Calcutta High Court (Appellete Side)
Debabrata Ray Choudhuri vs State Of West Bengal & Anr on 8 September, 2010
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
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Form No.J(1) IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
C.R. R. No. 1697 of 2010
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Debabrata Ray Choudhuri.
Versus
State of West Bengal & anr.
For the petitioner: Mr. Debabrata Roychowdhury,
Mr. Jayanta Dutta.
For the Opposite parties: Mr. Sudipto Moitra,
Mr. S. K. Banerjee,
Mr. Ratan Pathak,
Mr. Ashok Das.
Heard On: 02.09.2010.
Judgement On: September 8, 2010.
Prasenjit Mandal, J.: This application is at the instance of the
de-facto complainant and is directed against the order dated March
15, 2010 passed by the learned Additional Chief Judicial
Magistrate, Alipore in B.G.R. Case No.5842 of 2008 arising out of
Jadavpur P.S. Case No.791(12) of 2008.
The short fact of the case is that the de-facto complaint
filed a petition under Section 406/408/120B/34 of the Indian Penal
Code before the learned Additional Chief Judicial Magistrate,
Alipore for sending the same to the Jadavpur P.S. for
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investigation. On the basis of the order of the learned
Additional Chief Judicial Magistrate, Alipore, the Jadavpur P.S.
started the said case and investigation was going on. The learned
Court issued warrant of arrest against the accused/opposite party
no.2 herein. But, since the opposite party no.2 is working
abroad, the learned Additional Chief Judicial Magistrate, Alipore
passed an order for impounding his passport to secure his
attendance. In the meantime, the opposite party no.2 filed an
application for anticipatory bail before the Hon'ble High Court
and then the Hon'ble High Court granted anticipatory bail subject
to the condition laid down in Section 438(2),(i),(ii) and (iii) of
the Code of Criminal Procedure. Thereafter, the opposite party
no.3 appeared before the learned Additional Chief Judicial
Magistrate, Alipore and prayed for bail which was granted by the
learned Additional Chief Judicial Magistrate, Alipore. At the
time of granting bail, the opposite party no.2 was permitted to
leave India subject to the condition that he should attend this
Court regularly on all subsequent dates of this case as well as
when his presence was needed by the investigating officer for the
purpose of smooth progress of the investigating work. The order
of impounding the passport was recalled by the impugned order.
Being aggrieved by such orders, this application has been
preferred by the de-facto complainant.
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Mr. Roychowdhury submits that a magistrate cannot recall his
order and any order passed by the magistrate shall remain in force
unless and until it is set aside or modified by the higher forum,
such as, the District Judge, the High Court or the Apex Court. In
the instant case, initially, the learned Additional Chief Judicial
Magistrate, Alipore passed the order directing the I.O. to impound
the passport by the order dated September 9, 2009. It has not
been set aside by any higher forum, but, by the impugned order,
the learned Additional Chief Judicial Magistrate, Alipore has
recalled that order. He also contends that a magistrate cannot
also recall and modify either of his own order or any order passed
by the higher forum. In the instant case, the learned Magistrate
has set aside the order of the Hon'ble High Court by permitting
the opposite party no.2 to leave India which was prohibited by the
Hon'ble High Court at the time of grant of the anticipatory bail.
Therefore, the order impugned cannot be supported. It must be set
aside.
On the other hand, Mr. Moitra, learned Advocate appearing on
behalf of the opposite party no.2, submits that the learned
Additional Chief Judicial Magistrate, Alipore is within his right
in passing the impugned order. He contends that at the time of
investigation, the concerned magistrate can permit the accused not
to attend Court on the date fixed for report of the investigation.
The opposite party no.2 is a service holder at Ireland and from
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the early part of his service career, he has been working abroad.
Previously he was at Johannesburg at the time of marriage. So, he
is a service holder. If he is unable to attend his office for the
reasons of this case, he would loose his service. In
consideration of such position, the Court recalled the order of
impounding the passport of the opposite party no.2 and also
permitted him to leave India. So, there is no illegality or
irregularity in passing the order impugned.
Thus, the point for decision that arises is whether the
impugned order can be sustained.
Upon hearing the learned Advocate for both the sides and on
perusal of the materials on record, I find that previously by the
order dated September 9, 2009 the learned Additional Chief
Judicial Magistrate, Alipore issued warrant of arrest against the
accused/opposite party no.2 herein. At the same time, the
concerned magistrate gave liberty to the I.O. to approach the
appropriate authority for impounding his passport. Such measures
were taken by the learned magistrate to ensure attendance of the
opposite party no.2 in the said B.G.R. Case No.5842 of 2008 under
Section 406/408/120B/34 of the I.P.C. Subsequently, the accused
/opposite party no.2 was granted anticipatory bail by the Hon'ble
High Court, Calcutta subject to the conditions as laid down under
Section 438 (2), (i), (ii) and (iii) of the Code of Criminal
Procedure meaning thereby in short that the accused / opposite
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party no.2 shall not leave India as one of the conditions for
grant of anticipatory bail. Such an order of anticipatory bail
was granted by the Hon'ble High Court, Calcutta on October 9, 2010
and that order remained valid for a period of four weeks meaning
thereby that after lapse of the said period, the condition of 'not
to leave', as passed by the Hon'ble Court, shall not remain in
force unless such type of condition is incorporated by the order
of the learned magistrate at the time of granting the regular
bail. Subsequently, the opposite party no.2 surrendered before the
learned Additional Chief Judicial Magistrate, Alipore and the
warrant of arrest issued against him was recalled and the interim
bail, as granted against him, was confirmed.
