Calcutta High Court (Appellete Side)
Jyotirmoy Ghosh vs The State Of West Bengal & Anr on 9 September, 2021
09.09.2021 IN THE HIGH COURT AT CALCUTTA
Item No.85 CRIMINAL REVISIONAL JURISDICTION
Ct.No.34
dc.
C.R.R. 458 of 2016
(Via Video Conference)
Jyotirmoy Ghosh
versus
The State of West Bengal & Anr.
In Re: An Application under Section 482 of the Code of
Criminal Procedure, 1973.
Mr. Sekhar Basu, Sr. Adv.,
Mr. Anirban Tarafder ... For the Petitioner.
Mr. Imran Ali,
Ms. Debjani Sahu ... For the State.
In spite of service, none appears on behalf of the
complainant.
The present revisional application was preferred
challenging the Complaint Case No. 119 of 2011 (T.R. No. 95
of 2011) pending before the learned Judicial Magistrate, 1st
Court, Sealdah under Sections 109/200/350/406/464 of the
Indian Penal Code as also the orders passed therein.
The grievance of the complainant, as reflected from the
petition of complaint, is that his wife viz. Banani Saha was a
consumer of C.E.S.C Limited and is also a commercial meter
holder which was installed by the CESC. According to him,
the accused no.1 viz. Prabir Kumar Kundu illegally and by
counterfeiting the signature of the complainant's wife,
influenced the authority of North Regional office of CESC and
converted the name of the owner of the meter to his own
2
name. As the accused no.2 is responsible authority to
perform the connection in respect of new electric meter, the
complainant alleges that the said accused no.2 was in
conspiracy with the accused no.1. He further alleges that on
the basis of forged and manufactured documents, there has
been change of name so far as the electric meter being No.
2207744 is concerned and both the accused persons are in
conspiracy with each other. It has further been alleged that
the accused no.2 has refused to refund the security deposit of
the complainant and misappropriated the deposited security
money.
The cause title in the complaint refers to the present
petitioner as the District Engineer, North Regional Office,
226A & B, Acharya Prafulla Ch. Rd., Kolkata-700004.
Learned Additional Chief Judicial Magistrate, Sealdah
on perusal of the petition of complaint vide order dated
03.03.2011
was pleased to take cognizance of the offence
under Sections 419/406/350/464 of the Indian Penal Code
and transferred the same to the file of the learned Judicial
Magistrate, 1st Court, Sealdah for disposal in accordance with
law.
By an order dated 29.04.2011, the learned Judicial
Magistrate, 1st Court, Sealdah, on examination of the
complaint under Section 200 of the Code of Criminal
Procedure, was pleased to issue process under Section 204 of
the Code of Criminal Procedure.
On perusal of the order-sheets, it reflect that till
25.06.2015, the accused no.2 was not specifically spelt out in
personal name, but only the designation of the office was
referred to there. However, from the order dated 25.06.2015,
the learned Magistrate was pleased to issue summons upon
one Saibal Mitra as accused no.2. Subsequently by an order
dated 29.08.2015 summons was issued upon the present
petitioner and the ordersheet reflects that 'as details
furnished by the complainant'. By an order dated 18.12.2015,
the present petitioner entered appearance through his
learned lawyer before the learned Magistrate.
Mr. Basu, learned senior advocate appearing for the
petitioner contends that the manner in which the process has
been issued by the learned Magistrate by scratching out the
name of the previous person who was implicated as accused
no.2 is in gross violation of the settled principle of law as
there was no evidence before the learned Magistrate except
the allegation in the petition of complaint and the
examination under Section 200 of the Code of Criminal
Procedure. So far as the designation of the officer is
concerned, it was incumbent upon the learned Magistrate
whether at the relevant point of time, during which the
complaint was made, the petitioner was anyway or other in
charge of the office which has been designated as accused
no.2 in the complaint. The learned Magistrate having not
assessed the same and on a written petition, filed by the
complainant, issued process, the same violates the basic
tenets of law for implicating a person as an accused in a
criminal case. To that effect, the learned senior advocate
relies upon a judgment in Pepsi Foods Ltd. & Anr. Vs. Special
Judicial Magistrate & Ors. reported in (1998) 5 SCC 749.
It has further been contended that the CESC
authorities acted pursuant to the order passed by learned
Executive Magistrate, Sealdah in M.P. Case No. 3026 of 2010
wherein a specific direction was passed upon the Officer-in-
Charge of Chitpur Police Station to see that there should be
no disturbance or disruption to supply electricity to the room
of the accused no.1. Further there was a notarized affidavit
which was filed by the accused no.1 declaring himself as
tenant which is available in the CESC records.
The issuance of process by the learned Magistrate
inherently suffers from illegality as it was incumbent upon
the learned Magistrate first to ascertain whether the
petitioner at the relevant point of time, when the alleged
offence was committed, was the District Engineer. Secondly it
was also incumbent upon the learned Magistrate before
issuance of process to assess whether the office exercising
such power of supply of electricity and the officer concerned
was in an error of judgment or was having requisite mens rea
for entering into a conspiracy with the tenant. From the
allegations made in the petition of complaint, the examination
of the complainant and his witness under Section 200 of the
Code of Criminal Procedure and particularly, the order by
which process was issued against the present petitioner, I am
of the view that there has been total non-application of mind
of the learned Judicial Magistrate implicating the present
petitioner without proper information being furnished for
implicating a responsible officer to face the consequence of
criminal trial. The manner in which the petitioner has been
roped in the present criminal case, is in gross abuse of
process of the court and further continuance of the same
should not be allowed to continue. Accordingly, all further
proceedings, so far as the present petitioner is concerned,
arising out of Complaint Case No. 119 of 2011 pending before
the learned Judicial Magistrate, 1st Court, Sealdah are hereby
quashed.
The revisional application being CRR 458 of 2016 is,
thus, allowed.
Interim order, if any, is hereby made absolute.
All pending connected applications, if any, are
consequently disposed of.
All parties shall act on the server copy of this order
duly downloaded from the official website of this Court.
(Tirthankar Ghosh, J.)
