JAGANNATH BISWAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In a Sessions Trial held before the learned Additional District and Sessions Judge, Fast Track - 3rd Court, Barrackpore, 24 Parganas (N) total 8 persons viz. Jagannath Biswas, Chitta Sarkar, Tapas Biswas, Robin Ray, Sripati Majumder, Ashu Bairagi, Nitya Biswas and Swapan Biswas were convicted under section 341/326/307 read with section 34 I.P.C. and were sentenced to suffer R.I. for 1 month and to pay fine of Rs. 500/- in default to suffer R.I. for 10 days for their conviction under 341/34 I.P.C., to suffer R.I. for 10 years and to pay fine of Rs. 500/- in default to suffer R.I for 1 year under section 326/34 I.P.C, to suffer R.I. for 10 years and to pay fine of Rs. 500/- in default to suffer R.I for 1 year under section 307/34 IPC. Against the aforesaid order of conviction and sentence all the aforesaid 8 convicts preferred an appeal being Criminal Appeal No. 531 of 2008 before this High Court. The said appeal was then came up for hearing before a Division Bench comprising of Hon'ble Justice Girish Chandra Gupta and Hon'ble Justice Indira Banerjee. After hearing of the appeal while Justice Girish Chandra Gupta was of the opinion that except appellant Jagannath Biswas, the prosecution was not able to establish the charges against the remaining 7, and while upholding the order of conviction and sentence passed against the appellant Jagannath Biswas acquitted the remaining 7 convicts, whereas the Hon'ble Justice Indira Banerjee was of the opinion that the prosecution has failed to prove charges against all the 8 appellants and they were entitled to acquittal. In view of such difference of opinion the appeal has now been referred before this Court under section 392 of the Code of Criminal Procedure.

(2.) Mr. Ashis Sanyal, the learned Counsel appearing on behalf of the 7 appellants, in respect of whom both the learned Judges of the Division Bench were consensus in their opinion that against them no charge has been established for which they were convicted, vehemently contended that in this reference under section 392 Cr.P.C. this court is devoid of any jurisdiction to reopen their case. He further contended both the learned Judges of the Division Bench having concurred that those 7 appellants were entitled to acquittal and thus allowed the appeal, in this reference it would not be permissible for this Court to form any opinion as to the correctness of the same. In this regard he relied on a decision of the Hon'ble Apex Court in the Case of Bhagat Ram v. State of Rajasthan, 1972 AIR(SC) 1502 the background of facts of that case, were as follows :

(3.) Mr. Sanyal in order to substantiate his argument that so far as the 7 appellants whom he was representing and were acquitted on a concurrent findings that their guilt was not established, cannot be reopened strenuously relied on paragraph 13 of the said decision which is reproduced below.