Judgment & Order

[1] The order dated 18.01.2024 passed by the learned Judicial Magistrate, First Class, Court No.2, Sonamura, Sepahijala District in CR(C) No.37 of 2022 has been assailed in this revision petition, whereby the learned Magistrate declined to issue process against the respondent Nos.2 to 4. Thereafter, the said Court recorded the statements of the witnesses of the petitioner.

[2] The crucial date of incident in this case is 22nd June, 2019. On that day, at about 2010 hours, one Inspector of BSF, namely Girish Kumar, lodged one written FIR at Kalamchoura P.S., alleging inter-alia, that when 3[three] BSF constables including the present respondent No.2, were performing patrolling duty covering the BP No.2050/3-s to BP No.2050/7-s, they found some suspicious movement of smugglers on either side of IBB fencing along with 15/20 cattles on the Indian side to be smuggled to Bangladesh. Those constables chased the smugglers and found that they had already damaged the IBB fencing by cutting it and illegally, getting the cattles crossed through the said gap. Another, group of smugglers at that time attacked one of the BSF constables, namely Vijay Kumar by a sharp edge weapon (DAH)/Tekary. They also started pelting brick stones upon the BSF personnel. When getting the information, another BSF personnel by motor cycle was rushing towards the said spot to assist his colleagues, he was also attacked on his person and his motor cycle was also damaged by the smugglers. Thereafter, the foot patrolling party of BSF also moved towards that place and ultimately, they dispersed them and seized some cattles but again those smugglers gathered there to snatch the cattles back from BSF custody. Anyway, they controlled the situation, but ultimately found the dead body of one of the smugglers lying in the breached portion of the IBB fencing. With such allegations, the FIR was lodged against 7[seven] known accused persons which was registered as Kalamchoura P.S. Case No.45 of 2019 under Sections 353,325,307,188,427,382/34 of the IPC.

[3] On the following day, on 23.06.2019, one Ful Miah lodged another FIR, alleging inter-alia, that on 22.06.2019 at about 01.30 am., the BSF personnel under duty in gate No.146 of the IBB fencing of Kamthana BOP, came to the house of his nephew and called him. Hearing the said call, his nephew, Sharif came out from the room. At that time, said BSF personnel along with his other two colleagues, who were also BSF Jawans, took Sharif out of the house after giving threat to his elder brother, Babul Miah, Babul Miah’s wife, namely Rufiya Khatun and his another nephew, Md. Anik. The BSF personnel took Sharif near the IBB fencing and meanwhile, due to their outcry, the neighbouring people of the locality also wake up. His brother and wife of the brother went to the house of the Gram Pradhan, namely Selina Aktar to inform the said fact. Meanwhile, at around 2.30 am, they heard the sound of firing but the villagers could not go to the site as it was obstructed by the BSF personnel. Somehow his nephew, Md. Anik secretly went near the said fencing at around 3.20 am and found that the dead body of Md. Sharif was lying near the said fencing. The said Panchayet Pradhan also reached to the spot. Thereafter, he lodged the FIR seeking justice.

[4] The Kalamchoura police authority registered the said case as Kalamchoura P.S. Case No.46 of 2019 under Sections 364/302/34 of the IPC. The police proceeded with the investigation. The investigating officer, namely, SI, Rathindra Debbarma submitted the final report supporting the version of the BSF authority as alleged in their FIR.

[5] The mother of the deceased, namely Rupiya Khatun submitted a written objection against the said final report of the police in the court of the learned Chief Judicial Magistrate, Sepahijala District, Sonamura and the learned court directed the O/C, Kalamchoura P.S. vide order dated 03.03.2022 to go for further investigation of the case. Accordingly, the police conducted a further investigation and again submitted the final report on 30.04.2022 with similar version that some unknown local miscreants/cattles smugglers were trespassing the Indo-Bangla border for smuggling cattles and when the on-duty BSF personnel chased the group, they fired a single round on the group of miscreants. As a result of which, one of the miscreant/cattles smuggler, Md. Sharif @ Tuhin sustained bullet injuries on his person and succumbed to such injuries and 8[eight] cattles were also recovered by on duty BSF personnel.

