A trial judge cannot frame a charge based solely on observations made by a different judge at an earlier stage of the investigation, without considering the materials placed before him.

( 1 ) IN the present application the petitioners have challenged an order dated 11. 6. 2003 passed by the learned Additional Sessions judge, 2nd Fast Track Court, Alipore in Sessions Trial No. 2 (6) 2003 thereby framing charge under sections 302/34/498a of the Indian Penal Code.

( 2 ) OVER the incident of death of one Samsunnehar Bibi Bishnupur P. S. Case No. 106 dated 13. 4. 98 was registered under sections 498a/302/34 of the Indian Penal Code on the basis of a complaint lodged by one Humayun Mollah (present O. P. No. 2) against the present petitioners.

( 3 ) PETITIONER No. 5 herein also lodged a complaint before the learned s. D. J. M. on the death of his wife Samsunnehar Bibi. Said complaint was forwarded to Bishnupur police station and was registered as Bishnupur P. S. Case No. 170 dated 22. 6. 98 under sections 149/302/120b/34 of Indian Penal code against the present Opposite Party Nos. 2 to 8.

( 4 ) ON completion of investigation police submitted chargesheet in Bishnupur p. S. case No. 106 under sections 149/302/120b I. P. C. against the present petitioners. In Bishnupur P. S. case No. 170 also chargesheet was submitted by the police under sections 147/302/120b/34 I. P. C. Both the cases were investigated by the C. I. D. , W. B.

( 5 ) WHEN Bishnupur P. S. case No. 170 was at the stage of investigation, present O. P. Nos. 2 to 5 came up before this Court for quashing of investigational proceeding. The said application was disposed of by the Hon'ble Justice S. K. Tiwari (as His Lordship then was) on 21. 9. 98. While disposing of the said application it was observed by the Hon'ble Justice Tiwari as follows:-". . . . . HOWEVER, on the face of the impugned complaint filed in the Court of the learned Magistrate, it is clear that the petitioner can at the worst be prosecuted under section 304a of I. P. C and not under section 302 I. P. C. , because there was no intention to kill. The attention of the Investigating officer is invited to the case of Cheru Bin vs. State of Bihar, AIR 1964 SC 205. "

( 6 ) AFTER submission of chargesheet both the cases were committed to the court of Sessions. Bishnupur P. S. case No. 106, which was registered against the petitioners, was numbered as Sessions Trial No. 2 (6)03. In the said case the learned Additional Sessions Judge, 2nd Fast Track Court, Alipore after considering the materials placed before him framed charge against the present petitioners under sections 302/34 I. P. C and section 498a I. P. C against accused yusuf Laskar.

( 7 ) THE other case (Bishnupur P. S. Case No. 170), which was registered on the complaint of the present petitioner No. 5 against the present O. P. Nos. 2 to 8, was numbered as S. T. No. 1 (6)2003. The same learned Additional Sessions judge, 2nd Fast Track Court, Alipore by his order dated 9. 6. 2003 framed charge against the present O. P. Nos. 2 to 8 under section 304a/34 of the Indian Penal code.

( 8 ) IT is the contention of the learned Advocate of the petitioner that both the cases were registered over the incident of murder of one Samsunnehar Bibi. Both the cases were registered with Bishnupur P. S. and investigation was conducted by the C. I. D. , W. B. On submission of chargsheet both the cases were committed to the Court of Sessions and the same are now in the Court of learned Additional Sessions Judge, 2nd Fast Track Court, Alipore for trial. In s. T. No. 2 (6)03, in which the present petitioners are made accused, charge was framed against them under section 302/34 I. P. C. But in S. T. No. 1 (6)03 the learned Trial Judge framed charge against the present O. P. Nos. 2 to 8 under section 304a/34 I. P. C. It is further submitted by the learned Advocate of the petitioner that from a perusal of the order dated 9. 6. 2003 passed by the learned trial Judge framing charge under section 304a/34 I. P. C. , it becomes evident that such charge was framed keeping in view the observations made by S. K. Tiwari, J in C. R. R. No. 2212 of 1