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2002 DIGILAW 544 (CAL)

Pritam Sen v. State of West Bengal

2002-08-14

Debiprasad Sengupta

body2002
Judgment Debiprasad Sengupta, J. In the present revisional application the petitioner has challenged an order dated 21.5.2002 passed by the learned Chief Judicial Magistrate, Alipore in T.R. No.7 of 2002 arising out of Jadavpur P.S. Case No. 190 of 2000 under section 498A/406 of the Indian Penal Code. 2. On the basis of a complaint lodged by the present opposite party No.2 the aforesaid case was registered with Jadavpur police station. Present petitioner, who is the elder brother-in-law of the de facto-complainant, was made accused in the said case. On an application under section 438 Cr. P.C. the petitioner was granted anticipatory bail by this court on 11.7.2000. After such anticipatory bail was granted, the petitioner who is a resident of Bangalore, was never contacted by the investigating agency nor he was ever directed by such agency to meet the investigating officer for interrogation. 3. On completion of investigation charge-sheet was submitted and the learned Magistrate after taking cognizance of the offence issued bailable warrant against the petitioner. Challenging such order the present petitioner preferred a revisional application before this court which was numbered as C.R.R. 933 of 2001 and was finally disposed of on 18.10.2001. The impugned order issuing bailable warrant was set aside by this court, the matter was sent back to the learned Magistrate with a direction to reconsider the issue of warrant of arrest in the light of the discussions made in the said judgment and also with reference to section 87 of the Code of Criminal Procedure. 4. After a contested hearing and after considering the judgments referred to the learned Advocates of the parties and also the relevant provisions of law, this court disposed of the aforesaid revisional application. It would be pertinent to quote some relevant portions from the said judgment delivered by this court, which are as follows:- "A Magistrate, who takes cognizance of offence founded on the accusation, whereupon anticipatory bail was granted earlier, is entitled to issue a bailable warrant in view of the provisions of section 438(3), Criminal Procedure Code if he 'decides that a warrant should issue at the first instance.' The words 'decides' and 'at the first instance' are of vital significance. The word 'decides' postulates a judicial decision since a decision is to be taken in a judicial proceeding after taking cognizance of the offence, and the expression 'at the first instance' brings into operation section 87 of the Code of Criminal Procedure." "A decision taken by a Magistrate in a judicial proceeding must be based upon reasons and when such decision relates to issuance of warrant in a case in which the Court 'is empowered by the Code to issue a summons for the appearance of any parson', the eventualities mentioned in clauses (a) and (b) of section 87 Cr. P.C. must be objectively tested by the Court." "In the backdrop of the present case which relates to the commission of an offence under section 498A/406, IPC, the learned Magistrate, in the fitness of the things, should not have issued warrant against the petitioner at the first instance without assigning any reason in compliance with provisions laid down in clauses (a) and (b) of section 87 of the Code of Criminal Procedure. The learned Magistrate should not have been oblivious of the fact that even after the grant of anticipatory bail the petitioners were not arrested although such course of action was available to the investigating agency. In the event of the arrest, the conditions imposed on the petitioner in the order of anticipatory bail would have been enforceable on the petitioner. After filing of the charge-sheet there was hardly, in the background of this case, any reason to subject the petitioner to the rigours of arrest notwithstanding the warrant issued in that regard being bailable one." "The petitioner, neither from the charge-sheet nor from the other part of the records of the case, appears to be the person having the propensity to evade the due process of law or stay away from Court, where their appearance is required. At least no such apprehension appears to have been entertained by the learned Magistrate while issuing the warrant." "In view of the discussions made above I dispose of the present application. I set aside the order impugned and send back the matter again to the learned Magistrate. At least no such apprehension appears to have been entertained by the learned Magistrate while issuing the warrant." "In view of the discussions made above I dispose of the present application. I set aside the order impugned and send back the matter again to the learned Magistrate. I make it clear that though the order issuing warrant is set aside, it will be open for the learned Magistrate to reconsider the issue of warrant of arrest in the light of the discussions made above and with reference to section 87 of the Code of Criminal Procedure." 