[6] After the said final report was submitted by the police authority for the second time, again the mother of the deceased, namely Rupiya Khatun along with the informant, Ful Miah, submitted a protest petition against the same. Thereafter, hearing the parties, the learned Judicial Magistrate, First Class, Sonamura accepted the said petition and took cognizance of offence punishable under Sections 364/325/326/302/34 of IPC against Sohel Miah, Kabil Hossain and another Jewel Miah with unknown BSF personnel of duty. Thereafter, the said court directed the complainant to appear with her witnesses for examination under Section 200 Cr.P.C. During the said phase, said Rufiya Khatun examined herself as one of the witnesses and also examined other 7[seven] witnesses and finally, on the prayer of the learned counsel of the said complaint, examination of witnesses under Section 200 Cr.P.C. was closed on 04.07.2023.

[7] Thereafter, vide order dated 18.01.2024 as impugned herein, the learned court below refused to issue process against the accused person under Section 203 of Cr.P.C. with the observation that from the evidence, it was not clear as to who were the exact persons committing the crime and there was lack of prima-facie satisfaction as to the proper identification of the accused persons in committing the alleged offence.

[8] Being aggrieved by the said order, the mother of the deceased has invoked this rivisional jurisdiction of this Court, by filing this petition.

[9] Mr. S. Sarkar, learned senior counsel submits that erroneously learned Magistrate attempted to scrutinize the evidences in details like a trial Court though for the purpose of Section 202 of Cr.P.C., the Magistrate is only to acquire prima-facie satisfaction regarding commission of alleged offence and then to issue the process. The Magistrate, according to learned senior counsel, has no authority to appreciate the evidences by searching out the minor infirmities or lacunas. Learned senior counsel in this regard, relies on the following two decisions of the Hon’ble Supreme Court:

               [i] Sonu Gupta vs. Deepak Gupta & others, (2015) 3 SCC 424;

               [ii] Vishnu Kumar Tiwari vs. State of Uttar Pradesh through Secretary Home, Civil Secretariat, Lucknow and another, (2019) 8 SCC 27;

               Learned senior counsel further relies on another decision of Hon’ble Supreme court in the case of Rosy & another vs. State of Kerala & others, (2000) 2 SCC 230.

[10] Mr. R. Datta, learned P.P. appearing for the State submits that power of the rivisional Court is very limited and therefore, findings of the learned Magistrate cannot be upset in a routine manner. In revisional forum, there is no scope of re-appreciation of the statements of the witnesses. Learned P.P. also submits that the revisional Court cannot take any view contrary to that of the learned trial Court unless there is gross perversity or an error of jurisdiction in the order of the learned trial Court. In support of his submission, learned P.P. relies on a decision of the Hon’ble Supreme Court in the case of Pyla Mutyalamma alias Satyavathi vs. Pyla Suri Demudu and another, (2011) 12 SCC 189.

[11] Learned P.P. also contends that the protest petition while taken into may be treated as the complaint petition if all the particulars of a complaint-petition are available therein. In this regard, learned P.P. also refers to Paragraph Nos.42,43 and 46 of Vishnu Kumar Tiwari (supra). It is also submitted that in the whole protest petition, list of witnesses were not mentioned and even the alleged offences were also not indicated and what are the basic allegations of the petitioner were also not reflected in such petition, except the assertion as to what were mentioned in the earlier FIR. Learned P.P also submits that even the names and address of the accused persons were also not disclosed therein. Learned P.P, therefore, finally submits that the revision petition has no merit and is liable to be dismissed.

