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2015 DIGILAW 97 (CAL)

Aditya Lal Mukherjee v. State of West Bengal

2015-02-04

SUBRATA TALUKDAR

body2015
JUDGMENT SUBRATA TALUKDAR, J. Both the above noted CRRs, that is 1575 of 2013 and 1297 of 2011 involve identical parties. In CRR 1575 of 2013 the petitioner is the accused and the de facto complainant is the opposite party No.2. In CRR 1297 of 2011 the de facto complainant is the petitioner and the petitioner in CRR 1575 of 2013 is the opposite party No.2. The State is the opposite party in both the CRRs. Therefore, on the prayer of the parties the two applications have been taken up for analogous hearing. In CRR 1575 of 2013 the petitioner, Aditya Lal Mukerjee has challenged the judgment and order dated 26th March, 2013 passed by the Learned Chief Judge, City Sessions Court, Calcutta in Criminal Revision No.28 of 2013 thereby dismissing the same and affirming the orders dated 16th January 2013 and 26th February 2013 passed by the Ld. 6th Metropolitan Magistrate, Calcutta in GR Case No.1217 of 1999 and GR 1457 of 1999. By the impugned Order No.4 dated 26th March, 2013 the learned Chief Judge was pleased to record as follows :- (i) That GR Case No.1457 of 1999 was instituted in the court of the learned Chief Judicial Magistrate, Sealdah at the behest of present opposite party No.3 in CRR 1575 of 2013. GR case No.1217 of 1999 was instituted before the Ld. Chief Metropolitan Magistrate, Calcutta at the behest of the complainant who is the present opposite party No.2 in CRR 1575 of 2013. (ii) By order of an Hon’ble Single Bench this Court in CRR 5161 of 2007 the said GR Case No.1457 of 1999 then pending before the learned Third Judicial Magistrate, Sealdah was transferred to the Ld. 6th Metropolitan Magistrate, Calcutta who was then hearing GR case No.1217 of 1999. (iii) That the OP2 in CRR 1575 of 2013 filed a revisional application before the Hon’ble High Court being CRR 1297 of 2011 along with a connected application challenging the order of the learned 1st Fast Track Court, Calcutta dated 21st March, 2011 in Criminal Revision No.197 of 2010. (iii) That the OP2 in CRR 1575 of 2013 filed a revisional application before the Hon’ble High Court being CRR 1297 of 2011 along with a connected application challenging the order of the learned 1st Fast Track Court, Calcutta dated 21st March, 2011 in Criminal Revision No.197 of 2010. By its said order dated 21st March, 2011 the learned 1st Fast Track Court was pleased to direct transfer of both the GR Case Nos.1457 of 1999 and 1217 of 1999 pending before the learned 6th Metropolitan Magistrate, Calcutta to any other court of competent jurisdiction situated on the ground floor of the CMM court building. (iv) Such order being contrary to the direction of this Hon’ble Court in CRR 5161 of 2007, the OP2 in CRR 1575 of 2013 was compelled to file the application being CRR 1297 of 2011 challenging the decision to transfer the cases out of the court of the learned 6th MM, Calcutta. It was, inter alia, recorded by this Hon’ble Court in CRAN 257 of 2011 filed in connection with CRR 1297 of 2011 that “There will be a fresh interim order of stay of operation of the impugned order till disposal of the revisional application”. Thus the order dated 21st March 2011 as passed by the learned 1st Fast Track Court, Calcutta, was stayed by the Hon’ble High Court in CRR 1297 of 2011 and its connected CRAN No.257 of 2011. (v) However, in spite of the petitioner’s plea that he was not in a position to climb the staircase to reach the court of the learned 6th MM located on the first floor in view of the multiple injuries suffered by him in a serious accident, the learned Chief Judge was pleased not to allow the application for stay of proceeding till disposal of CRR 1297 of 2011 by the Hon’ble Court. The learned Chief Judge was of the view that as per the order of the Hon’ble Court in CRAN 257 of 2011 in connection with CRR 1297 of 2011 the entire proceedings in GR Case No.1457 of 1999 and GR Case No.1217 of 1999 had not been stayed and CRR 1297 of 2011 has been preferred only against the order of the learned 1st Fast Track Court passed in Criminal Revision No.197 of 2010 thereby directing transfer of the cases out of the court of learned 6th MM, Calcutta to a court on the ground floor. (vi) The revisional application filed by the present petitioner was dismissed at a cost of Rs.1000 (one thousand) each in favour of the present opposite party nos.2 and 3 and the learned Chief Judge was further pleased to confirm the orders dated 16th January 2013 and 26th January 2013 passed by the learned Trial Court. The learned Chief Judge was also pleased to observe that if there is any difficulty with regard to the personal appearance of the present petitioner-accused, the same may be met by an application