Calcutta High Court (Appellete Side)
Pradip Kumar Saha & Anr vs The State Of West Bengal on 19 January, 2017
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
1 19-1-2017
Item no.27 aks..
C.R.R. 3569 of 2016 With C.R.A.N. 294 of 2017 Pradip Kumar Saha & Anr.
Vs. The State of West Bengal Mr. Rajdeep Majumder Mr. Mayukh Mukherjee ... for the petitioners.
Mr. Ayan Basu ... for the State.
This is an application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure in which the order dated 26/08/2016 passed by the learned Special Executive Magistrate, Siliguri in connection with NGR Case No. 1740 (II) 16 has been assailed before this court and as per that order, the Special Executive Magistrate ordered drawing up proceeding under Section 107 read with Section 116( C ) of the Code of Criminal Procedure and the said NGR case was started on that score.
It is submitted by Mr. Majumder, learned Advocate, appearing on behalf of the petitioners by taking me to the impugned order to convince this court that prima facie this Special Executive Magistrate did not exercise judicial discretion which is a must to be exercised in a proceeding even under Section 107 of the Code.
He has relied upon the decision of the Apex Court as reported in AIR 1971 SC 2486 (Madhu Limaye & Anr. Vs. Sub Divisional Magistrate, Monghyr & Ors.) (a five-Judge Bench judgement, one Constitutional Bench Judgement) in which in paragraph 37 of the judgement, the court observed that the procedure 2 in starting up a proceeding under Section 107 has been laid down in Section 112 of the Code and it requires that the Magistrate acting under Section 107 shall make order in writing, setting forth the substance of the information received, the amount of the bond, the term for which it is to be in force etc. The court further observed that if (the court) may not repeat the information bodily but it must give proper notice of what has moved the Magistrate to take action.
It is also there in the said paragraph that the said order of the Magistrate is the foundation of the essence of the most important parts of the information.
It is the submission of Mr. Majumder that this is a clear instance of private dispute which is not covered under Section 107 of the Code of Criminal Procedure. He illustrated by saying that the dispute is regarding one piece of land for which Title Suit No. 249 of 2015 is pending before the learned Civil Judge (Junior Division), Siliguri, He ended his submission by saying that it is a fit case in which the order may be set aside and the matter may be sent back for fresh decision on hearing the parties.
Mr. Basu, learned Advocate, arguing for the State submitted that the decision of Madhu Limaye (Supra) will not apply in the facts and circumstances of this case as the ratio decided in that case was mainly as regards the factors to be determined to assess whether one order is an interlocutory order or a final order.
He further submitted that this court has jurisdiction to decide as to the fate of the order of the Executive Magistrate banking upon the police report which is very much before this court and that may be treated as substantial justice. He, however, conceded that substantial justice may also done by remanding the matter to the learned trial court for fresh decision.
On scrutiny of the certified copy of the order dated 26/08/2016 of the learned trial court, this court reiterates that the said order ipso facto shows that no judicial discretion was exercised as contemplated under Section 112 of the Code and there is a blatant violation of the judgement of the Apex Court in 3 Madhu Limaye (Supra). Every reader of the said impugned order will say in the same tune with me that the order is just a 'fill in the blank', that the entire order sheet is a photocopy of a format prepared for the convenience of that court. The Magistrate filled in the numbers, the names of the parties, the date, Section and the amount of bond only, even the default clause was not mentioned if the bond is not furnished.
It is unfortunate to swallow that such an order can form the basis of exercising of judicial discretion of one Executive Magistrate which is the starting line of a proceeding under Section 107 of the Code. Judicial discretion so far as it relates to Sections 107 and 112 of the Code is that the court must consider the police report and must come to a finding that there is one apprehension of breach of peace or disturbance of public tranquility to do so in a wrongful act that may probably occasion a breach of peace or disturbance of public tranquility and is of the opinion that there is sufficient ground for proceeding.
The argument of Mr. Basu that this court can dispose of the matter exercising its revisional power granted under Section 482 of the Code of Criminal Procedure is not convincing to this court as in that case even the petitioner or the other side will lose one form of legal battle. The argument of Mr. Basu that the decision of Madhu Limaye (Supra) will not apply in the present case is also not convincing to this court in view of paragraph 37 of the said decision.
The argument of Mr. Majumder that no private dispute can form the basis of a subject mater under Section 107, is not convincing to me on plain reading of Section 107 wherein a clause 'likely to commit a breach of peace' and even one private dispute may lead to breach of peace in the locality.
In view of the discussion so long made, this court is satisfied that the order passed by the learned trial court dated 26/08/2016 is fit to be set aside and I do that.
Let the matter be remanded back to the learned trial court to make a fresh decision on the point as may be agitated by the parties basing on the police report which was submitted earlier before the learned trial court.
Thus, this criminal revisional application is disposed of.
4The criminal revisional application being disposed of, the connected application being CRAN 294 of 2017 is also disposed of.
Let a copy of this order be forwarded to the learned trial court for disposal of NGR Case 1740 (II) 16 within three months from the communication of this order taking into consideration the observation made by this court hereinabove.
It may be noted that this court has not concentrated in the merit of this case.
Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.
(Indrajit Chatterjee, J.)