MONORANJAN DAS Vs. STATE

JUDGEMENT

(1.) -By the instant revisional application under section 401, read with section 482 of the Code of Criminal Procedure (hereinafter shortened into Code), the petitioner has prayed the Court for quashing the impugned order dated 29.1.88 passed by the learned Additional Sessions Judge, 2nd Court, Nadia, in Sessions Case No. 41(3) of 1985, being Sessions Trial No. II of January 1988, before him and for quashing the charge under section 201, read with section 120-B, I.P.C., and the relevant proceedings against him on the grounds set forth therein.

(2.) While attached to Mirabazar R.O.P. as Sub-Inspector of Police under Police Station Kaliganj, Nadia, the Petitioner had investigated Kaliganj P.S. U.D. Case No. II dated 4.4.84 on the basis of a complaint by one Hamizuddin Sk. on the death of one Nafisa Bibi, wife of Nakibuddin Sk. of Janakinagar. He (petitioner) had held Inquest on the said dead body, and suspecting it to be a case of death by poisoning he had sent the dead body of the said Nafisa Bibi to Saktinagar Hospital for post-mortem examination. He has also requested District Medical Officer (hereinafter shortened into D.M.O.) to preserve viscera. On 13.4.84, he had written to the D.M.O., Krishnagar, requesting him to send the viscera of the said U.D. Case for Chemical Examination for ascertaining the cause of death.

(3.) On 16.4.84 one Nader Ali Sk. had handed over a written complaint at Kaliganj Police Station whereup Kaliganj P.S. Case No. 7 dated 16.4.84 under section 306, read with section 120-B, I.P.C. was started. On the direction of the Officer-in-Charge of the said P.S., the petitioner had taken up investigation of the said case. In course of the investigation he had received post-mortem report, but neither the viscera, nor the chemical examination report was given to him by the Hospital Authority. The Hospital Authority did neither send any reply to his aforesaid letter dated 13.4.84. He was under a bow fide belief that the Hospital Authority had sent the viscera for Chemical Examination, and the Report of the Chemical Examiner would be sent to the Court in due course. After completion of investigation he had, accordingly, submitted charge-sheet against the four accused persons named therein under section 306, read with section 120-B of the I.P.C. The relevant case was eventually committed to the Sessions Court at Nadia, and the learned Trial Judge had framed charge under section 306, read with section 34, I.P.C. against the four accused persons mentioned in the charge-sheet. The prosecution had examined its witnesses during the trial, and the evidence was closed on 21.1.88. The case was fixed on 29.1.88 for examination of the accused persons under section 313 Of the Code. On that date, on prayer of the prosecution the learned Trial Judge had amended the charge by altering the existing charge under sections 306/34, I.P.C., by sections 302/34, I.P.C. in terns of section 216 of the Code by his relevant order No. 4 dated 29.1.88 for the reasons recorded therein. By his subsequent (later) order No. 5 of the same date (29.1.88), the learned Trial Judge had directed issue of summons upon the petitioner-Investigating Officer under sections 201/120-B, I.P.C. under section 319 of the Code for the reasons stated therein mainly on the ground that he bad submitted charge-sheet under sections 306/120-B of the I.P.C. against the accused persons in the relevant case without sending the viscera which were preserved in the Hospital and without obtaining any report from the Chemical Examiner, observing therein that "it appears from the materials on record that deliberate action was taken to cause disappearance of evidence of a case punishable under section 302, I.P.C." out of a criminal conspiracy between him (I.O.) and the accused persons.