Calcutta High Court (Appellete Side)

Atindra Nath Mondal vs The State Of West Bengal & Ors on 12 June, 2023

                  IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL REVISIONAL JURISDICTION
                           APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                             CRR 919 of 2023

                          Atindra Nath Mondal
                                   -Vs-
                     The State of West Bengal & Ors.

      For the Petitioner:      Mr. Bijoy Adhikary,
                               Mr. Ashim Ghoshal,
                               Mr. Ushananda Jana,
                               Ms. Susmita Adhikary,
Heard on: April 12, 2023.

Judgment on: 12 June, 2023.

BIBEK CHAUDHURI, J. : -


1.

The order dated 06th March, 2023 passed by the Learned Additional

Chief Judicial Magistrate, 2nd Court, Baruipur, South 24-Parganas in

relation to Sonarpur P.S. Case No.944 of 2020, dated 18th November,

2020 for the offence punishable under Section 420/34 of Indian Penal

Code and all others therein is assailed in the instant revision.

2. The background of the case leading to filing of the instant revision

is as follows:

3. One Atindra Nath Mondal, the petitioner is an octogenarian aged

about 85 years suffering from cancer and has an ailing wife of 76 years.

He is the lawful owner of a house along with some landed property

situated at Mouza- Kusti, J.L. No. 107, R.S. Dag Nos. 499, 507 and 508

corresponding to L.R. Dag Nos. 512, 523 and 524 under R.S. Khatian

No.311, corresponds to L.R. Khatian No. 1 in District South 24-Parganas

Police Station-Sonarpur. Due to paucity of funds he wanted to sell 4.5

decimals of land and the assets and the opposite parties No.2 to 4,

namely, Tapasi Mondal, Sanjay Mondal and Kutubuddin Mallick, who

taking undue advantage of his failing health made him sign a fabricated

document and treated the same as a genuine one. The petitioner states

that he was completely unaware of the forgery committed intentionally

and that the opposite parties No.2 to 4 knowing that the signed document

would be a valuable security indeed him to sign the said document, which

he did without knowledge. The opposite parties trespassed into the

petitioner's house on 07.02.2020 and, with force, tried to oust the

petitioner from his lawful portion showing that the petitioner had sold out

the entire land along with the house to them and not the 4.5 decimals of

land only. He complained to the A.D.S.R. Sonarpur and discovered that a

deed of sale being no.160800362 for the year 2020 clearly recited that he

had sold his land along with the house for a considerable amount of

Rs.36,52,500/- only, where in reality he had received only Rs.

10,00,000/- vide two cheques bearing no. 000058 and 000059 drawn on

Bandhan Bank, Rajpur Branch. He also intimated the Officer-in -Charge

of Sonarpur Police Station, but the complaint was treated as Sonarpur

Police Station F.I.R. No. 944 of 2020 dated 18.11.2020 and for the offence

under Section 420/34 of Indian Penal Code.

4. Upon receiving complain the local authorities did not provide any

assistance or take steps and with the help of the local Panchayat Prodhan

and other members' intervention in the matter, the petitioner was forced

by the opposite parties for settling the matter and the opposite parties

deposited a further payment Rs. 10,00,000 (Rupees Ten Lakhs) only by

way of three cheques bearing No. 000011, 00013 and 000060 drawn on

Bandhan Bank Rajpur Branch dated 26.08.2020 deposited in the said

Bank. Moreover, after coming to know of the F.I.R. filed against them, the

opposite parties threatened the petitioner due to which he moved before

the Hon'ble High Court at Calcutta vide W.P.A. No.11673 (W) of 2021. On

08.08.2022 Hon'ble Shampa Sarkar, J. made an observation that the

petitioner had received an amount lesser then the scheduled amount in

the deed of conveyance and therefore it indicates that the deed of sale had

been obtained by fraud and forgery which seems to be a fabricated one.

Therefore, a petition was filed under Section 173(8) of Code of Criminal

Procedure contending that the learned Magistrate should direct further

investigation as he believed that he was highly prejudiced by the mala fide

investigation.

5. After considering the fact that the petitioner is a senior citizen who

is a cancer patient, the learned Magistrate remarked that he was in

charge of the ld. Additional Chief Judicial Magistrate 1st Court as the

court was lying vacant for the reason of transfer of the Presiding Officer.

Moreover, he was also in charge of the Judicial Magistrate's Court who

was on casual leave. The Court, therefore, showed his inability to shift the

date due to additional judicial and administrative work and fixed the date

as 06.06.2023 for framing of charges, if any and hearing of the petition

filed by the defacto complainant under Section 173(8) of the Cr.P.C as well

as his prayer for recording his statement under Section 164 of the Cr.P.C.

6. At this juncture, the learned ACJM remarked that the learned

Advocate for the petitioner namely Shri. Supriyo Ghosh and Anr. started

to make repeated submissions regarding the health condition of the

petitioner and therefore, requested them not to make any agitation in the

Court and disrupt the proceedings of other cases. Moreover, the learned

advocates did not allow to take up other cases fixed for hearing on

06.03.2023. The valuable judicial hours of the Court got wasted due to

the disruptions by the learned Advocates and other cases could not have

been heard.

