Calcutta High Court (Appellete Side)
Ajay Paul vs Sri Vinay Jha on 6 March, 2020
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Madhumati Mitra
C.R.R. 3436 of 2011
Ajay Paul
-Versus-
Sri Vinay Jha
Advocate for the Petitioner : Mr. Milon Mukherjee, Sr. Advocate
Mr. Abhijit Auddy.
Advocate for the opposite party : Mr. Sandipan Ganguly, Sr. Advocate
Mr. Sreyashi Biswas.
Judgment on : 06.03.2020
Madhumati Mitra, J. :
This is an application under Section 401 read with Section 482 and Section 245 of the Code of Criminal Procedure filed by the accused/ petitioner challenging the order dated August 26, 2011 passed by the Learned Judicial Magistrate, 2nd Court, Howrah, rejecting the prayer of the accused petitioner for discharge under Section 245 of the Code of Criminal Procedure in criminal Case No. 80/C of 2005 under Section 406 of the Code of Criminal Procedure. The petitioner also challenged the order dated January 25, 2005 passed by the Learned Chief Judicial Magistrate, Howrah, regarding taking of cognizance of the offence and issuance of process against him under Section 406 of the Indian Penal Code. Petitioner prayed for quashing of the Criminal Proceedings arising out of Complaint Case No.80/C of 2005.
The background aspects of the matter, so far relevant for the present purpose may be narrated, in brief, as follows:
On January 25, 2005 one Srikanta Roy the Chief Manager of M/s Modern Malleables Limited filed a complaint against the petitioner in the Court of Learned Chief Judicial Magistrate, Howrah with the allegations that his Firm brought 180 M.T. Carbon Alloy Steel Rods in two installments on 13.2.92 and 28.3.93. The said Carbon Alloy Steel Rods were delivered to the warehouse of the petitioner at 138 Andul Road, Police Station, Shibpur, District-Howrah and kept the same on a monthly rent of Rs.30/- per ton. On 3rd July, 1995, his firm requested the petitioner to make arrangement for delivery of the said materials within seven days as they had found the warehouse of the petitioner was under locked. On 12.7.95 the petitioner sent his reply that the employees' union had been on strike since 1st August, 1994 and the union did not allow the petitioner to enter into the warehouse. The petitioner assured that as soon as strike was withdrawn he would make arrangement for delivery of the articles. In January 2005, the complainant came to know that the strike was called off and said Srikanta Ray along with others went to the warehouse of the petitioner. They were prevented by the petitioner. The petitioner denied the existence of the property of the complainant in his warehouse. Srikanta Roy the Chief Manager of M/s Modern Malleables Limited visited Shibpur Police Station and lodged G.D.E. No. 1997 of 2005.
On 25th January, 2005 the Learned Chief Judicial Magistrate, Howrah, after examining the complainant issued process against the petitioner for commission of alleged offence under Section 407 of the Indian Penal Code. Complainant approached the Learned Magistrate by filing an application under Section 94 of the Code of Criminal Procedure for issuance of search warrant for recovery of said 180 M.T. Carbon Alloy Steel Rods from the warehouse of the petitioner but the said prayer was rejected.
On 10th January, 2005 the petitioner surrendered before the Learned Magistrate. On 04.03.2006 the Learned Judicial Magistrate, Second Court, Howrah, started to record evidence under Section 244 of the Code of Criminal Procedure. On 05.06.2007 complainant prayed for substitution of a new complainant as the original complainant Srikanta Roy died and that prayer was allowed. On March 14, 2005 the police officer searched the warehouse of the petitioner who could not find the said 180 M.T. Carbon Alloy Steel Rods.
On January 6, 2011 the petitioner filed an application under Section 245 of the Code of Criminal Procedure for his discharge but the said prayer of discharge was rejected by the Learned Magistrate by passing an order on August 26, 2011 and the Learned Magistrate fixed on January 16, 2012 for framing of charge.
