Calcutta High Court (Appellete Side)
4467W/2013 on 20 March, 2013
Author: Dipankar Datta
Bench: Dipankar Datta
1
20.03.2013
Item No.09
SB
W.P. 4467 (W) of 2013
Mr. S. K. Bhattacharyya,
Mr. S. Basu,
Mr. R. Sen,
Mr. N. Sharma...........for the petitioner.
Mr. P. K. Dutta,
Mr. A. Chatterjee.............for the State.
The petitioner has been named as an accused in Jadavpur
Police Station Case No. 270 of 2009 dated 19.05.2009 under
Section 420 of the Indian Penal Code, 1860. Subsequently, on an
application made by the investigating officer, Sections 66C and
66D of the Information Technology Act, 2000 has been added in
terms of an order dated 18.03.2011 passed by the Additional Chief
Judicial Magistrate, Alipore. Investigation is in progress.
The petitioner had the occasion to invoke the jurisdiction of
this Court by filing an application under Section 438 of the Code of
Criminal Procedure. The application, registered as CRM 14250 of
2012, was considered on 19.10.2012. An Hon'ble Division Bench
upon looking into the case diary and after hearing the advocates
for the parties dismissed the application for anticipatory bail. It is
2
not in dispute that the said order has not been questioned by the
petitioner before the Apex Court.
Despite refusal of the prayer for anticipatory bail, the
petitioner did not surrender before the concerned Magistrate. The
investigating officer could not also secure his arrest. It is in the
aforesaid background that this writ petition dated 12.02.2013 has
been filed before this Court claiming, inter alia, the following relief:
" (a) A Writ of and/or in the nature of Mandamus do issue
Commanding the concerned Respondent Authorities to act and
proceed in accordance with law in the manner of tracing the location of the Unique Identification Number of the computer machine/mobile instrument identifiable by the simultaneously emission/transmission to the service provider M/s. AIRTEL utilized for perpetrating the online fraud in the initially initiated Jadavpur Police Station Case No. 270 of 2009 dated 19.05.2009 under Section 420 of the Indian Penal Code, 1860;
(b) A Writ of and/or in the nature of Prohibition do issue prohibiting the concerned respondent from arresting Your Petitioner on the strength of the Warrant of Arrest issued on 18th July 2012 and extended further on 17th November 2012 issued by the Court of the Learned Chief Judicial Magistrate, Alipore, South 24 Parganas, in the Jadavpur Police Station Case No.270 of 2009 dated 19.05.2009 (now ACGR: 8757/12, BGR:384/03) under Section 420 of the Indian Penal Code, 1860, later added with Sections 66C and 66D, of the Information Technology Act, 2000 in terms of the order dated on 18.03.2011 in abuse of the process of law;
(c) A writ of and/or in the nature of Certiorari do issue directing the concerned Respondent No.1 to produce the records of the instant matter including the case records of the Jadavpur Police Station Case No.270 of 2009 dated 19.05.2009 (now ACGR: 8757/12, BGR:
384/03) under Section 420 of the Indian Penal Code, 1860, later added with Sections 66C and 66D, of the Information Technology Act, 2000 in terms of the order dated 18.03.2011 by the Learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas, West Bengal, certify the same and upon hearing the parties hereto set and quash the all proceedings against Your Petitioner in the 3 said Jadavpur Police Station Case No.270 of 2009 dated 19.05.2009;"
Interim order has been prayed for as follows:
"(f) A further interim order staying the execution of the Warrant of Arrest issued on 18.07.2012 further extended on 17.11.2012 in respect of the Jadavpur Police Station Case No.270 of 2009 dated 19.05.2009 (now ACGR: 8757/12, BGR: 384 / 03) under Section 420 of the Indian Penal Code, 1860, later added with Sections 66C and 66D, of the Information Technology Act, 2000 in terms of the order dated on 18.03.2011 by the Learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas, West Bengal be passed;"
According to Mr. Bhattacharyya, learned advocate for the petitioner, Sections 66C and 66D of the Information Technology Act, 2000 was introduced in the statute book on 27.10.2009 whereas the offence of which the petitioner has been accused was allegedly committed on 19.05.2009. Addition of Sections 66C and 66D, therefore, is absolutely illegal.
That apart, it is his contention that the FIR could not have been registered under Section 420 of the Indian Penal Code; if at all, it was Section 468 thereof that could be attracted. It is also his contention that the concerned Magistrate on a prayer made by the investigating officer has issued a warrant for securing the petitioner's arrest despite the fact that the provisions of law in respect whereof the petitioner is accused to have committed offence are not at all attracted and this demonstrates total lack of application of mind.
4On the last occasion, Mr. Bhattacharyya was called upon by the Court to satisfy it as to whether after rejection of the application for anticipatory bail by the Hon'ble Division Bench, this Court would be justified in restraining the investigating officer from interfering with the petitioner's personal liberty. Mr. Bhattacharyya has cited before this Court the decisions reported in AIR 1988 SC 1531 and AIR 2002 SC 1771 for the proposition that interests of justice demand rectification of an error committed by the Court and, therefore, the petitioner is entitled to relief ex debito justitiae.
I am afraid, I cannot agree with Mr. Bhattacharyya. It is not within the domain of a single Judge of this Court to make any observation in respect of the merits of an order passed by the Hon'ble Division Bench. Even if it is found that some relevant facts had escaped the notice of the Hon'ble Division Bench while considering the application for anticipatory bail, that is no ground for a single Judge to hold in favour of the accused. Propriety demands that the decision of the Hon'ble Division Bench be respected.
That apart, an order passed by the writ court restraining the investigating officer to interfere with the personal liberty of the accused tantamounts to an order invoking the provisions of Section 438 of the Code of Criminal Procedure. Once the power 5 under such provision has not been exercized by the Hon'ble Division Bench, the same prayer cannot be entertained by the writ court. Remedy of writ would not be available to a litigant in respect of a prayer that has been considered and refused. The decisions that have been cited do not have any application here. The facts there were entirely different. More importantly, it was the Supreme Court that was urged to decide whether previous decisions given by it called for interference or not. Insofar as the complaint is concerned, mere fact that the appropriate section of the Indian Penal Code has not been mentioned does not render the investigation vitiated. It is the petitioner's own case that Section 468 of the Indian Penal Code would get attracted if the allegations in the complaint are to be believed. Be that as it may, at the appropriate stage of the proceedings, viz. taking of cognizance of the offence or framing of the charge, it is open to the Magistrate to cure the defects, if any. Then again, Section 215 of the Criminal Procedure Code deals with the effect of errors. Unless the accused is misled by any error or omission and failure of justice has occasioned, mere error in stating either the offence or the particulars shall not be regarded at any stage of the case as material.
In my considered view, the petitioner has fully comprehended the accusation against him and he shall be entitled to raise all 6 points in defence in course of the proceedings. There is no question of a failure of justice being occasioned because of improper mention of the section. The basic conditions on satisfaction of which the writ court may be justified in interfering with an investigation have not been satisfied in the present case. The petitioner, thus, is not entitled to any relief. The writ petition stands dismissed, without costs. The interim order, passed earlier, stands vacated. Mr. Bhattacharya's prayer for stay is considered and refused. Let a photocopy of this order be issued to the learned advocate for the petitioner, duly countersigned by the Assistant Registrar (Court), on the usual undertaking.
(DIPANKAR DATTA, J.)