Sailendra Prasad Talukdar, J.@mdashThe present case arises out of an application u/s 401 read with Section 482 of the Criminal Procedure
Code.
2. This is directed against order dated 9th July, 2003 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Purulia, in
Sessions Case No. 43 of 2001. The said case arose out of Crime No. RC-04/S/98-CAL dated 20th August, 1998.
3. Grievances of the petitioner may briefly be stated as follows :
The petitioner is an accused in the sessions case as referred to earlier, for his alleged involvement in commission of offences punishable u/s 120B of
the Indian Penal Code read with Section 348/330/306/465/471/120B of the Indian Penal Code.
The said case was registered by the respondent being C.B.I., A.C.B., Calcutta, pursuant to an order dated 6.7.1998 passed by the Hon''ble High
Court in W.P. No. 3715 of the 1998. In compliance with the said order, the C.B.I, took up investigation of the Barabazar Police Station Case
No. 5/98 dated 27.2.1998.
4. The said Barabazar Police Station Case No. 5 of 1998 dated 27.2.1998 was registered for investigation pursuant to an order passed by the
learned Chief Judicial Magistrate, Purulia on 20.2.1998 in a petition of complaint filed by one Shyamali Sabar. The allegations made in the said
complaint may be capsulated in a few sentences as follows :
Complainant is a poor woman belonging to Sabar @ Kehria Community, a primitive and aboriginal class. She along with her husband used to run
the family with great hardship. On 10.2.1998 at about 3/4 p.m. the husband of the complainant namely, Budhan Sabar, was going to Bhangirdih in
a cycle with his wife on the carrier. All of a sudden a police constable obstructed their path at Banmndih More. He forcibly took Budhan in a
motor cycle and proceeded towards Barabazar. The complainant tried to follow them but with little success. She then got into a bus and reached
Barabazar. She went to the police station and found that the Officer-in-Charge and 3/4 other constables were beating her husband mercilessly on
various parts of the body. She, as well as her husband, requested police personnel not to beat him up. She was asked to keep quiet. She returned
home and narrated the incident to some other persons and requested them to do something for immediate release of her husband. She reported the
matter to Sabar Samity the next day. On 13.2.1998 a police jeep with her husband inside reached near her residence. Her husband was asked to
find out the stolen articles from the house. As he pleaded innocence and ignorance the police personnel took up the job of searching the house
upon themselves. Nothing could be found by them. Officer-in-Charge as well as other police personnel thereafter returned in the jeep of course,
with her husband in it. On 14.2.1998 the complainant went to the police station to lodge FIR but it was not accepted. She approached the Sabar
Samity. She was advised to send FIR to the Thana as well as to the District Magistrate and the Superintendent of Police. On 15.2.1998 she came
to Purulia Jail to meet her husband but she was informed that her husband was not there. She then came to know that her husband was taken into
police custody and was physically tortured by such police personnel while in detention. He was produced in Court on 16.2.1998. She herself
found that her husband was being assaulted by the accused persons. On 18.2.1998 when she carne to meet her husband in jail she was informed
that her husband committed suicide in jail on 17.2.1998. She was alleged that such death took place due to severe physical torture upon her
husband and, thereafter, the police personnel in order to save themselves cooked up the story of suicide. She also alleged that the O.C., Barabazar
Police Station earlier severely assaulted one Indra @ Furi Sabar in police lock-up and the said case was still pending. That matter was, however,
enquired into by the West Bengal Human Rights Commission. After conclusion of enquiry it was of the opinion that some people attached to the
jail were responsible for the premature death of Budhu @ Budhan Sabar. But on the basis of the report of investigation vide Charge sheet No. 1 of
2001 dated 19.2.2001 and in response to the summons issued by the learned Sub-Divisional Judicial Magistrate, Purulia, the petitioner appeared
in Court and was let out on bail. The case was, thereafter, committed to the Court of Sessions and was then transferred to the learned 2nd Fast
Track Court of Additional Sessions Judge, Purulia. At the time of framing of charge, it was submitted that materials on record do not disclose any
offence u/s 306 of the Indian Penal Code but learned Judge by order dated 9.7.2003 held that there are sufficient materials to frame charge against
the present petitioner and another for committing offences punishable u/s 120B read with section 348/330/306/465/471/201 of the Indian Penal
Code. Charges were accordingly framed on 22.9.2003 as against the present petitioner and another person. They however pleaded not guilty to
the said charges.
