Calcutta High Court (Appellete Side)
Akhil Bandhu Saha vs State Of West Bengal & Ors on 17 April, 2012
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Joymalya Bagchi
W.P. NO. 29020 (W) OF 2008
Akhil Bandhu Saha
Vs.
State of West Bengal & Ors.
For the petitioner : Mr. Ashish Kumar Bhattacharyya,
Mr. Amir S. Molla,
For the State : Mr. Sailaja Nanda Bhattacharya
Heard on : 05.01.2012
Judgement on : 17.04.2012
Joymalya Bagchi, J.:
The writ petitioner has approached this Court, inter alia, praying for direction upon the police authorities attached to the district of Jalpaiguri to take steps in accordance with law with regard to various complaints filed by the petitioner with the said authorities.
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The crux of the allegations of the petitioner is that the petitioner took credit facilities from the State Bank of India, Ektishaal Branch, in the name of his concerns, namely M/s. East India Chemical Products and M/s. East India Trading Company respectively. It is further alleged that on the pretext that such debts have become non-performing assets, the officers of the bank have indulged in wrongful and illegal acts purportedly in exercise of their powers under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as the SARFAESI Act) and have unlawfully taken possession of his moveable and immoveable properties. As a result, the petitioner was constrained to initiate proceeding under Article 226 of the Constitution of India against the officers of the bank and was also required to initiate contempt proceedings against them. In relation to such dispute, the petitioner had been and continues to be subjected to harassment by various individuals at the behest of the bank authorities. The petitioner initiated a criminal case being Bhaktinagar Police Station Case No. 4191 of 2004 dated 15.11.2004 under Sections 380, 384, 426, 462, 120B, 420, 506 and 403 of the Indian Penal Code against such persons but the police submitted a report in final form praying for closure of the case on the ground of "mistake of law". The petitioner had thereafter filed a protest petition being Misc. Petition No. 194 of 2005 before the learned Magistrate, 3 Jalpaiguri objecting to such report. Thereafter, it is alleged that the petitioner has been systematically harassed at the behest of the officers of the bank. The petitioner alleged that his minor son was kidnapped and was recovered after 11 days and that his landlord in collusion with the bank authorities has also driven him out of his rented premises. The petitioner has lodged various complaints with the police authorities. However, no action has been taken in this regard.
The learned lawyer appearing for the petitioner prays that appropriate direction be given to the respondent authorities for initiating criminal proceeding against the miscreants.
I have gone through the averments in the writ petition and its annexures and considered the submissions of the petitioner.
In the case reported in 2004 (7) SCC 768 (Gangadhar Janardan Mhatre V. State of Maharashtra and others) the Supreme Court held as follows :
"When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie 4 case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Regd.) V. Union of India. It was specifically observed that a writ petition in such cases is not to be entertained."
In view of the aforesaid law declared by the Supreme Court, I am of the opinion that in the event the police authorities do not act on the basis of the complaints filed by the writ petitioner it is open to the petitioner to approach the learned Magistrate under Section 190 read with Section 200 of the Code of Criminal Procedure and pray for initiation of proceeding under Chapter XV of the Code of Criminal Procedure.
In view of the existence of an alternative efficacious statutory remedy available under the Code of Criminal Procedure, I am not inclined to allow the instant petition.
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The writ petition is disposed of giving liberty to the petitioner to approach the learned Magistrate and, if so approached, the learned Magistrate shall act in accordance with law.
The writ petition is disposed of accordingly.
Urgent certified photostat copy of this order be given to the parties, if applied for, subject to compliance with all necessary formalities.
(Joymalya Bagchi, J.)