The said order of refusal of the prayer for discharge of the accused/petitioner is the subject matter of the present revisional application. While challenging the order of rejection of the prayer for discharge the accused/petitioner also prayed for quashing of the proceedings pending against him and challenging the order dated 25th January, 2005 regarding taking of cognizance of the offence by the Learned Magistrate and issuance of process against the petitioner under Section 406 of the Indian Penal Code. The Learned Senior Counsel, Mr. Milon Mukherjee appearing for the petitioner has submitted that previously the petitioner approached before this Court by preferring one revisional application being No.CRR 261 of 2005 and the said revisional application was disposed of on February 2, 2005 with a direction for correction of the recital in the process (for Section 407 of the Indian Penal Code) and with a further direction that the Learned Chief Judicial Magistrate, Howrah would issue a search warrant under Section 94 of the Code of Criminal Procedure against the accused without fail. Mr. Mukherjee Learned Counsel appearing for the petitioner has repeatedly brought to the notice of the Court to the order passed by one Coordinate Bench of this Court in CRR 261 of 2005 and has submitted that the Learned Chief Judicial Magistrate was directed to retain the proceedings to his own file and to proceed to dispose of the same.
In the instant case the LCR was called for on November 21, 2011 and since then the LCR has been kept with the case record.
It has been specifically argued by the Learned Counsel for the petitioner that the direction of Coordinate Bench of this Court in CRR 261 of 2005 has not been complied with by the Learned Magistrate. In support of his contention he has invited the attention of the Court to Order No.3 dated February 17, 2005 passed by Learned Chief Judicial Magistrate in Case No.80/C of 2005. From Order No.3 it appears that process was issued under Section 407 of the Indian Penal Code as per the direction passed in CRR 261 of 2005. From order dated August 2, 2005 it reveals that the case was transferred to the Learned Judicial Magistrate, Second Court, for disposal. It is the specific contention of Mr. Mukherjee, the Learned Senior Counsel for the petitioner that the Learned Chief Judicial Magistrate transferred the case to the file of Judicial Magistrate, Second Court, Howrah, ignoring the direction of the High Court passed in CRR 261 of 2005 which is not permitted by law. In support of his contention Learned Counsel has given emphasis on the provisions of Section 405 and Section 388 of the Code of Criminal Procedure.
On the contrary, Learned Counsel appearing for the opposite party/complainant has opposed the contention of the petitioner and submitted that the issue has been raised by the petitioner after a long period by filing a revisional application in the year 2011. He has contended that the irregularity as pointed in the order passed in the year 2005 has no connection with merit of the case. He has specifically argued that both the orders were passed by the Learned Court below in the year 2005. Thereafter, the evidence before charge was concluded. The petitioner approached before the Learned Magistrate praying for his discharge on the ground of limitation and on other grounds, in the year 2011. The Learned Magistrate refused the prayer of discharge of the accused by passing the impugned order dated August 26, 2011. The petitioner came forward before this Court to challenge that order. According to his submission the petitioner could have pointed out the irregularity of the orders passed by the Learned Magistrate much earlier. It has been forcefully contended by the Learned Counsel for the opposite party that the alleged irregularities do not prejudice the interest of the petitioner.
I have gone through the order passed by the Learned Magistrate rejecting prayer of discharge of the accused. From the said order it transpired that on 6th January, 2011 the petitioner/accused sought for an order of his discharge on the ground of limitation under Section 468 of the Code of Criminal procedure. It was contended by the accused/petitioner that the alleged offence was punishable with imprisonment for maximum period of 3 years but the complaint was filed long after the period of limitation of 3 years. While rejecting the prayer for discharging of the accused/petitioner, the Learned Magistrate considered the relevant provisions as in contained Section 468 Sub-section 1(c) of the Code of Criminal Procedure as well as the provisions containing in Section 469 (1)(b) of the Code of Criminal Procedure and came to the conclusion that the period of limitation should be computed from the date on which the offence comes to the knowledge of the complainant. It was observed by the Learned Magistrate that on January 24, 2005 the complainant came to know about the commission of the alleged offence when he visited the warehouse accompanied by his men and resisted by the accused from being entered into the inside of the warehouse to take back his articles.
