Calcutta High Court (Appellete Side)
Jahar Sha vs State Of West Bengal And Others on 28 April, 2021
3,4 & 5
28.04.2021
TN
WPA 6315 of 2021
IA No: CAN 1 of 2021
Jahar Sha
Vs.
State of West Bengal and others
With
CRLCP 2 of 2021
Afjal Ali Sha @ Abjal Shaukat Sha
Vs.
Anisur Rahaman and others
With
FMA 471 of 2021
Anisur Rahaman
Vs.
Jahar Sha and others
(Via video conference)
Mr. Rabilal Maitra,
Mr. Soumik Ganguli
.... for the writ petitioner
Mr. Kishore Dutta,
Mr. Abhrotosh Majumder,
Mr. Sayan Sinha
.... for the State
Mr. Bikash Ranjan Bhattacharyya,
Mr. Atarup Banerjee,
Mr. Abu Sohel
.... for the appellant in FMA 471 of 2021
Mr. Sudipto Moitra,
Mr. Rajdeep Majumder,
Mr. Moyukh Mukherjee,
Mr. Aniruddha Bhattacharya
.... for the proposed added party
2
In Re: CAN 1 of 2021
At the outset, the writ petitioner seeks to
withdraw the writ petition bearing WPA 6315 of
2021.
Learned senior counsel appearing for the writ
petitioner cites State of Haryana and others vs. M/s
Krishna Rice Mills, reported at AIR 1982 SC 1106 in
support of the proposition that in the event a party
wants to withdraw a writ petition without liberty to
file a fresh action on the same cause of action,
there is no discretion left for the court to refuse the
same.
A perusal of the judgment shows that the
High Court had recorded the assurance by counsel
for the State that the State Government would
withdraw the instruction and held the writ petition
therein to have become infructuous. In such
context, the High Court, it was held by the
Supreme Court, ought not to have pronounced
judgment on the merits of the question as to
whether the transaction constituted a sale under
the relevant sales tax enactments.
However, in the facts of the case, the ratio
laid down in the cited report has no nexus with the
present writ petition. In the said case, despite the
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admission that the writ petition had become
infructuous, the High Court had apparently
rendered findings on the merits of the case, which
was deprecated by the Supreme Court.
The next Judgment cited by learned senior
counsel for the writ petitioner is Saraswati Bala
Samanta and others vs. Surabala Dassi and others,
reported at 60 CWN 400. In the said case, a
Division Bench of this court found that the learned
Judge of the trial court misappreciated the legal
implications of withdrawal of a suit under Order
XXIII Rule 1 of the Code of Civil Procedure. If the
plaintiff desires to withdraw his suit and does not
want permission to institute a fresh suit, he is at
liberty to do so, the Division Bench went on to
observe. It was further held that the court has no
discretion in the matter and the plaintiff is entitled
to withdraw the suit as a matter of right. The
consequences of withdrawal are mentioned in
Order XXIII Rule 1 of the Code of Civil Procedure.
However, there are two distinguishing
features between the ratio laid down in the reported
judgment and the present case.
First, the rigours of procedure as
contemplated within the Code of Civil Procedure do
not apply strictly to writ applications, which power
4
has been conferred under Article 226 of the
Constitution of India itself. The Code of Civil
Procedure being a servient statute, cannot prevail
over the power granted by the Constitution.
Undoubtedly, the principles of the Code of Civil
Procedure have been held time and again to be
applicable to writ petitions as well. However,
procedural irregularities cannot be mistaken as
legal principles. Even if Order XXIII Rule 1 of the
Code of Civil Procedure is applied in the context of
the present case, it has been held in several
judgments of the Apex Court as well as this court
that there are certain circumstances in which an
unconditional prayer for withdrawal can also be
refused, one such circumstance being that the
substantive rights accrued to a party or suffered by
a party by an interim order or at the interim stage
of the suit cannot be curtailed or taken away under
the guise of withdrawing the legal action itself.
In the present case, this court is fully aware
and takes into judicial notice the probable
impending threat to the life and liberty of the writ
petitioner in the event the writ petition is continued
to be proceeded with, in view of the nature of the
allegations made in the writ petition and the far-
reaching consequences thereof. However, the
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apprehended danger to the safety of the petitioner
cannot be the sole criterion for permitting the
petitioner to withdraw the writ petition even prior to
hearing the addition of party application, which is
pending in connection therewith.