filed under Section 317 Cr. P.C. Shri Debasis Roy, Learned Counsel appearing on behalf of the petitioner in CRR 1575 of 2013 submits that admittedly by order dated 5th February, 2008 this Hon’ble Court directed the 6th Metropolitan Magistrate, Calcutta to try both the GR Cases invoking the provisions of Section 219 of the Criminal Procedure Code. Thereafter admittedly the records of both the cases were placed before the learned 6th MM, Calcutta. Shri Roy further submits that since the petitioner-accused had suffered a serious accident it was not possible for him to climb up to the court of the learned 6th Metropolitan Magistrate and the court building does not have any lift. Accordingly, the petitioner-accused filed an application for transfer of both the G.R. Cases to the Court on the ground floor. Such application was rejected by the learned CMM, Calcutta by the order dated 12th August 2010. Thereafter the order dated 12th August 2010 was challenged in Criminal Revision No.197 of 2011 and by order dated 21st March 2011 the learned First Additional Fast Track Court was pleased to allow the transfer to a court on the ground floor. Such application was rejected by the learned CMM, Calcutta by the order dated 12th August 2010. Thereafter the order dated 12th August 2010 was challenged in Criminal Revision No.197 of 2011 and by order dated 21st March 2011 the learned First Additional Fast Track Court was pleased to allow the transfer to a court on the ground floor. Shri Roy also submits that the judgment and order dated 21st March 2011 was stayed by this Hon’ble Court in CRR No.1297 of 2011 and such stay was extended till disposal of the CRR by order dated 9th January 2012. The present petitioner being aggrieved by the order of stay has already preferred a vacating application No. CRAN 1376 of 2011 which is pending. Taking this Court further through the facts Shri Roy points out that the present petitioner filed an application on 16th January, 2013 before the Learned 6th Metropolitan Magistrate, Calcutta praying that the trial of the GR Case be adjourned till disposal of CRR 1297 of 2011. By order dated 26th February 2013 the learned 6th Metropolitan Magistrate was pleased to reject the prayer of the petitioner and fixed 12th March, 2013 for evidence. Being aggrieved by such order of rejection the present petitioner preferred Criminal Revision No.28 of 2013 which has been rejected by the order impugned dated 26th March, 2013. By such rejection the learned Chief Judge also confirmed the orders dated 16th January, 2013 and 26th February 2013 passed by the learned 6th Metropolitan Magistrate, Calcutta. Shri Roy contends that having regard to the proceedings in CRR 1297of 2011 whereby this Hon’ble Court was in seisin of the order of the learned 1st Fast Track Court dated 21st March 2011 directing transfer of the two GR cases, it was incumbent upon the learned Chief Judge to await the final adjudication of CRR 1297 of 2011. According to Shri Roy, in the event CRR 1297 of 2011 is dismissed by this Court the order dated 21st March 2011 revives and the two GR Cases stand to be transferred to a competent Court on the ground floor. Thereby the learned 6th Metropolitan Magistrate, Calcutta stands precluded from hearing the said GR cases. It is the further contention of the learned counsel that the order dated 21st March 2011 remains stayed in the interregnum and was yet to be finally decided upon. Thereby the learned 6th Metropolitan Magistrate, Calcutta stands precluded from hearing the said GR cases. It is the further contention of the learned counsel that the order dated 21st March 2011 remains stayed in the interregnum and was yet to be finally decided upon. Also, an application for vacating the said interim order is pending. Shri Roy submits that taking note of the serious medical incapacity of the present petitioner to attend trial on the first floor, there ought not to be any difficulty to attending such trial on the ground floor and thereby, the essence of the judgment dated 5th February, 2008 passed by this Hon’ble Court for analogous trial of the two GR Cases shall be maintained. He argues that sufficient humanitarian grounds point to holding analogous trial of the two GR cases before the court located on the ground floor of the building. Learned counsel, therefore, prays for setting aside of the order impugned dated 26th March 2013. Per contra Shri Subhasis Roy, learned Counsel appearing for the opposite party No.2-de facto complainant in CRR 1575 of 2013, has vehemently opposed the prayer for setting aside the order impugned dated 26th March 2013. Shri Subhasis Roy submits that the series of applications filed by the petitioner are vexatious and simply designed to stall the original proceeding in GR Case nos.1475 of 1999 and 1217 of 1999. He further submits