[12] Mr. T. Chakraborty, learned counsel appearing for the respondent No.2 submits that 8[eight] witnesses who were examined by the petitioner, were also examined by the investigating officer in connection with the said FIR and during that period, they gave a complete contra version than what they later on stated before the Court. Learned counsel also contends that the respondent No.2 is in no way involved in the alleged offence and therefore, learned trial Court rightly discharged him. Learned counsel also submits that the name of the respondent No.2 was never mentioned in the earlier FIR and also in the protest petition.

[13] Mr. S. Bhattacharjee, learned counsel appearing for the respondent Nos.3 & 4 submits that initially the first FIR was lodged by Inspector of BSF, namely Girish Kumar concerning the same incident alleging that certain unidentified and identified miscreants had attacked the BSF personnel while they were engaged in cattles smuggling and in course of such incident, firing was resorted to in self defence to repel the attack. Thereafter, said Ful Miah lodged the second FIR, on the following day of the first FIR just to counter it. Learned counsel also similarly submits that in the revisional jurisdiction, re-appreciation of evidence is not permissible unless patent illegality or impropriety is shown by the petitioner in the impugned order.

[14] This Court has considered the rival submissions of the parties.

[15] In Sonu Gupta (supra), Hon’ble the Supreme Court held that at the stage of cognizance and summoning, the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused person or not and the Court is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.

[16] In Vishnu Kumar Tiwari (supra), it is held that if a protest petition fulfils the requirement of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 of Cr.P.C. read with Section 202 of the code. Hon’ble Supreme Court in this case also took a note of the decision of Allahabad High Court in the case of Quasim vs. State, 1984 SCC OnLine All 260, where the Hon’ble Supreme Court quoted the the following paragraph of the said decision:

               “4. … In the case of Abhinandan Jha vs. Dinesh Mishra, AIR 1968 SC 117, also what was observed was 'it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint.' This observation would not mean that every protest petition must necessarily be treated as & complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made under Section 200 Cr.P.C. If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case.”

               [emphasis supplied]

[17] In Rosy (supra) at paragraph No.20, the followings were further held by the Hon’ble Supreme Court in the matters of taking cognizance under Section 200 Cr.P.C. and also regarding recording the statements of witnesses in a case triable by the Court of Sessions. The entire paragraph No.20 is extracted hereunder:

               Hence, what emerges from the above discussion is:

               I. (a) Under Section 200 the Magistrate has the jurisdiction to take cognizance of an offence on the complaint after examining upon oath the complainant and the witnesses present;

               (b) When the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not examine the complainant and the witnesses.

               (c) In such case Court may issue process or dismiss the complaint.

               II. (a) The Magistrate instead of following the procedure stated above may, if he thinks fit, postpone the issue of process and hold inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the person accused. Such inquiry can be held by him or by the police officer or by any other person authorised by him.

               (b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204 (2) before issuance of the process.

               (c) The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage. he is precluded from raising such objection later.

[18] In the case in hand, the Court is constrained to observe that the protest petition as was submitted by the petitioner along with informant, Ful Miah, does not contain sufficient material particulars to treat the same as a complaint petition though the learned trial court had treated the same as a complaint petition. In the protest petition, they simply stated that the vital witnesses were not examined by the investigating officer and to save the BSF personnel, the said final report was filed but who were those vital witnesses were not disclosed by them in the said petition. Though in the prayer portion, it was prayed by them to treat the protest petition as a complaint and to proceed with the Act under Sections 200 and 202 Cr.P.C. and also to issue process against the accused persons but the father’s name and other particulars of the accused persons were not mentioned therein. The lists of witnesses were also not included and the alleged offence under which they intended to proceed against the accused persons was also not mentioned.

