitioner is that the learned Judge is not competent to peruse the case diary to frame a charge against the accused and he has placed reliance upon a decision of this Court reported in AIR 1959 Calcutta 276 : (1959 Cri LJ 586), Sk. Noormahammad v. The State. Elaborating his argument, the learned counsel for the petitioner has submitted that at the time of framing of a charge, the trial Court should consider only the police report and the documents sent along with it under S.173 of the Code of Criminal Procedure and that the case diary is some thing different from the documents referred to under S.173 Cr. P.C. and, therefore, the trial Court is not competent to peruse the case diary in order to frame a charge. It is true that, as provided under S.239 and S.240 of the Code, the trial Court is to consider the police report and the documents sent with it under S.173 before framing any charge. S.173 enjoins upon the Officer-in-Charge of the Police Station to forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government and the items to be included in the report have been elaborately shown in the Section itself. S. 207 requires that the Magistrate shall furnish to the accused a copy of each of the following items :- (i) the police report; (ii) the first information report recorded under Section 154; (iii) the statements recorded under Sub-Section (3) of S.161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under Sub-Section (6) of S.173; (iv) the confessions and statements, if any, recorded under S.164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-Section (5) of Section 173. The amendments brought in the Criminal Procedure Code of 1898 by the 1973 Code have made many sweeping changes in the procedural criminal law. S. 238 of the new Code corresponds to S. 251A(1) of the old Code. By introducing S. 207 in the new Code, the duty to supply documents referred to therein to the accused has now been cast on the Magistrate instead of police which was the case under the old Code. So after the 1973 Code came in force with effect from 1/04/1974, the police sends the case diary direct to the Court whereupon the trial Court orders the prosecution to supply copies of documents to the accused upon which the prosecution seeks to rely to establish its case. As such police diary of a case has become synonymous with 'case diary'. If a trial Court says that it has perused the 'case diary' to frame a charge, it surely means perusal of those documents mentioned under Section 207 which are required to be supplied to the accused and which are included in the 'case diary'. Under the existing set up the question of the Court being influenced on perusal of the 'case diary' does not arise. On a perusal of the impugned order I do not find that the learned judge had been influenced by perusal of certain documents which were not relied upon by the prosecution and which were not supplied to accused. Learned Judge has specifically mentioned that he had scrutinised the first information report and statements of the witnesses recorded by police under S. 161 Cr. P.C. and the injury report. It is common knowledge of all persons concerned with criminal trial that a 'case diary' includes these materials and the trial Court has the right to go through these materials before framing a charge or discharging an accused. The decision cited by the learned counsel for the petitioner has no bearing on this case. The learned counsel for the State has filed a certified copy of an order dated 12th Dec. 1988 by a single Bench of this Court in Criminal Revision No. 762 of 1988 (unreported) and has submitted that the same ruling was cited before the learned single Judge who opined that "It is not an authority for the proposition that the Magistrate cannot even peruse the case diary and indeed such a provision could not be laid down in view of the expressed provision of S. 172 (2) Cr. P.C.". In this connection the learned counsel for the petitioner has also referred to AIR 1972 SC 545 : (1972 Cri LJ 329) Century Spinning and Manufacturing Co. Ltd. v. The State of Maharashtra, I do not think that this reported case comes to the aid of the accused petitioner in any way because Supreme Court has said there that, "It there is no ground for presuming, that the accused committed an offence, the charge must be considered to be groundless, which is something as saying there is no ground for framing the charges". But it further says. "This necessarily depends on the facts and circumstances of each case and the Magistrate is entitled and indeed has a duty to consider the entire material referred to in Sub-Section (2) of Section 251(A)" (of the old Code). The learned counsel has also referred to AIR 1990 SC 1962 : (1990 Cri LJ 1869), Niranjan Singh v. Jitendra Bhimraj. In this case the Supreme Court has observed that at the stage of framing of a charge it should be the duty of the Court to evaluate the materials and documents to find out whether facts emerging disclose all ingredients of alleged offence. The learned counsel for the State has referred to AIR 1980 SC 52 : (1979 Cri LJ 1390) Supt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja in which it has been observed as follows (Para 18) :

(3.) Next, the learned counsel has submitted that the charge under S. 307 read with S. 109 I.P.C. cannot be sustained. By drawing my attention to S. 107 I.P.C. the learned counsel has submitted that the materials on record do not disclose that the accused petitioner had instigated any person to commit an offence punishable under S. 307 I.P.C. or that he had engaged himself with one or more persons in any conspiracy for the commission of the offence under S. 307 I.P.C. In this regard he has referred to a decision of the Supreme Court reported in AIR 1975 SC 175 : (1975 Cri LJ 240), Siaram v. State of U.P. In that case it was held by the Supreme Court that "In order to constitute abement the abettor must be shown to have 'intentionally' aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of S. 107". This point was also urged before the learned Sessions Judge, But he was not convinced with this sort of argument and he accepted the prosecution case that accused Hemen Mondal abetted the other three accused in the commission of the offence. I agree with the learned Sessions Judge and reject this contention of the learned counsel for the petitioner.