Research › Browse › Judgment

Calcutta High Court · body

1978 DIGILAW 650 (CAL)

Hasim Abdul Halim v. Syed Ellahi Buksh

1978-12-07

AMAR NATH BANERJEE

body1978
Judgment : This Rule is for quashing of a proceeding pending in the court of the Metropolitan Magistrate 6th Court, Calcutta and also for setting aside an order dated 1.4.78 passed by the same Magistrate, Facts leading on to the issue of the present Rule may briefly be stated as follows :- 2. The complainant opposite party brought a suit against six of his tenants for their eviction in the City Civil Court, Calcutta. That suit was compromised and as per terms of the compromise it was agreed upon that after the completion of the proposed new construction the aforesaid tenants would have one shop room each. There were altogether eleven civil suits which were so decreed on compromise. It is alleged that the complainant opposite party after the completion of the aforesaid new construction of the building gave notice to the respective accused persons who were tenants to take possession of their respective shop rooms before 1.1.71. Inspite of such service of the said notice the tenants did not choose to occupy such shop rooms which were under lock and key and in charge of the Durwan. On the night between 1st and 2nd January, 1971 at about 2.30 a. m. it is alleged that accused Nos. 2 to 10 under the leadership of the accused No.1 who was at that time a practising advocate of City Civil Court Calcutta, formed themselves into an unlawful assembly -- -- -- with soda water bottles and they took possession of the rooms after breaking open the lock of those rooms. Accordingly, the complainant opposite party filed a complaint against the aforesaid accused persons under sections 147, 456 and 427 IPC. The aforesaid complaint was filed on 18.1.71. The learned Magistrate took cognizance under section 342 IPC against some others and against the petitioner under section 342/109 IPC. Thereafter, charges were framed against the aforesaid accused persons. The complainant moved this Court against the order framing charge only under section 342/109 IPC against the petitioner and obtained a Rule. But that Rule was discharged. Subsequently, on 30.4.75 the learned Magistrate to whom the case was transferred dropped the proceeding on the ground of non-compliance of provision of section 200 Cr. P.C and discharged the accused persons. On 5.5.75 a fresh complaint on the self same allegations was filed before the learned Chief Metropolitan Magistrate, Calcutta. But that Rule was discharged. Subsequently, on 30.4.75 the learned Magistrate to whom the case was transferred dropped the proceeding on the ground of non-compliance of provision of section 200 Cr. P.C and discharged the accused persons. On 5.5.75 a fresh complaint on the self same allegations was filed before the learned Chief Metropolitan Magistrate, Calcutta. The learned Magistrate on perusal of the complaint transferred it to another learned Metropolitan Magistrate for favour of disposal. Before the tranferee Magistrate objections were taken by one of the accused to the effect that cognizance taken in this case was bad in law and the complaint was barred by limitation. By an order dated 1.4.78 the learned Magistrate over ruled such objections. Thereafter the petitioner moved this Court and obtained the present Rule. 3. Mr. D.K. Dutta, learned Advocate appearing for the petitioner took two fold objections. His first objection was that the learned Chief Metropolitan Magistrate could not entertain the 2nd complaint which was admittedly on the self same allegations and secondly the complaint was barred by limitation under section 468 Cr. P.C. Mr. B. N. Mitra, Ld. P.P. appearing for the State supported the above contention of Mr. Dutta Mr. D.P. Chowdhury, learned advocate appearing for the complainant opposite parties tried to controvert the above contention of Mr. Dutta on the ground that the learned Chief Metropolitan Magistrate did nothing wrong in entertaining the second complaint in view of the fact that the earlier complaint was rejected on some technical grounds. His other contention was that there was no question of limitation in view of the proviso to subsection (1) of Section 470 of the Code of Criminal Procedure 1973. In my view, both the contentions of Mr. Dutta should be accepted. We have already seen that in the earlier case which was based on the self same facts and allegations as contained in the second complaint the learned Magistrate had framed charges against the accused persons. The case was a warrant triable case. That being so, the learned trial Magistrate have had no authority or jurisdiction to discharge the accused persons and/or to drop the proceedings after framing of the charges. The case was a warrant triable case. That being so, the learned trial Magistrate have had no authority or jurisdiction to discharge the accused persons and/or to drop the proceedings after framing of the charges. It may be that there was a decision of this Court which laid down that unless the complainant examines his witnesses who are present and unless there is a note in the order sheet to the effect that the witnesses who are present have been examined, issue of process would be bad in law. But even if there was such a decision of this Court the Magistrate have had no power or jurisdiction to drop the proceeding and to discharge to accused persons. His clear duty was to make a reference to this Court stating the predicament in which he was in. In any event, there could not have been any order of discharge after the framing of charge in a warrant triable case. Such an order of discharge in such a case would, in my view, amount to an order of acquittal. That being so, it was open to the complainant opposite party to come up against the order of the learned Magistrate. The complainant did not choose to do that. What he did was to file a fresh complaint. He had no such right and the learned Magistrate before whom such fresh complaint was filed was also not competent to entertain it. Even if the proceeding had been dropped and the accused persons had been discharged that did not take away the fact of filing of the earlier complaint. It was open to the learned Magistrate to proceed from the stage of the filing of the earlier complaint. His subsequent acts were without jurisdiction. In facts, had the learned, Magistrate made a reference to this Court or if the complainant opposite party had come up against the order of the learned Magistrate dropping the proceedings and discharging the accused persons before this Court, there could have been an order to that effect. In the eye of law, the earlier complaint remained and had not been disposed of in accordance with the provisions of law. In that view of the matter the 2nd complaint on the self same facts and allegations was neither called for nor was entertainable by the learned Magistrate : 4. In the eye of law, the earlier complaint remained and had not been disposed of in accordance with the provisions of law. In that view of the matter the 2nd complaint on the self same facts and allegations was neither called for nor was entertainable by the learned Magistrate : 4. On the question of limitation, I am of the view that sub-section (1) of Section 470 Cr. P.C. will be of no avail to the complainant. Provision to that sub-section lays down that no such exclusion would be made unless the prosecution relates to the said facts and is prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. In the present case, it could not be said that the court which took cognizance and issued process suffered from any defect or jurisdiction or other cause of a like nature Prima facie the 2nd complaint was barred by limitation under clause (c) of sub-section (2) of Section 468 Cr. P.C. Such a bar is to the taking of the cognizance of an offence by a Magistrate. The learned trial Magistrate erred in thinking that because the learned Chief Metropolitan Magistrate perused the complaint it must be deemed that he had condoned the delay. The learned Magistrate failed to notice that the provision of Section 473 of the Code which lays down that if any court takes cognizance of an offence after expiry of period of limitation, it must be satisfied on the facts and in the circumstances that the delay has been properly explained or that it is necessary to do so in the interest of justice. In other words, there must be an order by the court indicating taking consideration of the above provision of section 473 of the Code. Needless to say the order of the learned Chief Metropolitan Magistrate who took cognizance of the offence gives no indication to the effect that he had taken into consideration the requirement of section 473 of the Code. Accordingly, I hold that the 2nd complaint was barred by limitation and that it was not open to the learned Chief Metropolitan Magistrate to entertain it. Accordingly, I hold that the 2nd complaint was barred by limitation and that it was not open to the learned Chief Metropolitan Magistrate to entertain it. In view of the matter, it must be held that the entire proceedings pending in the court of the learned Metropolitan Magistrate 6th Court, Calcutta, should be quashed even though all the accused persons are not before me. 5. In the result, the Rule is made absolute. The proceedings pending before the learned Metropolitan Magistrate, 6th Court, Calcutta, is hereby quashed.