ORDER
Debi Prasad Sengupta, J.
1. This revisional application is directed against an order dated 15-3-2000, passed by the learned Additional Sessions Judge, 6th Court, Midnapore in Sessions Trial Case No. LXXXIV/May, 1997 arising out of Sutahata P.S. Case No. 76/92 dated 8-7-1992 under Section 498A/304B/306 of the Indian Penal Code.
2. The present petitioners were made accused in the aforesaid case which was registered with Sutahata Police Station on the basis of a complaint lodge by one Madan Mohan Santra. In the First Information Report it was alleged that the daughter of the de facto complainant was given in marriage with the present petitioner No. 1. At the time of marriage Rs. 15,000/- was given as dowry by the de facto complainant, but they demanded Rs. 7,000/- more, out of which Rs. 2,000/- was given to the petitioners and Rs. 5,000/- was assured to the paid later on. For non-payment of said Rs. 5,000/- in time victim Shibani (daughter of the de facto complainant) was subjected to torture and ill-treatment by her husband and other in-laws. As a result of such torture she committed suicide on 6-7-1992, by consuming poison.
3. On completion of investigation charge-sheet was submitted by the Police against all the petitioners under Sections 498A/ 304B/306 of the Indian Penal Code.
4. Mr. Dastoor learned Advocate appearing for the petitioners submitted that the present opposite party No. 2 Protap Das who is a neighbour of the de facto complainant, had some illicit relation with the victim Shibani even after her marriage. On 6-7-1992 early in the morning taking advantage of the absence of male-members of the petitioner’s family the opposite party No. 2 met the victim Shibani in the ‘Cow shed’ and they were found in a compromising position, which was noticed by the mother of the petitioner No. 1 and some neighbours of the petitioners. The opposite party No. 2 immediately left the place and the victim Shibani to save herself from such a shameful act rushed to the room and consumed poison.
5. Mr. Dastoor points out that the name of the opposite party No. 2 Protap Das transpired during investigation in the statements of witnesses recorded by the Police under Section 161 of the Code of Criminal Procedure. But the Investigating Officer of the case did not submit any charge-sheet against said Pratap Das for the reasons best known to the Investigating Agency.
6. In course of hearing of the present revisional application case-diary was called for, which was produced by the learned Advocate of the State. Mr. Dastoor, learned Advocate of the petitioners has drawn my attention to the statements of one Sankari Bhowmlk, Gokul Prodhan and Abonimohon Prodhan recorded by the Police under Section 161 of the Code of Criminal Procedure. From a reading of the said statements it becomes evident that in present opposite party No. 2 Protap Das had intimacy with the victim Shibani from before her marriage. After marriage such intimacy continued. On some earlier occasions said Pratap Das was found in some objectionable position with the victim Shibani and both of them were abused by the petitioners and other neighbours. It was stated by the said witnesses that on 6-7-92 in the early morning when Shibani was engaged in cleaning the ‘cow shed’ the O.P. No. 2 Protap Das appeared there and both of them were found in some objectionable position. Such incident was noticed by the mother-in-law of Shibani and the aforesaid there witnesses. It was further stated by the said witnesses that having been caught red handed, Protap Das told the victim that there is no use in living in this world and both of them would commit suicide at a time. Protap Das (O.P. No. 2) immediately left the place and victim Shibani rushed to her room and to save herself from such shameful act consumed poison. It was also stated by the said witnesses that after consuming poison Shibani started saying that she had to commit suicide only at the instigation of Protap Das.
7. After going through the case diary it appears that charge-sheet in this case was submitted by the Police on 28-4-1995 against the present petitioners. It also appears from the case diary that the statements of the aforesaid three witnesses were recorded by the Investigating Officer on 6-8-1992, i.e. immediately after the incident and much prior to the submission of charge-sheet, dated 28-4-1995. On the date of submission of charge-sheet the statements of these three witnesses, from which the name of Protap Das transpired, were also included in the case diary. But for some obvious reason the Investigating Officer of the case did not submit any charge-sheet against said Protap Das.
8. Mr. Dastoor submits that the illicit relation between the victim and Protap Das in known to the villagers. But the de facto complainant to save his family from such a shameful act, lodged a complaint with the Police implicating the present petitioners, who are the husband and other In-laws of the victim.
9. It is really surprising to note that after the aforesaid charge-sheet was submitted by the Police, a supplementary charge-sheet was submitted by the Police against Sri Protap Das relying upon the statements of those three witnesses, who implicated Protap Das in their statements. In the supplementary charge-sheet dated 17-11 -95 it was stated by the Police that although initially charge-sheet was submitted against the 5 accused persons, the complicity of another accused person named Protap Das vividly transpired during investigation of the case. But due to mistake of the I.O. charge-sheet was not submitted against him. It was further stated in the supplementary charge-sheet that from the statements of Gokul Prodhan, Abanimohan Prodhan and Sankari Prodhan a prima facie case is made out against said Protap Das and the accused Protap Das may be put up on trial in the Court of law.
