Smt. Jyotsna Bal vs State Of West Bengal & Ors
2023 Latest Caselaw 529 Cal

Item no. 21 Court No.236

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION

Present:

The Hon'ble Justice Siddhartha Roy Chowdhury

CRR 2983 of 2008

SMT. JYOTSNA BAL vs.

STATE OF WEST BENGAL & ORS.

Appearance:

For the Petitioner       :    Mr. Suvashis Roy


For the State            :    Mr. B.K. Roy
                              Mr. M.F. Ahmed Begg


Heard on                 : 18.01.2023

Judgment on              : 18.01.2023


Siddhartha Roy Chowdhury J.:

This application under Section 482 of the Criminal Procedure

Code, 1973 challenges the order passed by the learned Chief Judicial

Magistrate, South 24 Parganas in T.R. Case No.14 of 2000 (arose out of

case no.C-1303 of 1999) under Sections 365/342/330/385/387/120B

of Indian Penal Code whereby the learned trial Court was pleased to

discharge all the accused persons invoking the provisions of Section

245(1) of Criminal Procedure Code, 1973.

Heard Mr. Subhasish Roy, learned advocate for the petitioner and

Mr. B.K. Roy, learned advocate for the State.

On 10th May, 1999 Smt. Jyotsna Bal filed a petition of complaint

before the learned Chief Judicial Magistrate, 24 Parganas (South)

stating, inter alia, that her husband Samarendra Nath Bal was the

owner of the premises no.10, Hindustan Park, Kolkata-700029 and after

demise of her husband she acquired the property by way of inheritance.

One Dr. Balai Krishna Mitra was inducted in the ground floor of the said

premises as a tenant, who left the property on 7th October, 1997 and

removed some valuable belongings of the complainant. The complainant

accordingly filed a petition of complaint before the learned Chief Judicial

Magistrate, Alipur on 11th November, 1997 which was registered as C-

1684 of 1997. It is further contended that on 21st April, 1999 at about 4

P.M. she was taken to Gariahat Police Station by force without following

the proper procedure. She was arrested. Subsequently she was

produced before the learned jurisdictional Magistrate on the following

day when her prayer for bail was rejected. The prayer of the prosecution

seeking police custody of the petitioner was allowed. During the police

custody attempt was made by the accused persons to obtain her

signature on blank papers. On 26th April, 1999 she was enlarged on

bail on condition not to enter into the premises no.10, Hindustan Park

till 10th May, 1999 without informing the investigating officer of the case.

Being released on bail the petitioner came to know that accused nos.7

and 8 with the help of other accused persons occupied the ground floor

of the said premises. The petitioner brought the incident to the notice of

the Deputy Commissioner of Police, South Suburban Division in writing.

The learned trial Court initially issued process against the

accused persons under Sections 330/34 of the Indian Penal Code.

Subsequently by the order of a coordinate Bench of this Court ultimately

process was issued under Sections 342/365/385/387/120B of the

Indian Penal Code. The accused persons surrendered to the jurisdiction

of the learned Judicial Magistrate, Alipur and following the prescribed

procedure the learned Chief Judicial Magistrate recorded the evidence of

witnesses examined on behalf of the complainant. In all eleven

witnesses were examined under Section 244(1) of Criminal Procedure

Code, 1973.

The learned trial Court thereafter called for record of CGR

1286/99 arose out of Gariahat P.S. Case No.92 dated 21.04.1999

registered under Section 448/380/114 of Indian Penal Code from the

Court of learned 7th Court of Judicial Magistrate, Alipur. Upon perusal

of the record the learned trial Court found that the accused no.7 Mridul

Kanti Majumder set the criminal administration of justice into motion

against the petitioner alleging, inter alia, that she committed an offence

of criminal trespass and theft by entering into the tenanted portion of

the said premises after breaking open the padlock.

The learned trial Court further derived his knowledge from the

record of CGR 1286/99 about the arrest of the petitioner in connection

with the said case and discharged all the accused persons by invoking

the provision of Section 245(1) of Criminal Procedure Code, 1973.

Section 245(1) envisages as follows:-

"245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him"

Sub-section 1 of Section 245 mandates that if upon taking all the

evidence referred to in Section 244, the Magistrate considers, for

reasons to be recorded, that no case against the accused has been made

out which, if unrebutted, would warrant his conviction, the Magistrate

shall discharge him.

Section 244 of Criminal Procedure Code, 1973 enunciates as

follows:-

"244. Evidence for prosecution.

(1) When, in any warrant- case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."

It says that when, in any warrant case the accused is brought before the

Magistrate or appears, Magistrate shall proceed to hear the prosecution

and take all such evidence as may be produced in support of the

prosecution. A bare reading of the provision laid down in Sub-section 1

of Section 245 of CrPC it appears that the learned Magistrate is

empowered to discharge an accused person only upon consideration of

the evidence recorded under Section 244 of Criminal Procedure Code,

1973 and if such evidence remains unrebutted, it would not warrant his

conviction.

While passing the impugned order the learned trial Court called

for the record of another case being CGR 1286/99, which was pending

before the learned Judicial Magistrate, 7th Court, Alipur but not at the

behest of the petitioner, as laid down under Sub-section 2 of Section

244 of Criminal Procedure Code, 1973 thereby the learned trial Court

exceeded its jurisdiction by causing if an infraction to the provision of

law by flouting the statutory mandate.

Therefore, the impugned order warrants interference from this

Court. In order to secure ends of justice I am inclined to invoke the

provisions of Section 482 of Criminal Procedure Code, 1973 to set aside

the order impugned.

Accordingly the order dated 19th May, 2008 passed by the learned

Chief Judicial Magistrate, South 24 Parganas passed in TR Case No.14

of 2000 (arising out of case No.C-1303 of 1999) is set aside.

The learned trial Court is directed to admit the case to the file of

the learned Chief Judicial Magistrate, Alipur and to consider the

evidence recorded under Section 244 of Criminal Procedure Code, 1973,

and to proceed with the trial of the case according to law.

CRR 2983 of 2009 is thus disposed. Application, if any, stands

disposed of.

Registry is directed to forward a copy of the judgment to the

learned Chief Judicial Magistrate, Alipur for information and necessary

compliance.

Urgent Photostat copy of this judgment, if applied for, be delivered

to the learned advocates for the parties, upon compliance of all

formalities.

(Siddhartha Roy Chowdhury, J.)

RP(AR. CT.)