Supratik Ghosh vs State Of West Bengal & Anr
2022 Latest Caselaw 48 Cal

                      IN THE HIGH COURT AT CALCUTTA

                   CRIMINAL REVISIONAL JURISDICTION

                              APPELLATE SIDE

Before:

The Hon'ble Justice Ananda Kumar Mukherjee



                        C.R.R No. 188 of 2020

                            Supratik Ghosh

                                  Vs.

                        State of West Bengal & Anr.


For the Petitioner:                  Mr. Tapas Dutta, Advocate

Opposite Party No. 2:                Mr. Sourav Mondal, Advocate

Heard on :                           08.12.2021

Judgment on:                         10.01.2022.



Ananda Kumar Mukherjee, J. :-

1.

Petitioner preferred this revisional application under section 482 of the

code of Criminal Procedure being aggrieved and dissatisfied with order dated

16.11.2019 passed by the Learned Judicial Magistrate 2nd Court at Alipore in

Case No. C/ 4108 of 2011 under section 420/ 120 B of the Indian Penal Code,

filed against Opposite Party no. 2 and others, whereby Learned Magistrate has

discharged the accused persons under section 245 (2) of Cr. P.C. due to

absence of the complainant on the date fixed for evidence.

2. Learned Advocate for the petitioner submitted that the petitioner filed a

complaint case before the Learned Chief Judicial Magistrate, Alipore which was

registered as Case No. C/ 4108 of 2011 and transferred to the 2nd Court of

Learned Judicial Magistrate at Alipore for disposal. The petitioner wanted to

produce some documents as evidence which were seized from him by police in

connection with Tollygunge P.S Case No. 52 of 2011 but were not returned. In

this connection Writ petition no. 31667 (w) of 2013 was filed by the petitioner

and by order dated 26.06.2018 this court permitted the petitioner to produce

certified copies of those documents in the evidence. Subsequently, the

petitioner filed a Criminal Revision No. 3 of 2019 before this Court for quick

disposal of the complaint case. By order dated 05.03.2019 this court directed

Learned Magistrate to dispose of the pending case as early as possible.

3. Further case of the petitioner/complainant is that the complaint case

was fixed on 15.06.2019 for evidence, which was three months after the early

date. Learned Advocate for the petitioner filed an application before the

Learned Magistrate for preponing the date for hearing but the application was

rejected.

4. According to the petitioner after examining the complainant as PW-1, Mr.

Saroj Praharaj S.I. of police was examined as PW-2 in the case and he

produced some documents including 21 bills, 18 challans, 4 cheques and 4

cheque return memos along with letter dated 21.08.2000 and 06.09.2000.

Learned Magistrate collectively marked those documents as "P/4" but did not

admit them in evidence by putting exhibit marks. Since PW-2 did not produce

some documents on that date, he sought for time as a result the case was

adjourn to 20.07.2019.

5. According to the petitioner on 20.07.2019 the case could not be taken up

for hearing as learned Magistrate was on leave and the Magistrate-in-Charge

refused to take evidence. It is alleged that as the petitioner/ complainant

thereafter filed writ petition no. 15422 (w) of 2019. On 25.09.2019 though the

Advocate for the complainant and the witness, PW-2 were present in court,

learned Magistrate refused to take evidence in the absence of the accused

person. Learned Advocate for the petitioner submitted that on 15.06.2019

learned Magistrate in absence of the accused persons had recorded evidence

but on 25.09.2019 he refused to take evidence despite the presence of the

witness in court.

6. It is further contended that on 15.10.2019 the complainant's advocate

was present in court but due to the absence of the complainant learned

Magistrate issued an order directing the complainant to show-cause and

recorded that no step was taken by the complainant till 12:25 p.m. The main

contention of the petitioner/complainant is that on 16.11.2019, PW-2, Saroj

Praharaj S.I. of Police Tollygunge P.S. who was examine in part could not

appear in court due to his illness and step was taken for fixing another date for

his evidence but learned Magistrate rejected the cause shown by the

complainant for his absence, on the ground that it was without any verification

or signature of the litigant and in the same order discharged the accused under

section 245(2) of the Cr. P.C.

