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2007 DIGILAW 103 (CAL)

DEEPAK BAPNA v. STATE OF WEST BENGAL

2007-02-19

P.N.SINHA

body2007
P. N. SINHA, J. ( 1 ) MR. Sekhar Basu, the learned advocate appearing for the petitioner submits that this Court by order dated 10. 01. 2007 in CRR 2/2007 directed the learned Magistrate to dispose of the complaint case no. C-2344 of 1997 as expeditiously as possible, preferably within a month from the date of communication of the order. ( 2 ) THE accused/petitioner filed an application for recalling PW2 in order to confront him about one memorandum of agreement dated 12. 03. 1997. The learned magistrate without assigning any reason rejected the said prayer and placed reliance on the earlier direction of this Court regarding early disposal of the case. According to Mr. Basu that document was necessary to show the date of enforceable debt or liability and the petitioner was denied that opportunity by the rejection of his application by the learned Magistrate without assigning any reason. He submits that when a prayer is made before the learned magistrate, the learned Magistrate must assign his reason as it is within his jurisdiction. ( 3 ) ON the contrary, Mr. Bhattacharjee, learned advocate appearing for the opposite party submits that case is pending since 1997 and in spite of complaint case could not be disposed of earlier, and the complainant had to approach this Court at least four times and finally on 10-01. 2007 this Court passed such direction to dispose of complaint case within a month from the date of communication of the order. This is nothing but dilatory tactics of the accused persons. ( 4 ) AFTER hearing submissions of the learned counsels appearing for the parties, for the parties, I find that this Court by order by order dated 10. 01. 2007 directed the learned magistrate to dispose of that case as expeditiously as possible and preferably within a month from the date of communication of the order. Such an order was passed by this Court considering the fact that complaint case was pending for more than nine years. ( 5 ) EVEN in spite of such direction, if any application is filed by a party praying before the learned Magistrate to exercise his power under Section 311 of the Cr. P. C, I am of the opinion that the learned Magistrate is duty bound to consider whether such a prayer should be allowed or not and he must assign his reason. P. C, I am of the opinion that the learned Magistrate is duty bound to consider whether such a prayer should be allowed or not and he must assign his reason. If he was unable to dispose of the matter within the time he could have approached this Court for extension of time for disposal of the complaint case, and thereafter, to proceed with the hearing of the application. That was also not done. The scope of Section 311 of the Cr. P. C. , is to apply judicial mind for consideration whether such a prayer for recall of a witness is necessary for the "just decision" of the case. I lay emphasis on the words "just decision" and these two words carry great significance and I find that the learned magistrate failed to bear it in mind. The learned magistrate was not justified in rejecting the application in limine merely on the observations of this Court passed in CRR 2/2007. The order of the learned Magistrate is accordingly, set aside. ( 6 ) THE learned Magistrate is directed to rehear the application filed by the accused petitioner under Section 311 of the Cr. P. C. and to dispose of the same as expeditiously as possible in accordance with law. The time granted by this Court earlier for disposal of the complaint case is extended and the learned magistrate would dispose of the case as expeditiously as possible, preferably by 31. 03. 2007 after disposing of the application under Section 311 of the Cr. P. C. filed by the accused. ( 7 ) THE revisional application is accordingly disposed of. ( 8 ) CRIMINAL Section is directed to supply certified copy of this order, if applied for, to the learned advocates appearing for the parties. Revision allowed. .