Learned senior counsel appearing for the
proposed added party submits that the allegations
made in the writ petition were against the alleged
illegalities/irregularities committed by the State
machinery and subsequently by the judicial system
as well and were not of a personal nature. Although
such contention is controverted by learned senior
counsel for the writ petitioner by arguing that the
present writ petition is not a Public Interest
Litigation but a personal action, such objection
cannot be accepted, since the nature of the
allegations made in the writ petition are of general
impact to the society as is evident from the
averments made in the writ petition, in particular,
paragraphs 27 to 30 thereof.
That apart, in CAN 1 of 2021, the proposed
added party merely sought addition to participate
in WPA 6315 of 2021 "in support of the prayers
made therein" and not in the capacity of either
petitioner or respondent. As such, the prayer
cannot be read down by barring the applicant from
moving the addition of party application by
permitting the writ petitioner to withdraw the same
before hearing the addition of party application.
Learned senior counsel appearing for the
proposed added party submits that the writ
petitioner was a nephew of the victim in the murder
trial which was dropped, whereas the present
applicant is the victim's own brother. That, it is
argued, confers sufficient locus standi on the
applicant to be impleaded in the present writ
petition, more so, since the allegations in the writ
petition were of a general nature against certain
irregularities committed by certain State and
Judicial machinery and not of a personal nature.
Learned senior counsel for the proposed
added party cites Anant Prasad Pandey vs.
Secretary, Madhyamik Shiksha Mandal, Bhopal and
others, reported at 2002(2) M.P.L.J. 369, wherein
caustic observations were made by a learned Single
Judge of the Madhya Pradesh High Court. It was
observed that occasions do arise in certain cases
where the litigants try to take advantage of certain
situations by seeking withdrawal of the application
which they have moved seeking certain reliefs. But
when the attempt is quite adroit and the intention
is not sanguine and the effort is made to frustrate
the cause of justice and to have an advantage
because of withdrawal, the courts are under an
obligation not to grant permission to withdraw. A
litigant cannot visit the court as if it is a laboratory
and he cannot endeavour to play a game of Chess.
It was further held, inter alia, that the court was
apposite not to grant leave to withdraw the writ
petition since the same would mean the pristine
purity of law would be spoiled or the temple of law
would be altered.
That apart, learned senior counsel relies on
Bairam Muralidhar vs. State of Andhra Pradesh,
reported at (2014) 10 SCC 380, which is squarely
on Section 321 of the Code of Criminal Procedure,
1973, which is the bone of contention in the writ
petition. However, such report is directly on the
merits of the writ petition and the essential pre-
requisites of orders passed under Section 321 and,
as such, is not entered into at this stage for the
limited purpose of considering the prayer for
withdrawal and the application for addition of
party.
Learned senior counsel also places reliance
on (1995) 1 SCC 421 [Chandra Shashi vs. Anil
Kumar Verma] in which the scope of criminal
contempt was elucidated. It was held that if there is
interference with administration of justice, it
amounts to criminal contempt of court. The
Supreme Court further held that, to enable the
courts to ward off unjustified interference in their
working, those who indulge in immoral acts like
perjury, prevarication and motivated falsehoods
have to be appropriately dealt with, without which
it would not be possible for any court to administer
justice in the true sense and to the satisfaction of
those who approach it in the hope that truth would
ultimately prevail.
The next citation relied on by the applicant in
the addition of party application is Advocate-
General, State of Bihar vs. M/s. Madhya Pradesh
Khair Industries and another, reported at (1980) 3
SCC 311, for a similar proposition that the misuse
or abuse of court's process, affecting parties
outside the action and public interest in the
administration of justice, amounts to criminal
contempt.
Learned Advocate General submits that after
an order of acquittal was passed by the concerned
Criminal Court upon the Public Prosecutor
presenting an application for non-prosecution, the
State has no direct role to play in the matter.
However, learned Advocate General supports the
contention of the writ petitioner that there cannot
be any hindrance in withdrawal of the writ petition.
Upon considering the submissions of learned
counsel appearing for all the contesting parties, I
am of the clear view that, prior to adjudication of
the application for addition of party, the leave
sought to withdraw the writ petition cannot be
granted, since the application was filed not only
before this court prior to the prayer for withdrawal
but a similar application was filed before the
appellate court which was approached against a
previous order passed by this court, where a
Division Bench of this court granted specific leave
to the applicant to move a similar application
before this court. While appreciating the
apprehended risk to the writ petitioner in
continuing with the proceedings in view of the
surrounding circumstances, this court is of the
opinion that the application for addition of party
ought to be allowed for several reasons.