5. The present application has been filed praying for setting aside of the said order dated 9.7.2003 passed by the learned Trial Judge.
6. Heard learned Counsel appearing for the petitioner who submits that the materials on record do not justify framing of charge against the present
petitioner.
7. Learned Senior Counsel, Mr. Sekhar Basu, at the very outset drew attention of the Court to the background of the present case. Mr. Bose
submitted that an enquiry was held earlier over the death of Budhu Sabar at the behest- of the West Bengal Human Rights Commission. It was
submitted that such an enquiry was held long before initiation of the investigation of the present case. Much was said about the significance of such
report of enquiry under direction of the West Bengal Human Rights Commission. True, such a Commission has a very important role to play in
today''s society.
8. Referring to the decision in the case of People''s Union for Civil Liberties v. Union of India and Anr. reported in 2005(1) Sup 454, it was
submitted on behalf of the petitioner that scheme of the protection of Human Rights Act, 1993 is to protect and implement human rights including
those envisaged in Article 21 of the Constitution and International Covenants. The Apex Court held that ""the functions include understanding and
dissemination of knowledge on human rights.
9. Attention of the Court was invited to the report of enquiry which was held by Sri H. K. Sarkar, I.P.S., Inspector General of Police, West
Bengal Human Rights Commission. In the said report it was stated that Budhu Sabar was handled very casually and inhumanly by Purulia Jail
authority and he was allowed to remain in cell with a napkin and other belongings etc. as per statement of Head Warder Bipin Behari Patra who
put Budhu inside cell No. 2. As per Jail Code Rule No. 747 the bedding of prisoners in cells, except that of prisoners under observation for
sickness or insanity, shall be withdrawn from the cell during the day. Here Budhu Sabar used that napkin as a ligature and hanged him to death. If
Budhu Sabar was kept in cell as per Jail Code Rule No. 746 and if the jail staff observed that other rules of Chapter XX relating to the treatment
of prisoners in cell, then Budhu Sabar definitely could not commit suicide by hanging inside cell. So it was found that Jailor Shri Kumaresh Ray
violated the Jail Code rules and procedure in every sphere arbitrarily in this case and Budhu Sabar became the victim of anarchy of Purulia District
Jail administration.
10. In fact the conclusion arrived at by the enquiring authority may be set out here below as follows :
Conclusion : From the above facts and circumstances, it is well-established that Jailor Shri Kumaresh Ray, Head Warder Bipin Behari Patra and
Warder Baiju Nath Singh and Jail Doctor Utpal Kr. Mitra are solely responsible for premature death of Budhu Sabar @ Budhan inside the cell.
Dr. Uptal Kr. Mitra, Jail Doctor, by making false minute in the minute book of jail about Budhu Sabar abetted the offence. Therefore, all the
above-noted jail officer, jail staff and jail doctor are responsible for abetment of suicide of Budhu Sabar @ Budhan inside the cell and they are
liable for prosecution u/s 306, IPC.
11. Relying upon all such materials it was argued on behalf of the petitioner that in such backdrop there could be hardly any scope for any fresh
investigation by any agency whatsoever. It was then submitted that the CBI while investigating the case did not take into proper consideration such
enquiry report and for that matter, learned Trial Court while framing charge against the present petitioner did not close to refer to such report of the
Human Rights Commission.
12. Mr. Basu, in course of his argument referred to the importance of the Human Rights Commission and deriving support from the decision as
referred to earlier, it was submitted that the ''Human Rights'' means the rights relating to life, liberty, equality and dignity of the individual guaranteed
by the Constitution or embodied in the International Covenants and enforceable by Courts in India. Much was argued in regard to the composition
of such Human Rights Commission both at the National level as well as the State level.
13. Mr. Debasis Roy, who subsequently joined Mr. Basu as a Counsel for the petitioner submitted that holding of an enquiry/investigation by the
State Human Rights Commission which holds the same power and authority like that of the National Human Rights Commission is not a mere
formality and the conclusion arrived at by such Commission must receive the attention of the Government in the administrative sphere and of the
Supreme Court as well as of the High Courts in judicial flora. It was further submitted that the object of the protection of Human Rights Act will be
frustrated if the findings of such Commission are just brushed aside by the result of investigation made by some other agency. It was then submitted
that law does not permit ignoring the report of enquiry held under the direction of the Human Rights Commission.
