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Judgment
R.K. Bag, J.—The petitioners have preferred this revision under Section 401 read with Section 482 of the Code of Criminal Procedure challenging the order dated March 24, 2015 passed by learned Additional District and Sessions Judge, 3rd Court, Tamluk in S.C. Case No. 264(5)14, by which learned Judge of the trial court refused to discharge the petitioners from the charge under Sections 302 /34 of the Indian Penal Code.
The backdrop of the present revisional application is as follows: On February 11, 2013 the Opposite Party No. 2 filed a written complaint before the Officer-in-charge of Nanda Kumar Police Station disclosing the fact that on that date at about 6-30 in the morning the daughter of the Opposite Party No. 2 aged about 5 months was playing inside the room and she went out of the house for about thirty minutes. When the Opposite Party No. 2 came back to the house she found to her utter surprise that the 5 months'' old baby is lying dead. Nanda Kumar Police Station U.D. Case No. 5 of 2013 dated February 11, 2013 was started on the basis of the written complaint of the Opposite Party No. 2. Inquest was conducted in due course and the dead body of the baby was sent for post mortem examination. The report of post mortem examination revealed that the cause of death is smothering which is ante mortem and homicidal in nature. Sub-Inspector Animesh Chakraborty filed a written complaint before the Officer-in-charge of Nanda Kumar Police Station on June 18, 2013 with prayer to start specific criminal case under Sections 302 /34 of the Indian Penal Code. Accordingly, Nanda Kumar Police Station Case 175 of 2013 dated June 18, 2013 under Sections 302 /34 of the Indian Penal Code came into force. The police took up the investigation and ultimately submitted charge sheet against the present three petitioners under Sections 302 /34 of t he Indian Penal Code. The petitioner No. 1 happens to be the father-in-law of the Opposite Party No. 2, the petitioner No. 2 happens to be the mother-in-law of the Opposite Party No. 2 and the petitioner No. 3 happens to be brother-in-law of the Opposite Party No. 2.
With the above factual matrix Mr. Himangsu De, learned senior counsel appearing on behalf of the petitioners contends that there was no mark of injury on the dead body and report of chemical examination of viscera of the dead body has not yet been collected by the Investigating Agency. Mr. De further submits that there is delay of about four months in registering of the First Information Report and there is delay of about two months in recording the statement of the Opposite Party No. 2 under Section 161 and under Section 164 of the Code of Criminal Procedure. By referring to the statement of the Opposite Party No. 2 recorded under Section 161 and under Section 164 of the Code of Criminal Procedure, Mr. De submits that the Opposite Party No. 2 suspected the petitioners to have murdered the baby due to property dispute between the parties and this suspicion cannot be a ground for framing of the charge against the petitioners. He also submits that the evidence collected by the Investigating Agency even if not rebutted cannot warrant conviction and as such charge should not have been framed against the petitioners under Sections 302 /34 of the Indian Penal Code.
Mr. De has relied on three decisions of the Supreme Court which are reported in "1977 Supreme Court Cases (Cri) 404", "2007(1) Supreme 827" and Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, the Supreme Court held that there were no materials on the basis of which cognizance can be taken against the appellants and as such criminal proceeding was quashed. It is held in paragraph 12 of the said report that there was no medical evidence to support the prosecution story of death by poisoning. In the instant case doctor opined that the cause of death of the baby was smothering which is ante mortem and homicidal in nature. Since this is a case of death by smothering, there is no need of any report of chemical analyst. The facts of "Harishchandra Prasad Mani & Ors. V. State of Jharkhand" (supra) are clearly distinguishable from the facts of the present case and as such the ratio of the said decision is not applicable in the facts of the present case. In "State of Karnataka V.L. Muniswamy and Others" reported in 1977 Supreme Court Cases (Cri) 404 the Supreme Court held that the materials on which the prosecution proposes to rely are inadequate to sustain the charge against the appellant, and as such criminal proceeding was quashed by the Supreme Court. In the instant case I have considered the statement of the mother of the deceased recorded under Section 161 and under Section 164 of the Code of Criminal Procedure, statements of the neighbours recorded under Section 161 of the Code of Criminal Procedure, report of post mortem examination of the deceased and other materials available in the case diary. On consideration of the above statements of the witnesses coupled with report of post mortem examination of the dead body of the deceased, I find that the husband of the Opposite Party No. 2 was absent from the house and there was strained relationship between the petitioners and the Opposite Party No. 2 over property dispute. The above facts coupled with the subsequent conduct of the petitioners lead me to hold that the petitioners were present in the house when the baby was smothered for causing death. In my opinion there are sufficient evidence collected by the Investigating Agency to prosecute the petitioners for the charge under Sections 302 /34 of the Indian Penal Code. The facts of the case reported in 1977 Supreme Court Cases (Cri) 404 are clearly distinguishable from the facts of the present case and the proposition of law is not applicable in this case.
In Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, the Supreme Court has laid down the law with regard to continuation of the prosecution in paragraph 7 which is as follows:
"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
By applying the above test in the facts of the present case I am of the view that there are sufficient materials to proceed against the petitioners for commission of the offence under Sections 302 /34 of the Indian Penal.
Mr. Bhattacharjee, learned counsel appearing on behalf of the Opposite Party/State submits that the present case is based on circumstantial evidence and the Investigating Agency has collected sufficient evidence to prove that the baby was murdered by smothering. It is also established from the materials on record collected by the Investigating Agency that these petitioners were present in the house at the time of commission of the crime and as such the onus lies on the petitioners to prove under Section 106 of the Indian Evidence Act how the baby was murdered. I fully agree with the submission made by Mr. Bhattacharjee on behalf of the State.
It is relevant to point out the proposition of law laid down by the Supreme Court for quashing the criminal proceeding in paragraph 102 of State of Haryana and others Vs. Ch. Bhajan Lal and others, , which is as follows:
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In view of the above proposition of law, I do not find any illegality in the impugned order under challenge in the revision. However, the trial court must not be influenced by the observations made in this judgement for the purpose of this revision. Accordingly, the order dated March 24, 2015 passed by learned Additional District and Sessions Judge, 3rd Court, Tamluk in S.C. Case No. 264(5)14 is affirmed. Criminal revision is, thus, dismissed.
The department is directed to send down a copy of this order to the learned court below for favour of information and necessary action.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.