Calcutta High Court (Appellete Side)
Shivajee Mukhopadhyay vs The State Of West Bengal & Anr on 28 November, 2022
28.11.2022
Court No.35
Item No. 3 CRR 446 of 2015
With
D.Hira CRAN 4 of 2017 (Old No. CRAN 3986 of 2017)
Shivajee Mukhopadhyay
Vs.
The State of West Bengal & Anr.
Mr. Sourav Chatterjee,
Ms. Namrata Chatterjee.
... For the petitioner
Mr. Narayan Prasad Agarwala,
Mr. Pratick Bose.
... for the State
Petitioner's grievance is relating to the proceedings initiated
against him pursuant to the FIR being Barrabazar Police Station Case
No. 477 of 2013 dated 18th September, 2013 under Sections
420/467/468/471/477A/409/419/120B of the Indian Penal Code.
Mr. Agarwala, learned Advocate appearing on behalf of the State
has raised vehement objection to the prayer of the petitioner and has
sought for presence of the defacto-complaints in view of the nature of
the offence as alleged in this case.
After perusing the record, it transpires that in spite of service on
several occasions, the opposite parties other than the State remained
not present in Court. Court's order would clearly reveal that opposite
parties, excepting State, have lost interest in contesting this case.
Under such circumstances, it is not found prudent to wait for the
opposite parties excepting the State, to allow them to find sometime to
make their appearance in Court.
It is very pertinent to mention that the matter relates to the year
2015, hence without wasting any further time seeking appearance of
the opposite parties who are apparently not interested any more in
contesting the matter, the matter is taken up for disposal on merit.
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Petitioner's grievance is basically on two grounds. Firstly, that
the instant case has been initiated by dint of an order of learned
Magistrate passed under Section 156 (3) of the Code of Criminal
Procedure without however, complying the mandatory pre-conditions as
envisaged under law for passing such an order. Sections 154(1), 154(3)
of the Code of Criminal Procedure have been referred to, in this regard.
In support, the following two judgments of the Hon'ble Supreme
Court are also referred to and it is submitted that the Hon'ble Supreme
Court has held that compliance with the statutory pre-conditions is
mandatory. Hence, without the same the present case by the opposite
party against the petitioner started under Section 156 (3) of the Code of
Criminal Procedure shall be dehors the settled law.
i. Babu Venkatesh & Ors. vs. State of Karnataka & Anr.
reported in (2022) 5 Supreme Court Cases 639.
ii. Priyanka Srivastava & Anr. vs. State of Uttar Pradesh
& Ors. reported in (2015) 6 Supreme Court Cases 287.
Other point envisaged is of the complainant's having and availing
the alternative remedial measure as provided under law, who has
espoused his cause before an Arbitration and the petitioner has
challenged the Award passed by the Arbitrator on 9th July, 2012, in an
appeal.
It is submitted that the said appeal is still pending.
Excepting the above two judgments of the Hon'ble Supreme Court
the following two orders of the Coordinate Bench of this Court has also
been referred to, when on the similar facts and circumstances, the
proceedings initiated against the petitioner has been quashed by this
Court, i.e.,
i. Order dated 05.07.2010 in CRR 2826 of 2009
ii. Order dated 22.02.2013 in CRR 2716 of 2010
Fact remains that the opposite party no. 2 filed the complaint in
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the Trial Court alleging the facts inter alia, that the petitioner/accused
person is the trader who has been entrusted by the complainant to do
trade in market, for him. Allegation against him is of unauthorized
transaction of complaint's share and negligent service given, to award
him wrongful gain and sufferance of prejudice and wrongful loss by the
complaint.
The Trial Court by dint of its order dated 22nd August, 2013
directed the police authorities to register a case and initiate the
investigation.
However, record reveals before initiation of the criminal
proceeding the complainant/opposite party has already undertaken
recourse to the arbitration proceedings suggesting therefrom availability
of the alternative remedy for him as well as the case to be civil in
nature. So far as the ingredients of the alleged offence and availability
of those against the petitioner is concerned in this case, considering the
complaint and the other materials available in this case, I am
constrained to find that the same do not appear to be present against
the petitioner in this case.
According to the governing regulations, due procedure had been
initiated against the petitioner and the litigation is still continuing. The
various essential ingredients, criminality or criminal intent is found
absent in this case, on his part. Other statutory remedies being
available against the petitioner and being availed of, criminal
proceedings, appear to be an abuse of the process of law.
No loss important is to mention that no material is available on
record to show compliance of Section 154(1) or (3) of the Code of
Criminal Procedure by the complaint. Hence, his action is also in
defiance of the law settled in this regard by the Hon'ble Supreme Court,
in the two judgments mentioned above.
Considering the materials, facts and also discussions as above, I
am inclined to find that the proceedings as envisaged against the
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present petitioner being Barrabazar Police Station Case No. 477 of 2013
dated 18th September, 2013 under Sections
420/467/468/471
/477A/409/419/120B of the Indian Penal Code and
all subsequent actions of the prosecution since thereafter shall not be
maintainable and would be liable to be quashed and set aside.
Hence, the criminal revision being CRR 446 of 2015 is allowed.
All the proceedings/further proceedings in connection with Barrabazar
Police Station Case No. 477 of 2013 dated 18th September, 2013 under
Sections 420/467/468/471/477A/409/419/120B of the Indian Penal
Code are quashed and set aside.
All pending applications, if any, are consequently disposed of.
All parties shall act on the server copies of this order duly
downloaded from the official website of this Court.
(Rai Chattopadhyay, J.)
