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2009 DIGILAW 697 (CAL)

Asish Mondal v. STATE OF WEST BENGAL

2009-09-02

ASHIM KUMAR ROY

body2009
Judgment :- (1). Invoking Section 482 of the Code of Criminal Procedure the petitioner moved the instant criminal revision for quashing of a proceeding relating to an offence punishable under Section 193 of the Indian Penal Code pending against him before the Learned Additional Chief Judicial Magistrate, Tehatta on the sole ground that making of the complaint, on the basis of which the aforesaid proceeding was instituted, was not in accordance with the mandatory provision of Section 340 of the Code of Criminal Procedure. (2). Mr. Rajdeep Majumder, the learned advocate appearing in support of this application strenuously submitted that before making the complaint which gave rise to the aforesaid proceeding the Learned Additional Sessions Judge, Fast Track Court, Tehatta held no preliminary enquiry nor recorded his satisfaction that for the interest of justice it was expedient to make such complaint and as such due to non-following of the mandatory requirements of law as prescribed in Section 340 of the Code of Criminal Procedure the very initiation of the impugned proceeding has been completely vitiated and the same is liable to be quashed. On the other hand, Mr. Sobhendu Sekhar Roy, the Learned Counsel appearing on behalf of the State submitted that holding of preliminary enquiry and formation of opinion by the Court itself before whom such offence has allegedly been committed in relation to a proceeding, is mandatory in terms of Section 340 of the Code of Criminal Procedure and no complaint can be sustained where such mandate has not followed. (3). It is no doubt true that it is the mandate of law that before making any complaint in respect of any offence referred to in Clause (b) of sub-section (1) of Section 195 of the Code, which appears to have been committed in or in relation to a proceeding in that Court or in respect of a document produced or given in evidence in a proceeding in that Court, it is incumbent upon the Court before whom such offence has been committed to hold a preliminary enquiry, record a finding and form an opinion that making enquiry is expedient in the interest of justice. In absence of formation of opinion and a preliminary enquiry, lodging of any complaint by a Court in respect to any offence referred in Clause (b) of sub-section (1) of Section 195 of the Code must be held to be illegal and without jurisdiction. (4). In view of position of law as above and having regards to the submissions of the learned advocate of the petitioner, this Court felt that perusal of the records of the Court of the Learned Additional Sessions Judge, Fast Track Court, Tehatta relating to Sessions Trial No. 4 (6) 08, is very much essential to the just decision of this criminal revision. As it was pointed out by the learned advocate of the petitioner the records relating to the aforesaid Sessions Trial has been lying before this Honble High Court being called for in connection with C.R.A. No. 678 of 2008, the office was directed to produce the same. Accordingly, the entire records relating to the aforesaid sessions trial has been produced and perused. (5). Now having carefully gone through the records of the aforesaid sessions trial, I find that after conclusion of the trial an application was moved on behalf of the State alleging that the petitioner Asish Kumar Mondal, who happened to be the defacto-complainant of Tehatta Police Station Case No. 227/04 while deposing in Court in the aforesaid trial as P.W. 1 denied the written complaint as a whole and witness falsely stated that he did not lodge the FIR and police took his signature on a blank paper and also denied his handwriting in the FIR. Whereupon on September 24, 2008 the Learned Additional Sessions Judge, Fast Track Court, Tehatta, Nadia held a preliminary enquiry into the allegations made on behalf of the State as to the commission of offence referred to in Clause (b) of sub-section (1) of Section 195 of the Code and recording a finding as to the same and forming an opinion that it was expedient in the interest of justice to make complaint against the said witness, the petitioner herein, made the complaint to the Learned Additional Chief Judicial Magistrate, Tehatta being Annexure P-1 to this criminal revisional application. Thus, it appears that the submissions of the learned advocate of the petitioner is wholly unfounded and incorrect. Thus, it appears that the submissions of the learned advocate of the petitioner is wholly unfounded and incorrect. I have no doubt from the materials on record that the Learned Additional Sessions Judge, Fast Track Court, Tehatta, Nadia before making complaint against the petitioner had duly followed the mandate of Section 340 of the Code of Criminal Procedure and no illegality has been committed by him. Accordingly, I do not find any merit in the instant criminal revisional application. In the result, this criminal revision fails and stands dismissed. Let the records relating to C.R.A. No. 678 of 2008 be sent down to the department and the L.C.R. relating to Case No. 288/C/2008 now pending before the Learned Additional Chief Judicial Magistrate, Tehatta, Nadia shall also be sent down to the court concerned where the said case is pending at once. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.