5. After the revisional application was disposed of by this court, the de facto-complainant filed an application before the learned Chief Judicial Magistrate under section 410 Cr. P.C. praying for withdrawal and transfer of the said case from the court of learned SDJM, Alipore to the court of learned Chief Judicial Magistrate and any other Judicial Magistrate for trial. The learned Chief Judicial Magistrate by his order dated 10.4.2002 allowed the said application under section 410 Cr. P.C. filed by the de facto-complainant, although the learned Magistrate recorded in his order that the allegations made in the application under section 410 Cr. P.C. "did not inspire his confidence". But in spite of such observation the learned Chief Judicial Magistrate withdraw the case from the court of learned S.D.J.M., Alipore and transferred the same to his own file. It is also noticeable that such order dated 10.4.2002 was passed by the learned C.J.M without giving any reason. In any event, since the said order is not the subject-matter of challenge in the present application, I do not feel it necessary to deal with the same. 6. Mr. Guptoo, learned Advocate appearing for the petitioner submits that after the case was transferred to the court of the learned Chief Judicial Magistrate, Alipore, the learned Magistrate took up the matter pursuant to the direction of this court and passed the impugned order dated 21.5.2002 again issuing bailable warrant of arrest. After perusing the said order it becomes clear that the learned Magistrate has made some remarks/observations about the petitioner which are totally uncalled for, which indicates that the petitioner is deliberately avoiding the process of the court. After perusing the said order it becomes clear that the learned Magistrate has made some remarks/observations about the petitioner which are totally uncalled for, which indicates that the petitioner is deliberately avoiding the process of the court. The learned Magistrate should have kept it in mind that the legality and validity of an order issuing warrant of arrest was challenged before this court in a criminal revisional application. This court while finally disposing of the said application, set aside the order issuing warrant against the petitioner and directed the learned Magistrate to reconsider the issue of warrant of arrest in the light of the observations made by this court in the said judgment and with reference to section 87 of the Code of Criminal Procedure. On perusal of the impugned order it becomes clear that the learned Magistrate has not at all complied with such direction. According to Mr. Guptoo the impugned order should be set aside on this ground alone. 7. Mr. Bose learned Advocate appearing for the complainant/O.P. No. 2 submits that the present proceeding is being dragged only because of the absence of the accused petitioner. It is pointed out by Mr. Bose that the earlier revisional application was disposed of by this court on 18.10.2001 and the order issuing warrant was set aside by this court. So, after 18.10.2001 the accused petitioner could have appeared before the learned Magistrate and they could have also filed an application under section 205 Cr. P.C. But they deliberately remained absent in court, for which the present proceeding, which is at the stage of section 207 Cr. P.C. is kept pending for such a long period. 8. Referring to the provision of section 483 of the Code of Criminal Procedure Mr. Bose submits that this specific provision in the Code requires that the High Court in appropriate cases/should exercise its power of superintendence over the courts of Judicial Magistrates with a view to securing expeditious disposal of cases. Mr. Bose submits that this is a fit and proper case in which the petitioner should be directed to appear before the learned trial Magistrate immediately to avoid any further delay. 9. I have heard the learned Advocate of the respective parties. I have also perused the impugned order. Mr. Bose submits that this is a fit and proper case in which the petitioner should be directed to appear before the learned trial Magistrate immediately to avoid any further delay. 9. I have heard the learned Advocate of the respective parties. I have also perused the impugned order. I am of the view that the said order suffers from illegality as the same was passed by the learned Magistrate in total non-consideration of the observations made by this court in its earlier judgment in C.R.R. 933 of 2001. Accordingly the impugned order dated 21.5.2002 is hereby set aside. 10. I appreciate the anxiety of the learned Magistrate regarding delay in the present proceeding. But this does not confer upon him any right to disobey or disregard the judgment passed by this court in the earlier revisional application. Although such judgment was brought to the notice of the learned Magistrate, there is not even a slightest indication in the impugned order that the learned Magistrate has at all applied his judicial mind to the said judgment. Although the impugned order is set aside, keeping in view the provision of section 483 Cr. P.C., as pointed out by Mr. Bose, as also the fact that the present case is at the stage of section 207 Cr. P.C. for supply of copies of documents, I direct that the accused/petitioner shall appear before the learned Chief Judicial Magistrate, Alipore, peremptorily within a period of fortnight from date. It is also made clear that if the petitioner fails to appear before the learned Magistrate within the period as directed above, the learned Magistrate will be at liberty to take recourse to due process of law to secure the attendance of the accused/petitioner. 11. Present application is accordingly disposed of. 12. Liberty is granted to the learned Advocates of the respective parties to take the gist of the order and to communicate the same to the court below. 13. Criminal section is directed to supply the certified copy of this order, if applied for to the respective parties in course of this week. Let an urgent xerox certified copy of the order be given to the ld. advocate for the parties at an early date, if applied for. Revisional application disposed of.