NURUL ABSAR Vs. ABDUR RAHAMAN

JUDGEMENT

(1.) The instant revisional application under section 401, read with section 482 of the Code of Criminal Procedure, 1973 is directed against the order dated 17.4.89 passed by the Sub-Divisional Judicial Magisrate at Katwa in G. R Case No. 84 of 1988, arising out the Mangolcot P.S. Case No. 10 dated 28.2.88, on the grounds and for the reasons set forth therein.

(2.) On F.I.R. being lodged by the petitioner-complainant before Mangolcot Police Station on 28.2.88 against the accused No. 1, Abdur Rahman, and 28 others for alleged offence punishable under sections 147/148/149/ 325/326/307/379, I.P.C. and sections 25/27 of the Arms Act on the allegations made therein, Mangolcot P.S. Case No. 10 dated 28.2.88 was registered. After completion of investigation in the case the Investigating Officer had forwarded a report to the learned Magistrate under sub-section (2) of section 173 of the Code, being charge-sheet No. 29 dated 1.4.89, in which four of the twenty-nine accused persons, namely, Hebjur Rahman, Munshi Mohammad, Jiaur Rahman and Fakir Mohammad, had only been, sent up for trial for alleged offence punishable under sections 302/34, I.P.C., and a prayer had been made for discharging the remaining twenty-five accused persons named in the F.I.R., in the circumstances stated therein. On the basis of the aforesaid charge-sheet received by the learned Magistrate, he had taken cognizance of the aforesaid offence against the aforesaid four accused sent up for trial, and had discharged the remaining twenty-five F.I.R. named accused, as prayed for by the I.O., by his impugned order dated 17.4.89. Being aggrieved by the aforesaid impugned order passed by the learned Magistrate discharging the remaining twenty-five F.I.R. named accused persons, the complainant has moved this Court in Revision there against on the grounds set forth in the application.

(3.) It had been contended by the learned Advocate for the petitioner-complainant during the hearing that the learned Magistrate had passed the aforesaid impugned order dated 17.4.89 mechanically without any application of mind and without recording any reason whatsoever for discharging the aforesaid twenty-five accused persons, and without giving him (petitioner-informant) any opportunity of being heard. Referring the Court to the decision in Bhagwant Singh v. Commissioner of Police and anr., AIR 1985 SC 1285 it had been submitted on behalf of the petitioner that it was obligatory for the learned Magistrate to give notice to him and provide him an opportunity to be heard at the time of consideration of the aforesaid police report forwarded under section 173(2) of the Code.