Brindaban Das & Ors vs State Of West Bengal

2. On an application filed by the defacto complainant under Section 319 of the Code of Criminal Procedure, the Additional District and Sessions Judge, Fast Track Court, Jhargram, by his order dated 14.6.2006 directed the appellants to appear before the Court on 22.6.2006 in connection with S.T. Case No.XXIX/February, 2006 under Section 2 302 of the Indian Penal Code (G.R. case No.450 of 2002).

3. The complainant, Ashok Kumar Pattanayak, lodged the First Information Report at Gopiballabhpur PS on 29.11.2002 at about 8.25 a.m. alleging that on the same date at about 7.30/8.00 a.m. while his father, Ramesh Chandra Pattanayak, was supervising the work in his brick field known as Hena Brick, he was assaulted on the head from behind with a spade (kodal), as a result whereof he died instantly. The driver of the truck to whom the deceased was speaking at the time of assault and the khalasi of the truck, as well as other labourers, raised a alarm. The police also arrived at the spot and apprehended the assailant, Laxman Murmu. In the FIR it was alleged that besides Laxman Murmu, several other persons could also have been behind the incident. The said FIR was written by Ila Pattanayak, the sister of the de-facto complainant, and on 3 the basis of the said complaint, Gopiballabhpur PS Case No.48 of 2002 dated 29.11.2002, was started against the said Laxman Murmu under Section 302 IPC.

4. During the investigation of the above case, the appellants herein filed an application under Section 438 of the Code of Criminal Procedure before the Sessions Judge and such prayer for anticipatory bail was allowed on 14.8.2003. The appellants were directed to appear before the Sub-Judicial Divisional Magistrate, Jhargram, and on their appearance before the learned Magistrate on 16.8.2003, the appellants were released on temporary bail with a direction to them to bring appropriate orders from the higher Court. Subsequently, on an application under Section 439 Cr.P.C. the Sessions Judge, Paschim Midnapur, granted bail to the appellants on 23.9.2003. The de-facto complainant thereupon filed an application 4 under Section 439(2) Cr. P.C. before the Sessions Judge praying for cancellation of the bail granted to the appellants but the same was rejected on 16.12.2003. After completion of investigation the police submitted charge-sheet against the accused Laxman Murmu. As there was no material against the appellants herein they were neither shown in the charge-sheet nor were they sent up for trial and on the prayer made by the Investigating Officer the appellants were discharged from the case by order dated 30.6.2004.

6. The High Court came to the conclusion that there had not been any wilful defiance of the summons which necessitated the issuance of warrant of arrest and disposed of the revision application with a direction to the appellants herein to surrender before the Court within 3 weeks from the date of the order and thereafter to apply for bail. The execution of the warrant of arrest was stayed for a period of four weeks for the said purpose.

21. Since in the present case, except for a statement in the F.I.R. that the complainant strongly believed that the murder of her father was pre-planned and there were many conspirators involved, there is no direct evidence of the complicity of the appellants in the incident, it would not be proper to subject the appellants to trial by invoking the provisions of Section 319 Cr.P.C.

22. We, therefore, allow the appeal and set aside the order dated 14.6.2006 passed by the Additional District and Sessions Judge, F.T.C., Jhargram, issuing summons to the 1 9 appellants under Section 319 Cr.P.C. and the impugned order of the High Court dated 22.11.2006 directing the appellants to surrender before the Trial Court and to apply for bail.

23. The appeal is accordingly allowed.

________________J.

(ALTAMAS KABIR) ________________J.

(MUKUNDAKAM SHARMA) New Delhi Dated: 07.01.2009