DHANU GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This instant Criminal Revisional application has been filed by the petitioners assailing the judgment and order dtd. 4/8/2023 passed by the learned Additional District and Sessions Judge, Fast Track Court-II Court at Krishnanagar, Nadia in Criminal Appeal No. 19/2022 preferred by the opposite party no. 2/de-facto complainant, thereby setting aside the judgment of acquittal dtd. 18/6/2022 passed by the learned Judicial Magistrate, 3rd Court, Krishnanagar, Nadia in G.R. Case No. 2112/2021, arising out of Nakashipara Police Station Case No. 19/2021 dtd. 13/1/2021 under Ss. 341/326/34 of the Indian Penal Code, 1860 and remanded the case back for retrial from the stage of recording of statements of the accused persons under Sec. 313 of the Code of Criminal Procedure.

(2.) The factual matrix of the instant case leading to filing of this application is as under: - The opposite party no. 2/de-facto complainant lodged a written complaint against the petitioners/accused persons alleging, inter alia, that the petitioners herein allegedly attacked and physically assaulted the elder brother of the opposite party no. 2 herein. He suffered serious injuries resulted in registration of Nakashipara Police Station Case No. 19/2021 dtd. 13/1/2021 under Ss. 341/326/34 of the Indian Penal Code, 1860. After conclusion of the investigation, the investigating officer submitted charge sheet being No. 146/2021 dtd. 10/4/2021 against the petitioners herein under Ss. 341/326/34 of the Indian Penal Code though the contention of the petitioners is that the accusation is false and fabricated and only on the basis of concocted stories and counterblast of the initiation of a Civil Suit being Title Suit No. 45/2016. The said proceeding was finally concluded in its logical conclusion after completion of trial and upon recording the statements of the accused persons under Sec. 313 of the Cr.PC. Ld Magistrate after considering the case of the parties and scanning of evidences brought on record finally vide judgment and order dtd. 18/6/2022 acquitted all the accused persons under Sec. 248(1) of the Code of Criminal Procedure, 1973. Feeling aggrieved by and dissatisfied with the said acquittal order, the de-facto complainant filed Criminal Appeal being No. 19/2022 and the same was transferred to the learned Additional District and Sessions Judge, Fast Track Court ' II at Krishnanagar, Nadia for its disposal. After hearing the parties, the learned Additional District and Sessions Judge set aside the judgment and order dtd. 18/6/2022 passed by the learned Judicial Magistrate, 3rd Court at Krishnanagar, Nadia and thereby remanded the case back for retrial from the stage of recording of statements of the accused persons under Sec. 313 of the CrPC though there was no sufficient evidence brought on record by the prosecution. Furthermore, it is further contention of the Petitioners that remand order is bad in law since further examination of accused under Sec. 313 of the Cr.P.C. is only to fulfil lacuna/gap in prosecution case. Examination of the accused persons under Sec. 313 of the CrPC has already been done as per law after inviting them on the basis of circumstances and evidence brought with regards to alleged offence as such same is liable to set aside. Hence, the instant revisional application has come up before this bench for disposal. SUBMISSION ON BEHALF OF THE PETITIONERS:

(3.) Learned Advocate appearing on behalf of the Petitioners vehemently submitted that the entire case is based on concocted and fabricated story although a charge sheet has been submitted against the present petitioners and subsequently trial has been commenced. Be that as it may, finally after appreciation and scanning of the evidence, the learned Magistrate has acquitted all the accused persons from the aforesaid proceeding. The learned Appellate Court has failed to consider that the learned Magistrate has examined the accused persons under Sec. 313 of the Cr.PC as to afford the accused persons a fair and proper opportunity for explaining the circumstances which appears against them in evidence. Prosecution has failed to substantiate evidences against accused persons/petitioners herein. So, question of remand does not arise at all when the accused persons were acquitted from the case after maintaining all the procedure as prescribed in the code of criminal procedure. The only remedy remains with the de-facto complaint to prefer an appeal and the learned Appellate Court should have considered the evidence adduced by the prosecution and decide the case but miserably failed and only on the basis of surmises and conjectures, the order of acquittal has been set aside and remanded back case for retrial from the stage of recording the statements of the accused persons under Sec. 313 of Cr.PC. Accordingly, the order passed by the learned Judge is bad in law, perverse and without applying judicious mind. As such, the impugned judgment is liable to be set aside.