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2001 DIGILAW 711 (CAL)

Indrani Banerjee v. Somesh Banerjee

2001-11-28

NURE ALAM CHOWDHURY

body2001
JUDGMENT Nure Alam Chowdhury, J. 1. This revisional application under section 482 of the Code of Criminal Procedure on behalf of the petitioner Indrani Banerjee, a house-wife is directed for setting aside the orders dated 26.2.2001 and 2.3.2001 passed by the learned Judicial Magistrate, 3rd Court. Serampore, in the district of Hooghly in G.R. No. 1296/95, pending before him arising out of Uttar para P.S. Case No.188 dated 18.10.95 under sections 498A/406 I.P.C. against the three accused opposite parties Somesh Banerjee, Debnarayan Banerjee and Smt. Mandakini Banerjee, husband, father-in-law and mother-in-law of the petitioner respectively. 2. It appears from the impugned order dated 26.2.2001 that out of the four prosecution witnesses directed to be summoned for examination on 26.2.2001 by order dated 1.12.2001. One witnesses S.I. K.R. Dutta, submitted an application for time and the other three witnesses, were not present in court and in that circumstances the learned Magistrate passed order that the examination of the prosecution witnesses had been concluded and there was no such allegation against Debnarayan Mukherjee (which should have been Debnarayan Banerjee father- in-law of the petitioner) so that he should be examined under section 313 of the Cr.P.C. and the learned Magistrate examined the other two accused persons under section 313 of the Cr.P.C. and fixed 2.3.2001 for arguments. 3. It appears that by the impugned order dated 2.3.2001 learned Magistrate that the accused Somesh Chatterjee and Soumen Banerjee were present in Court on that day although there was no such accused in the case and the learned Magistrate fixed 17.7.2001 for examination of the witnesses on behalf of the accused persons. 4. Heard the learned Advocates for the parties, perused and considered the materials in the record. On consideration of the submissions on behalf of the parties and the materials on record, this court is of the view that there has been total non-application of mind on the part of the learned Magistrate in passing the impugned orders in which the errors referred to above are apparent on record. It also does not appear from the order dated 26.2.2001 that summonses were issued to the absentee prosecution witnesses and received by there. In the aforesaid facts and circumstances both the impugned orders dated 26.2.2001 and 2.3.2001 passed by the learned Magistrate are liable to be set aside. It also does not appear from the order dated 26.2.2001 that summonses were issued to the absentee prosecution witnesses and received by there. In the aforesaid facts and circumstances both the impugned orders dated 26.2.2001 and 2.3.2001 passed by the learned Magistrate are liable to be set aside. Interim order by this court of stay of further proceeding in the Court of the learned Magistrate is vacated. 5. The revisional application heard as a "contested application" is therefore allowed and both the impugned orders are set aside and the learned Magistrate, 3rd Court, Serampore, Hooghly is directed to proceed with the trial from the stage of the order dated 1.12.2001 after giving further opportunity to the prosecution to produce the remaining prosecution witnesses for evidence and take all necessary steps for their production in court in accordance with law. 6. Liberty is given to the learned Advocate for the petitioner to amend the cause title by adding "State" as a party and for service of the copy of the revisional application on the learned Public Prosecutor, High Court, Calcutta. Revisional application allowed.