Calcutta High Court
Swapan Sarkar vs Santanu Bhowmik on 12 March, 2004
Equivalent citations: (2004)2CALLT329(HC), 2004(4)CHN278
JUDGMENT P.N. Sinha, J.
1. This revisional application is directed against the order dated 5th August, 2003 passed by the learned Chief Judicial Magistrate (hereinafter called the CJM), Jalpaiguri rejecting thereby prayer of the petitioner to recall or cancel the W/A issued against the petitioner and also for quashing the criminal proceeding being case No. C.R. 531 of 2001.
2. The facts of the case as it appears from the averments of the application, is that, the petitioner is now posted as Sub-Divisional Police Officer (hereinafter called the SDPO), Tehatta in the District of Nadia. The opposite party lodged a complaint case being C.R. No. 531 of 2001 against him in the Court of the learned CJM, Jalpaiguri for alleged offence under sections 342/323/506 of the Indian Penal Code (hereinafter called the IPC) on 21.12.01. After taking cognizance the learned CJM transferred the case to the Court of learned SDJM, Jalpaiguri for disposal and the learned SDJM by order dated 18.3.02 dismissed the complaint under Section 203 of the Code of Criminal Procedure (hereinafter called the Code). The opposite party preferred a revision in this Court being C.R.R. No. 755 of 2002 assailing the order dated 18.3.02 passed by the learned SDJM. By order dated 11.7.02 this Court remitted back the said matter to the Court of learned CJM, Jalpaiguri setting aside the order dated 18.3.02 passed by the learned SDJM. Thereafter, by order dated 1.10.02 learned CJM issued process against the petitioner under Sections 342/323/ 506 of the IPC. On 13.2.03 the petitioner through the learned Government counsel filed an application before the learned CJM praying for exemption from personal appearance and after hearing the learned advocates of both parties the learned CJM by order dated 13.2.03 rejected the application and issued non-bailable warrant of arrest against the petitioner. On 30.7.03 the petitioner filed an application before the learned CJM praying for recalling or cancelling W/A issued against him but, the learned Magistrate by order dated 5.8.03 dismissed the said application.
3. After the order of dismissal of complaint dated 18.3.02 passed by the learned SDJM, Jalpaiguri no fresh cognizance was taken by the learned CJM over that complaint. At the relevant point of time the petitioner was posted as Deputy Superintendent of Police, Headquarters. Jalpaiguri and in the discharge of his official duty within the meaning of Section 197 of the Code along with his subordinate officers attended the alleged place of occurrence regarding an incident on 17.11.01 date of Kali Puja festival in connection with Kotwali P.S. Case No. 360 dated 17.11.01. The opposite party was brought to Kotwali P.S. for interrogation in connection with the aforesaid Kotwali P.S. case and after thorough interrogation he was allowed to go home as nothing could be found against him. The aforesaid fact was duly entered in Kotwali P.S. G.D. Entry No. 879 dated 17.11.01. In order to wreck vengeance and malign the dignity of petitioner the opposite party had made frivolous and vague allegation against the petitioner in the complaint. The continuation of the criminal proceeding is bad in law as it was filed in contravention of provisions of Section 197 of the Code and, before taking cognizance or lodging complaint no prior sanction from the concerned authority was taken in respect of the incident in which the petitioner was performing and discharging his official duties.
4. Learned advocate appearing for the petitioner contended that the petitioner visited place of occurrence in the discharge of his official duties in connection with Kotwali P.S. case No. 360 dated 17.11.01 under Sections 387/452/323/325/354/506 of Indian Penal Code and the opposite party was brought to the police station for interrogation. After interrogation as nothing was found against him he was released and allowed to go home by this petitioner. The entire action that the petitioner took or made against the opposite party was in the discharge of his official duties and the entire matter was recorded in Katwali P.S. G.D. Entry No. 879 dated 17.11.01. When the petitioner was discharging his official duties no complaint or criminal action can be taken against him without prior sanction from concerned authorities. Taking of cognizance by the learned CJM is bad in law because, sanction is required prior to taking cognizance of offence. Without prior sanction taking of cognizance cannot be made as the petitioner was in the course of his official duties and being so taking of cognizance by the learned CJM was bad in law and the entire criminal proceeding is bad in law and not maintainable. The Supreme Court and other High Courts in several decisions have observed that provisions of Section 197 of the Code are mandatory and violation of provisions of this section results the criminal proceeding into a nullity. The petitioner being superior officer of the Officer-in-Charge of a police station can act under Section 36 of the Code and as there was allegation of raid in a house and assault on a lady the petitioner visited the place of occurrence when the officers at Kotwali P.S. were busy for maintaining law and order duty on account of Kali Puja.