10. The opposite party No. 2 Protap Das filed an application on 12-8-97 before the learned Additional Sessions Judge, 6th Court, Midnapore praying for discharge from the case. An application was also filed by prosecution stating that there are absolutely no material against Sri Protap Das. Prosecution further filed an application stating that the prosecution will not examine these three witnesses, on the basis of whose statements supplementary charge-sheet was submitted against Protap Das.
11. The learned Additional Sessions Judge, 6th Court, Midnapore by his order dated 15-3-2000 discharged the opposite party No. 2 and also discharged the aforesaid three witnesses.
12. From a reading of the impugned order it. appears that the Public Prosecutor in-charge of the case submitted that there is no evidence against “Protap Das and the learned Judge also accepted the submission made by the learned P.P. and opined that there was no prima facie case to frame a charge under Section 306, I.P.C. against the accused Protap Das. The impugned order does not indicate that the learned Judge ever applied his mind and formed his opinion after perusing the statements of these 3 witnesses.
13. Mr. Dastoor, learned Advocate of the petitioners submits that the present petitioners will never make any prayer for quashing of the proceeding against them. But they want that actual truth should come out in the case. He submits that this is a case in which the learned Public Prosecutor failed in his duty to bring the facts to the notice of the Court. Mr. Dastoor relies on a judgment of this Court reported in AIR 1969 Cal 321, wherein it was observed by the Division Bench of this Court that a Public Prosecutor is not such a mouth-piece for his client the State to say what it wants or its tool to do what it directs. He owes allegiance to higher cause. He must not consciously mistake the facts, nor knowingly cancel the truth and despite his duty to his client the State, he must sometimes disregard his client’s most specific instructions if they conflicted with his duty in the Court to be fair, independent and unbiased in his views.
14. Mr. Dastoor submits that the aforesaid observation made by the Division Bench of this Court makes it clear what should be role of the Public Prosecutor in conducting a case. Mr. Dastoor submits that in the present case learned P.P. in-charge of the case failed to perform his duty not bringing the truth to the notice of the Court. According to Mr. Dastoor had there been any application of mind to the statements of those three witnesses, he would have certainly found a prima facie case against the O.P. No. 2.
15. The learned Advocate appearing for the O.P. No. 2 submits that it was for the Public Prosecutor to decide what witnesses should be examined and the prosecution is entitled to skip witnesses who are not likely to support the prosecution case. In support of his contention the learned Advocate relies on a judgment of the Hon’ble Apex Court reported in 2000 (10) JT (SC) 411 : (2001 Cri LJ 511) (Hukum Singh v. State of Rajasthan). In the said judgment it was held by the Hon’ble Apex Court as follows :- (at p. 514 of Cri LJ)
In trials before a Court of Sessions the “prosecution shall be conducted by a Public Prosecutor”. Section 226 of the case enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused, If he knew at that stage itself that certain persons cited by the investigating agency as witness might not support the prosecution case, he is at liberty to state before the Court that. fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in Court. If that version is not in support of the prosecution case, it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.
16. It was held by the Hon’ble Apex Court that it was for the prosecutor to decide what witness should be examined, but such decision should be fair.
17. Section 227 of the Code of Criminal Procedure provides that if the Judge after going through the records and documents submitted and also hearing the prosecution and the accused, comes to the conclusion that there is no sufficient ground to proceed against the accused, he shall discharge him. But the reasons for such discharge are to be recorded. I have gone through the entire case diary. I have also gone through the impugned order passed by the learned Judge discharging the accused. The impugned order does not indicate that the learned Judge has gone through the records and documents placed before him. But he simply accepted the decision of the learned Public Prosecutor that there is no material against the O.P. No. 2 Protap Das and discharged him. But he failed to record any resons for such discharge.
18. In view of the discussions made above. I am of the view that it will be proper for this Court to send back the matter again to the learned Judge to consider it afresh as to whether there are materials to put the accused Protap Das on trial. The learned Judge will take into consideration the supplementary charge-sheet along with the statements of those three witnesses as mentioned above. Accordingly, I allow the revisional application, set aside the impuged order dated 15-3-2000 passed by the learned Additional Sessions Judge and send back the matter to the learned Judge to take up the matter afresh and to pass a reasoned order as to whether the materials collected (by) investigating agency are sufficient to put the accused Protap Das on trial.
