JUDGMENT :

SUVRA GHOSH, J. 

1. One Bhushan Deshmukh was in police custody from 20^th September, 2015 in connection with Burtolla Police Station Case no. 319 dated 20^th September, 2015 under sections 25/29 of The Arms Act. He was shifted to the hospital from police custody and expired on the same day. Upon magisterial inquest and postmortem examination being held, a report was submitted by the then Assistant Commissioner of Police (II), North and North Suburban Division, Kolkata before the then Deputy Commissioner of Police of the Division pursuant to which the present complaint being Burtolla Police Station Case no. 327 of 2015 dated 30^th September, 2015 was initiated against the petitioners and others. Sanction for prosecution was granted under section 197 of the Code of Criminal Procedure.

2. Upon completion of investigation, charge sheet was submitted against four persons including the petitioners under sections 167/193/323/348/409//304/34 of the Indian Penal Code. The case was committed to the Learned Chief Judge, City Sessions Court, Calcutta and by the order impugned dated 28^th February, 2024 in Sessions case no. 55 of 2022, the learned Chief Judge framed charges against the petitioners under sections 323/348/302/167/193/409/34 of the Indian Penal Code. The petitioners filed an application under section 227 of the Code of Criminal Procedure praying for their discharge from the case which was turned down by the learned Judge by the same order. The petitioners have assailed the said order and have sought quashing of the entire proceedings.

3. Learned counsel for the petitioners has submitted that the CCTV footage which was relied upon by the prosecution was not given to them. The learned trial Court framed charge under section 302 of the Indian Penal Code though sanction for prosecution was granted and charge sheet submitted for offence under section 304 of the Code. No reason has been assigned by the learned trial Court as to what prompted him to frame charge under section 302 despite the fact that the investigating agency did not find any material under section 302 during investigation and chose to submit charge sheet under section 304. The petitioner Subhajit Banerjee was on leave at the relevant time and has no nexus with the alleged incident.

4. Charges have been framed under section 167/193 of the Indian Penal Code for fabricating false evidence in connection with Burtolla Police Station Case no. 319 and not the present FIR being Burtolla Police Station Case no. 327. The learned trial Court has, in effect, framed charge in connection with a separate case being no. 319 and not in respect of the present complaint.

5. Unless the documents which are claimed to be false are submitted before the trial Court and relied upon by the prosecution in the present complaint, the same cannot be said to be false without the documents being tested during trial.

6. In order to prosecute an accused under section 193 of the Indian Penal Code, the procedure laid down under section 340 and 195 of the Code of Criminal Procedure need to be followed. The complaint should be initiated by the learned Court and not by any other individual. In absence of the provision under section 340 being followed, charge under section 193 of the Indian Penal Code is not maintainable.

7. When the matter was taken up for consideration of charge, the prosecution did not open its case under section 226 of the Code and merely filed a draft charge on the basis of which the learned trial Court framed charges.

8. Learned counsel for the petitioner has placed reliance on the authorities in M.S. Ahlawat v/s. State of Haryana and Another reported in 2000 Supreme Court Cases (Cri) 193, S. H. Narendra Kumar Srivastava v/s. The State of Bihar & Ors. in criminal appeal no. 211 of 2019, and Ashok Shambhubhai Chovatiya v/s. State of Gujarat & Another in R/CR.RA/No. 1535 of 2019 in support of his contention.

9. Per contra, learned counsel for the State has submitted that it is the prero