Jyotsna Ghosh vs Unknown
2021 Latest Caselaw 3833 Cal

D/L16.                              C.R.R. No.2734 of 2019
July 19,                            (Via Video Conference)
2021
   Bpg.
           In Re : An application under Section 401 read with Section 482 of the
           Code of Criminal Procedure;

           In the matter of : Jyotsna Ghosh         ...petitioner.


                     Mr. Kallol Kumar Basu,
                     Md. Jannat ul Firdous.
                                 ...for the petitioner.

                    Mr. Ayan Bhattacherjee,
                    Mr. Shrequl Haque.
                                ...for the opposite party nos.2 and 3.

                    Mr. Saswata Gopal Mukherjee,
                    Mr. Arijit Ganguly,
                    Mr. Sandip Chakraborty.
                                   ...for the State.


                      The learned advocate for the petitioner at the inception

            draws the attention of this Court to the order dated 20.06.2019

            wherein the learned Magistrate on consideration of the application

            under Section 239 of the Code of Criminal Procedure was pleased to

            discharge the accused persons from the case.

                       I    have    perused   the   orders     so   passed   and    the

            consideration       which   weighed   with   the   learned   court     while

            discharging the accused persons are as follows:

                           1.

The statements recorded under Section 161 of the

Code of Criminal Procedure by the Investigating Officer

are identical and similar in respect of each of the

witnesses which is improbable.

2. The defacto complainant's statement under Section

164 and Section 161 of Criminal Procedure Code, so

recorded, reflect different time period so far as the

incident is concerned.

3. Assessment of the injury report

4. Abuse of the process of the court.

Mr. Kollol Basu, learned advocate appearing for the

petitioner draws the attention of this Court to paragraph 29 of the

judgment of the Hon'ble Apex Court in State of Tamil Nadu By

Inspector of Police Vigilance and Anti-Corruption Vs. N. Suresh

Rajan and Others reported at (2014) 11 SCC 709 which reads as

follows:

"True it is that at the time of consideration of the

applications for discharge, the court cannot act as a

mouthpiece of the prosecution or act as a post office and

may sift evidence in order to find out whether or not the

allegations made are groundless so as to pass an order of

discharge. It is trite that at the stage of consideration of an

application for discharge, the court has to proceed with an

assumption that the materials brought on record by the

prosecution are true and evaluate the said materials and

documents with a view to find out whether the facts

emerging therefrom taken at their face value disclose the

existence of all the ingredients constituting the alleged

offence. At this stage, probative value of the materials has to

be gone into and the court is not expected to go deep into the

matter and hold that the materials would not warrant a

conviction. In our opinion, what needs to be considered is

whether there is a ground for presuming that the offence has

been committed and not whether a ground for convicting the

accused has been made out. To put it differently, if the

court thinks that the accused might have committed the

offence on the basis of the materials on record on its

probative value, it can frame the charge; though for

conviction, the court has to come to the conclusion that the

accused has committed the offence. The law does not permit

a mini trial at this stage."

Mr. Ayan Bhattacherjee, learned advocate appearing for

the opposite party nos.2 and 3 submits that the instant case was

initiated out of grudge and is tainted with mala fides. To that extent,

learned advocate draws the attention of this Court to the documents

under Section 207 of the Code of Criminal Procedure as also the

injury report. Learned advocate emphasize that the injury report

itself makes the case as the date referred to is almost three days

after the alleged date of incident and the date provided regarding

the age of the lady do not match with that of her son. Learned

advocate supports the order passed by the learned Magistrate and

submits that so far as the sprit of the order of the learned

Magistrate is concerned, the same is in consonance with the settled

principles of law.

Mr. Saswata Gopal Mukherjee, learned Public

Prosecutor, appears on behalf of the State and submits that the

order under challenge suffers from illegality and observations which

have been made by the learned Magistrate while considering the

application under Section 239 of the Code of Criminal Procedure are

in fact appreciation of evidence which are to be done at the end of

the trial.

I have perused the statements under Section 161 of the

Code of Criminal Procedure, Section 164 of the Code of Criminal

Procedure, the injury report and the order passed by the learned

Magistrate which is the subject matter of challenge. On an

assessment of the order passed, I am of the view that the learned

Magistrate at the very inception started disbelieving the prosecution

case on the foundation of recording of the statement under Section

161 of the Code of the Criminal Procedure by the Investigating

Officer of the case. It would not be out of pace to state that the

Investigating Officer is supposed to record the gist of the statement

in his own language and handwriting. As such, if there are

limitations of the Investigating Officer so far as his command over

language is concerned that may be reflected in the statement which

has been recorded, but the same do not loose its corroborative value

at the stage of consideration of charges. Appreciation of the injury

report also have been referred to and relied upon by the court at

this stage. In fact, the assessment which has been made by the

learned Magistrate may not be incorrect when the final arguments

are being heard or at the stage of consideration of conviction or

acquittal in a criminal trial. But the learned Magistrate while

considering the application under Section 239 of the Code of

Criminal Procedure must be aware of the settled law that at this

stage the court is to weigh between grave suspicion and some

suspicion and there must be prima facie assessment of the

materials. If the court is of the opinion that the case is of grave

suspicion there is no other option but to proceed with the case, in

the alternative if there is some suspicion, the court would obviously

exercise the provisions of Section 239 of the Code of Criminal

Procedure in favour of the accused persons.

Having regard to the settled principles of law and the

manner in which the learned Magistrate appreciated the

prosecution materials at the stage of Section 239 /240 of the Code,

I am of the view that the same is not in consonance with the settled

principles of law and, as such, the same is liable to be set aside.

Accordingly, the order dated 20.06.2019 passed by the

learned ACJM, Katwa in connection with GR 1031 of 2017 (T.R.174

of 2018) arising out of Ketugram Police Station Case No.376 of 2017

dated 13.12.2017 is hereby set aside. The learned Magistrate will

freshly consider the application under Section 239 of the Code of

Criminal Procedure without being prejudiced by any of the

observations made by this Court which is limited to the issue of

deciding the revisional application in the background of the order

dated 20.06.2019 passed by the learned Magistrate.

The accused persons being the opposite party nos.2 and

3 are directed to appear before the learned ACJM, Katwa on

1.9.2021, in case they appear on the date fixed they will be allowed

to continue on earlier bond which was filed before the court.

The learned Magistrate will thereafter within two weeks

fix the date for fresh hearing of the application under Section 239 of

the Code of Criminal Procedure.

The learned advocate for the petitioner will be at liberty

to either assist the Public Prosecutor appearing in the said matter

or invoke the provisions of Section 301 of the Code, if so advised.

With the aforesaid observations, CRR 2734 of 2019 is

disposed of.

Pending application, if any, is consequently disposed of.

All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

(Tirthankar Ghosh, J.)