that the present petitioner-accused entered into an agreement with the present opposite parties 2 and 3 for sale of flats at premises 96D Satin Sen Sarani, Kolkata – 54 and received hefty amounts by way of consideration. However, the present petitioner-accused having reneged on such promise, the two GR Cases being Maniktala Case No.140 of 1999 and Barabazar P.S. Case No.261 of 1999 were started under Sections 420/468/471/406/IPC and Sections 420/423/468 IPC respectively. Taking this Court further to the facts of the case Shri Subhasish Roy points out that the present petitioner-accused was arrested and detained in custody. Ultimately due his medical condition he was granted bail on 7th August of 1999. On 12th of July 2000 charge sheet was filed. By order dated 17th December 2004 an Hon’ble Single Bench of this Court was pleased to direct that the trial of GR Case No.1457 of 1999 be concluded with utmost expedition. Ultimately due his medical condition he was granted bail on 7th August of 1999. On 12th of July 2000 charge sheet was filed. By order dated 17th December 2004 an Hon’ble Single Bench of this Court was pleased to direct that the trial of GR Case No.1457 of 1999 be concluded with utmost expedition. However, such case could not be concluded due to repeated prayers for adjournment by the present petitioner-accused and finally by order dated 5th February 2008 this Hon’ble Court was pleased to direct analogous trial of both GR Case nos.1457 of 1999 and 1217 of 1999 by the Ld. 6th Metropolitan Magistrate, Calcutta. Thereafter the present petitioner-accused tried to stall the litigation by moving successive applications and by order dated 14th September 2009 an Hon’ble Single Bench of this Court was pleased to direct the present petitioner-accused to be personally present before the learned 6th Metropolitan Magistrate for framing of charge and, in the event the accused is absent the learned Magistrate was granted the liberty to take coercive steps for compelling his attendance. Since the accused was absent a warrant of arrest was issued against him and challenging such warrant of arrest he approached this Hon’ble Court after his prayer for stay of the warrant was rejected by the learned Chief Judge, City Sessions Court. By order dated 20th May 2010 an Hon’ble Single Bench stayed the warrant of arrest and directed the accused to surrender and pray for bail. The Hon’ble Single Bench was further pleased to observe that in the event of the absence of the accused for a single date, the learned Magistrate will be free to execute a fresh warrant of arrest. The Hon’ble Court directed the trial to be completed within 6 months from the next date of recording evidence. Shri Subhasish Roy further submits that on 26th May 2010 the accused surrendered before the learned Magistrate and ultimately on 6th July 2010 charge was framed. Thereafter, the accused approached the learned Chief Metropolitan Magistrate under Section 410 Cr. P.C. on 28th July, 2008 by filing Misc. Case No.27 of 2010 praying for transfer of the proceeding. In the said application being Misc. Case No.27 of 2010 the petitioner-accused has submitted that he is a victim of severe ailments and is suffering from acute ulcer. Therefore, the petitioner-accused needs to avoid climbing up and down the stairs. P.C. on 28th July, 2008 by filing Misc. Case No.27 of 2010 praying for transfer of the proceeding. In the said application being Misc. Case No.27 of 2010 the petitioner-accused has submitted that he is a victim of severe ailments and is suffering from acute ulcer. Therefore, the petitioner-accused needs to avoid climbing up and down the stairs. Also in view of his heart disease and orthopaedic problem he is advised not to climb the stairs. Therefore, the petitioner prayed for conducting the trial on the ground floor of the building. Such prayers having stood rejected the accused approached the learned 1st Fast Track Court, Calcutta who directed transfer of the two cases to a competent Court on the ground floor. Shri Subhasish Roy submits that the accused has taken recourse to one plea after another to stall the proceeding. He also submits that due to such stand taken by the accused, the proceedings are being delayed each day. Having heard the parties and considering the materials on record this Court notices that by the order dated 5th February, 2008 analogous trial was directed before the 6th Metropolitan Magistrate, Calcutta. It is found that the accused was the petitioner before this Hon’ble Court and did not raise any issue of his purported physical ailments when it was directed that the matters be placed before the learned 6th Metropolitan Magistrate for analogous disposal. Thereafter this Court finds that for a period of 2 years the accused remained silent and on 22nd July 2010 filed a petition stating his