Calcutta High Court (Appellete Side)
Kartick Kumar Chatterjee & Ors vs The State Of West Bengal & Anr on 10 June, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH
CRR 1682 of 2017
+
IA No. CRAN 1 of 2017 (Old No. CRAN 3103 of 2017)
Kartick Kumar Chatterjee & Ors.
-Vs.-
The State of West Bengal & Anr.
With
CRR 2763 of 2017
+
IA No. CRAN 1 of 2020
D & I Taxcon Services Pvt. Ltd.
-Vs.-
State of West Bengal & Ors.
With
CRR 3509 of 2019
+
IA No. CRAN 1 of 2020
+
IA No. CRAN 2 of 2021
D & I Taxcon Services Pvt. Ltd.
-Vs.-
State of West Bengal & Ors.
2
Mr. Ayan Bhattacharyya,
Mr. Aditya Ratan Tiwary,
Mr. Aditya Gooptu
....For the petitioners in CRR 1682 of 2017and
Opposite Party Nos. 2 to 5 in CRR 2763 of 2017
& CRR 3509 of 2019
Mr. Tapas Dutta,
Mr. Mritunjoy Halder
.... for the Petitioner in CRR 2763 of 2017 & CRR
3509 of 2019 and Opposite Party No.2 in CRR
1682 of 2017.
Heard on : 21.03.2022, 21.04.2022, 02.05.2022,
04.05.2022 & 18.05.2022
Judgment on : 10.06.2022
Tirthankar Ghosh, J:-
CRR 1682 of 2017
The stage at which the petitioner approached this Court for quashing of
the proceedings is presently infructuous, as specifically by an order dated
08.11.2019
the learned Metropolitan Magistrate, 3 rd Court, Calcutta was
pleased to discharge the accused persons under Section 245 (1) of the Code of
Criminal Procedure.
Accordingly, CRR 1682 of 2017 is dismissed as infructuous.
Pending applications, if any, is consequently disposed of.
CRR 2763 of 2017
The revisional application has been preferred for expeditious disposal of
the case. In view of the complaint case no. C-24095 of 2012 being dismissed
and the accused persons being discharged, the revisional application being
CRR 2763 of 2017 has become infructuous, consequently the same is
dismissed as infructuous.
Pending applications, if any, is consequently disposed of.
CRR 3509 of 2019
The present revisional application was preferred challenging the order
dated 08.11.2019 wherein the Learned Metropolitan Magistrate, 3 rd Court,
Calcutta was pleased to discharge the accused persons namely, Kartick Kumar
Chatterjee, G. Gangopadhyay, Atish Bose and Amitava Goldar under Sections
245(1) of the Code of Criminal Procedure in connection with case no. C-24095
of 2012.
The background of the case is that initially an FIR was registered being
Hare Street police station case no. 325 dated 03.06.09 under Section 447/427
of the Indian Penal Code on the basis of an application under Section 156(3) of
the Code of Criminal Procedure filed by the present petitioner.
On completion of investigation the police authorities opined that the
responsibility in respect of the offence alleged could not be fixed up against any
person and closed the investigation of the said case. On 24.04.2012 the
present petitioner being aggrieved preferred an application under Section
173(8) of the Code of Criminal Procedure before the learned Chief Metropolitan
Magistrate and the learned Chief Metropolitan Magistrate by an order dated
18.10.2012 was pleased to accept the final report submitted by the
Investigating Officer of the case, however, by the same order the learned
Magistrate was pleased to take cognizance under Section 190 Cr.P.C. of the
offences as made out in the petition under Section
427/436/440/447/448/500/506 of the Indian Penal Code and transmitted
the records of the case to the learned Metropolitan Magistrate, 3 rd Court,
Calcutta for enquiry into the complaint and further proceedings. The learned
Metropolitan Magistrate, 3rd Court, Calcutta after examination of the
complainant by an order dated 11.07.2016 was pleased to opine that a prima
facie case under Sections 427/447/448/500/506 of the Indian Penal Code was
made out and subsequently issued process for appearance of the accused
persons. Needless to state that on receipt of the summons the accused
persons appeared and were released on PR bond.
Thereafter, the accused/opposite parties challenged the proceedings of
complaint case no. C-24095 of 2012 and initially the proceedings before the
learned Metropolitan Magistrate, 3 rd Court, Calcutta was stayed. As a result of
such interim order being granted, dates were fixed by Learned Metropolitan
Magistrate however, the proceeding before the learned Trial Court was settled.
The records of the Learned Magistrate's Court reflect that by an order
dated 18.05.2018 the Learned Magistrate was initially pleased to fix
23.08.2018 for plea (i.e. examination of the accused persons under Section 251
of the Code of Criminal Procedure), however, on 23.08.2018 the learned
Magistrate was of the opinion that the case should be fixed for consideration of
charge and accordingly fixed 27.11.2018. Complainant was present, however,
the case was adjourned on the adjournment prayer of the accused persons and
the learned Magistrate fixed 14.01.2019 for consideration of charge, on the said
date because of the resolution of the local Bar there was no progress and the
next date was fixed on 08.03.2019, on 08.03.2019 the complainant was
present, however, the Presiding Officer was on leave and as such the next date
fixed was on 24.04.2019 for consideration of charge, same order was passed on
24.04.2019 and the next date was fixed on 24.06.2019. On 24.06.2019 the
learned Metropolitan Magistrate found that the complainant was absent on
calls and directed to file show-cause, fixing 28.08.2019 as the next date. On
28.08.2019 the complainant was not present and as such the learned
Magistrate closed the evidence before charge and fixed date for consideration of
charge. On 26.09.2019 date was fixed on 08.11.2019 and on 08.11.2019
learned Magistrate was of the opinion that as the complainant has not adduced
any evidence, therefore, there is lack of evidence and as such no sufficient
materials are there for framing of charge, so the accused should be discharged
under Section 245(1) of the Code of Criminal Procedure.
