Asoke Sharma @ Ashoke Sharma @ ... vs The State Of West Bengal
2021 Latest Caselaw 1583 Cal

In the High Court at Calcutta Criminal Revisional Jurisdiction Appellate Side Present:

The Hon'ble Justice Subhasis Dasgupta.

CRR No. 354 of 2021

Asoke Sharma @ Ashoke Sharma @ Ashok Sharma Vs.

                         The State of West Bengal

For the Petitioner       :Mr. S. Chatterjee, Adv.
                          Mr. Ayan Chakraborty, Adv.
                          Ms. Shalini Mukherjee, Adv.


For the State            :Mr. Madhusudan Sur, Ld. A.P.P.
                          Mr. Dipankar Paramanik, Adv.


Heard on                 : 24.02.2021.

Judgment on              : 01.03.2021.



Subhasis Dasgupta, J:-

The impugned order dated 3rd February, 2021, passed by learned

Additional District and Sessions Judge, 2nd Court, Tamluk, Purba Medinipur

in S.T. No. 1 (9) of 2016, rejecting the prayer of the petitioner thereby refusing

to pass an order, allowing execution and registration of a power of attorney by

the petitioner/accused, while in custody, in favour of his wife, is the subject of

challenge in this revisional application.

Admittedly, the petitioner is in custody since 8th May, 2014, for his

alleged involvement in connection with the referred case under Sections

364/364A/302/201/120B/379/411 of the Indian Penal Code read with

Sections 25(1B)(a)/35 of the Arms Act.

On 4th January, 2021, the petitioner being the custody accused, made

an application, pursuant to the observation made by the Division Bench of

this Court in connection with CRM No. 10400 of 2019, while rejecting the

prayer for bail of the petitioner, with a prayer soliciting a direction upon the

Superintendent of Correctional Home, Medinipur to allow the

Registrar/Additional District Sub-Registrar to come to the correctional home,

where the petitioner has been undergoing detention, for execution of a power

of attorney by the petitioner in favour of his wife. The petition was supported

by annexures showing the details of the properties with respect to which

power of attorney was sought to be executed by the petitioner in justification

of proposed claim that the properties shown in details of properties were free

from any encumbrances.

The petitioner was previously favoured by State Bank of India, extending

cash credit loan or Rs. 55 lakhs from Jhargram branch on 17.10.2008, and

such accounts have already been settled after receiving Rs. 20,57,618/- (Rs.

Twenty Lakhs Fifty Seven Thousands Six Hundred and Eighteen only). A

certificate was also annexed in proof of closure of that account following a

settlement reached, upon liquidation of amount, as stated above.

A similar prayer, touching upon the properties of petitioner, situated in

the district of East Singhbhum, State of Jharkhand was also rejected on 18th

March, 2017.

In connection with hearing of bail application before a Division Bench of

this Court, the financial stringency suffered by the petitioner to maintain his

family members was brought to the notice of the Court, when the Division

Bench observed that in the event of filing any such application before the Trial

Court, the same shall be considered in accordance with law keeping in mind

the urgent need for financial liquidity on the part of petitioner to prepare his

defence.

In the petition filed before the court below, petitioner had taken two

grounds to reveal his financial difficulties. One pertaining to meet up his legal

expenses as well as day to day expenses of his family members, and another

relating to medical expenses of his ailing wife, who is also co-accused in

connection with the same case under reference.

Mr. Sourabh Chatterjee, learned advocate representing the petitioner

submitted that both in the petition and the documents supporting the petition

enough reflection had been there to reveal that the properties, with respect to

which the power of attorney was sought to be administered in favour of his

wife, were free from any encumbrances. But even after settlement of cash

credit loan amount by the petitioner, upon making deposit of some amount,

referred above, the State Bank of India issued a bank certificate reserving its

right to proceed against the borrower/guarantor, as the case may be, in

respect of other loan liabilities, if there be any, which according to Mr.

Chatterjee, was nothing but a disclaimer certificate ordinarily mentioned by

Bank upon information being furnished following a closure or settlement of

any loan account maintained in a particular bank.

According to Mr. Chatterjee, such portion of certificate being a

disclaimer certificate, would be inconsequential so as to allow the prayer of

the petitioner claiming execution of power of attorney in favour of his wife

followed by registration of same in presence of a Registrar, to be brought

before the correctional home, where petitioner is now put up.

Mr. Chatterjee proposed that petitioner could be directed to file a fresh

application supported by documents before the court below for the purpose,

upon setting aside the impugned order, so that the doubts surfaced over such

disclaimer certificate could be eliminated.

Mr. Madhusudan Sur, learned advocate representing the State

submitted that the petition including the annexures supported therewith was

not sufficient enough to reveal if the two proposed properties involved were

free from any encumbrances (as shown in the details of the properties being

page no. 39 of the instant application).

Mr. Sur thus, tried to impress upon Court submitting that since there

had been enough obscurity exposed in the petition, and the documents

connected therewith, the learned court below rightly declined to pass any

order, as the documents per se failed to inspire any confidence upon learned

court below, while making consideration of the prayer of the petitioner.

It is thus clear that there developed some doubt from the documents

produced, for which the prayer of petitioner could not be effectively

adjudicated upon.

There has to be a complete and definite disclosure that the properties

proposed to be sold to a third party upon execution of power of attorney by the

petitioner in favour of his wife, who are the co-owners of the properties, so as

to come to any reasonable inference that the properties were free from any

encumbrances, and more so over which neither the petitioner, nor his wife has

any existing liability with reference to any claim of any bank or any financial

institution whatsoever.

It is thus, obligatory upon the petitioner, while venturing upon sell of

the properties during the period of his incarceration, to establish convincingly

that the properties proposed to be sold upon execution of power of attorney by

petitioner also were not subject to any attachment issued by the order of

court, irrespective of civil or criminal jurisdiction of court.

Since, the petitioner is in bare need of money to meet up expenses for

preparing his defence and also to maintain his family members involving the

treatment of his wife, there will be no prejudice caused to the State, if the

prayer is considered afresh upon setting aside the impugned order.

The purpose of justice will be best sub-served, if a direction accordingly

be given for filing an application afresh supported by necessary documents, in

the light of observation made in the body of this order, within seven (7) days

from the date of communication of this order to the learned court below.

The impugned order dated 3rd February, 2021, passed by learned

Additional District and Sessions Judge, 2nd Court, Tamluk, Purba Medinipur,

rejecting the prayer of the petitioner is set aside.

Petitioner is given liberty to make an application afresh supported by

necessary documents, as stated above within seven (7) days from the date of

communication of this order to the learned court below.

Petitioner is directed to make communication of this order to the

learned court below.

It is clarified that if any such application is filed by the petitioner, the

same shall be disposed of expeditiously as possible providing sufficient

opportunity of hearing to either party to this case preferably within a fortnight

from the date of filing application by petitioner, upon sensing the true purport

of the order, passed by Division Bench of this Court, passed in CRM No.

10400 of 2019, wherein the financial crisis expressed by the petitioner was

adequately taken care of.

With this observation and direction, the revisional application stands

disposed of.

Urgent photostat certified copy of this judgment, if applied for, be given

to the appearing parties as expeditiously as possible upon compliance with all

necessary formalities.

(Subhasis Dasgupta, J.)