RAMZAN SK Vs. STAE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application under Sections 397/401 of the Code of Criminal Procedure (hereinafter called the Code) is directed against the order dated 29.7.2003 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Alipore in Sessions Trial No. 4(1) of 2003 thereby allowing the prayer made by accused Saidul Hag Haider @ Kucho for grant of pardon under Section 307 of the Code.

(2.) Learned advocate for the petitioner contended that the above stated sessions case arose out of Usthi PS. Case No. 106 dated 23.10.2002 on the basis of complaint lodged by Janna Bibi, wife of Late Abdul Latif Haider. In course of investigation the petitioner was arrested on 25.10.2002 and was produced before the learned S.D.J.M., Diamond Harbour on 26.10.2002. After completing investigation police submitted charge-sheet under Section 302/34 of the I.PC. against this petitioner and other accused persons. In the charge-sheet 14 witnesses were cited as witnesses for prosecution and out of the said 14 witnesses it was alleged that four(4) were eye witnesses. After commitment to the Court of Sessions the case was transferred to the learned Additional Sessions Judge, Fast Track Court No. 1, Alipore for disposal. Charge under Section 302/34 of I.PC. was framed against this petitioner and others and subsequently prosecution has examined as many as seven witnesses during trial. Thereafter, the accused Saidul Haq Haider @ Kucho, who was absconding earlier and was not committed by the learned S.D.J.M., was arrested by police on 18.7.2003 and was produced before the learned S.D.J.M. on 19.7.2003. The prayer submitted before the learned S.D.J.M. to record confessional statement of said accused under Section 164 of the Code was rejected by the learned S.D.J.M, Thereafter, on 21.7.2003 the said accused Saidul Haq Haider @ Kucho was produced before the learned trial Court when prosecution submitted a prayer to frame charge against him. The said accused filed a petition praying for tendering him pardon under Section 307 of the Code. After hearing all the parties the learned Judge by order dated 29.7.2003 granted pardon to said Saidul Haq Haider @ Kucho.

(3.) He contended that granting of pardon to said accused is bad in law and it was totally non application of judicial mind on the part of the learned trial Court. Learned trial Court did not consider that in order to grant pardon under Section 307 of the Code certain conditions are to be fulfilled as laid down in Section 306 of the Code. In the instant case without following the provisions of Section 306 of the Code the learned Trial Judge granted pardon under Section 307 of the Code, which is illegal. Learned Judge failed to appreciate that in the instant case the prosecution has examined seven witnesses and out of the total 14 witnesses there are 4 eye witnesses of the incident. It is not a case where there is no eye witness or cogent evidence to establish the truth or the guilt of the accused and so question of granting pardon does not arise. Learned Judge also did not consider that the prayer of police officer to record statement of said accused was rejected by the learned Magistrate. Subsequently the accused filed a petition himself which was nothing but a product of the investigating agency to arrive at conviction of other accused persons through said Saidul Haq Haider @ Kucho in view of political nature of the murder. Learned Judge granted pardon without recording any statement of the said accused.