Tripura High Court
Shri Nandan Chakraborty Of Ramnagar ... vs Shri Bhajan Chandra Debnath on 20 March, 2019
Author: Sanjay Karol
Bench: Sanjay Karol
Page 1 of 6
HIGH COURT OF TRIPURA
AGARTALA
CRL PETN No.05 of 2019
Shri Nandan Chakraborty of Ramnagar Road No.7, P.S.- West
Agartala, District- West Tripura.
----Petitioner(s)
Versus
Shri Bhajan Chandra Debnath, S/o. Lt. Dhananjoy Debnath of
Chandrapur, Near Bandh, P.S.- East Agartala, District- West
Tripura.
----Respondent(s)
_B_E_F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
For Petitioner(s) : Mr. Dhrubajyoti Saha, Advocate.
For Respondent(s) : Mrs. Sujata Deb (Gupta), Advocate.
Date of judgment : 14th March, 2019.
Whether fit for reporting : Yes No
√
J U D G M E N T (O R A L)
Petitioner has prayed for the following reliefs:
"(1) Admit the instant Petition;
(2) Issue notice to the Respondent;
(3) Call for the lower courts record of Case No.NI. 05 of 2017, pending before the LD. Judicial Magistrate 1st Class, Court Number-5, West Tripura, Agartala; (4) After hearing both the parties Your Honour would be pleased enough to quash the order dated 10-10-2018, passed in connection to Case No.NI. 05 of 2017, pending before the LD. Judicial Magistrate 1st Class, Court No.5, West Tripura, Agartala for the fair ends of justice;
(5) Be also kind enough to quash the proceeding being illegally drawn upon the petitioner;
(6) In the interim the Hon'ble Court be pleased to stay the proceeding of Case No. NI. 05 of 2017, pending before the LD. Judicial Magistrate 1st Class, Court No.5, West Tripura, Agartala;Page 2 of 6
(7) To pass any other order(s) and/or direction(s) for consignable justice;"
[2] Briefly culled the facts are that on 11th January, 2017 a private complaint under Section 138 of the Negotiable Instrument Act, 1981 was filed by the private respondent Sri Bhajan Chandra Debnath against the present petitioner Sri Nandan Chakraborty. Since the complainant did not appear before the concerned court, the matter was adjourned for his presence on 13-01-2017, 12-04-2017, 30-05-2017, 25-07-2017, 19-08-2017 respectively. However, on 14th November, 2017, the trial court without recording statement of the complainant, finding it to be bonafide, condoned the delay of 26 days and fixed the matter for recording of statement of the complainant along with all original documents. The order reads as under :
"14-11-2017 Heard Ld. Counsel for the complainant on the matter of condonation of delay of 26 days, after hearing Ld. Counsel of complainant and on perusal of record and document, I find the delay is a bona fide delay without any fault on behalf of the complainant.
Hence, the delay is hereby condoned. Fix 06-01-2018 for appearance of complainant along with all original documents."
[3] On 6th January, 2018, the court passed the following order:
"06-01-2018 Complainant is present alongwith Ld. Counsel Mr. Ramij Ali.
Heard Ld. Counsel for the complainant.Page 3 of 6
Complainant also show the original documents and the same is compared with Xerox copies.
Perused the complaint petition and documents. Cognizance is taken U/s 138 of NI Act. Issue summons upon the accused if complainant filed requisites within 7 days.
Fix 01-03-2018 for SR."
[4] It is only when the accused/present petitioner appeared before the court and raised the issue of maintainability of the complaint being barred by law of limitation, the court directed that "I find that for proper ends of justice further hearing is necessary on condonation petition." As such, the court decided to hear the accused on the question of delay.
[5] Materials as placed on record reveals that subsequently the matter was adjourned by the court and eventually on 10 th October, 2018, without deciding the issue of delay the court fixed the date for stating substance of accusation under Section 251 of Cr.P.C.
[6] It is this order which the petitioner lays challenge on the strength of decision rendered by the Hon'ble Apex Court in K.S. Joseph versus Philips Carbon Black Ltd. and another reported in (2016) 11 SCC 105. The approach adopted by the court below, to say the least, is perverse. [7] Firstly, it could not have condoned the delay without issuing notice or hearing the accused, for principles of natural justice, apart from the procedural law stood violated. Page 4 of 6 [8] Under similar circumstances the Apex Court in State of Maharashtra versus Sharadchandra Vinayak Dongre and Others reported in (1995) 1 SCC 42 observed that "In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay......"
Also in P.K. Choudhury versus Commander, 48 BRTF (GREF) reported in (2008) 13 SCC 229 similar view was held. [9] That apart, the court could not have reviewed its own order and further directed the application for condonation of delay to be heard afresh. It had no power of review even though the principles of natural justice stood violated. There is no dispute about the trite principle that a Magistrate does not have any power under the Code of Criminal Procedure to recall, review or reconsider its own order. [10] In the case of Adalat Prasad versus Rooplal Jindal & others reported in (2004) 7 SCC 338, the Hon'ble Supreme Court was of the opinion that the Criminal Procedure Code does not confer on a Magistrate the power to review an order. [11] Later on, the Supreme Court in Bholu Ram versus State of Punjab & another, reported in (2008) 9 SCC 140, held that once an order is passed by a competent court issuing summons or process, it cannot be recalled. Page 5 of 6 [12] Further in Iris Computers Ltd. versus Askari Infotech Pvt. Ltd. & others, reported in (2015) 14 SCC 399 it is held that the scheme of the Code of Criminal Procedure does not provide for review of order of issuance of process and prohibits interference by the accused at the interlocutory stage under Section 203.
[13] View expressed in Adalat Prasad (supra) was also upheld in Devendra Kishanlal Dagalia versus Dwarkesh Diamonds Pvt. Ltd., reported in (2014) 2 SCC 246 in the following terms:
"Once the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 Cr.P.C, there is no question of going back following the procedure under Section 201 Cr.P.C. In absence of any power of review or recall the order of issuance of summons, the Magistrate cannot recall the summons in exercise of power under Section 201 Cr.P.C."
[14] Thus, in the present case, the learned Magistrate could not have reviewed its earlier order, and has erred in exercising a power not vested in her.
[15] Lastly, the court ought to have decided the issue of delay first, instead of proceeding under Section 251 of Cr.P.C. [16] The Apex Court in K.S. Joseph (supra) under similar circumstances quashed somewhat similar orders which were passed without non-application of mind.
[17] This Court by virtue of Section 482 of Chapter XXXVII Cr.P.C has sufficient power to rectify the mistake apparent on Page 6 of 6 record. The inherent power of the Court is invoked to secure the ends of justice.
[18] As such, orders dated 14-11-2017, 06-01-2018 & 13- 12-2018 passed by the Judicial Magistrate 1st Class, Court No.5, Agartala, West Tripura in Case No. N.I. 05 of 2017 titled as Bhajan Chandra Debnath versus Nandan Chakraborty to the extent it deals with taking of cognizance and issuance of substance of accusation are quashed and set aside with further direction to the trial Judge to consider and first decide the application for condonation of delay, in accordance with law. Parties are directed to appear before the trial Court on 9th April, 2019.
Petition stands disposed of.
(SANJAY KAROL), CJ Dipesh