Calcutta High Court (Appellete Side)
For The vs Dwarkesh Diamonds Pvt. Ltd. & Anr." on 13 May, 2014
Author: R. K. Bag
Bench: R. K. Bag
44 13.05.2014 GB Court No.33 CRR 3203 of 2011 Mr. Anupam Kr. Bhattacharya Mr. Partha Sarathi Das ........For the petitioner The petitioner has preferred this criminal revision for quashing the proceeding being case No. 268C of 2010 under Sections 323/427/447/379/34 of the Indian Penal Code pending before the court of learned Judicial Magistrate, 2nd Court, Uluberia, Howrah.
None appears on behalf of the opposite parties, though Mr. Parthapratim Das, learned counsel and Ms. Sudakshina Dey, learned counsel appeared on behalf of the opposite party no.1 on 22.02.2012.
Mr. Anupam Kr. Bhattacharya, learned counsel appearing on behalf of the petitioner submits that learned Magistrate rejected the prayer of the opposite party no.1 for causing investigation under Section 156(3) of the Code of Criminal Procedure, but took cognizance of the offence by recalling his own order which is not permissible under the law. According to Mr. Bhattacharya, learned Magistrate cannot take cognizance of the offence after rejecting the prayer under Section 156(3) of the Code of Criminal Procedure, 1973. Mr. Bhattacharya, learned counsel has relied on a decision in the case of "Devendra Kishanlal Dagalia V. Dwarkesh Diamonds Pvt. Ltd. & Anr." reported in (2014) 1 C Cr LR (SC) 523. in support of his contention that learned Magistrate cannot take cognizance of the offence after rejecting the prayer under Section 156(3) of the Code of Criminal Procedure, 1973.
It appears from the materials on record that the opposite party no.1 being the complainant filed the complaint case bearing no. 268C of 2010 before the court of learned Judicial Magistrate and learned Magistrate did not consider it fit to forward the petition of complaint to the officer-in-charge of the concerned police station for causing investigation under Section 156(3) of the Code of Criminal Procedure and as such rejected the prayer under Section 156(3) of the Code of Criminal Procedure, 1973. It appears from the order dated 15.05.2010 passed by learned Magistrate in the said complaint case that learned Magistrate took cognizance of the offence and transferred the case to the court of another learned Magistrate for disposal and learned transferee Magistrate examined the opposite party no.1 being the complainant and on consideration of the materials on record was prima facie satisfied that offence is made out under Sections 323/427/447/379/34 of the Indian Penal Code and therefore issued summons to the present petitioner who happens to be the accused of the present complaint case.
On perusal of the order challenged before this court, I cannot persuade myself to hold that learned Magistrate recalled the order passed by him as contended on behalf of the petitioner. On perusal of the decision of the Apex Court reported in "(2014) 1 C Cr LR (SC) 523" cited on behalf of the petitioner, I find that the Apex Court has laid down that once the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 of the Code of Criminal Procedure, there is no question of going back following the procedure under Section 201 of the Code of Criminal Procedure. The Apex Court has laid down that in the absence of any power of review or recall of the order of issuance of summons, the Magistrate cannot recall the summons in exercise of power under Section 201 of the Code of Criminal Procedure. In the instant case the learned Magistrate refused the prayer of the opposite party no.l to forward the petition of complaint to the officer-in-charge of the concerned police station for causing investigation under Section 156(3) of the Code of Criminal Procedure and thereafter took cognizance and transferred the case to the court of another learned Magistrate for the purpose of conducting enquiry and disposal. Accordingly, the question of review or recall of the order after taking cognizance of the offence does not arise at all. The natural corollary is that the ratio of the decision reported in "(2014) 1 C Cr LR (SC) 523" is not applicable in the present case.
On consideration of the impugned order challenged in this criminal revision, I am of the opinion that there is illegality in the order passed by learned Magistrate. Accordingly, there is no merit in this criminal revision. The criminal revision, is thus, dismissed.
The department is directed to send down a copy of this order to the learned court below for favour of information and necessary action.
Urgent Photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
( R. K. Bag, J. )