5. He further contended that the allegations, or the contentions made in the revisional application has not been controverted or challenged by the opposite party by filing affidavit in opposition, and therefore, contention of petitioner remains unchallenged or uncontroverted. The decision of this Court in C.R.R. No. 755 of 2002 is not binding on the petitioner as the petitioner was not a party in the said revisional application and that order should be treated sub Dilentio and the same cannot be treated as a binding precedent in the instant matter. The initiation of proceeding and issue of process against the petitioner was Without conforming to the mandatory provisions of Sections 197 of the Code. The decisions laid down by the Supreme Court on the point of sanction for valid cognizance and prosecution of public servant in discharge of official duty were not followed and so, continuation of the criminal proceeding is an abuse of process of law and ,the said proceeding should be quashed. In support of his contention he cited the decisions (Matajog Dobey v. H.C. Bhari), 1987 Cr LJ 872 (Pritam Singh v. Delhi Administration), 1989 Cr LJ 191 (Dr. Ravindra v. V.K. Panwar), 1992 Cr LJ 2216 (Ram Adhar Yadav v. Ramchandra Misra), 1996 Cr LJ 836 (Premjit Mohananda v. Mohanpani Karua), 1997 Cr LJ 183 (Ramkrishna Shankar Avhad v. Rajendra Jagannath Parikh), 1988 Cr LJ 1242 (Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan), 1998 Cr LJ 3601 (State of Bihar v. Kamala Prasad Singh), and (Abdul Wahab Ansari v. State of Bihar).
6. Mr. Biplab Mitra learned senior advocate appearing for opposite party No. 1 contended that bar in taking cognizance as laid down in Section 197 of the Code is not tenable now. The language of Section 156 of the Code makes it clear that only Officer-in-Charge of a police station can, take steps for investigation and the petitioner was not the Officer-in-Charge of Kotwali Police Station. Page 38, of the application makes it clear that the petitioner was not conducting investigation in connection with Kotwali P.S. Case No. 360 dated 17.11.01. The G.D. Entry No. 879 dated 17.11.01 proves that the petitioner took away opposite party at p61ice station and detained him there and after some time allowed him to leave the police station. The G.D. Entry makes it clear that other officers were making Investigation into the above stated Kotwali P.S, case. Provisions of Section 197 of the Code is not applicable now and it does not apply if any officer does anything for a brief period in the exercise of his alleged official duties. The alibi taken by the petitioner that he was acting in the discharge of his official duties can be considered and established on the basis of evidence in trial and not at this stage. It appears that the main contention of the petitioner is concerning issue of warrant against him and cancellation of his application for recalling the warrant by order dated 5.8.03 by the learned CJM. Let the petitioner appear before the learned Court of CJM and face the trial to establish his alibi that the alleged action was in the course of his official duties. In support of his contention he cited the decisions (Matajog Dobey v. H.C. Bharty), (Raj Kishor Roy v. Kamaleshwar Pandey and Anr.), 2003(4) CHN 82 (Sankaran Moitra v. Sadhana Das and Anr.).
7. Learned advocate appearing for the State contended that from the petition of complaint it appears that the opposite party sustained injuries and he was also in hospital. He contended that in view of provisions of Section 36 of the Code of superior officer may exercise the same powers throughout the local area to which they are appointed as may be exercised by a Officer-in-Charge of a police station within the limits of his station. Therefore, if the petitioner himself, took up investigation there was no illegality. Case diary of Kotwali P.S. Case No. 360 dated 17.11.01 was produced and it shows that one S.I., T. Nandy was authorised to take investigation by order of Officer-in-Charge of police station. What function the petitioner had can be found in the case diary itself? He contended that the Supreme Court has laid down that, "Question of sanction under Section 197 can be raised at any stage of the proceeding and in considering the same it is not necessary for the Court to confine itself to the allegations in the complaint. Court can take into account all the materials on record at the time when the question is raised and falls for consideration. The sine qua non for the applicability of the section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. There must be reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." He contended that at this stage it cannot be decided whether the alleged act was in the discharge of official duty, and the act had any relation to the duty and was not a fanciful claim that the action was in the discharge of his official duty. He contended that let the petitioner surrender before the learned Court below and raise all the points. In support of his contention he cited the decision (S.B. Saha and Ors. v. V.M.S. Kochar).
