Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 284 (CAL)

Shyamapada Mandal v. STATE OF WEST BENGAL

2010-03-16

AMIT TALUKDAR, RAGHUNATH RAY

body2010
JUDGMENT 1. THIS Application is treated as on Day's List since it has been mentioned that the next date for appearance is fixed on 19/03/2010. 2. WE admitted the Petitioner with an Order under Section 438, Cr.P.C. on 09/02/2010 in connection with the present case. The outer limit was fixed for a period of four weeks. Consequent to that, the Petitioner submitted himself to the jurisdiction of the Regular Court on 19/02/2010. Up to this, it was the normal sequence of events as known to Law. Thereafter, what took place, in our opinion, is absolutely dehors the established principles of Law governing this field in the light of the various decisions of this Court as well as the Apex Court. 3. IT appears that the learned Regular Court, after being apprised of the Order passed by this Court on 9.2.2010 in C.R.M. No. 1509 of 2010 released the Petitioner on interim bail and directed him to "pay provisionally assessed loss of revenue by 19.3.10. To date for further order. 4. THIS persuaded the Petitioner to move this Application for seeking necessary clarification. According to the learned Counsel for the Petitioner, the Regular Court did not have the jurisdiction to pass any direction for payment of the amount after this Court had disposed of the Application under Section 438, Cr.P.C. and that too a conditional Order could not have been passed. 5. LEARNED Counsel for the State in his usual fairness, could not subscribe to the finding arrived at by the learned Judge, Special Court under the Electricity Act, Paschim Medinipur. 6. SINCE we have been asked to look into the same as a fall out of the Order passed by the learned Regular Court, which has formed the subject matter of decision in this Application-we feel it appropriate to focus on ground zero at first. Firstly, we find that the Regular Court (read Judge, Special Court under Electricity Act, Paschim Medinipur) erred in its interpretation of the Order passed by this Court in C.R.M. No. 1509 of 2010 on 9.2.2010 and admitted the Petitioner on 'interim bail'. This absolutely militates against the decisions of Supreme Court in 1) Adri Dharan Das v. State of West Bengal, 2005 SCC (Cr) 933 : (2005)1 C Cr LR (SC) 532 ; 2) Nirmal Jeet Kaursi. This absolutely militates against the decisions of Supreme Court in 1) Adri Dharan Das v. State of West Bengal, 2005 SCC (Cr) 933 : (2005)1 C Cr LR (SC) 532 ; 2) Nirmal Jeet Kaursi. State of M.P. and Anr., (2004)7 SCC 558 , till the latest decision of Apex Court in 3) HDFC Bank Ltd. v. JJ. Mannan alias J. M. John Paul and Anr., (2010)1 SCC (Cr) 879 as to what would be the outer limit of the Order passed under Section 438, Cr.P.C, and consequential action to be taken by the Regular Court. 7. EVEN the ratio of the Division Bench decision of this Court in Joydeb Pradhan v. State reported in (2005)2 Cal Cr LR 316, a copy of which, was put for circulation, stood in its breach. By admitting the Petitioner with an Order of interim bail, the learned Regular Court singularly failed in this direction. It lost complete track of the situation, which was a fall out of the aforesaid decisions of Supreme Court in Adri Dharan Das v. State of West Bengal (supra); Nirmal Jeet Kaur v. State of M.P. and Anr, (supra) and HDFC Bank Ltd. v. J. J. Mannan alias J.M. John Paul and Anr. (supra). Action oriented by such situation before the learned Regular Court, was impermissible within the established contours of Law governing the field. 8. SECONDLY, the next part of the Order directing the Petitioner to "pay provisionally assessed loss of revenue by 19.3.10" also, cannot be approved since this has been the primordial factor, which persuaded the Petitioner to move this Application. We feel, this question is required to be discussed threadbare. While considering a prayer made under Section 438 or 439, Cr.P.C, the Court generally arrives at its conclusion on the basis of the materials available before it. Any Order of release or rescue from incarceration, cannot be conditioned with some certain terms The conditional Order in the arena of Section 438, Cr.P.C. has attracted the wrath of the Supreme Court in more than one occasion [See : Mahesh Chandra v. State of U.P. and Ors., (2007)1 C CrLR(SC)18]. 9. EVEN earlier, in Shyam Singh v. State through CBI, (2006)9 SCC 169 , the Supreme Court has held : practice of imposing such pre condition was "onerous and unwarranted'. 10. 9. EVEN earlier, in Shyam Singh v. State through CBI, (2006)9 SCC 169 , the Supreme Court has held : practice of imposing such pre condition was "onerous and unwarranted'. 10. IN Amarjit Singh v. State of NCT of Delhi, (2010)1 SCC (Cr) 199 this view finds also sustenance. As such, since a conditional Order in respect of an Application under Section 438, Cr. P.C. is not warranted, the direction passed by the learned Regular Court (read Judge, Special Court under Electricity Act, Paschim Medinipur) to "pay the provisionally assessed loss of revenue" is set aside. 11. AS a fall out of the aforesaid exercise, which necessitated in our touch up of the consequences flowing out of the parent Order passed by us on 9.2.2010 in C.R.M. No. 1509 of 2010, whereby the outer limit was fixed for a period of four weeks-it would necessarily mean the same stands further extended and to be read to be operative from this date. 12. IN hindsight, without any remorse, we cannot contain ourselves to the extent that the Order of a Division Bench was tailored by the learned Regular Court (read Judge, Special Court under Electricity Act, Paschim Medinipur) by way of imposing conditions. This is not known to the scheme of hierarchy of Judicial Discipline. IN a way, the learned Regular Court (read Judge, Special Court under Electricity Act, Paschim Medinipur) has also overreached itself. Before saying omega we are [unable to approve the practice, which is rampant in several cases whereby Orders impinging on the liberty of a person is recorded by a Ministerial Staff. This is not approved by the Rule 183 of Criminal Rules and Orders, which is set out for a profitable discussion :- "Order Sheet for the Magistrate's (read Judge, Special Court under Electricity Act, Paschim Medinipur) Court. R. 183. Orders requiring the exercise of Judicial discretion and the final order shall be recorded by the Magistrate (read Judge, Special Court under Electricity Act, Paschim Medinipurj in his own hand or typed by him, others may be recorded under his direction by the Bench Clerk." 13. WE are distressed to note that the Order passed by a Division Bench of the High Court is dealt with before the learned Regular Court (read Judge, Special Court under Electricity Act, Paschim Medinipur) through a Ministerial Staff, who proceeds to record; "Record is put up today by petition.................. WE are distressed to note that the Order passed by a Division Bench of the High Court is dealt with before the learned Regular Court (read Judge, Special Court under Electricity Act, Paschim Medinipur) through a Ministerial Staff, who proceeds to record; "Record is put up today by petition.................. He is taken into Custody and remanded to J/C till 05.03.10" This approach is not only shocking' but it simply passes beyond our comprehension that a Presiding Officer of an important Court can franchise his Judicial discretion to a Ministerial Staff, where he can overreach himself to the extent that he can record "he is taken into Custody and remanded to J/C .........."Never before in our experience we have come across such an apathetic approach, where a very important. Judicial function touching the question of liberty of a person is entrusted to the Ministerial Staff of the Court. 14. PURE non-application of mind. Simple indifference to an Order of a Superior Court. What more! 15. ACCORDINGLY, we set aside the directions contained in the Order dated 19/02/2010 passed by the learned Judge, Special Court under Electricity Act, Paschim Medinipur. 16. APPLICATION accordingly allowed.