7. Learned Advocate for the petitioner argued that the complainant was

already examined in full and his attendance was not necessary on the date of

examination of PW-2 who was also partly examined. It is urged that there is no

provision in the Code of Criminal Procedure requiring verification of an

application showing cause and even if the same is deemed necessary, a defect

in the verification of an application cannot result in discharge of the accused

person. Learned Advocate contended that the impugned order passed by

learned Magistrate suffers from illegality, impropriety and is liable to be set

aside invoking the inherent jurisdiction of this court under section 482 of the

Code of Criminal Procedure, else which there will be abuse of the process of

court.

8. In support of his argument learned Advocate for the petitioner relied

upon a decision of the Hon'ble Supreme Court in Associated Cement Co. Ltd

V. Keshvanand (1998) 1 SCC 687, wherein it has been observed, "When the

court notices that the complainant is absent on a particular day the court must

consider whether the attendance of the complainant is essential on that day

for the progress of the case and also whether the situation does not justify the

case being adjourned to another date due to any other reason. If the situation

does not justify the case being adjourn the court is free to dismiss the

complaint and acquit the accused. But if the presence of the complainant on

that day was quite unnecessary then resorting to the step of axing down the

complaint may not be a proper exercise of the power envisaged in the section.

The discretion must therefore be exercised judicially and fairly without

impairing the cause of administration of criminal justice.

18. "When considering the situation of this case as on 24.08.1996, from the

facts narrated above, we have no manner of doubt that the Magistrate should

not have resorted to the axing process, particularly since the complainant was

already examined as a witness in the case besides examining yet another

witness for the prosecution."

9. In another decision cited on behalf of the petitioner, in the case of Ajay

Singh and another V. State of Chhattisgarh and another, (2017) 3

Supreme Court Cases 330, learned Advocate for the petitioner referring to the

provision of section 227 of the Cr. P.C, applicable to sessions triable cases,

argued that learned Magistrate has to exercise his judicial mind to the facts of

the case in order to determine whether a case for trail has been made out by

the prosecution and at the time of assessing such fact, it is not necessary for

the court to enter into the pros and cons of the matter or into a weighing and

balancing of evidence and probabilities which is really the function of the court,

after trial starts.

10. Learned Advocate for Opposite Party no. 2 assailing the contentions

argued that there is no merit in the revisional application filed by the

petitioner. It is submitted that the complaint was lodged by the petitioner in

the year 2001 and he could not complete the evidence within four years.

Referring to West Bengal State amendment relating to section 245 (3) of the

Code of Criminal Procedure, it is contended on behalf of the Opposite Party no.

2 that if the evidence referred to in section 244 are not produced in support of

the prosecution within four years from the appearance of the accused, the

Magistrate shall discharge the accused unless the prosecution satisfied the

Magistrate that upon the evidence already produced and for special reasons

there is ground for presuming that it was not be in the interest just to

discharge the accused. It is urged by learned Advocate for Opposite Party No 2

that the Petitioner/ Complainant has resorted to dilatory tactics for which he

has not been able to adduce any material evidence till date for which the

accused person has been discharged. It is submitted that the present petition

is also liable to be dismissed.

11. I have considered the arguments advanced by learned Advocate for both

parties in the backdrop of the facts and circumstances of this case and the

relevant provisions of law. It appears from the certified copy of the impugned

order passed in case no. C/ 4108 of 2011 that the allegations against the

accused/Opposite Party no. 2 is under section 420/ 120 B of the I.P.C. The

alleged offence is a cognizable one but compoundable in nature. Section 249 of

the code of Criminal Procedure has laid down, "When the proceedings have

been instituted upon complaint, and on any day fixed for the hearing of the case,

the complainant is absent, and the offence may be lawfully compounded or is not

a cognizable offence, the Magistrate may, in his discretion, notwithstanding

anything hereinbefore contained, at any time before the charge has been framed,

discharge the accused." Accordingly in a warrant proceeding case arising out of

a compliant, absence of a complainant may result in discharge of the accused

person before a charge has been framed, if the offence is lawfully

compoundable and it is not a cognizable offence. Therefore, it is clear that an

accused may be discharged if the offence is not a cognizable one but in the

instant case the offence being a cognizable one, the provisions of section 249 of

the Code of Criminal Procedure would not be attracted.