8. I have perused the materials on record and considered the submissions made by the learned advocates of the parties and perused the decisions cited by them for consideration in connection with the instant matter. Learned advocate for the petitioner cited as many as nine decisions in support of his case. Learned advocate for the opposite party No. 1 cited three decisions and the learned advocate for the State cited one decision to make out their respective cases and to counter attack the decisions placed by the learned advocates for petitioner. Citing of decisions cannot make out any case unless the pronouncement of law through the said decisions are applicable in the facts and circumstances of the matter which is in consideration before the Court. The real test regarding application of Section 197 of the Code has been laid down by the Supreme Court in the case of Matajog Dobey (supra) and several other decisions. The principles of law is that in order to obtain prior sanction for prosecution the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complaint of is an offence; the, only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. What the Court must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of official duty, though possibly in excess of the needs and requirements of the situation.
9. The learned advocate for the petitioner has cited the decisions to support his case that sanction is necessary before taking cognizance of offence against a public officer of an act done by him in the discharge of his official duty. On the other hand, learned advocate for the private opposite party has referred to the decisions to show that prior sanction is not necessary in respect of an act of a public servant which has no connection at all between the act and the official duty. Learned advocate appearing for the State has cited the decision to show at which stage question of sanction can be raised. I have already observed that citing of decisions cannot make out any case unless it is established that the act complained of has reasonable connection with the official duty of the public servant, I cannot resist my temptation to cite few decisions in this respect and I shall cite the said decisions after discussing the decisions placed by the learned advocate for the petitioner.
10. The decision in Pritam Singh (supra) shows that in the said reported case a traffic police in uniform stopped a scooterist for contravening provisions of Motor Vehicles Act by driving without helmet. In this reported case the action of the traffic police definitely falls within the discharge of his official duty as the appellant petitioner violated provisions of Motor Vehicles Act.
11. In Dr. Ravindra (supra) the Additional S.P-in-Charge of management of Simhastha Fair slapped the petitioner while the latter came on the prohibited route on his motor cycle. In this reported case the Additional S.P. was under the law and order duty and the petitioner definitely made mistake by entering into prohibited route and here action of the S.P. though exceeded to some amount comes within the purview of official duty. Facts and circumstances of the reported case is not at all identical with the present case.
12. In Ram Adhar Yadav (supra) a police force had gone to the locality for discharging official duties and in that process there was an altercation because of the objection raised 'to the police action' by the complainant and police personnel maltreated and took away some property of complainant. It was held that as police had no intention to commit crime prior sanction under Section 197 of Code of Criminal Procedure was necessary. This decision is not applicable in the present case as complainant's allegation that the petitioner abused him saying, "there is no law which can prevent advocates of being assaulted by lathi" shows a definite intention to insult an advocate.
13. In Ramkrishna Shankar Avhad (supra) there was complaint against police of demanding money on road while checking papers of vehicle and manhandling the respondent on refusal to pay. On the contrary, police contended that the complaint was a sequel to earlier prosecution launched against the complainant on same day for certain offence committed on the road. This decision is also not applicable in the present case as there was no case against the opposite party complainant, prior to the action taken by the petitioner.
14. In Suresh Kumar Bhikamchand Jain (supra) Jalgaon Municipality was trying to demolish a tapri, i.e., encroachment and Government officers arid one Commissioner of Jalgaon Municipality resisted the said action. Facts of this reported case is completely different and is not at all applicable in the present case.
15. In State of Bihar (supra) police searched premises of complainant after obtaining warrant from competent authority and under supervision of Executive Magistrate. There was no complaint to the Magistrate regarding misbehaviour or illegal acts on the part of the police. Subsequent complaint of abusing and assaulting wife of complainant during search was held afterthought and it was decided that in order to take action against police sanction was necessary. Facts of the reported case are not at all applicable in the present case and this decision does not help the petitioner.
