MIR MD.ASFIA Vs. MIR MD. ISMAIL

JUDGEMENT

(1.) This application under Section 401 read with Section 482 of Criminal Procedure Code is directed against an order dated 29-3-2004 passed in Criminal Motion No. 109 of 2003 by learned Additional District Judge, Second Court, Burdwan which arise out of an order dated 1-7-2003 passed in GR Case No. 852 of 1997 corresponding to Ausgram Police Station Case No. 52 of 1997 dated 23-6-2007 under Sections 143/147/148/149/447/379/411 of the Indian Penal Code by learned Sub-divisional Judicial Magistrate, Burdwan. The petitioner filed a petition of complaint against the opposite parties before the learned Chief Judicial Magistrate, Burdwan. It was sent to the Officer-in-Charge, Ausgram P. S. for investigation after treating the same as First Information Report under Section 156(3) of Cr. P. C. As a result Ausgram P. S. Case No. 52 of 1997 dated 23-6-2007 cropped up. On investigation charge sheet was submitted against three opposite parties, namely Mir Md. Ismail, Mir Abdul Salim @ Mir Md. Salim and Mir Abdul Halim @ Mir Md. Halim. The rest opposite parties were not sent up as accused in the charge sheet. They were discharged.

(2.) Charge under Sections 147/148/149/447/379 of Indian Penal Code was framed against the aforesaid three opposite parties. Two witnesses were examined in full. Petitioner was cited as prosecution witness No. 3 and in course of his evidence/examination- in- chief he named the opposite parties Nos. 4 to 11 as accused persons who has committed mischief. Thereafter the petitioner filed an application under Section 319 of the Criminal Procedure Code before the learned Sub-divisional Judicial Magistrate, Burdwan to proceed against those opposite party Nos. 4 to 11. The learned Sub-divisional Judicial Magistrate by an order dated 1-7- 2003 rejected the application. Being dissatisfied with the said order the petitioner preferred a revisional application being Criminal Motion No. 109 of 2003 before the learned Sessions Judge, Burdwan. The learned Additional Sessions Judge, 2nd Court, Burdwan by an order dated 29-3-2004 dismissed the said revisional application, so this second revisional application before this Court.

(3.) Mr. Prabir Kumar Mitra, learned counsel appearing for the petitioner has contended that the mandatory provisions as prescribed under Section 173(2)(ii) of the Criminal Procedure Code was not complied with by the investigating officer. The petitioner was not intimated about the progress of the investigation and fact of discharge of the opposite party Nos. 4 to 11. The learned Court below has failed to appreciate the same and has failed to construe a true and proper meaning of Section 319 of the Code of Criminal Procedure. The order passed by the learned Court below is illegal. It may be interfered with and set aside. Mr. Mitra, has cited a decision (Rakesh and another vs- State of Haryana, 2001 SCC(Cri) 1090) to substantiate his submission.