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2011 DIGILAW 642 (CAL)

Subir Kumar Basu v. STATE OF WEST BENGAL

2011-05-06

KALIDAS MUKHERJEE

body2011
JUDGMENT KALIDAS MUKHERJEE, J. 1. THIS is an application under Section 482 of the Code of Criminal Procedure praying for quashing of the proceedings of Special Court Case No. 4 of 1985 arising out of Park Street/'K' Police Station Case No. 126 dated 05.03.1981 under Sections 420/120B of the Indian Penal Code pending before the learned Judge, 5th Special Court, Calcutta. 2. THE complaint was lodged under Section 420/120B being Park Street/'K' Police Station Case No. 126 dated 5.03.1981. Thereafter Subir Kr. Basu, the petitioner herein moved the Honourable Apex Court under Article 32 of the Constitution of India praying for quashing of the proceedings. The Writ Petition (Crl.) No. 67 of 2009 was disposed of by the Honourable Apex Court with the following observation:- "Accordingly, we dispose of the writ petition with a direction upon the Calcutta High Court to take immediate steps to ensure that orders are passed by the State Government to appoint a Presiding Officer for the 5th Special Court which is lying vacant, within one month from the date of communication of this order. The State Government is also directed to see that this order is complied with immediately and we further direct that the trial must be concluded within six months from the date of appointment of the Presiding Officer of the 5th Court of Special Judge, Calcutta. In default, the proceedings emanating form P.S. Case No. 136, IPC shall stand quashed." 3. THE learned Court below vide Order dated 9.03.2011 rejected the prayer for the discharge of the accused persons. Being aggrieved by the said order the accused Subir Kr. Basu has preferred the instant writ application praying for quashing of the proceedings. 4. THE learned Counsel appearing for the petitioner submits that the date of communication of the order of the Honourable Apex Court to this Honourable Court is very material and from the Affidavit filed by the Opposite Party No. 2 it is not clear when the order of the Honourable Apex Court was received by the Government or by this Honourable Court. The learned Counsel appearing for the petitioner submits that if it is found that the direction of the Honourable Apex Court has not been complied with, in that case the trial before the learned Court below cannot proceed and the accused will be entitled to get an order of discharge. 5. The learned Counsel appearing for the petitioner submits that if it is found that the direction of the Honourable Apex Court has not been complied with, in that case the trial before the learned Court below cannot proceed and the accused will be entitled to get an order of discharge. 5. THE learned Counsel submits that the letter of the Government written to the Registrar (Judicial Service), High Court, Calcutta, dated 18.01.2011 is not very material. It is contended that there is nothing to show that the appointment of the Judge, 5th Special Court was made within one month from the date of communication of the order and because of the non-compliance of the direction of the Honourable Apex Court, the proceedings in the learned Court below cannot continue. 6. MR. Ghosh appearing for the Opposite Party No. 2 contends that the date of communication of the order is 18.01.2011 as it would appear from the Annexure 'R-2'of the Affidavit filed by the Opposite Party No. 2. It is contended that the appointment has been made within one month from 18.01.2011. Mr. Jay Sengupta, learned Counsel appearing for the State submits that no material is forthcoming to the effect that the order of the Honourable Apex Court was communicated to the Government or this Honourable Court prior to 18.01.2011. It is contended that the direction given by the Honourable Apex Court has been complied with and there is no merit in this application. 7. THE scope of consideration in connection with this application is very limited. It is to be seen whether the direction of the Honourable Apex Court has been complied with or not in the matter of the appointment of the learned Judge, 5th Special Court, Calcutta. From the Annexure 'R-2' of the Affidavit filed by the Opposite Party No. 2 it is clear that the order of the Honourable Apex Court was communicated by the O.S.D. and E.O. Joint Secretary to the Registrar (Judicial Service), High Court, Calcutta vide letter dated 18.01.2011. 8. IN absence of any material to the contrary, it is clear that 18.01.2011 is the date of communication of the order passed by the Honourable Apex Court. Now according the direction it is to be seen whether or not the appointment has been made within 18.02.2011. 8. IN absence of any material to the contrary, it is clear that 18.01.2011 is the date of communication of the order passed by the Honourable Apex Court. Now according the direction it is to be seen whether or not the appointment has been made within 18.02.2011. It appears from the Annexure 'R-3' to the Affidavit filed by the Opposite Party No. 2 that a meeting of the Honourable Judges of Transfer Committee was held on February 2, 2011 wherein a decision was taken in Item No.7 that Ms. Asha Arora, Additional District and Sessions Judge, 2nd Court, Alipore, 24- Parganas (South) be appointed as Judge, 5th Special Court, vice vacant Court. 9. THE Notification No. 490-A dated 05.02.2011 was issued by the Appellate Side, High Court, Calcutta appointing Ms. Asha Arora as Judge, 5th Special Court, Calcutta. Pursuant to that the Judicial Department, Government of West Bengal vide No. 1101-J. JD//4J-05/93(Pt-iv) dated 15.02.2011 appointed Ms. Asha Arora as Judge, 5th Special Court, Calcutta. 10. IT is, therefore, clear that the appointment of the Judge, 5th Special Court, Calcutta was made within one month from 18.01.2011. IT is, therefore, clear that the direction of the Honourable Apex Court has been complied with. So the default clause in the order of the Honourable Apex Court is not attracted. There is no merit in this application and the same stands dismissed. 11. URGENT Photostat certified copy, if applied for, be handed over to the parties as early as possible.