16. In Abdul Wahab Ansari (supra) the appellant was appointed Duty Magistrate and asked by the Sub-Divisional Magistrate to remove an encroachment ordering to open fire on mob at site when situation became out of control. It was held that the appellant gave order of opening fire in exercise of official duty and before taking any action against him under penal provisions sanction was necessary. Facts of this reported case are not at all applicable with the facts of the present case and this decision also does hot help the petitioner.
17. In Premjit Mohananda (supra) the petitioner was arrested and detained by police in gambling case. His non-release on bail followed by assault and rebuke were in excess performance of official duty. It was held that still protection under Section 197 was necessary. This decision is also of no help to the petitioner as its facts are different. The basic point involved is that the alleged, act complained of must have been done in the discharge of official duty or that it must be related in some manner, with the discharge of official duty.
18. The remaining decision over which learned advocate for the petitioner relied upon is the case of Matajog Dobey (supra) and over this decision learned advocate for private opposite party also placed reliance. It was held by the Supreme Court that, "The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the Act and the official duty.........It is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceeding........... Whether sanction is necessary or not may-have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."
19. In Raj Kishor Roy (supra) cited by the learned advocate for opposite party No. 1 there was complaint against police officer alleging that complainant was assaulted at house and at police station. When the complainant made protest for false implication the accused threatened to shoot in encounter. The Magistrate finding prima facie case took cognizance. It was held by the Supreme that High Court was not right in holding that even if the facts were true, the case was within purview of Section 197 Code of Criminal Procedure, The Supreme Court held that the question whether the first respondent acted in the course of performance of duties and/or whether the defence is pretended or fanciful can only be examined during trial. The Supreme Court left the matter to be decided by trial Court on the basis of evidence.
20. The learned advocate for the State cited the decision of S.B. Saha (supra) where it was held by the Supreme Court that, "The question of sanction under Section 197 can be raised and considered at any stage of the proceeding. In considering "The question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint. It can take into account all the materials on the record at the time when the question is raised and falls for consideration." It was further held that, "The sine qua non for the applicability of this Section 197 is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of office held by him." in this reported case the Supreme Court held that on the facts of the present case sanction of the appropriate Government was not necessary for the prosecution of the appellants for an offence under Section 409/ 120B Indian Penal Code.
21. Now I like to refer few decisions in which it was held that sanction to prosecute a public servant is not necessary in respect of the act done by the public servant. In Budhi Parkash Yadav v. K.C. Sharma reported in 1981 Cri LJ 993 there was allegation against Deputy Commissioner and District Superintendent of Police that they beat, abused and assaulted some advocates and kept them in confinement as those advocates caught a Revenue Officer red-handed while taking bribe. It was held that alleged acts of the said public servants had no nexus with the performance of official duties and no sanction was necessary.
22. In Lakshmana Kunjhan v. C.R. Sulochana reported in 1978 Cri LJ 522 it was held that the averments in the complaint against police officer for torture in police station do not show prima facie that the acts of torture attributed to him had any direct relation to the discharge of official duty. In the complaint a lady made allegation against the Superintendent of Police and others regarding torture on her and even attempt to strip off her clothes. It was held that in such a matter sanction was not necessary.
23. In Abani Ch. Biswal v. State of Orissa reported in 1988 Cri LJ 1038 it was held that there must be reasonable connection between the act and discharge of official duty. In the reported case a police officer alleged to have hurled abusive language at complainant while latter was in police lock-up. It was held that action of the police officer cannot be said to have been committed in course of discharge of official duty and protection under Section 197 was not available to police officer,
24. In State of Maharashtra v. Atma Ram reported in AIR 1966 SC 1786 it was the contention of the police officer that the act done by him was under colour of his office. There was allegation against the police officer of beating and confinement. It was held by the Supreme Court that alleged acts of beating and confinement done by the police officer has no connection between such acts and duty imposed on police officer and police officer was not entitled to protection.
25. In Prabhakar V. Sinari v. Shankar Anant Verlekar there was threatened encroachment upon complainants land by hawkers. The complainant lodged a complaint to police and Deputy Superintendent of Police appeared at the spot in civilian dress. This Deputy Superintendent of Police threatening the complainant that he would arrest him if he interfered with the hawkers and asking the hawkers to enter upon the land of the complainant. The Deputy Superintendent of Police also threatened the complainant that he would be slapped. There was prosecution of the Deputy Superintendent of Police on various charges. It was held by the Supreme Court that no sanction was required in the instant matter.