12. The impugned order has been passed by the learned Magistrate resorting

to the fact that the application filed on behalf of the complainant showing

cause, did not bear any verification or signature of the complainant. It is true

that an application which contain some assertion should be verified by the

person making the statements for holding such person responsible regarding

its genuineness. However, there is no provision which makes such verification

essential. In the instant case it is undisputed that the complainant has already

been examined and PW-2 S.I. Saroj Praharaj having been examined in part,

appeared on another date for his evidence but he was not examined by the

learned Magistrate on the ground that the accused person was absent. On the

subsequent date the witness was not present and sought for time for his

evidence but learned Magistrate had directed the complainant to show-cause

for not appearing in person. Though order dated 15.10.2019 has not been

produced by the petitioner, it appears from order dated 16.11.2019 that on

15.10.2019 the complainant was absent without steps and nobody represented

him despite repeated calls and only at 12:25 p.m. the complainant was directed

to show-cause. Non-production of order dated 15.10.2019 on the part of the

petitioner does not extend any assistance to this court to observe whether the

petitioner had at all been represented on that date or not and whether learned

Magistrate was justified in issuing an order directing him to show-cause. This

conduct of the petitioner of playing truant and blaming the court is indeed

depricable.

13. The crux of the issue before this court is whether learned Magistrate was

justified in discharging the accused person under section 245(2) of the Cr. P.C

for the failure on the part of the complainant to show-cause with verification

and signature on the application. In my considered view it would be a legal

necessity on the part of learned Magistrate under section 245 (2) of the Cr. P.C

to consider and record reasons that no case against the accused has been

made out which, if unrebutted would warrant his conviction. In absence of

such evidence the accused may be discharged. I do not find any such finding or

observation made by the learned Magistrate in the impugned order. It appears

that learned Magistrate has been swayed by the sole reason that he did not

find the cause shown by the complainant to be in proper form. In this context

it needs to be mentioned that an accused person could be discharged under

section 245 (2) of Cr. P.C if the Magistrate for reasons recorded found that the

charge was groundless. Learned Magistrate has discharged the accused under

section 245(2) of Cr. P.C. without considering the evidence of PW-1 and PW-2

before charge and before arriving at any finding that the charge levelled against

the accused was groundless, and not tenable.

14. Learned Advocate for the Opposite Party no. 2 has drawn my attention

to the West Bengal state amendment incorporating section 245(3) of Cr. P.C,

whereby an accused could be discharge if prosecution evidence was not

completed within four years. In the instant case no such reason has been

assigned nor had there been any direction to the complainant to adduce

evidence within any specified period. To the contrary, it has been noticed that

even after a direction passed by this court to dispose of the case at the earliest,

proceeding in that regard was conspicuously absent.

15. Learned Advocate for the petitioner, relied on the ratio of the decision

reported in (1998) 1 SCC page 687 at paragraph 17 and 18, wherein Hon'ble

Supreme Court while dealing with the scope of section 247 of Cr. P.C (of old

Code corresponding to SCC 256 of the new code) observed that if the presence

of the complainant on that date was quite unnecessary then resorting to the

step of axing down the complaint may not be a proper exercise of the power

envisaged in the section. On careful reading of the above decision it appears

that the same relates to summons cases and would not apply to the present

case. Here we are not concerned with the provisions of section 249 of Cr. P.C,

which could have resulted in discharge of the accused due to absence of the

complainant if the offence was a non cognizable and compoundable one. The

provision under section 245 of the Criminal Procedure Code however does not

foresee a situation where the absence of the complainant can be a ground for

discharging of the accused without considering the evidence already adduced

by the complainant witnesses before charge. The other decision reported in

(2017) 3 SCC page 330, which discussed the scope of section 227 of the Cr.

P.C related sessions trial also does not apply to warrant proceeding cases

instituted otherwise than on police report.

16. In the light of my above discussion I hold that the impugned order dated

16.11.2019 passed by learned Judicial Magistrate 2nd Court at Alipore in case

no. C/4108 of 2011 suffers from illegality and impropriety and the same is

liable to be set aside.

17. The revisional application under section 482 of the Code of Criminal

Procedure is allowed on contest against Opposite Party no. 2. Complaint Case

No C-4108 of 2011 is resorted to its original number and file. Learned Judicial

Magistrate is directed to give opportunity to the petitioner/ complainant to

adduce evidence within a reasonable period from the date of communication of

the order, preferably within six months. In view of my above finding I.A No.

CRAN/1/2020(old I.A. CRAN/1203/2020 also stands disposed of.

18. Criminal Section is directed to send a copy of the judgment to learned

Judicial Magistrate, 2nd court at Alipore for information and necessary action.

19. Urgent Photostat certified copy of this judgment, be supplied to the

parties if applied for maintaining all formalities.

(Ananda Kumar Mukherjee, J.)