Order of rejection of the prayer of discharge of the accused/petitioner is a speaking order. Learned Magistrate while rejecting the prayer of discharge of the accused, considered the factual aspects, evidence before charge and the position of law. I do not find any infirmity in the order impugned. As such the question of interference with the impugned order of rejection of the prayer of discharge does not arise at all.
Case record shows that evidence before charge was concluded on 19.07.2010. The witnesses produced by the complainant were cross-examined before charge by the petitioner/accused. While considering the prayer of the accused/petitioner the Learned Magistrate considered the evidence before charge and rejected the prayer for discharging the accused Learned Magistrate fixed a date for consideration of charge. In this connection, the Learned Counsel appearing for the complainant/opposite party has contended that the issue as raised by the petitioner/accused has no bearing with the merit of the case and the question of prejudice does not arise at all. In support of his contention, he has drawn the attention of the Court to the provisions of Sections 244 and 246 of the Code of Criminal Procedure and submitted that the present revisional application is totally devoid of merit and liable to be dismissed.
The present revisional application was filed in the year 2011 by the petitioner accused challenging the order of rejection of his prayer for discharge. Prior to filing of the application of discharge, the evidence before charge was completed and witnesses produced by the complainant were cross-examined by the accused petitioner before charge. The Learned Counsel for the petitioner has taken the plea that the direction passed in CRR 261 of 2005 by one Coordinate Bench of this Court was not complied with by the Learned Chief Judicial Magistrate, and he transferred the case to the Judicial Magistrate, Second Court, ignoring the said direction. I have gone though the order passed in CRR 261 of 2005. For proper appreciation of the said order the relevant portion of the order is hereby reproduced:-
..........
"However it would be open to the learned Magistrate now to correct the error after the opposite party no.2 appears in terms of the process issued and the learned Magistrate would at the appropriate stage under section 244 Cr.P.C. correct such error."
From the portion of the order as cited above it appears that the Learned Magistrate was given liberty either to correct the error as pointed out by the Coordinate Bench of this Court after the appearance of opposite party No.2 in terms of the process issued or the Learned Magistrate would at appropriate stage under Section 244 of the Code of Criminal Procedure. In this connection Section 244 of the Code of Criminal Procedure may be cited as below for proper appreciation:
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.
In the present case admittedly the evidence under Section 244 of Cr.P.C. has been completed. Section 244 of Code of Criminal Procedure speaks about recording of evidence before charge in case of warrant triable offences. In the present case the evidence before charge under Section 244 of the Code of Criminal Procedure has been recorded by the Learned Magistrate and the Learned Magistrate now is to consider whether the charge can be framed against the accused for alleged facts or to discharge the accused or not. And that is why in the order dated 2nd February, 2005 in CRR 261 of 2005 the Learned Coordinate Bench has given liberty to correct the error at the appropriate stage.
The ground which has been taken by the Learned Counsel for the petitioner that the Learned Magistrate has failed to comply with the direction of the coordinate bench of this Court in CRR 261 of 2005 has no force at all.
The another ground as raised by the Learned Counsel for the petitioner for quashing of the proceedings is that the Learned Chief Judicial Magistrate, Howrah, was directed by the coordinate bench to decide the case but ignoring that direction the same was transferred to the Court of Learned Judicial Magistrate, 2nd Court, Howrah. Previously I have observed that the criminal proceedings pending before the Learned Chief Judicial Magistrate, Howrah, was transferred to the court of Judicial Magistrate, 2nd Court, Howrah, in the year 2005. Thereafter the evidence before charge under Section 244 of the Criminal Procedure was recorded and completed on July 19, 2010. That question of transfer of the case was not pointed out by the petitioner. It is true that the order is irregular but not illegal and the interest of the petitioner is no way affected by such transfer.
The question of quashing of the proceedings pending against the petitioner is devoid of merit and stands dismissed. Thus, the Revisional Application being No.3436 of 2011 is disposed of.
Let a copy of this order along with the LCR be sent back to the Learned Magistrate at once.
Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Madhumati Mitra, J.)