26. The above discussion regarding principles of law makers it clear that the offence alleged to have been committed must have some connection with the discharge of official duty and it must be related in some manner with the discharge of official duty. Simply contending that being a public servant he is entitled to protection under Section 197 of Code of Criminal Procedure against the act complained of is not enough. The point to determine is whether the act complained of was committed in the discharge of official duty and whether there was reasonable connection between the act and the alleged official duty. In this revisional application it is not possible for this Court to enter into the merit of the case in detail when the evidence has not yet been recorded. Still some interesting features of Kotwali P.S. Case No. 360 dated 17.11.01 will unfold the truth.
27. The case diary of the said case has been produced before this Court and it reveals that the alleged incident over which the said Kotwali P.S. case was started taken place on 16.11.01 at 11.15 at night. FIR was lodged by one Malabika Seth on 17.11.01 at 10.15 p.m. The formal FIR reveals that Sub-Inspector of Police Tapas Nandy was entrusted with investigation of the case by the order of O.C., T.A. Mitra. The case, diary No. 1 was started on 17.11.01 with item No. 1 at 22.15 hours and it is gist of the FIR. 2nd page of the said diary with item No. II shows that the Investigating Officer made note that he will investigate the case tomorrow morning. Item No. II nothing time is overwriting and it shows the timing after overwriting is 23.40 hours. It appears to me that initially it was 22.45 hours but, by overwriting the timing has been made 23.40 hours. In the same page Item No. III shows the note "closed the diary pending for further investigation" and here also timing is overwriting and making it 23.55 hours though it appears to me initially it was 22.55 hours.
28. In C.D. No. 8 is evident that the Investigating Officer made note at top D.D. i.e., date of despatch on 18.11.01 at 8.30 a.m. and D.A. i.e., date of action on 18.11.01 at 8.55 hours. It clearly shows that there was no whisper about interference of the present petitioner Swapan Sarkar in the said investigation. The officer who was entrusted with the investigation made note on 17.11.01 that he will start investigation with effect from 18.11.01 leaving the police station at 8.30 a.m. of 18.11.01. In the meantime on the night of 17.11.01 the alleged incident took place.
29. In the gap between item No. II and HI of C.D. No. 1 bringing of complainant opposite party into police station has been noted and reference of G.D.E. No. 879 dated 17.11.01 has been mentioned. This has been done subsequently by different ink and it is visible with plain eye and for this reason gap of the lines of writing has become totally inconsistent and short or narrow in comparison to other lines and writing in other pages of the case diary. These two lines between item No. II and III of C.D. No. 1 at page 2 were entered subsequently to save the skin of the petitioner.
30. Return diary No. 879 dated 17.11.03 has been prepared but no diary has been produced to show that from Kotwali P.S. PSI D. Sen and ASI N.C. Mondal left police station at which time to enquire into the Kotwali P.S. Case No. 360 dated 17.11.01 by the order of the Deputy Superintendent of Police. No diary has been produced to show that these two police officers were called at Sanghasree Club by the Deputy Superintendent of Police. According to entries in the case diary the investigating officer made endorsement that he will start investigation with effect from 18.11.01. If the petitioner takes the plea or alibi that he visited Sanghasree Club accompanied by PSI D. Sen and ASI N.C. Mondal in connection with investigation of the aforesaid Kotwali P.S. case on 17.11.01 there must be some entry disclosing information received about part played by the complainant opposite party into the alleged offence of Kotwali P.S. Case No. 360 dated 17.11.01. As a superior officer the petitioner may not visit police station or may not make any entry regarding particulars of information received but the proposed action to be taken by him regarding enquiry or investigation of the aforesaid Kotwali P.S. Case No. 360 dated 17.11.01 must have been reflected in the diaries at thana that the Deputy Superintendent of Police received some information regarding involvement of present complainant opposite party in the said Kotwali P.S. case and for this reason by the direction of Deputy Superintendent of Police PSI D. Sen and ASI N.C. Mondal left police station for Sanghasree Club. A return diary carries no sense unless it gets support by previous forwarding diary showing despatch from police station for any particular work or enquiry or investigation.
