ORDER
Siba Prasad Rajkhowa, J.
1. By this revisional application the petitioner has challenged the order dated 15-6-88 passed by the learned Additional Sessions Judge, 2nd Court, Alipore in case No. S.C. 28(9) of 87 thereby framing charge against the accused petitioner under Sections 307/109 and 506 of the Indian Penal Code.
2. The main point urged before me by the learned counsel for the petitioner is that the learned Judge is not competent to peruse the case diary to frame a charge against the accused and he has placed reliance upon a decision of this Court reported in AIR 1959 Calcutta 276 : (1959 Cri LJ 586), Sk. Noormahammad v. The State. Elaborating his argument, the learned counsel for the petitioner has submitted that at the time of framing of a charge, the trial Court should consider only the police report and the documents sent along with it under Section 173 of the Code of Criminal Procedure and that the case diary is some thing different from the documents referred to under Section 173 Cr.P.C. and, therefore, the trial Court is not competent to peruse the case diary in order to frame a charge. It is true that, as provided under Sections 239 and 240 of the Code, the trial Court is to consider the police report and the documents sent with it under Section 173 before framing any charge. Section 173 enjoins upon the Officer-in-Charge of the Police Station to forward to a Magistrate empowered to take congizance of the offence on a police report, a report in the form prescribed by the State Government and the items to be included in the report have been elaborately shown in the section itself. Section 207 requires that the Magistrate shall furnish to the accused a copy of each of the following items:-
(i) the police report;
(ii) the first information report recorded under Section 154;
(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under Sub-section (6) of Section 173;
(iv) the confessions and statements, if any, recorded under Section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173.
The amendments brought in the Criminal Procedure Code of 1898 by the 1973 Code have made many sweeping changes in the procedural criminal law. Section 238 of the new Code corresponds to Section 251A(1) of the old Code. By introducing Section 207 in the new Code, the duty to supply documents referred to therein to the accused has now been cast on the Magistrate instead of police which was the case under the old Code. So after the 1973 Code came in force with effect from 1st April 1974, the police sends the case diary direct to the Court whereupon the trial Court orders the prosecution to supply copies of documents to the accused upon which the prosecution seeks to rely to establish its case. As such police diary of a case has become synonymous with ‘case diary’. If a trial Court says that it has perused the ‘case diary’ to frame a charge, it surely means perusal of those documents mentioned under Section 207 which are required to be supplied to the accused and which are included in the ‘case diary’. Under the existing set up the question of the Court being influenced on perusal of the ‘case diary’ does not arise. On a perusal of the impugned order I do not find that the learned judge had been influenced by perusal of certain documents which were not relied upon by the prosecution and which were not supplied to accused. Learned Judge has specifically mentioned that he had scrutinised the first information report and statements of the witnesses recorded by police under Section 161 Cr.P.C. and the injury report. It is common knowledge of all persons concerned with criminal trial that a ‘case diary’ includes these materials and the trial Court has the right to go through these materials before framing a charge or discharging an accused. The decision cited by the learned counsel for the petitioner has no bearing on this case. The learned counsel for the State has filed a certified copy of an order dated 12th Dec. 1988 by a single Bench of this Court in Criminal Revision No. 762 of 1988 (unreported) and has submitted that the same ruling was cited before the learned single Judge who opined that “It is not an authority for the proposition that the Magistrate cannot even peruse the case diary and indeed such a provision could not be laid down in view of the expressed provision of Section 172(2) Cr.P.C.”. In this connection the learned counsel for the petitioner has also referred to AIR 1972 SC 545 : (1972 Cri LJ 329) Century Spinning and Manufacturing Co. Ltd. v. The State of Maharastra, I do not think that this reported case comes to the aid of the accused petitioner in any way because Supreme Court has said there that, “It there is no ground for presuming that the accused committed an offence, the charge must be considered to be groundless, which is something as saying there is no ground for framing the charges”. But it further says. “This necessarily depends on the facts and circumstances of each case and the Magistrate is entitled and indeed has a duty to consider the entire material referred to in Sub-section (2) of Section 251 (A)” (of the old Code). The learned counsel has also referred to AIR 1990 SC 1962 : (1990 Cri LJ 1869), Niranjan Singh v. Jitendra Bhimraj. In this case the Supreme Court has observed that at the stage of framing of a charge it should be the duty of the Court to evaluate the materials and documents to find out whether facts emerging disclose all ingredients of alleged offence. The learned counsel for the State has referred to AIR 1980 SC 52 : (1979 Cri LJ 1390) Supt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja in which it has been observed as follows (Para 18):
“At the stage of framing charges, the prosecution evidence does not commence. The Magistrate has, therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the investigating Police Officer. The standard test, proof and judgment which is to be applied finally before findig the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or 288. 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”. Anyway I do not find any conflict between these 2 reported decisions of the Supreme Court. In the instant case before 1 me find that the learned Judge has satisfied himself upon perusal of the necessary documents that there are prima facie materials to frame a charge against the accused petitioner. As such I do not find any force as to the contention of the learned counsel for the petitioner.
3. Next, the learned counsel has submitted that the charge under Section 307 read with Section 109 I.P.C. cannot be sustained. By drawing my attention to Section 107 I.P.C. the learned counsel has submitted that the materials on record do not disclose that the accused petitioner had instigated any person to commit an offence punishable under Section 307 I.P.C. or that he had engaged himself with one or more persons in any conspiracy for the commission of the offence under Section 307 I.P.C. In this regard he has referred to a decision of the Supreme Court reported in AIR 1975 SC 175 : (1975 Cri LJ 240), Siaram v. State of U.P. In that case it was held by the Supreme Court that “In order to constitute abement the abettor must be shown to have ‘intentionally’ aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107”. This point was also urged before the learned Sessions Judge. But he was not convinced with this sort of argument and he accepted the prosecution case that accused Hemen Mondal abetted the other three accused in the commission of the offence. I agree with the learned Sessions Judge and reject this contention of the learned counsel for the petitioner.
4. The last point canvassed before me by the learned counsel for the petitioner is that there was a delay of about 1 year in filing the complaint by the de facto complainant and this unusual delay has not been explained by the prosecution and on this count itself prosecution would fail and the learned Judge ought not to have ignored this aspect of the case and ought to have discharged the accused petitioner. I find that this point was never urged before the trial Court and the delay is found to be explained by the prosecution. The fear instilled in the mind of the de facto complainant by the accused petitioner was of such magnitude that he dared not to lodge a complaint. The accused petitioner has been charged under Sections 307/109 I.P.C. The maximum punishment under Section 307 I.P.C. is either imprisonment for life or imprisonment for 10 years. The period of limitation for lodging the complaint is, therefore, 3 years as provided under Section 468 Cr.P.C. That being the position I do not find that the taking of cognizance was time barred. At the same time I find that the delay has been satisfactorily explained and no prejudice has been casued to the accused petitioner thereby.
5. In the result the petition fails and the same is rejected.