Calcutta High Court (Appellete Side)
Syed Afsar Reza vs The State Of West Bengal & Ors on 20 December, 2022
20.12. 2022
item No.18
n.b.
ct. no. 551 CRR 2612 of 2017
with
IA No. CRAN 3 of 2018(Old No. CRAN 2717 of 2018)
Syed Afsar Reza
Vs.
The State of West Bengal & Ors.
Mr. Subhasish Pachhal,
Mr. Imtiaj Belal,
Mr. S. Biswas,
.....for the petitioner.
Mr. Binay Panda,
Ms. Puspita Saha,
.... For the State
Mr. Debashis Roy,
Mr. Sanat Kr. Das,
Mr. Sujan Chatterjee
.... For the O.P. Nos. 2-6.
This is an application under Section 401 read with Section
482 of the Code of Criminal Procedure filed by the complainant of
a case being G.R. Case No. 2761 of 2016 arising out of
Murshidabad P.S. Case No. 475 of 2016 dated 28.9.2016 under
Section 304A of the IPC now pending before the Judicial
Magistrate (L), Murshidabad.
The brief fact of the case is that the son of the informant aged
about ten years who was the student of class V of New Immaculate
School died on 27.9.2016 at about 3. P.M. while a partition wall of
the school had fallen upon the son of the petitioner. The boy was
succumbed to his injuries at hospital. The instant case was
initiated on the basis of the written complaint of the petitioner.
Police took up the investigation. After competition of investigation
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police has submitted charge sheet against the accused persons
under Section 304A of the IPC. Two applications were filed, one on
behalf of the accused persons and another on behalf of the
petitioner. The accused person filed an application for discharge
and complainant filed the application for further investigation.
Both the applications were turned down by the learned Magistrate
below.
The instant criminal revisional application has been preferred
by the complainant on the ground that the investigation of the
police is not proper and if the investigation done correctly, the
charge has to be framed against the accused persons under
Section 304 Part - II of the IPC instead of 304A of the IPC.
Learned advocate appearing on behalf of the petitioner
submitted before this Court that investigation conducted by the
police is not proper and it is conducted in perfunctory manner. He
further submitted that it would be reverted from the statement of
available witnesses, that the school authority had the knowledge
regarding the status of the partition wall, but, they had not made
any proper repair and the school authority cannot deny their
liability over the fact. Certain materials are there with the Case
Diary regarding their knowledge. Thus, the charge-sheet
submitted by the police under Section 304A of the IPC is not
proper in support of his contention. He has cited a decision
reported in (2007) SC 249 at para 7.
I have gone through the citation; the Hon'ble Supreme Court
has held that the view of the High Court is justified in converting
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the conviction of the respondent by altering the same to one under
Section 304 Part - II IPC instead of Section 302 of the IPC.
In careful reading of paragraph 7 of the said judgment
appears that the Hon'ble Supreme Court is of the view that the
knowledge of the offence by the accused person has been properly
proved. Thus, they converted the conviction to 304 Part - II from
302 of the IPC.
Learned advocate appearing on behalf of the opposite party
submitted before this Court that police has conducted
investigation properly and after completion of investigation police
has submitted charge-sheet. He further pointed out that the Post-
Mortem report disclosed the cause of the death to be "accidental in
nature". The other evidence on record which was collected by the
police during the course of investigation does not indicate any
ingredients for which the charge can be framed under Section 304
Part - II of the IPC.
Thus, the instant criminal revisional application has no merit
to entertain.
Learned advocate Mr. Panda appearing on behalf of the State
submitted the Memo of Evidence as well as Case Diary.
Considered the Case Diary and materials from the records it
appears that during the course of investigation police has collected
statement of available witnesses, statement of students, statement
of other material evidences, the PM report and the bed head ticket
of the deceased. Learned advocate appearing on behalf of the
State further submitted before this Court that learned Magistrate
has cause no error in passing the impugned order and the instant
revisional application has no merit to entertain.
Heard the learned advocate for both the parties. Perused the
materials on record and also perused the Case Diary. It appears
that the boy succumbed to the injuries after falling of partition
wall upon him. During post mortem, the autopsy surgeon is of the
view that the cause of death is "accidental anti mortem in nature".
The I.O. also submitted the report to that effect and charge-sheet
has been submitted under Section 304A of the IPC. Let me
consider whether there are any ingredients to attract the offence
punishable under Section 304 Part - II of the IPC. Some witnesses
stated before the I.O. that the school authority had the knowledge
regarding the status of the partition wall. It further appears that
the school authority had the knowledge that some children were
there and any time an accident may occur. Section 304 part II IPC
has its basic ingredients regarding the knowledge and commission
of the offence and obviously the ingredients of mens rea I find
that in this particular case there may have some knowledge of
status of the partition wall but the mens rea to commit the offence
under Section 304 part II is very much absent in this case.
Considering the same, I am of the view that the police
authority conducted the investigation in proper manner and
submission of charge sheet under Section 304A is not at all in-
proper. During the course of trial if it appears to the learned
Magistrate that there are some ingredients to invoke an offence in
higher degree; there are every scope by the Magistrate to convert
the same and forward the record to the upper forum.
Considering the same, I find no merit to entertain the instant
revisional application. Accordingly, the same is dismissed and
disposed of.
Any interim order of stay passed by this Court during the
course of proceeding of this instant revisional criminal application
is hereby vacated.
All pending connected applications, if any is also disposed of.
It further appears that the case is pending before the Learned
Magistrate for a long period. Accordingly, the learned Magistrate is
directed to dispose of the same as early as possible, preferably
within six months from the date of receipt of this order.
All parties shall act on the server copy of this order duly
downloaded from the official website of this Court.
( Subhendu Samanta, J.)
