Pradip Kumar Biswas, J.
1. This is an application under Section 482 of the Code of Criminal Procedure, 1973, filed at the instance of the petitioner, Atibur Rahaman, seeking to quash the charge sheet No. 239 of 2000 dated 31.8.2000 (G. R. Case No. 697 of 1990) in connection with Beldanga police Station Case No. 112 dated 28.5.1998 under Sections 147/148/149/326/307/302 of the Indian Penal Code and Sections 3 and 4 of the Explosive Substances Act, now pending in the Court of the ld. S. D. J. M. Berhampore, Murshidabad.
2. The short facts leading to the filing of this revisional application are as under:--
3. The petitioner is a businessman by profession and an Income Tax Payee. The aforesaid Beldanga P. S. case was started on the basis of written complaint' lodged with the Officer-in-Charge of the Beldanga P. S. by one Julfikar Chowdhury alleging, inter alia, that on 28.5.1998, one Najibur Rahaman, S/o. Abdul Odud along with others all of Beldanga P. S. about 11 a.m. being armed with deadly weapons came to Booth No. 133 and attacked Mumtaz Begum, a candidate of National Congress. It was further alleged that they drove her out of the polling booth along with her husband Tarak Sk., and thereafter they attacked booth No. 132 in which de facto complainant was present. The miscreants assaulted his agent also assaulted the de facto complainants' relatives who tried to save him. They ransacked the Booth Nos. 132, 133, 134 and 135 destroying the ballot box and forced the de facto complainant, the Presiding Officer and others to leave the polling booth with a view to rigging. It was further alleged that the Home guards namely Quamuddin and Aziz witnessed the said incident of assault and rigging. The miscreants further attacked the persons on road and fired at Burhan Chowdhury causing grievous bullet injury on his head and who was eventually shifted to Berhampore Hospital. It was further alleged that Nazibur Rahaman, S/o. of Abdul Odud fired from his pistol at Burhan Chowdhury and the bombs were charged by Bari Khan, son of Late Gafur Khan and some others and this entire incident took place as per instruction of Atibur Saheb, who visited the polling booths at about 10 a.m. and as soon as he left the place, the aforesaid incident took place.
4. Further it has come out that the aforesaid Burhan Chowdhury who received bullet injury shot by Nazibur Rahaman succumbed at Berhampore N. G. Hospital due to said injury and Section 302 of the Indian Penal Code was added in the present case.
5. Police after investigation submitted charge sheet on 31.8.2000 vide charge sheet No. 239/2000 under Sections 147/148/149/326/307/302 of the Indian Penal Code and sections 3 and 4 of the Explosive Substances Act against the present petitioner and others showing this accused petitioner at Sl. No. 10 as absconder.
6. It was also alleged by the petitioner that in the written complaint there is no whisper against the present petitioner from which one can draw inference about the role played by the present petitioner to commit any offence as alleged in this case.
7. The ld. S.D.J.M., upon purported perusal of the said charge sheet fixed the date on 6.5.2003. Accordingly, being aggrieved by and dissatisfied with the said charge sheet being C. S. No. 239/2000 as aforesaid, the petitioner has come up before this court alleging that the impugned charge sheet being bad in law is liable to be quashed or set aside as there is no materials to draw any inference against the present petitioner for committing an offence punishable under Sections 326, 307 and/or 302 of the Indian Penal Code and other sections.
8. It was further alleged that on the basis of the FIR no case can be said to have been made out against the present petitioner and as such the continuation of the present proceeding on the basis of the aforesaid charge sheet would be a mere abuse of the process of the court. Hence, this prayer.
9. This prayer has been seriously opposed by the learned counsel appearing for the State alleging that in the FIR itself, there is indication that the incident as alleged has taken place as per the orders of this petitioner and since upon investigation, the police has collected materials and filed charge sheet against the accused persons including the present petitioner there is no point in quashing the present charge sheet. Hence, they pray for rejection of this application.
10. I have heard the submissions of both sides at length.
11. True, it is that this Court possesses plenary power to quash the proceeding pending before any Criminal Courts, subordinate to it if upon available materials, it appears to this court that the continuation of the proceeding would be a mere abuse of the process of law on the available materials and/or this Court may also quash the proceeding to meet the ends of justice.
12. Now, upon perusal of the materials available, specially the FIR and the papers collected under Section 173(2) of Cr. P. C. I find that this is not a fit case where this Court should come forward in exercising power under Section 482 of the Cr. P. C. for quashing the present proceeding as in the FIR as also in the police papers, prima facie materials have been collected regarding involvement of the present petitioner with the alleged crime. That being the position, I find no merit in the present revisional application.
13. The learned Advocate, while admitting the aforesaid position of law has very candidly made another submission before this Court with reference to a decision reported in the : 1980CriLJ426 (from Bombay) in the case of Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors., that a direction should be issued upon the concerned accused/petitioner giving him the liberty to appear before Sessions Judge, Behrampore directly instead of surrendering before the ld. S.D.J.M., Berhampore so that he can surrender straightaway before the Sessions Court and file an application for bail.
14. In this connection, utmost reliance has been placed by him on the aforesaid decision of the Apex Court.
15. I have also gone through the aforesaid decision of the Apex Court, Looking into the provisions of the Criminal Procedure Code, it appears to me that it may be that there may not be absolute bar in surrendering before the ld. Sessions Judge by an accused without surrendering before the concerned Magistrate for the purpose of filing one bail application, yet, for administrative reason that is not all encouraged so that there may not be any conflict/confusion and dislocation with regard to grant of bail by any superior Court.
16. But looking into the judgment of the Apex Court (supra), it appears that it was held in the aforesaid decision, that 'he can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and may be, enabled the accused persons to circumvent the principle of Section 439 Cr. P. C. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate Magistrate but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the Court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion exercised by the two Courts below'.
17. So, going by the principles enunciated by the Apex Court in deciding the matter as aforesaid, it cannot be said that in a blanket way the Apex Court has approved the surrender of one accused straightaway before the Sessions Court without surrendering before the concerned Magistrate and under special situation that was only allowed to be made.
18. So, in view of the aforesaid position, I do not feel it necessary to give a direction to the concerned accused to appear before the ld. Sessions Judge, Berhampore instead of surrendering before the concerned Magistrate of the area as I am not persuaded to accept the contention advanced by the petitioner in this regard.
19. So, upon ultimate analysis of the materials on record and in view of myfindings, in the foregoing paragraphs, I find no reason whatsoever to quash thepresent proceeding, as claimed by the petitioner.
20. Consequently, the revisional application stands disposed of.
21. Let a copy of this application be sent to the concerned court with a direction to proceed with the matter as expeditiously as possible.