31. In the case diary the complainant opposite party Santanu Bhowmick is not named in the FIR as an accused. The investigating officer recorded some statements of witnesses on 18.11.01 and in the said 161 Code of Criminal Procedure statements also there was absolutely nothing regarding involvement of the complainant Santanu Bhowmick in the alleged incident of Kotwali P.S. Case No. 360 dated 17.11.01. When investigation into the aforesaid Kotwali P.S. case started for the first time on 18.11.01, how the complainant Santanu Bhowmick was brought to Kotwali P.S. on 17.11.01 in connection with the said Kotwali P.S. case remains a mystery. Insertion of two lines in the case diary regarding bringing of Santanu Bhowmick into police station vide G.D. Entry No. 879 dated 17.11.01 by different ink indicates that those two lines were entered to save the skin of petitioner Swapan Sarkar. Absence of any G.D. entry regarding despatch from police station to Sanghasree Club by PSI D, Sen and ASI N.C. Mondal towards Sanghasree Club for the purpose of enquiry or investigation of the aforesaid Kotwali P.S. case further strengthens that there was want of reasonable connection between the act of petitioner Swapan Sarkar and the discharge of his official duty.
32. Principles of law as enunciated by the Hon'ble Supreme Court has been mentioned above in the previous paragraphs and it shows that the act complained of must have some nexus in the discharge of official duties of the accused or under the colour of his office. The above discussion makes it clear that the petitioner has failed to make out that there was reasonable connection between the act complained of by the complainant opposite party in his complaint and the official duty of the accused petitioner. Petitioner at this stage fails to establish that the act alleged to have been committed was in relation with his discharge of official duty. In my opinion this is a type of case where the complainant must be given opportunity to establish his case by evidence and opportunity should also be given to the accused petitioner to establish that he was acting in the discharge of his official duty. The question whether the petitioner acted in the course of performance of duties or, whether the defence taken by him is pretended or fanciful can only be examined during the course of trial. In my view in this case the question of sanction cannot be considered at this stage and it should be left open to be decided in the main judgment which may be delivered by the learned Court below after conclusion of the trial.
33. After perusing the certified copy of the order sheet annexed with the application I am of opinion that the learned Chief Judicial Magistrate was not right by rejecting the prayer of the petitioner for recalling the W/A issued against him. After all he is a responsible public servant and holding a high post as Sub-Divisional Police Officer and it is unexpected that he would not attend the Court and would flee away from this country. The learned Magistrate should have remembered that being a responsible and busy police officer it may not be possible for him to attend his court regularly. Learned Magistrate is also perhaps aware that there are galaxy of decisions in which different High Courts and the Hon'ble Apex Court of India have indicated that in a summons procedure case when summons has been issued an accused can be permitted to be represented through a lawyer under Section 205 of the Code and his plea also can be taken by such representation under Section 205 of the Code.
34. No doubt, in C.R.R. No. 755 of 2002 this Court indicated that if necessary W/A may be issued against the petitioner but, it was not an indication that without giving sufficient time to the petitioner for his appearance the learned Magistrate would issue W/A against the petitioner. The order sheet indicates that the petitioner was making his efforts to appear before him and also filed a petition for representation and one advocate on 13.2.03 filed an application for this petitioner fixing another date for his appearance, but the learned Magistrate rejecting the application Issued warrant against him. So, in my opinion the order dated 5.8.03 passed by the learned CJM refusing petitioner's prayer to recall W/A being not in accordance with law is set aside. The warrant that has been issued against the petitioner shall remain stayed for 12 weeks from this date during which the petitioner shall surrender before the learned Court below. After his surrender the learned CJM will pass order in accordance with law. It is made clear that if the petitioner fails to appear before the learned CJM within the time granted by this Court the learned Magistrate will be at liberty to take steps for execution of the W/A against the petitioner to secure his attendance with due course of law available to him.
35. In view of the discussions made above there is no ground to quash the criminal proceeding being C.R. Case No. 531 of 2001 now pending in the Court of the learned CJM, Jalpaiguri and prayer for quashing the said criminal proceeding is dismissed.
The revisional application is disposed of in the light of the observations made above in the body of the judgment.