M/S. Krishna Apartments Private ... vs The State Of West Bengal & Ors
2022 Latest Caselaw 7521 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE

The Hon'ble JUSTICE BIBEK CHAUDHURI


                            CRR 1402 of 2022

               M/s. Krishna Apartments Private Limited
                                 -Vs-
                   The State of West Bengal & Ors.

      For the Petitioner:      Mr. Sekhar Kumar Basu, Sr. Adv.,
                               Mr. Saptarshi Dutta, Adv.

Heard on: 14 November, 2022.
Judgment on: 14 November, 2022.

BIBEK CHAUDHURI, J. : -

1.

Having heard Mr. Sekhar Kumar Basu, Learned Senior Advocate on

behalf of the petitioner, this Court passes the following order in

continuation of order dated 1st September, 2022.

2. By filing the instant revision, the petitioner has prayed for a

direction upon the trial court for reconstruction of lower court record in

connection with case No.C/25499 of 2013. On 1st September, 2022 when

the matter was initially heard, the court refrained from passing final order

and Mr. Basu was requested to address this Court as to whether in view

of the specific provision of reconstruction of record contained in the

Criminal Rules and Order, this Court can pass an order allowing the

prayer of the petitioner under Section 482 of the Cr.P.C.

3. Mr. Basu, the learned Senior Counsel refers to a decision of the

Hon'ble Supreme Court in State of U.P. vs. Abhai Raj Singh & Anr : AIR

2004 SC 3235 and submits that an order of acquittal passed by the

Allahabad High Court on the ground that the lower court record was not

traceable was set aside by the Hon'ble Supreme Court and the appeal was

remitted back to the High Court directing reconstruction of record. On the

same issue Mr. Basu refers to an unreported decision of the Hon'ble

Supreme Court in the case of Kunwar Bahadur Singh vs. Sheo Baran

Singh & Ors. dated 29th November, 2000.

4. Chapter XXI of the Calcutta High Court Criminal (Subordinate

Courts) Rules 1985 deals with "Reconstruction of Records and Registers

Destroyed or Damaged by Fire". However, the same formalities are to be

followed when a record is destroyed otherwise, such as flood or riot, or

when the record is lost and remains untraceable.

5. Most important element of these rules is that if a port of a

particular record is lost or destroyed, the Presiding Officer of the concern

Court should at once take personal charge of the rest of the record which

is still available. Then, he should at once report to the High Court through

the Registrar General. Thereafter the reconstruction process should start.

Minutes of the steps for reconstruction should also be preserved.

6. With regard to reconstruction of records, Rule 365-367 are

absolutely important and quoted below:-

"R. 365. (a) If the records of any case whether pending or disposed of are destroyed, the Presiding Officer shall take such steps as may be necessary to reconstruct the papers destroyed and for this purpose he may send notice to the lawyers concerned or to any other authority dealing with any

matter in connection with the case under orders of the court or authority of law.

(b) If any list of documents or any exhibit has been destroyed, the same shall be reconstructed by demanding duplicate copies of the same from the persons who originally filed them in court.

R. 366. (a) Particulars gathered shall be carefully scrutinized by the Presiding Officer and after being satisfied about their genuineness he shall sign a certificate on each page of the documents reconstructed that the same has been reconstructed under his supervision.

(b) If any register relating to the pending case is available the lawyers concerned shall be allowed to consult the entries of the same and to take notes of them free of charge.

R. 367. (1) Affidavits which are found to have been destroyed along with the records may be reconstructed by obtaining copies thereof from the party originally swearing the same with notice to the other party failing which the party concerned shall be asked to swear fresh affidavits.

(2) In case any affidavit is required to be re-sworn by any party under sub-rule (1), this may be done without payment of any fresh court fee, if so ordered by the Presiding Officer."

7. It is ascertained from the submission made on behalf of the

petitioner that case No.C/25499 of 2013 is a complaint under Section 200

of the Cr.P.C alleging an offence under Section 138/141 of the Negotiable

Instruments Act. The complainant/petitioner has stated on solemn

affirmation that the copies of the written complaint and certified copies of

the orders passed by the learned Magistrate in the aforesaid case are in

his custody and he is able to produce the said documents for

reconstruction.

8. Under such circumstances, the instant revision is disposed of

directing the learned Metropolitan Magistrate 20th Court, Calcutta to take

immediate step for reconstruction of the record of C/25499 of 2013

serving notice to both the complainant and the accused.

9. The complainant is at liberty to act on the server copy of the order.

10. This order be treated as part of the order dated 1st September,

2022.

11. 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.)