A Calcutta High Court Bench Comprising of CJ Thottathil B. Radhakrishnan and Justice Arijit Banerjee was considering an appeal against the March 2 Order by Justice Sabyasachi Bhattacharyya in a writ petition filed by Kurban Shah's nephew Jahar Shah against the proposal of the State Government to initiate action under Section 321 of the Cr.P.C. for withdrawal of the criminal cases pending against the appellant, Anisur Rehman. The Bench noted that the appellant, was not made a party in the writ petition. However, the Single Judge quashed the order that was passed by the Trial Court under Section 321 by virtue of which the criminal charges against the appellant stood withdrawn.
Background of the Case
The judgment and order dated March 2, 2021, whereby WPA 6315 of 2021 was disposed of by a learned Single Judge, was impugned in the present appeal.
The appellant stands accused in several criminal cases. The writ petition was filed by a person challenging the proposal of the State Government to initiate action in terms of Section 321 of the Code of Criminal Procedure for withdrawal of the criminal cases pending against the appellant. The appellant was not made a party in the writ petition.
At the hearing, it was submitted by the learned Advocate General representing the State that an order under Section 321 of the Code of Criminal Procedure had already been passed by the concerned Trial Court. The effect of this would have been that the criminal charges against the appellant would have stood withdrawn. However, the learned Single Judge quashed the order that was passed by the learned Trial Court under Section 321 of the Code of Criminal Procedure.
Arguments put forward:
Mr. Ganguly, learned Senior Counsel appearing for the appellant submitted that quashing of the order under Section 321 of the Code of Criminal Procedure without hearing the appellant amounted to a clear and flagrant violation of the principle of audi alteram partem. The order, which conferred substantial benefits on the appellant, could not have been set at naught without giving the appellant an opportunity of hearing.
Reasoning and Decision of the Court
The Bench stated that it has not gone into the merits of the case at all. All questions are left open to be urged before the learned Single Judge, who will decide the matter in accordance with law without being influenced by anything contained in this order.
The Court stated that:
"Needless to say that by reason of this order, the status that prevailed on the day when the learned Single Judge disposed of the writ petition, shall stand restored, whatever the effect thereof be. Court requested the learned Single Judge to hear out and decide the writ petition as soon as the business of the Court of the learned Judge permits. The application filed by Afjal Ali Shah @ Abjal Shaukat Sha for being added as a party respondent in this proceeding is closed with liberty to Afjal Ali Shah to renew his prayer before the learned Single Judge. With the aforesaid directions, the appeal and all the connected applications are disposed of."
The Court noted that there was a breach of the principles of natural justice in this case. On that count alone, the Court set aside the order impugned under appeal. The matter was remanded to the learned Single Judge for being heard afresh.
Case Details
Case No.: F.M.A. 471 of 2021 (M.A.T. 317 of 2021)
Bench: CJ Thottathil B. Radhakrishnan and Justice Arijit Banerjee
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