BHUJANGA BHUSAN DAS Vs. STATE

JUDGEMENT

(1.) This Rule is directed against an order made by the Sessions Judge of Midnapore purporting to be under Section 436 of the Code of Criminal Procedure.

(2.) It appears that about 18 persons are on trial before a learned Magistrate at Midnapore on several charges under Sections 148, 324, 323 of the Indian Penal Code. The prosecution allegation is that as the result of firing from a gun a man called Basanta Das was injured fatally. Some witnesses for the prosecution were examined in chief on July 1, 1954. The Court Sub-Inspector who was conducting the prosecution prayed by a petition for summoning the present Petitioner under Section 302 of the Indian Penal Code. The ground upon which the application was based was that the evidence of three prosecution witnesses suggested the complicity of the Petitioner in a charge under Section 302 of the Indian Penal Code which evidently related to the death caused by gunshot injuries. The learned Magistrate considered the position arising out of the application filed by the Court Sub-Inspector and he held that on the evidence of the witnesses before him there was no independent testimony yet suggestive of the Petitioner's complicity. He referred also to the General Diary entry which was treated as the first information report, and in those circumstances he did not feel persuaded to take action at that stage upon the petition which was filed by the Court-Inspector praying for process under Section 302 against the Petitioner. Thereafter, it appears that the Sessions Judge of Midnapore was moved in revision against the order of the learned Magistrate dated July 1, 1954, to which I have just referred. This revision petition before the learned Judge questioned the propriety of the order of the learned Magistrate dated July 1, by which the latter had refused to take action against the Petitioner at that stage of the proceedings. The learned Judge, however, by an order dated January 22, 1955, allowed the petition. That order closed with these words:

(3.) In his order the learned Judge purported to give reasons to show that the refusal of the learned Magistrate to issue process against the Petitioner under Section 302 of the Indian Penal Code was the result of improper exercise of discretion. The circumstances of the case and the Police papers appeared to indicate to the learned Judge that the officer who was responsible for the General Diary entry was not to be believed and that the evidence before the Magistrate justified the issue of process under Section 302 of the Indian Penal Code against the Petitioner. It is not necessary to refer in detail to the circumstances on which reliance was placed in support of the order thus made. To me it appears that many of the observations in the learned Judge's order are rather premature. He did not even hesitate to pronounce at that stage on the value of the General Diary entry and upon the reliability of the police officer who made the entry. In any event, that is a matter with which I am not immediately concerned.