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1999 Supreme(Cal) 240
CALCUTTA HIGH COURT
D.P. SENGUPTA, J.
Prasanta Kumar Goswami & Anr.
Vs.
The State of W.B.
C.R.R. No. 620 of 1998
Decided On : April 30, 1999
Sekhar Basu, Joymalya Bagchi for the petitioner;
Ranjan Roy for the State.
The Magistrate has a judicial function to perform under section 209 of the Code of Criminal Procedure and must be satisfied that an offence is prima facie disclosed and is exclusively triable by the Court of Sessions.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 209 - SECTION 209 OF THE CODE OF CRIMINAL PROCEDURE - JUDICIAL FUNCTION OF THE COMMITTING MAGISTRATE - COMMITTING MAGISTRATE HAS JUDICIAL FUNCTION TO PERFORM AND HE HAS TO BE SATISFIED THAT AN OFFENCE IS PRIMA FACIE DISCLOSED AND THE OFFENCE IS EXCLUSIVELY TRIABLE BY THE COURT OF SESSIONS.
Fact of the Case:
A revisional application was filed to quash a proceeding under section 304/34 of the Indian Penal Code, alleging that the petitioners fired a gun in the air during a marriage ceremony, resulting in the death of a member of the 'Tassa Party'. The petitioners contended that the act was part of a customary practice and the death was purely accidental, and that the Magistrate erred in taking cognizance of the offence.
Finding of the Court:
The court held that the Magistrate has a judicial function to perform under section 209 of the Code of Criminal Procedure and must be satisfied that an offence is prima facie disclosed and is exclusively triable by the Court of Sessions. The court found that the facts and circumstances of the case did not disclose an offence exclusively triable by the Court of Sessions and that the allegations did not make out a case under section 304/34 of the Indian Penal Code.
Issues: 1. Whether the Magistrate has a judicial function to perform under section 209 of the Code of Criminal Procedure? 2. Whether the facts and circumstances of the case disclosed an offence exclusively triable by the Court of Sessions?
Ratio Decidendi: 1. The court relied on a Supreme Court judgment holding that the Committing Magistrate has a judicial function to perform and must be satisfied that an offence is prima facie disclosed and is exclusively triable by the Court of Sessions. 2. The court examined the charge-sheet, statements, and other documents and found that the act of the petitioners was part of a customary practice and the death of the victim was purely accidental. The court held that there was no intention to cause death or bodily injury likely to cause death, and the act was not invested with the requisite mens rea.
Final Decision: The revisional application was allowed, and the proceeding under section 304/34 of the Indian Penal Code was quashed. The court clarified that if the Magistrate, after considering the police report and other documents, finds a prima facie case under section 304A of the Indian Penal Code, he may proceed under that section as per the provisions of the Code.
D.P. Sengupta, J.: This revisional application is for quashing of proceeding being C.G.R. No. 622/96 (arising out of Alipore P.S. Case No.55/96 under section 304/34 of the Indian Penal Code) pending before the learned Sub-Divisional Judicial Magistrate, Alipore, South 24-Parganas.
2. Alipore P.S. Case No. 55/96 was registered on the basis of an information lodged by one Shyamal Kumar Roy, S.I. of police alleging commission of an offence under section 304/34 of the Indian Penal Code. In the F.I.R. it was alleged that having received a telephonic information that there was a firing at 6, Hastings Park Road, Calcutta, the informant along with other police officers had been to the place of occurrence and found a number of persons including a person with a double barrel gun wearing a security guard's uniform at the place of occurrence. On enquiry the informant came to know that the gun was issued in the name of Ratanlal Kobra of Fort Gloster Industries under Licence No. 2904 and the present petitioner No.1 is one of the retainers. It was learnt that the petitioner No.2 is the Deputy Commercial Manager of Fort Gloster Industries Ltd. and he ordered the petitioner No.1 to go to the place of occurrence with the gun and ammunition to attend a marriage ceremony (Barat) of co-accused Kamal Kishore Kothari. Accordingly the petitioner No.1 came to the place, i.e., at 6, Hastings Park Road with the said gun and ammunition. Before the departure of "barat" a "Tassa Party" (Music Party) came to the spot. At about 5 p.m. when the 'barat party', i.e., the bridegroom, the co-accused Kamal Kothari and others were about to leave the premises, the co-accused Kamal Kr. Kothari ordered the petitioner No.1 to fire with his gun in the air. Being so directed the petitioner No.1 fired two rounds from his gun in the air while the third bullet hit a member of the 'Tassa Party' namely Santosh Biswas who fell down with bleeding injuries. The injured was removed to S.S.K.M. Hospital by a vehicle belonging to Kothari family, where he succumbed to his injury.
3. On completion of investigation police submitted a charge-sheet on 30.12.96 in the court of learned Sub-Divisional Judicial Magistrate, Alipore, alleging commission of an offence punishable under section 304/34 of the Indian Penal Code. On the basis of the said charge-sheet the learned Magistrate by his order dated 13.1.97 took cognizance of the offence.
4. The present petitioner No.1 thereafter made an application before the learned Magistrate with a prayer for dropping of the impugned proceeding. In the said application it was stated that the allegations set forth in the charge-sheet and other accompanying documents do not disclose any offence under section 304/34 of the Indian Penal Code. There was no intention on the part of the petitioner to cause death of the victim or to cause such bodily injury as is likely to cause death of the victim. The act of the present petitioners is a part of a customary practice and the death of the victim was purely accidental. The act of the petitioner is not invested with requisite mensrea which is an essential ingredient of the alleged offence.
5. The aforesaid application filed by the petitioner No.1 was taken up for hearing by the learned Magistrate, who by his order dated 31.1.98 rejected the said application and fixed 16.2.98 for appearance of all the accused and commitment of the case to the Court of Sessions. Thereafter the instant revisional application was moved for quashing of the proceeding.
6. Mr. Sekhar Bose, learned Advocate appearing for the petitioners submits that from the charge-sheet and other accompanying papers under section 207 of the Code of Criminal Procedure no prima facie case under section 304 of the India Penal Code is made out. The learned Advocate draws my attention to the provision of section 209 of the Code of Criminal Procedure and submits that the provisions of section 209 come into operation only if it appears to the Magist