Mr. Roychowdhury has referred to the following decisions:-
1.Hari Singh Mann Vs. Harbhajan Singh Bajwa and ors.
reported in (2001) 1 SCC 169.
By referring this decision he submits that the magistrate had no jurisdiction to alter or review its own judgment or order except to the extent of correction of any clerical or arithmetical error. Relevant paragraph is no.8.
2. Dharmeshbahai Vasudevhai and ors. vs. State of Gujarat and ors. reported in (2009) 3 SCC (Cri) 76 6 By referring this decision Mr. Roychowdhury submits that the concerned magistrate has no jurisdiction to recall the said order.
3. Brij Nandan Jaiswal Vs. Munna Jaiswal and anr. reported in (2009) 1 SCC (cri) 594.
Mr. Roychowdhury submits that the complainant can always question the order of granting bail if the said order is not validly passed and
4. Lalita Kumari Vs. Govt. of Uttar Pradesh and ors. reported in (2008) 3 SCC (Cri) 17.
Thus, he submits that inaction of police to record FIRs and in cases FIRs recorded on court directions, apathy to investigate the case, such an incidence is to be brought to the notice of the Court. In order to curb this malady, the Court may give necessary directions. Thus, he submits that in the instant case investigation is not being properly made. Police did not recover all the articles claimed and the case is still pending at the stage of investigation though it was lodged in 2008.
On the other hand, Mr. Moitra, learned Advocate appearing on behalf of the opposite party no.2, has referred to the following decisions:-
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1. Nemai Chand Bose Vs. Modi Cement Ltd. & ors. reported in 2002 (1) Crimes 369.
He submits that the Court cannot recall any order which has been finally passed. Embargo under Section 362 of the Cr.P.C. does not operate against an interlocutory order and the magistrate can pass a different order at a later stage.
2. H. R. Shetty and ors. Vs. Titas Farnandes reported in 2003 Cri.L.J. 1383. (Karnataka High Court) By referring this decision he has submitted that Court can recall of an earlier order which is not a judgment and for that reason the provision of Section 362 of the Cr.P.C. is not attracted.
3. Free Legal Aid Committee, Jamshedpur Vs. State of Bihar reported in AIR 1982 SC 1463.
Thus, he has referred to the ratio of the decision that the accused released on bail need not be required to appear before the Court until chargesheet is filed and process is issued by the Court. Thus, from the above facts and circumstances and the decisions referred to I find that the decision of Hari Singh Mann (supra) relates to alter or review the judgment or order passed by a Court and thus, the Hon'ble Apex Court observed that save and except correction of clerical or arithmetical error a judgment or 8 final order passed cannot be altered or reviewed as per Section 362 of the Cr.P.C. This is not the exact situation in the instant case. Therefore, I am of the view that this decision is not relevant in the instant case.
In the case of Dharmeshbahai Vasudevhai (supra) the Apex Court held that whenever the magistrate passed an order for investigation of a case under Section 156(3) he has no authority to recall the order for investigation or withdrawal of the investigation. This is not the situation in the instant case and so this decision will not be applicable.
As regards the case of Brij Nandan Jaiswal (supra) the Apex Court observed that the complainant can make a submission at the time of passing orders on the bail condition but such submission must be forwarded through the learned A.P.P. who was conducting the case. The de-facto complainant got the opportunity of hearing the application for bail but at the time of passing the impugned order it appears that the misc. case filed by the de-facto complainant before the District Judge against the order of the learned Magistrate was not pending and so the concerned magistrate could well pass the impugned order. Moreover, at that time, the learned A.P.P. did not raise any objection in allowing the application filed by the accused person. So, the concerned magistrate was appropriate to deal with the application when no 9 objection is raised on behalf of the learned Assistant Public Prosecutor.
As stated earlier, the anticipatory bail was granted by the Hon'ble High Court for a period of four weeks from the date of passing the order. So, after lapse of such period, the order does not remain in force and the order passed by the learned Magistrate confirming the bail remains valid and in disposing of the application by the impugned order, the magistrate is within his competence in permitting the accused/opposite party no.2 not to attend Court till investigation is completed in view of the decision reported in the case of Free Legal Aid Committee, Jamshedpur (supra).
So, I am of the view that there is no illegality in permitting the accused/opposite party no.2 to leave India particularly when he is a service holder abroad. Similarly, as regards recall of the order relating to impounding, I find that actually the learned Magistrate did not pass any order for impounding the passport of the opposite party no.2. Impounding of passport is to be done as per Section 10 of the Passport Act, 1967. The magistrate gave the liberty to the I.O. to move the appropriate authority for impounding the passport of the opposite party no.2. Such orders were passed initially by the concerned magistrate to secure attendance of the accused person. Whenever the accused person surrendered before the learned Magistrate, then 10 the magistrate was at liberty to consider his order and when the learned A.P.P. did not raise any objection, I am of the view that the concerned magistrate was within his right to recall the order of impounding of the passport and such order of recall does not come within the provisions of Section 362 of the Cr.P.C. and the decisions referred to by Mr. Roychowdhury are not applicable in the instant situation.
As per materials on record, police seized some of the ornaments from the house of the opposite party no.2, situated under the P.S. Jadavpur. Police also submitted chargesheet on August 18, 2010 under Section 406/408/120B/34 of the I.P.C.
In view of the above discussions, I am of the view that there is no illegality or impropriety in the order impugned. The learned Magistrate has not exceeded his jurisdiction in passing the impugned order. Therefore, there is nothing to interfere with the impugned order. Accordingly, this application is dismsised.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)