SANAT KUMAR MUKHERJEE Vs. STATE AND ANR.

JUDGEMENT

(1.) This Revisional application under Sec. 482 of the Code Criminal Procedure and Article 227 of the Constitution of India is directed against an order passed by the learned Judicial Magistrate, Purulia on 20th of June 1979 discharging the opposite party No. 2 Satish Chandra Banerjee under Sec. 239 of the Code In G.R. case No. 1812 of 1977 which has been affirmed by an order dated 18th January, 1979 by the learned Sessions Judge, Purulia In Criminal Revision Case No. 36 of 1879. The Prosecution Case is that on 29.9.77 at about 10.30 p.m. the petitioner Sanat Kumar Mukherjee was going to his house on a cycle and when he reached the end of his garden he kept the cycle and wont to ease himself. All on a sudden, Swapan Chatterjee, Tapan Chatterjee, Satish Chandra Banerjee and his son Joyded Banerjee came there. Swapan struck him with a spear, Tapan then took the spear from Swapan and tried to give a blow to the petitioner who snatched it from Japan's hand. Joydeb under the direction of his father Satish threw a big stone at the petitioner causing injuries on his person. The petitioner raised an alarm and on hearing the alarm, his father Dwljapada Mukherjee and one Balaram Mukherjee came (from the same house) to the spot The petitioner narrated the whole incident to them. They also saw the accused persons fleeing away, The petitioner also Informed the villagers who came there of the Incident and showed the spear to them.

(2.) The petitioner made a First Information Report at 1.30 a.m. in the same night. The Police registered the case and took up the investigation. After completion of the investigation, the Police submitted charge sheet against the four accused persons including the opposite party No. 2 Satish Chandra Banerjee. The learned Magistrate took cognisance on the Police report and issued process against all the four accused. Thereafter the learned Magistrate after considering the materials submitted with the Police report has framed the charge under Sec. 326 of the Indian Penal Code against Swapan under Sec. 326/323 of the Indian Penal Code against Tapan and under Sec. 324 of the Indian Penal Code against Joydeb. The learned Magistrate has found that there is no prima facie case against the accused Satish Chandra Banerjee and in that view has discharged him. Against the order of discharge the petitioner moved the learned Sessions Judge, Purulia in revision who after considering the First Information Report and the statements recorded under Sec. 161 of the Code of Dwljapada, Balaram and Melaram and assessing them in the light of probabilities or improbabilities and the surrounding circumstances has found that the learned Magistrate has rightly discharged the opposite party No. 2

(3.) Before this Court the learned Advocate for the petitioner has referred to the 'First Information Report and the statements recorded under Sec. 161 of the Code of Dwijapada Mukherjee, Balaram Mukherjee and Helaram Majhi He has submitted that In view of the aforesaid materials the impugned order of discharge of the opposite party No. 2 passed by the learned Magistrate has led to a failure of justice, and the learned Advocate appearing for the opposite party No. 2 has, on the other hand, submitted that on a close scrutiny of the aforesaid materials It cannot be said that the concurrent findings of the Courts below Is unreasonable or perverse causing a miscarriage of justice It is further submitted that In view of the decision of the Supreme Court in Madhu Limaya's case (AIR 1979 SC 47) and In Raj Kapoor's case [ : AIR 1980 SC 258] the Inherent power of the High Court under Sec. 482 of the Code can be exercised inspite of the bar, of Sec. 397 only In exceptional circumstances and extraordinary situations and where it is absolutely necessary to prevent an abuse of the process of the Court or to secure the ends of justice and that the Instant case does not fall in that category.