14. No doubt, the investigation under the protection of Human Rights Act and that under the Criminal Procedure Code were conducted by
statutory agencies. It is also a fact that the former leads to submission of a report in the form of recommendation to the Government whereas the
latter may end with filing a chargesheet in a Court of Law.
15. Learned Counsel appearing for the petitioner expressed surprise over the fact that the investigation made by the Central Bureau of
Investigation did not at all take into consideration the report of enquiry which was held under the direction of West Bengal Human Rights
Commission. It also appears that a number of witnesses who were examined by the C.B.I., were also examined earlier. According to Mr. Basu,
the learned Trial Judge was not at all justified in ignoring the statements of some of the witnesses examined by the C.B.I., which were made before
the enquiring authority under order of the Commission and having regard to the contradictory stand taken by the said witnesses, the learned Judge
should not have framed charge against the accused persons.
16. According to learned Counsel appearing for the petitioner judicial propriety and principle of good conscience and equity demand that the order
rejecting the petitioner''s application for discharge and consequent framing of charge should be aside.
17. In response to this, Mr. Roy, learned Counsel appearing for the opposite party/C.B.I., while summing up the events leading to framing of
charge against the petitioner, submitted that filing of the instant application is one more effort on the part of the petitioner to frustrate the process of
law.
18. The materials on record clearly reveal that the victim was taken into custody on 10.2.1998 by the present petitioner, who was the Officer-in-
Charge of the concerned police station at the relevant time. He was, of course, accompanied by others.
19. Wife of the victim protested and pleaded but it was a cry in the wilderness. Victim was subjected to severe physical torture. On 13.2.1998 he
was taken to his house for the so-called search by the police personnel. No recovery of allegedly stolen articles could be made. The victim was
subjected to physical torture even at that point of time. Victim''s wife went to the police station on 14.2.1998. But her complaint was not recorded.
She sent the complaint to District Magistrate and Superintendent of Police as well as to the Officer-in-Charge of the police station by post. On
14.2.1998, he was implicated in a false case. He was produced before the Magistrate on 15,2.1998. On 17.2.1998, he committed suicide while in
jail. On the next day, complainant came to know about it. One U/D case was registered. This incident was published in Bengali newspaper on
19.2.1998.
20. On 20.2.1998 a complaint was filed before the Magistrate by the wife of the deceased over such custodial death as a result of torture and
maltreatment.
21. Thereafter, a writ petition being W.P, No. 3715 of 1998 was filed on 23.02.1998. The complaint filed before the Magistrate was referred to
the police for investigation after treating the said petition as FIR u/s 156(3) of Criminal Procedure Code. The case was registered. Thereafter, on
16.04.1998 a report was drawn up by the Inspector of the West Bengal Human Rights Commission. By order dated 6th July, 1998, the Hon''ble
High Court transferred the case to Central Bureau of Investigation for investigation. On 19.02.2001 on the basis of the report submitted,
cognizance was taken and, thereafter, in compliance with the statutory provisions u/s 207 of Criminal Procedure Code, copies were supplied.
22. The case was, thereafter committed to the Court of Sessions and then, transferred to the learned Trial Court. On 22nd November, 2003
charges were framed against the accused persons and the schedule for trial was fixed up.
23. It is submitted by Mr. Roy, learned Counsel appearing for the C.B.I., that the present petition challenging the order of framing charges does
not have any merit at all. Mr. Roy submitted that the petitioner cannot have any grievance on the score that the report of the West Bengal Human
Rights Commission was not taken into consideration by the investigating agency or by the learned Magistrate while taking cognizance. It was
contended by Mr. Roy that such report of the Commission is essentially found on the statements and the explanations provided by the accused
who have all been named in the police report and whose plea has been recorded while framing of charges u/s 120B read with Section
348/330/306/465/471/120B of the Indian Penal Code.
24. According to Mr. Roy there is no scope for holding that the explanations offered by the accused persons at the time of enquiry by the
Commission are more truthful and reliable and there cannot be any question of discharging the accused persons on the basis of such statements
reportedly made before the Commission. He further submitted that to allow such things to be taken into consideration at the stage of consideration
of charge will amount to permitting an administrative decision of a Commission to brush aside a judicial decision by a Court of competent
jurisdiction. He seems to be right in pointing out that such statements before Commission were not tested by any cross-examination nor they were
made on oath and the provisions of the Evidence Act were quite naturally not followed.