[19] When the Magistrate proceeded to hold an inquiry for the purpose of deciding whether there was sufficient ground for proceeding against the accused person, it was incumbent upon the Magistrate to ascertain who were actually the witnesses of the complainant inasmuch as the provision of Section 202 of the Cr.P.C. mandates that the Court shall call upon the complainant to produce all his/her witnesses and examine them on oath. Therefore, it was necessary for the complainant to divulge the total list of her witnesses before the Magistrate. Anyway, the petitioner opted to examine total 8[eight] witnesses including herself in the case and as per prayer of the learned counsel recording of statements of witnesses were closed. If it is presumed that the complainant examined all her witnesses, still a major lapse is found in the proceeding, for, it appears from the contents of the complainant that it was a case under Section 302 of IPC and therefore, the complainant was under obligation to prove the homicidal death of her son but the autopsy surgeon was not examined in this case, nor his report in this regard was relied on by her. There is nothing in her statement that she was relying on any other document(s) collected by the investigating officer in connection with Kalamchoura P.S. case Nos.45 of 2019 and 46 of 2019.

[20] In the FIR lodged by Ful Miah, it is categorically asserted that on 22.06.2019 at around 1.30 am one BSF Jawan accompanied with other two jawans called the deceased after coming to his house and thereafter, forcibly took him near the IBB fence and ultimately, killed him by gunshot injury.

[21] But in the written objection submitted by Rupiya Khatun against the final report initially filed by the investigating officer, she mentioned the names of Kabil Miah, Jewel Miah, Sohel Miah, Saha Alam, Sangram Miah (Rasel), Musa Miah, Shel Miah, Arif Hossain and two BSF personnel to be responsible for the death of her son. Later on, in her statement made before the Court, she has further included one Safik Miah, another Manju Miah and excluded Shel Miah and Arif Hossain. As per her written objection, the time of arrival of BSF personnel in her house, who called the deceased, is 9 pm to 9.30 pm and Saha Alam, Shel Miah, Kabil Miah and Jewel Miah later on came to her house and forcefully took her son therefreom. But as per her statement made before the Magistrate at around 9 pm to 9.30 pm, not the BSF personnel, rather Kabil Miah and Jewel Miah came to her house to call the deceased and later on, at around 11.30 pm to 12.00 am, Sohel Miah, Safik Miah and Brajesh Kumar Mandal came to her house and forcefully took the deceased therefrom. These facts are totally self-contradictory.

[22] In her statements before the Magistrate, the petitioner has implicated total 10[ten] accused persons in the case, namely Kabil Miah, Jewel Miha, Sohel Miah, Safik Miah, Brajesh Kumar Mandal, Saha Alam, Maju Miah, Rasel Miah, Musa Miah and Vijoy Kumar, whereas PW-2 implicated only Sohel Miah, Jewel Miah, Kabil Miah, Brajesh Kumar Mandal and Bijoy Kumar and some other persons who were covered with clothes in their faces. PW-3 also implicated only those persons as like PW-2. PW-4, the brother of the deceased and PW-7, the father of the deceased, did not corroborate with PW-1 on the material particulars of the incident. PWs-3 & 5, who are two sisters, claimed to have seen the incident from the same place at the same time. But both of them gave two different versions of the incident. PW-6, the Gram Pradhan, also did not corroborate with the petitioner implicating the accused persons in this case.

[23] Thus, it appears that there are inconsistencies and discrepancies in the statements of the witnesses as were produced from the side of the petitioner and therefore, the learned trial court refused to issue process against the accused persons as it did not generate prima-facie satisfaction. On the other hand, on two occasions, the police authority investigated the case and came to the conclusion that while the deceased and his group men were trying to smuggle the cattles through IBB fencing, they were chased by the BSF and they attacked the BSF personnel for which the BSF personnel fired one round from their gun. The police authority also collected the injury reports of 2[two] BSF personnel, namely, S. Chetri and Ramesh Chand Choudhury.

[24] Considering all these aspects, this Court does not find any impropriety or illegality in the impugned order dated 18.01.2024 passed in CR(C) No.37 of 2022 by the learned Judicial Magistrate, First Class, Court No.2, Sonamura, Sepahijala District. As a result, this criminal revision petition stands dismissed.

Interim application(s), if any, also stand disposed of.

Return the records of the Court below with a copy of this judgment and order.