ASWINI KUMAR BHATTACHARYA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In the present application the petitioner has prayed for quashing of the proceeding being G.R. Case No. 692 of 1981 arising out of Jagaddal P.S. case No. 21(2) 81 dated 11.2.81 under section 409 of the Indian Penal Code now pending in the Cout of learned SDJM, Barrackpore.

(2.) It appears from the ordersheet of the learned Magistrate's Court that on number of dates till 15.5.85 there was no report in the final form submitted by the Invistigating Officer. The learned Magistrate passed orders on those dates directing the Investigating Officer to expedite the investigation. From the order dated 21.11.85 it appears that the Investigating Officer had submitted a report stating that he had submitted the chargesheet in the case before the learned Public Prosecutor, 24 Parganas. As the offence was triable by the Special Court, the learned Magistrate waited for order from the learned Sessions Judge for allotment of Special Court on the subsequent dates. On 28.1.88 the learned Magistrate directed the Investigating Officer to pursue the matter and produce the case diary and charge sheet submitted by him. But it appears from the subsequent orders passed by the learned Magistrate on different dates that inspite of repeated reminders given by the Court, the Investigating Officer did not take any step for production of the case diary before the learned Magistrate. Even the Investigating Officer did not care to appear before the learned Magistrate inspite of direction. It is really surprising to note that although the learned Magistrate was very much empowered to compel the attendance of the Investigating Officer in Court, the concerned Magistrate became a silent spectator and he simply went on adjourning the matter time to time.

(3.) It appears from the order dated 30.4.90 that the record was misplaced. The Investigating Officer was directed to appear on 23.5.90. Thereafter from the subsequent orders till 27.12.91 it appears that the case diary including the chargesheet could not be traced out. Thereafter the matter could not proceed in the Court below, because the lower Court records were called for by this Court in connection with Criminal Revision No. 3215 of 1991. On 25.7.95 the LCR was received back by the learned Magistrate. It appears from the order dated 23.3.96 that Investigating Officer was directed to produce the case diary in Court on the next date, i.e. on 11.6.96. He failed to appear as per direction of the Court, but surprisingly the learned Magistrate remained silent and went on adjourning the matter and such granting of adjournment continued till 1.10.99. On 11.11.99 a prayer was made by the accused person for discharge. But such prayer was rejected by the learned Magistrate as he was not empowered to try the case under section 409 IPC. From the said order it also appears that the Investigating Officer submitted chargesheet being No. 175/31.8.85 under section 409/34 IPC through the learned Public Prosecutor, Alipore although the Investigating Officer was not supposed to submit chargesheet in that manner. The Court Inspector, Barrackpore Court was directed to collect the chargesheet and the C.D from the office of the learned Public Prosecutor, Alipore and to produce the same in Court on 11.12000. Case diary and the C.S. could not be produced on 11.1.2000 and as such a reminder was issued. It appears from the order dated 12.4.2000 that from a letter of communication issued by the learned Public Prosecutor, Alipur that the case diary was sent to the office of the Public Prosecutor, North 24 Parganas on 10.12.92 from the office the learned Public Prosecutor, Alipore, South 24 Parganas. Accordingly the learned Public Prosecutor, North 24 Parganas, Barasat was requested to take necessary steps for immeditate transmission of the case diary to the Court of the learned Magistrate. 19.8.2000 was fixed for production of case diary. But case diary could not be produced on 19.8.2000 and on the said date it was reported before the learned Magistrate that one of the accused persons, namely, Bholanath Das had already expired. Thereafter, as it appears from the order dated 6.4.2001, another accused person, namely, Gour Sadhan Sengupta had also expired.