First, it has been categorically mentioned in
the prayer of the addition of party application that
the applicant seeks to be added and participate in
the writ petition in support of the prayers made
therein.
Secondly, the petitioner is the brother of the
victim and otherwise has locus standi to prefer a
fresh writ petition. However, as rightly contended
by learned senior counsel appearing for the
proposed added party, a new writ petition would
entail further loss of time, which would be
counterproductive since the accused person might
flee justice prior to the initial hearing of the new
writ petition.
Thirdly, a perusal of the writ petition itself
shows that no personal cause of action was sought
to be vindicated by the writ petitioner but certain
irregularities of the concerned authorities were
sought to be brought to the notice of this court for
appropriate remedy. The nature of the allegations,
being patent contravention of the norms of natural
justice and Section 321 of the Code of Criminal
Procedure by the authorities, is general in nature
and cannot be said to be personal. That apart, a
writ petition cannot be bound by the strict rigours
of the Code of Civil Procedure inasmuch as there is
a mandate upon the court to permit withdrawal if
sought even without liberty to sue afresh on the
same cause of action, if the ends of justice are
defeated by such withdrawal.
However, keeping in mind, as indicated
earlier, the safety of the writ petitioner and his
family, the name of the writ petitioner is expunged
from the cause title and the proposed added party,
namely Afjal Ali Sha @ Abjal Shaukat Sha, is added
as a party-respondent to the writ petition and
immediately transposed as the writ petitioner, in
view of the primary contentions and allegations of
the applicant and the writ petitioner being the
same.
That apart, even without going into the
veracity of the allegations made in the application
for addition of party, it is obvious that the applicant
in the addition of party application wants to further
the cause of justice by being impleaded in the writ
petition. The court appreciates the plight of the writ
petitioner and, thus, instead of permitting the writ
petitioner to withdraw the case, the name of the
writ petitioner is expunged from WPA 6315 of 2021.
Instead, the applicant in CAN 1 of 2021, being Afjal
Ali Sha @ Abjal Shaukat Sha, is impleaded as the
petitioner in the said writ petition.
It should be recorded in this context that this
court deprecates the modus operandi adopted in
the present case, since the matter was decided by a
Single Judge and went up in appeal. After the
appellate court virtually agreed with the trial
court's findings and remanded the matter to the
same court on the limited aspect of hearing being
not given to the accused person, after such
remand, the withdrawal of the writ petition would
tantamount to frustrate the order of the appellate
court as well as the ends of justice. The hands of
the court are not fettered under Article 226 of the
Constitution of India by limitations in pleadings;
rather, a writ petition is only in the nature of a
complaint to bring to the notice of the court the
alleged irregularities or illegalities committed by the
State machinery or other authorities.
The power under Article 226 of the
Constitution of India is not exercised within the
limited scope of procedural wrangles but is wide
enough to take into account any illegality or
irregularity of a gross nature, if committed by the
authorities, if so required.
Hence, for the ends of justice, the learned
Advocate-on-record for the added writ petitioner is
granted leave to amend the cause title of the writ
petition in accordance with the above order, by
including the name of the added party and deleting
the name of the writ petitioner from the writ
petition itself, during the course of the day.
The writ petition bearing WPA 6315 of 2021
will now be enlisted on May 12, 2021 at 11:15 a.m.
for hearing.
The newly added writ petitioner shall ensure
proper service of notice on the non-appearing
respondents, in particular the accused, that is,
respondent no.6 to obviate violation of the specific
observations of the appellate Bench and shall file
affidavit-of-service on the next date of hearing.
The respondent-authorities shall not give
effect to the order impugned in the writ petition
and/or release the respondent no.6 from custody
without an order of any competent court, till
June 15, 2021 or until further orders, whichever is
earlier.
At the juncture when the above judgment
was being delivered, Mr. Bikash Ranjan
Bhattacharya, senior advocate, appearing with Mr.
Atarup Banerjee, contends that they have
instruction to appear on behalf of the respondent
no.6. As such, any notice or service of copy of the
writ application on the learned advocate-on-record
for the respondent no.6 shall suffice as the notice
directed above.
CAN 1 of 2021 is thus allowed.
The parties shall act on the communication
of the learned advocates and/or server copies of
this order without insisting upon prior production
of a certified copy.
There will be no order as to costs.
Urgent photostat certified copies of this
order, if applied for, be made available to the
parties upon compliance with the requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