Mr. Dutta, learned Advocate, appearing for the petitioner submitted that
for a considerable period of time the learned Magistrate recorded that the dates
were fixed for hearing on the point of consideration of charge and suddenly on
28.08.2019 date was fixed for evidence before charge. According to the learned
Advocate the order of discharge passed on 08.11.2019 is illegal as without
assigning any reasons the learned Magistrate has discharged the accused
persons. Learned Advocate to that effect has relied upon Ratilal Bhanji Mithani
-Vs. - State of Maharashtra, (1979) 2 SCC 179; Sherish Hardenia & Ors. -Vs. -
State of M.P., (2014) 14 SCC 406 and additionally an unreported judgment
being order dated 10.01.2022 in CRR 188 of 2020 (Supratik Ghosh -Vs. - State
of West Bengal & Ors.) which has also been relied upon by the learned
Advocate.
Mr. Ayan Bhattcharya, learned advocate appearing for the petitioners
has stressed on the issue that the nature of the order so passed by the learned
Magistrate is under Section 256 of the Code of Criminal Procedure which
impliedly is an order of acquittal and an appeal is required to be filed instead of
a revisional application which has been preferred by the present petitioner. The
learned advocate has stressed on this issue and submitted that as the
complaint case is the genesis of the revisional application, therefore Special
Leave to appeal is to be preferred and under no circumstances this Court is
empowered to convert revisional application to an appeal as prior to admission
of appeal, Special Leave is to be granted which requires judicial application of
mind. Learned advocate relied upon the following decisions:
Municipal Corporation of Greater Mumbai -Vs. - Pankaj Arora (Secretary)
& Ors., (2018)3 SCC 699; M. Ramamurthy -Vs. - N. A. Ramakrishnan, 2014
SCC OnLine Mad 6790; Bikash Bhuiya -Vs. - Nepal Chandra Das & Anr.,
(2021) Gauhati Law Reports 721; R.P.G. Transmission Ltd. -Vs. - Sukura
Seimitsu (I) Ltd. & Ors., 2005 CRI. L.J. 2862; Benny Daniel -Vs. - M/s Gold
Galaxy, 2017 SCC OnLine Ker 10914; Synco Industries Ltd. -Vs. - Assessing
Officer, Income Tax, Mumbai & Anr., (2008) 4 SCC 22 and Md. Kasimuddin -
Vs. - Yunus Ali Mondal & Ors., 1983 CRI. L.J. 885 (Cal).
I have considered the submission advanced by both the parties and also
scrutinized the Lower Court Records. On consideration of the Lower Court
Records, I am of the view that the learned Magistrate in seisin of the matter
was not procedural confident regarding the manner in which the case is to be
progressed. Firstly, on 18.05.2018 the learned Magistrate fixed date for plea
(examination under Section 251 of the Code of Criminal Procedure) then on
23.08.2018 the learned Magistrate fixed date for hearing on the point of
consideration of charge and the same nature of order continued till
24.04.2019. Suddenly, on 24.06.2019 the learned Magistrate recorded why the
case should not be dismissed for non-prosecution and on 28.08.2019 closed
the evidence before charge, fixing 26.09.2019 for consideration of charge. It
would not be out of place to state that from 18.05.2018 the complainant was
present on number of occasions and the case was dragged over the issue of
consideration of charge, although under the procedural law in a warrant
procedure case initiated otherwise that on police report the learned Magistrate
was bound to record in the order that date is to be fixed for evidence before
charge. The subsequent order of the learned Magistrate closing the evidence
before charge has seriously prejudiced the complainant in the instant case as
the complainant was not made aware that he has to adduce evidence prior to
the charge being considered as the dates were fixed for "consideration of
charge". Another important aspect in this case is that there were allegations
which included offences punishable under Section 506 of the Indian Penal
Code which under the said provision would include "to cause the destruction of
any property by fire" the offence so prescribed under the said provision would
thus follow the provisions of 'warrant procedure case' as prescribed under the
Code. Thus, the contention advanced by the learned advocate appearing for the
private opposite party that the provisions of Section 256 of the Code of
Criminal Procedure are to be adopted is not tenable in the eye of law which is
applicable only to summons procedure case.
On a scrutiny of the Lower Court Records, I find that the act and actions
of the learned Court while conducting the Judicial Proceedings so far as the
applicability of the Code of Criminal Procedure is concerned was against the
settled proposition of law which has seriously prejudiced the complainant of
the case and as such the order dated 08.11.2019 passed by the learned
Metropolitan Magistrate, 3rd Court, Calcutta in C-24095 of 2012 is liable to be
set aside.
Consequently the revisional application being CRR 3509 of 2019 is
allowed.
Department is directed to send back the Lower Court Records and the
learned trial Court is directed to fix date for evidence before charge after
informing both the parties.
Pending application, if any, is consequently disposed of.
All parties shall act on the server copy of this judgment duly downloaded
from the official website of this Court.
Urgent Xerox certified photocopy of this judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(Tirthankar Ghosh, J.)
