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2008 DIGILAW 816 (CAL)

Dipankar Banerjee v. STATE OF WEST BENGAL

2008-08-12

ARUNABHA BASU

body2008
JUDGMENT 1. Heard ld. Advocate for the petitioner, ld. Advocate for the private opposite party No.2 and ld. Advocate for the State. 2. The revisional application is directed against the order dated 31.1.08 passed by the ld. Chief Judge, City Sessions Court, Calcutta in connection with Criminal Revision No. 140 of 2007 whereby and whereunder the ld. Court below rejected the prayer submitted by the petitioner to be added as party in connection with a revisional application. 3. The short question that arises before this Court is that whether the petitioner in his capacity as de facto complainant should have been participate in connection with a proceeding which was initiated before the ld. Court below in connection with a criminal revisional application whereby the opposite party challenged the order dated 17.9.07 passed by the ld. Metropolitan Magistrate directing re-investigation of the case. 4. Ld. Advocate for the petitioner submitted that the ld. Court below misdirected himself about the scope of the petitioner's prayer to be added as a party and decided the matter on wrong proposition of law. The ld. Advocate for the private opposite party, however, submitted that in connection with that revisional application the petitioner herein cannot have any say over the decision of the case and as such, the application was rightly rejected by the ld. Court below. It is also submitted that the direction as to re-investigation was challenged before the superior Court and the application was opposed by the ld. Public Prosecutor and as such, the presence of the petitioner or his right of hearing in connection with the revisional application does not arise. 5. On perusal of the order passed by the ld. Court below, it appears that the ld. Court below decided the matter mainly under the provision of section 301 of the Code of Civil Procedure. In my view, the said provision has no manner of application while deciding the petitioner's prayer to be added as a party so that he can make appropriate submission before the ld. Court below in connection with the revisional application. It is needless to add that the Petitioner is the de facto complainant and as such, the criminal case was initiated on the basis of the FIR lodged by him. Direction for re-investigation was passed by the ld. Court below in connection with the revisional application. It is needless to add that the Petitioner is the de facto complainant and as such, the criminal case was initiated on the basis of the FIR lodged by him. Direction for re-investigation was passed by the ld. Magistrate and the opposite party was aggrieved by the order and as such, if the order is passed by the Id. Court below in favour of the opposite party, the petitioner herein will be aggrieved by the order. It is evident from the order passed by the ld. Court below that the direction of the Supreme Court in the case of J. K. International, reported in 2001 SCC (Cri) 547, was placed before the ld. Court below but the ld. Court below did not consider the direction of the Supreme Court mainly on the ground that the same is applicable in an application either under section 482 of the Code of Criminal Procedure or while deciding matters in connection application under Article 226 or Article 227 of the Constitution of India. 6. In my view, the ld. Court below misdirected himself about the scope of direction Passed by the Supreme Court in the case of J. K. International (supra). It may be pointed Put in t4is context that in the case of J. K. International (supra), the Supreme Court took into consideration the right of the de facto complainant to be heard while deciding the application in which the de facto complainant will be interested or the de facto complainant will be affected by the order if the same is passed in favour of the opposite party. This being the position, I am of the view that an opportunity should be granted to the petitioner to be added as a party in connection with the revisional application as mentioned above and the order passed by the ld. Court below rejecting the prayer of the de facto complainant (the petitioner herein) is not sustainable. The order under challenge is hereby set aside. 7. The revisional application is disposed of with the direction that the ld.Court below shall give an opportunity to, the petitioner to be added as a party in connection with the revisional application and then decide the same after hearing the submissions of the ld. Advocates appearing for all the parties. 8. The order under challenge is hereby set aside. 7. The revisional application is disposed of with the direction that the ld.Court below shall give an opportunity to, the petitioner to be added as a party in connection with the revisional application and then decide the same after hearing the submissions of the ld. Advocates appearing for all the parties. 8. I make myself absolutely clear that I have not entered into the merit of the revisional application that was filed before the ld. Court below and the same shall be independently decided by the ld. Court below without being influenced in any way by any of the observations as recorded in this order after hearing the submissions of all the parties to the proceeding including the petitioner herein. 9. The revisional application stands disposed of. 10. There will be no order as to costs. 11. Criminal Section is directed to supply urgent xerox certified copy of this order to the ld. Advocate for both parties as and when applied for. Arunabha Basu, J.: Appeal disposed of.