VIVEKANANDA PARUI Vs. PRABHAS CHANDRA PARUI AND OTHERS

JUDGEMENT

(1.) This Rule arises on an application under Sec. 482 of the Code of Criminal Procedure, 1973 and is directed against the order dated 27.7.78 passed by Sri N.K. Sen, Sessions Judge, 24-Parganas, in Sessions Case No 34 of June, 1978.

(2.) The facts out of which the present application arises may, briefly, be stated as follows:-

(3.) On 18.5.77 at 5.55 hours the petitioner lodged an information with the police against the accused - opposite parties alleging that on that day at about 1.P.M. the informant and his brother Amal, nephew Sanjit and brother-in-law Ashim were engaged in the act of cultivation on their land when the accused persons variously armed attacked them and assaulted them, as a result of which, they sustained severe bleeding injuries on various parts of their bodies. On receipt of the said information the police drew up a formal E.I. R. and started investigation. This was registered as Bishnupur P.S. Case No. 18 dated 18.5.77. On 16.7.77 in course of the investigation, the investigating officer made a prayer before the learned Magistrate for adding Sec. 337 of the Indian Penal Code and that prayer was allowed by the learned Magistrate. On 29.7.77 the police, on completion of the investigation, submitted a chargesheet against the accused persons under Sections 323/324/325 of the Indian Penal Code. In submitting the chargesheet the officer-in-charge omitted to mention Sec. 307 of the Indian Penal Code in the chargesheet. Over the selfsame incident another case, being Bishnupur P.S. Case No. 17 dated 18.5.77 was started at the instance of the accused-opposite parties against the petitioner and others alleging commission of offences under Sec. 147/148/ 307/149 of the Indian Penal Code and the police after investigation submitted a chargesheet against the petitioner and others in connection with the said case. The learned Magistrate committed the petitioner and others to the court of Sessions. When the present case, being Bishnupur P.S. Case No. 18 came up for hearing before the learned Judicial Magistrate, Alipore, a prayer was made on behalf of the learned Assistant Public Prosecutor that the present case should also be committed to the court of Sessions, because the allegations clearly make out an offence under section 307 of the Indian Penal Code although the police omitted to include the said Sec. in the chargesheet. The learned Magistrate, on consideration of the materials collected by the police in course of investigation, came to the finding that from the evidence of the witnesses examined by the police it would appear that the accused persons while committing the offence used deadly weapons, such as, hasua, iron rod, lathis fixed with metallic fittings and that as some of the injuries sustained were on head also, it should be held that the accused intended to cause such injuries as would cause death. The learned Magistrate thereafter by an order dated 15.6.78 committed the case arising out of Bishnupur P.S. Case No. 18 dated 18. 5. 77. to the Court of Sessions. The aforesaid order of commitment was challenged by the accused-opposite parties in Criminal Revision Case No. 164 of 1978 before the learned Sessions Judge. The learned Session Judge, by his order dated 27.7.78 held that there is no dispute over the proposition that when there are two cases arising out of the same incident it is not desirable that they should be tried by different courts simultaneously and that what is desirable is that both the cases should be tried by the same Court. The learned Judge, hewever, felt difficulty in the present case as the present case was not triable exclusively by the Court of Sessions. The learned Judge refused to take cognizance and remitted the cases back before the learned Magistrate for trial. Being aggrieved by the aforesaid order, the petitioner has came up to this Court.