Nilima Begum @ Nilima Begam ... vs The State Of West Bengal & Ors
2021 Latest Caselaw 5413 Cal

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA Criminal Appellate Jurisdiction Appellate Side

Present:

The Hon'ble Justice Jay Sengupta

CRR 458 of 2018

Nilima Begum @ Nilima Begam Purkait Vs.

The State of West Bengal & Ors.

For the Petitioner       :     Mr. Dipanjan Chatterjee
                               Mr. Asit Nayek

For the O.P. No. 2       :     Ms. Sayanti Santra
                               K. Bera

For the O.P. No. 3       :     Ms. B. Khatun

For the State            :     Mr. Imran Ali
                               Mr. M.F.A. Begg

Heard on:                :     5th October, 2021

Judgment on :            :     5th October, 2021


The Court:

This is an application challenging the order dated 18.12.2017

passed by the learned Chief Judicial Magistrate, Howrah (Sadar) in

connection with G.R. No. 4740 of 2016 arising out of Sankrail Police

Station Case No. 620 of 2016 dated 23.07.2016 under Sections 302

and 34 of the Indian Penal Code.

The opposite party nos. 2 and 3 who are the accused in this

case are represented. However, the other accused / opposite parties

are not represented. Although most of them were served with notice,

intimation could not be served on a co-accused who had allegedly

absconded.

Mr. Chatterjee, learned counsel appearing on behalf of the

petitioner submits as follows. The petitioner is the de facto

complainant in this case. She is the wife of the victim deceased. She

lodged an F.I.R. alleging that the accused had called her husband over

telephone pursuant to which he went there. After sometime his dead

body was found at a place. The petitioner learnt that the accused had

assaulted her husband causing serious injuries including on head

which led to his death. Although, none of the accused were exonerated

while submitting charge sheet and the charge was also not scaled

down, the petitioner is aggrieved with the manner of investigation

conducted by the agency. First, no statement of the petitioner had

been recorded under Section 164 of the Code. Secondly, the mobile

phone of the petitioner's husband was not seized by the Investigating

Officer. The phone would have clearly evinced what call was made by

whom to the deceased. However, it is not the case of the petitioner

that the phone contained any call record. The petitioner also does not

press ground agitated before the learned Court that on her prayer, a

statement of the accused has to be recorded under Section 164 of the

Code.

Mr. Ali, learned counsel appearing on behalf of the State, relies

on the case diary and submits as follows. Investigation was done

properly in this case. Although six accused were named F.I.R., after

investigation another accused was arraigned in this case. The

statement was also recorded on 19.9.2016 of the de facto complainant

/ petitioner under Section 164 of the Code. So far as the issue of non-

seizure of mobile phone of the petitioner's husband is concerned there

was no need for the same. Because, as recorded in the case diary, a

C.D.R. was obtained which would show the phone call records of the

deceased in respect of such phone. In any event, if the phone is

required to be produced during trial the petitioner, as a witness, can

always do the same.

Ms. Santra, learned counsel appearing on behalf of the opposite

party no. 2, and Ms. Khatun, learned counsel appearing on behalf of

the opposite party no. 3, submit that their clients as alleged accused

duly co-operated with the investigation.

I have heard the submissions of the learned advocates for the

parties and have perused the revisional application and the case

diary.

First, not only the accused named by the de facto complainant /

petitioner were implicated in this case, another accused was also

arraigned.

It appears from page 67 of the case diary that on 19.09.2016 a

statement of the de facto complainant / petitioner was recorded under

Section 164 of the Code.

Since the C.D.R. in respect of the mobile phone of the victim

deceased has purportedly been collected by the Investigating Officer,

as submitted on behalf of the State, the non-seizure of the telephone

would not be fatal to the prosecution case. In any event, the same can

be produced by the petitioner as an witness during trial if required.

After all, this is not a case where the petitioner claims that the mobile

phone contained any call recording.

On perusal of the case diary it does not appear that there was

any flaw in the investigation conducted by the officer concerned.

In view of the above, I do not find any merit in this application

and the same is dismissed, although without any order as to costs.

It appears that already there is some delay in the proceeding

before the learned Trial Court.

The learned Trial Court is requested to conclude the proceeding

as expeditiously as possible.

Urgent certified copy of this order, if applied for, be supplied to

the parties upon completion of usual formalities.

(Jay Sengupta,J.) SB