Calcutta High Court (Appellete Side)
Asabuddin Molla vs The State Of West Bengal & Anr on 16 September, 2022
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
16.09.2022
Item No.02
Suman
Ct.42
CRR 3522 of 2022
Asabuddin Molla
Vs.
The State of West Bengal & Anr.
Mr. Ayan Bhattacharjee
Mr. Aditya Ratan Tiwary
Mr. Suman Majumder
...for the petitioner
One of the accused in Rajarhat Police Station Case
No. 277 dated 22nd August, 2022 under Sections
467/468/471/420/323/324/385/34 of the Indian Penal
Code has prayed for quashing of the said proceeding
corresponding to G.R. Case No.3453 of 2022 on the
following grounds:-
(i) There is no averment in compliance of
the decision of the Hon'ble Supreme
Court in Priyanka Srivastava case with
regard to compliance of Section 154(1)
and 154(3) of the Code of Criminal
Procedure in the petition of complaint.
(ii) Statement in paragraph 5 of the
application under Section 156(3) of the
Code of Criminal Procedure cannot be
2
treated as compliance of the direction of
the Hon'ble Supreme Court in the
Priyanka Srivastava's case
(iii) The learned Magistrate failed to follow
the directions passed by this Court in
Mukul Roy versus State of West
Bengal and others reported in (2019)
1 C Cr. LR (Cal) 390. Paragraph 60 of
the said report is relevant and quoted
below:-
"60. Therefore, I direct that
learned Registrar General shall take
immediate steps for issuance of
suitable guidelines to all the Chief
Judicial Magistrates, Chief
Metropolitan Magistrates, Additional
Chief Judicial Magistrates,
Additional Chief Metropolitan
Magistrates, Judicial Magistrates
through the District Sessions Judges
and Metropolitan Magistrates,
Calcutta of all the Districts of the
State of West Bengal, which
guidelines are laid down for
application of judicial mind by the
learned Judicial Magistrate while
invoking power under Section 156(3)
of the Code, as under -
1.The learned Magistrate would be well advised to verify the truth and the veracity of the allegations, regard being had to the nature of allegations of the case.
2. There has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3) of the Code of Criminal Procedure. 3
3. Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed which are the sine qua non for application under Section 156(3) of the Code.
4. An application under Section 156(3) of the Code should be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made.
5. A number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/latches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed.
6. Learned Magistrate would also be aware of the abnormal delay in lodging of the FIR in initiating criminal prosecution."
(iv) Learned Magistrate failed to consider the veracity of the allegations against the petitioner. The copies of the application under Section 154(1) and 154(3) were not annexed and consequently looked into by the learned Magistrate.
(v) Last but not the least the learned Magistrate passed the order dated 22 nd August, 2022 in C. Case No.1521 of 2022 on a preprinted order only by filling up 4 the blanks. Non-application of mind of the learned Magistrate is palpably clear in the order dated 22nd August, 2022 because the learned Magistrate before hearing an application under Section 156(3) of the Code of Criminal Procedure presumably printed the relevant portion of the order in the following words:-
"This Court, given the material in hands, finds that the petition discloses prima facie existence of cognizable offence which requires investigation. Further, it also becomes evident that the complainant has duly complied with the requirements of sections 154(1) and 154(3) of the Cr. P. C. "
At this juncture, let me reproduce paragraph 5 of the application under Section 156(3) of the Code of Criminal Procedure.
"5. That the complainant informed about the facts to the local Rajarhat Police Station and lodged a complaint again those persons and lodged a GDE and thereafter the complainant informed about the facts to the Superintendent of Police, North 24 Parganas and finally he files this case."5
No date has been mentioned in paragraph 5 mentioning lodging of complaint and thereafter intimation in writing to the Superintendent of Police, North 24 Parganas, an omnibus and bold statement has been made by the complainant regarding compliance of 154(1) and 154(3) of the Code of Criminal Procedure. No copy of written complaint under Sections 154(1) and 154(3) were annexed with the application under Section 156(3) of the Code of Criminal Procedure. The averment in paragraph 5 of the complaint was not examined by the learned Magistrate. He also did not call for documentation of those complaint prior to filing of the application under Section 156(3) of the Code of Criminal Procedure as laid down in Priyanka Srivastava's case and Mukul Roy's case mentioned hereinabove.
On the contrary, the learned Chief Judicial Magistrate, Barasat has already preprinted an order to show a notional compliance of the guidelines of the Hon'ble Supreme Court as per Priyanka Srivastava's case.
The act and conduct of the learned Chief Judicial Magistrate, Barasat shocks the conscience of this Court. The learned Magistrate has practically tarnished the majesty of the judiciary 6 by keeping and producing a preprinted order and issuing the same in C Case No.1521 of 2022. On 22nd August, 2022 directing the Inspector-in- charge of Rajarhat Police Station to treat the application under Section 156(3) of the Code of Criminal Procedure as an FIR and start a specific case against the accused persons. Before passing of such order he did not enquire about the veracity of the allegation and the specific role of the petitioner in the alleged offence.
For the reasons stated above, the instant revision be admitted.
The petitioner is directed to serve notice upon the private opposite party under registered speed post with A/D and file affidavit of service within two weeks from the date of this order.
In the meantime, no coercive step shall be taken against the petitioner till 23 rd December, 2022.
In view of the observation made by this Court against the impugned order dated 22 nd August, 2022 and the purported judicial act by the learned Chief Judicial Magistrate at Barasat a rule be issued against Mr. Sandip Kumar Kundu, learned Chief Judicial Magistrate, Barasat directing him to show cause within the next 7 returnable date as to why a criminal contempt shall not be drawn up against him for repeated violation of the directions and orders passed by this Court not only in this case but also in other cases where the learned Magistrate was directed to strictly comply with Rule 183 of the Calcutta High Court Criminal (Sub-ordinate Courts) Rules, 1985 and the decision of this Court in the case of Sharmistha Chowdhury versus State of West Bengal reported in (2017) 3 CLT 579.
Let a copy of this order be sent to Mr. Sandip Kumar Kundu, learned Chief Judicial Magistrate, Barasat through the learned Sessions Judge, North 24 Parganas.
The learned Registrar (Judicial Service) is requested to send a copy of this order to the learned Sessions Judge, North 24 Parganas at Barasat for compliance.
The petitioner is at liberty to act on the server copy of this order.
(Bibek Chaudhuri, J.)