Rup vs The State Of West Bengal & Anr
2023 Latest Caselaw 4725 Cal

01    03.08.
       2023                            CRA (SB) 88 of 2023
 Ct                                   IA NO: CRAN 1 of 2023

                                   Sk. Mojiful @ Mojibar
rup                                         Vs.
                              The State of West Bengal & Anr.

Mr. Ramkrishna Bhattacharyya, Mr. Kaushik Chowdhury, ... for the appellant.

Mr. Arijit Ganguly, Mr. Kaushik Kundu.

... for the State.

On 01.08.2023 this Court heard learned advocates

for the petitioner/appellant and the State. But

considering the nature of the order passed on 06.06.2023

by this Court, kept the matter under heading "To Be

Mentioned" for passing order today.

After the order of suspension of sentence

incorporated in the order of admission of appeal on

06.06.2023 by an inadvertent mistake, the appellant

hoped filing an application for appropriate order of

release would be the springboard he needed to get into a

right of bail.

The inherent power of the court to recall an order

can be exercised in the following circumstances:-

a. The proceeding culminating into an order suffers

from the inherent lack of jurisdiction and such

lack of jurisdiction is patent.

b. There exists fraud or collusion in obtaining the

judgment.

c. There has been a mistake committed by the

court prejudicing a party.

d. A judgement was rendered in ignorance of the

fact that a necessary party had not been served

at all or had died and the estate was not

represented. (In Budhia Swain and others vs.

Gopinath Deb and others reported in (1994) 4

SCC 396).

In our case, on 06.06.2023 at the time of

admission of appeal order of sentence was suspended

and at the same time relization of fine was also stayed.

The order of suspension of sentence, in fact, was

recorded due to inadvertent mistake on the following

reasons:-

a. Under Section 389 of the Code of Criminal

Procedure execution of sentence can be

suspended only after assigning reasons

therefor. But, in the order no such reasons

are found.

b. After suspension of sentence further recording

order of stay with regard to realization of fine

was otiose.

c. Consequential order of bail after suspension

of sentence under Section 389 of the Criminal

Procedure Code was not passed.

d. No opportunity was given to the victim before

hearing on the issue of suspension of

sentence thereby prejudicing the victim.

In terms of principle laid down by the Hon'ble Apex

Court, I have no hesitation to hold that recording of order

of suspension of sentence was an inadvertent mistake and

is liable to be recalled.

Therefore, order of suspension of sentence at the

time of admission of appeal on 06.06.2023 stands

recalled.

With the aforesaid observation, CRAN 1 of 2023

stands dismissed.

However, liberty is given to the appellant to file bail

application after serving copy of the application upon the

victim as well as State.

Liberty to mention.

(Bibhas Ranjan De, J.)