Calcutta High Court (Appellete Side)
Dilip Kishore Dutta vs The State Of West Bengal & Ors on 11 November, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRR 752 of 2022
Dilip Kishore Dutta
-Vs-
The State of West Bengal & Ors.
For the Petitioner: Mr. Santu Chakraborty, Adv.,
Mr. Abu Siddique Mallik, Adv.
Heard on: 11 November, 2022.
Judgment on: 11 November, 2022.
BIBEK CHAUDHURI, J. : -
1.
The defacto complainant of New Alipore P.S C/No.73 of 2011
corresponding to CGR 1705 of 2011, under Sections 120B/420/
406/467/468/471 of the IPC has filed the instant revision challenging the
legality, validity and propriety of the order dated 29th December, 2021
passed by the learned Chief Judicial Magistrate at Alipore.
2. For the purpose of adjudication of the instant revision, it is
pertinent to mention that police submitted charge-sheet against the ten
accused persons under Sections 420/120B of the IPC. Out of the said ten
accused persons two accused persons died during the pendency of the
case and the case against them was filed forever.
3. It is submitted by the learned Advocate for the petitioner that
initially police submitted charge-sheet against nine accused persons
leaving aside the principal accused. Subsequently, the defacto
complainant filed an application under Section 173(8) of the Code of
Criminal Procedure praying for further investigation in respect of the
offence and supplementary charge-sheet against the said accused has
also been filed by the Investigating Officer.
4. That on 27th January, 2020 the learned Magistrate passed an order
fixing 15th April, 2020 for appearance of all the accused persons/private
opposite parties, in default, it was directed that warrant of arrest would
be issued against them. Subsequently, on 5th October, 2021 the learned
Magistrate reiterated the said order dated 27th January, 2020 directing
the accused persons to comply fixing 29th December, 2021.
5. On 29th December, 2021 a petition was filed on behalf of the
accused persons 1-5, 8 and 10/private opposite parties stating their
absence. The learned Advocate for the defacto complainant prayed for
issuance of warrant of arrest against the absentee accused persons in
view of the order dated 27th January, 2020 and 5th October, 2021. The
learned Magistrate in his impugned order noted that the absentee
accused persons were being represented by their learned Advocate.
Moreover, the said date was fixed for hearing of the defacto complainant's
petition under Section 173(8) of the Cr.P.C. Therefore, the learned Chief
Judicial Magistrate, South 24 Parganas found that it was not obligatory to
issue warrant of arrest against the absentee accused persons as date was
fixed for hearing of the application filed by the defacto complainant under
Section 173(8) of the Cr.P.C.
6. Being aggrieved against the aforementioned order, the defacto
complainant has filed the instant revision.
7. I have heard the learned Advocate for the petitioner. In spite of
service of notice the opposite parties remain unrepresented.
8. Having heard the learned Advocate for the petitioner and on careful
perusal of the entire materials on record it is ascertained that the accused
persons have already been enlarged on bail. They have also received the
copies of police report and other documents in compliance of Section 207
of the Cr.P.C. However, trial of the case has not been commenced as yet
due to pendency of petitioner's application under Section 173(8) of the
Cr.P.C.
9. Under such backdrop, the learned Magistrate refused to issue
warrant of arrest against the absentee accused persons.
10. It is submitted by the learned Advocate for the petitioner referring to
a decision of the Hon'ble Supreme Court in XXX vs. State of Kerala &
Ors (Criminal Appeal No(s).1444/2021, dated 22nd November, 2021)
that the court does not have the power to alter the judgment and order
once passed, except to correct the clerical or arithmetical error. Section
362 of the Cr.P.C prohibits the Court from altering its judgment and
order. Thus, it is contended by the learned Advocate for the petitioner that
the impugned order dated 29th December, 2021 is in the nature of altering
the order dated 27th January, 2020 passed by the same Court which the
learned Magistrate cannot pass in view of the provision contained in
Section 362 of the Cr.P.C.
11. I have already noted the gist of the impugned order. The opposite
parties/accused persons who were absent on the 29th December, 2021
were represented by their learned Advocate. The learned Advocate for the
accused persons filed a petition on behalf of the accused persons and
represented them before the learned Magistrate. The impugned order
suggests that the learned Magistrate was satisfied that the personal
attendance of the accused before the court on 29th December, 2021 was
not necessary and permitted the learned Advocate for the accused
persons to represent them. The above satisfaction by the learned
Magistrate is in the nature of the provision contained in Section 317 of
the Cr.P.C.
12. Therefore, I do find any illegality or material irregularity in the order
dated 29th December, 2021.
13. The instant criminal revision is accordingly dismissed on contest.
14. However, considering the fact that the application under Section
173(8) of the Cr.P.C filed by the petitioner is pending for a long time for
disposal, the learned Chief Judicial Magistrate Alipore is directed to
dispose of the said application positively within one month from the date
of communication of this order.
15. Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties subject to compliance with all requisite formalities.
(Bibek Chaudhuri, J.)