25. Mr. Roy, thereafter, submitted that at the time of consideration of charge, the Court is not permitted to anticipate any defence and the only
thing requiring consideration is whether there is prima facie material, may be something more than mere shadow of doubt so as to implicate the
accused persons with the alleged offences. It is not for the learned Court to consider at the stage of framing of charge as to whether there are
sufficient, materials so as to establish the guilt of the accused person.
26. In this context learned Counsel appearing for the opposite party/C.B.I., relying upon the decision in the case of State of Bihar Vs. Ramesh
Singh, , submitted that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes
to adduce are not to be meticulously judged. No weight can be attached to the probable defence of the accused either.
27. In the case of Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, , it was held that at this stage,
even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of
the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that
offence.
28. The Apex Court in the case of State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc., , held that at the stage of framing of charge the
Court cannot go into the probative value of statement of witness.
29. Mr. Roy relying upon the decision in the case of State of Maharashtra Vs. Priya Sharan Maharaj and Others, , submitted that the Court cannot
seek independent corroboration at stage of framing of charge.
30. It is the settled principle of law that at the time of framing of charge the Court is required to consider the police report referred to Section 173
of Cr. PC and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. The Supreme
Court in the case of State Anti-Corruption Bureau, Hyderabad and Anr. v. P. Suryaprakasam reported in 1999 SCC 373, held that of course, at
that stage the accused may be examined but that is a prerogative of the Court only.
31. Learned Counsel appearing for the O.P./C.B.I. referred to the decision in the case of State of M.P. v. Awadh Kishore Gupta and Ors.
reported in 2004 SCC 353, in support of his contention that in exercise of power u/s 482 of the Criminal Procedure Code, this Court cannot act
upon the annexures to the petition which cannot be termed as evidence without being tested and proved.
32. Having regard to the various judgments delivered by different High Courts as well as the decisions of the Supreme Court in connection with
different cases the legal position that has emerged does not leave any scope for controversy. It is the settled position of law that while exercising
jurisdiction u/s 482 of the Code of Criminal Procedure, it is not permissible for the Court to act as if it was a Trial Judge. Even when charge is
framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. The
Court can certainly evaluate materials and documents on record but cannot appreciate evidence.
33. No doubt, inherent jurisdiction u/s 482 of the Cr. PC is quite wide but must be exercised sparingly and certainly with care and caution. It may
be exercised (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of
justice.
34. It may be that the petitioner is well-equipped with the findings in connection with the enquiry held under the order of the West Bengal Human
Rights Commission. But the scope of such enquiry is certainly not identical. It cannot be denied that such enquiry was held following a procedure
which for reasons mentioned earlier cannot just brush aside the result of investigation made by the Central Bureau of Investigation under the
direction given by the High Court in connection with a writ application.
35. The scope and ambit of an application u/s 482 of the Cr. PC cannot be so widened so as to frustrate the process of law.
36. Learned Trial Court while framing charge appears to have taken into consideration all relevant materials which include the materials disclosed
in course of investigation. There is no scope for giving weight to the findings of the enquiry held under order of the Human Rights Commission at
that stage. This in no way attempts to undermine the role of Human Rights Commission and by no stretch of imagination it can be said that such a
Commission is in any way is of less importance. In fact, there is no reason for going into that aspect of the matter within the scope of the present
application. It is perhaps sufficient to mention that the Human Rights Commission, both at the National and State level, are of great significance and
the directions given by such Commission have far-reaching consequences. In fact, such Commissions can certainly play significant role in meeting
the aspirations of the people and finally, in building up a society where the mind is without fear and the head is held high. It can help us to have a
future where knowledge is free and the world is not broken up into fragments by narrow domestic walls.
37. Considering all such facts and circumstances and having regard to the discussion as made earlier, I find it difficult to appreciate the grievances,
as ventilated by learned Counsel Mr. Basu, appearing on behalf of the petitioner. There is sufficient prima facie material so as to justify framing of
charge against the present petitioner. The learned Trial Judge is perfectly justified in framing charges against the present petitioner.
38. Having regard to the nature and gravity of the alleged offences and the right of the accused persons to get speedy justice, learned Trial Court is
directed to proceed with the trial of the case on priority basis and, of course, by fixing up consecutive dates for taking of evidence.
39. The present application being C.R.R. No. 2293 of 2003 be dismissed on contest.
40. The Registrar (Administration) may ensure communication of this order to the learned Trial Court forthwith.