7. Therefore, the main issue in this instant petition is whether the

date for the hearing can be fixed at an earlier date, i.e, before 06.06.2023,

given the failing health of the petitioner. The petitioner is severely ill as he

is a cancer patient and is of 85 years and he has to take care of his ailing

wife of 76 years. Given his old age and health condition the Court, on

humanitarian grounds the court might prepone the date of hearing of the

petition under Section 173(8) of the Cr.P.C. This Court sees no harm in

preponing the date by a few days if it benefits the petitioner, given his

serious health condition. He should not suffer because of administrative

problems of the Court.

8. At the same time, it reflects from the order sheet that when the

learned Magistrate expressed his inability to prepone the date of hearing

of the application under Section 173(8) of the Cr.P.C along with

petitioner's prayer for recording his statement under Section 164 of the

Cr.P.C, the learned Advocates appearing on behalf of the petitioner could

not control their excitement and they insisted time and again on acceding

to their prayer on behalf of the complainant. The order sheet further

reflects that the learned Magistrate requested the concerned learned

Advocates not to disturb her judicial function, but they did not pay any

heed to her request.

9. The learned Magistrate thereafter only observed that such

demeanor on behalf of the learned Senior Advocates appearing for the

defacto complainant was unwarranted and they were cautioned not to

repeat such act and cause unnecessary ruckus in the court room failing

which the trial court shall be bound to take suitable and necessary

action.

10. The above observation allegedly caused serious humiliation of the

learned Advocates.

11. The learned Advocates appearing on behalf of the petitioner spent

more time before this Court to prove a point that the learned Advocates in

the trial court were dishonoured and humiliated by alleged disgraceful

observation made by the learned court below. The learned Advocates on

behalf of the petitioner spent little time to move the cause of the

petitioner. He is more vociferous against the observation made by the

learned Magistrate in the impugned order against the learned Advocates

for the trial court.

12. In support of his contention he refers to paragraph 123 of

Vishwanathan Vs. Abdul Wahid reported in 1963 Supreme Court 1 (V

50 C 1), Justice Hidayatullah, at paragraph 123, opined that:

123."The rule of law about judicial conduct is as strict, as it is old. No judge can be considered to be competent to hear a case in which is directly or indirectly interested. A proved interest in a Judge not only disqualifies him but renders his judgement a nullity. There is yet another rule of judicial conduct which bears upon the hearing of case. In that the judge is expected to be serene and even-handed, even though his patience may be sorely tried and the time of the Court appear to be wasted. This is based on the maxim which is often repeated that justice should not only be done but should be seen to be done. No litigant should leave the Court feeling reasonably that his case was not heard or considered on its merit. If he does, then justice, even though done in if t the case, fails in the doing of it".

13. In A.M. Mathur V Pramod Kumar Gupta [(1990) 2 SCC 533] at

paragraph 13 and 14, Justice Shetty opined that:

13. "Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect

as to protect the independence of the judiciary.

Judicial restraint in this regards might better be called judicial respect, that is respect by the judiciary. Respect to those who come before the Court as well to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it would neither be good for the judge nor for the judicial process."

14. "The Judge's Bench is a seat of power. Not only do judges have power to make binding decision, their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. We concede that the court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct."

14. Having heard the learned Advocate for the petitioner, this Court

likes to record that judicial restraint and judicial discipline does not mean

that even in extreme cases the Judicial Officer is not entitled to take

exception against an act of an Advocate representing a party. There are

catena of instances where the learned Advocates even faced contempt for

causing serious disturbance in course of discharging judicial function. In

Vishwanathan (supra) the Hon'ble Supreme Court in paragraph 125 held

as hereunder:-

125. "If every remark of a Judge made from the Bench is to be construed `as indicating prejudice, I am afraid most Judges will fail to pass the exacting test. In the course of arguments, Judges express opinions tentatively formed, sometimes even strongly; but that does not always mean that the case has been prejudged. An argument in Court can never be effective if C.J., the Judges do not sometimes point out what appears to be the underlying fallacy in the apparent plausibility thereof, and any lawyer or litigant, who forms an apprehension on that score, cannot be said to be reasonably doing so. It has frequently been noticed that the objection of a Judge breaks down on a closer examination, and often enough, some Judges acknowledge publicly that they were mistaken. Of course, if the Judge unreasonably obstructs the flow of an argument or, does not allow it to be raised, it may be said that there has been no fair hearing."

15. It is not expected that a judge should be a mute spectator. He must

take active participation in judicial proceeding. While taking active

participation if the learned Judge finds that the learned Counsel on behalf

of any of the parties is trying to disturb judicial function of a Court, he

has every right to pass an order by caution to the learned Advocate.

16. In the impugned order, it is clearly found that the learned

Magistrate was over burdened with additional charges of two more courts

therefore he expressed his inability to prepone the date of hearing of the

application under Section 173(8) of the Cr.P.C filed by the petitioner.

Since the situation of the court aggravated due to repeated instances by

the learned Advocates they were cautioned but the learned Magistrate did

not take any step against them for which they might be seriously