MOHAMMAD AYUB Vs. STATE OF W B

JUDGEMENT

(1.) This revisional application under Section 401 read with Section 482 of Cr.P.C. is directed against order No. 14 dated 27.7.04 passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Alipore in Sessions Trial No. 11 (4) of 2004 directing issue of summons against this petitioner under Section 319 of Cr.P.C. for facing trial in the said sessions case along with four other accused persons.

(2.) Mr. Dipak Kumar Sengupta, learned senior Advocate appearing for the petitioner submitted that the petitioner was named as an accused in the First Information Report (FIR) lodged by ote facto complainant Babla Das on the basis of which South Port Police Station Case No. 123 dated 12.11.02 under Sections 307/34/109 of the Indian Penal Code (in short I.PC.) read with Sections 25(1B)(a)/27 of the Arms Act was started against this petitioner and four others. After completing investigation the police submitted charge- sheet against the four other accused persons and submitted prayer for discharging the petitioner. The de facto complainant was appearing in the lower Court proceeding before the learned Magistrate but the de facto complainant did not file any 'naraji' application against discharge of the petitioner. The de facto complainant did not also file any revision against the order of the learned Magistrate taking cognizance against four accused persons and discharging the petitioner. Failure of the de facto complainant to file any 'naraji' application against the final report of Investigating Officer (I.O.) praying for discharging this petitioner and his inaction to prefer any revision against the order of the learned Magistrate accepting the police report bears great significance. It establishes that the de facto complainant accepted the final report submitted by I.O. so far as it relates to the present petitioner that there is want of evidence against this petitioner for which his discharge was justified.

(3.) Mr. Sengupta further submitted that charge-sheet submitted by I.O. would reveal that there is want of evidence against the petitioner. After commitment of the case to the Court of Sessions it was transferred to the learned Additional Sessions Judge for trial and in the trial only P.W.1 has been examined in chief. Thereafter, on the basis of an application filed by the learned Public Prosecutor in charge of the case dated 22.6.04, the learned Judge on the basis of such examination in chief of P.W.1 passed the order dated 27.7.04 exercising jurisdiction under Section 319 of Cr.P.C. issuing summons against this petitioner. The de facto complainant himself by issuing a letter to his Advocate Mrs. Baby Ghosh on 5.2.03 stated that due to mistaken identity he mentioned name of the petitioner in the FIR and this petitioner have no nexus in the commission of the offence. This letter of de facto complainant and the power of police to investigate starting from registration of FIR till submission of report in final form passing through different stages (from Sections 154 to 173 of Cr.P.C.), and the investigation done made it clear that there was no such foundation of alleged offence or any elements of offence against the petitioner. The stages traversed for investigation by I.O. to verify the allegations of FIR made it clear that the I.O. did not collect any material against the petitioner. There was no corroboration of allegations also and accordingly the I.O. submitted a report correctly.