MUJIDA MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application has been preferred against the order of discharge, as passed by the learned Sub-Divisional Judicial Magistrate, Diamond Harbour in G.R. Case No. 863 of 1988 arising out of Mograhat P.S. Case No. 16(7) of 1988 under Sections 148,149,342,326,307 and 302 of the Indian Penal Code.

(2.) Case of the petitioner is that she lodged a written complaint in the Mograhat Police Station on 27/3/1988 stating therein that long standing dispute was going on between the petitioner's husband and the opposite party Nos. 2 to 8 and others. On that day at about 6.30 a.m. when petitioner's husband went out of the room for washing his face, at that time the opposite party Nos. 2 to 8 and some others attacked him with lathi, dagger, gun etc. When brothers of the petitioner's husband, namely, Iman AH, Asraf and others came to the rescue of the petitioner's husband, at that time they assaulted Iman Ali and Mohabbat Ali and as a result of that both of them died on the spot. Petitioner's husband sustained serious injury on his head and forehead. That apart, some other persons were also injured. Over this complaint, Mograhat P.S. Case No. 16(7) of 1988 was started against the opposite party Nos. 2 to 8. The case was investigated and after completion of investigation, charge-sheet was submitted on 24/4/1992 against the private/opposite parties and the learned S.D.J.M., Diamond Harbour, by his order dated 19/6/1902, took cognizance. Thereafter on 7/8/1993 the learned S.D.J.M. in-charge, Diamond Harbour discharged all the accused persons as per provisions of Section 167(5) Cr.P.C, on the basis of the petition filed by the accused persons. The learned Magistrate was of the opinion that as the charge-sheet was submitted beyond the prescribed period of limitation, so the accused persons were entitled to be discharged as per said provision. Being aggrieved by and/or dissatisfied with the said order, this revisional application has been preferred by the petitioner. It has been mentioned in the revisional application that her husband also died as a result of the injury sustained by him at the hands of the accused persons. In this revisional application it has been claimed by the petitioner that the learned Magistrate was thoroughly wrong in discharging the accused persons as per provisions of Section 167(5) of the Cr. P.C. It has further been alleged that when the cognizance of the offence was taken by the learned Magistrate then the said Court had no jurisdiction to discharge the accused persons as was a sessions triable case. Moreover, it has further been alleged that the learned Magistrate did not issue any notice to the de facto complainant before discharging the accused persons. That apart, in view of the recent decisions of the Hon'ble Supreme Court as well as of this Court, the learned Magistrate was not at all justified in discharging the accused persons from the case. As such, by filing this revisional application the petitioner, being the de facto complainant, has prayed for setting aside the impugned order of the learned Magistrate and to pass appropriate direction for trial of the case.

(3.) It appears from the order dated 7/4/2006 that the Hon'ble Justice Sankar Prasad Mitra admitted the revisional application and directed that the matter would appear for hearing as 'Contested Application'. Pursuant to that, said revisional application is taken up for hearing. The opposite party/State of West Bengal has contested this revisional application. But the opposite party Nos. 2 to 8 did not contest the said application. It appears from the order dated 14. 7. 2006 that the opposite party No. 2 and opposite party No. 3 are now deed as reflected from the postal endorsement. So far as other opposite parties are concerned, it appears that notices were duly served upon them. As inspite of that, those opposite parties are not coming forward, so the revisional application was taken up for hearing in their absence..