ailments and seeking transfer to a competent Court on the ground floor. In the event the accused stood genuinely disadvantaged by the order of transfer dated 5th February 2008 to the Court of the learned 6th Metropolitan Magistrate on the first floor it was incumbent upon the accused to approach the competent Court or the Hon’ble Court with alacrity and not at the end of two years. Thereafter the accused is stated to have suffered an accident on 17th December 2012 and thereby he claims to have been further incapacitated. This Court further notices that the application being Misc. Case No.27 of 2010 was filed on 22nd of July, 2010 under Section 410 Cr. P.C. on the ground that the petitioner–accused is suffering from severe ailments and, therefore, unable to walk up the stairs to the court of the learned 6th Metropolitan Magistrate. This Court further notices that the application being Misc. Case No.27 of 2010 was filed on 22nd of July, 2010 under Section 410 Cr. P.C. on the ground that the petitioner–accused is suffering from severe ailments and, therefore, unable to walk up the stairs to the court of the learned 6th Metropolitan Magistrate. However, at the relevant date, that is 22nd July 2010 the petitioner-accused was not the victim of a road accident which occurred in December 2012. Therefore, in 2010 the petitioner-accused could not be said to be so acutely incapacitated preventing his mobility up and down the stairs to the Court of the Ld. 6th Metropolitan Magistrate. In the above view of the matter the effort of the petitioner-accused to get the cases transferred out of the Court of the Ld. 6th Metropolitan Magistrate in the year 2010 in the face of the order dated 5th February 2008 transferring the two GR Cases for analogous trial appears to the mind of this Court an example of delaying tactics to drag the matter. No doubt the further orders of this Hon’ble Court dated 20th May 2010 directing the learned Magistrate to decide the matter in 6 months from the next date of recording evidence as well as the order dated 14th September 2009 directing the personal presence of the petitioner-accused before the learned Magistrate followed in letter and spirit the order dated 5th February 2008. Needless to mention the petitioner-accused had knowledge of the above noted orders passed by the Hon’ble Court from time to time and deliberately, shamelessly with mala fide motive tried to muddy the waters of the clear stream of justice by applying for transfer on the designed ground of his illness. Although respectfully noticing that the above noted orders passed in their respective proceedings had obtained finality, this Court, at the same time, is required to notice the serious road accident suffered by the petitioner-accused in the year 2012. The medical reports of the relevant period do speak of the fact that the petitioner-accused post the accident has suffered serious incapacity of a nature restricting his access to the Ld. Magistrate’ Court on the first floor. Post accident the plea of transfer to a court on the ground floor by the accused acquires a tinge of credibility. The medical reports of the relevant period do speak of the fact that the petitioner-accused post the accident has suffered serious incapacity of a nature restricting his access to the Ld. Magistrate’ Court on the first floor. Post accident the plea of transfer to a court on the ground floor by the accused acquires a tinge of credibility. While it is no doubt true the petitioner-accused is not required to be present at all times during the carriage of the proceedings, it is also true that his presence shall be required by the learned Magistrate from time to time. Taking a cue from the order in Harbans Lal Sons and Another vs. Ramson Cycles Private Ltd. 2009 4 SCC 16 , this Court finds that the Hon’ble Apex Court had taken note of the severe medical condition of the petitioner and directed transfer of the case from the court of the learned Judicial Magistrate, First Class at Ludhiana, Punjab to the court of the learned District Judge, Tis Hazari, Delhi in the interests of justice. In the facts of the present case the transfer is sought from the first floor to the ground floor. The medical records of the petitioner-accused post accident do show the extent of his incapacitation and therefore compel this Court to adopt a reasonable measure in the larger interest of concluding the trial expeditiously. While no doubt appreciating the reasoning applied by the learned Chief Judge that the interim order of stay operating in CRR 1297 of 2011 did not preclude the learned 6th Metropolitan Magistrate from proceeding with the analogous trial, at the same time this Court is required to notice the observations of the learned 1st Fast Track Court in its order dated 20th March 2011 that the essence (emphasis supplied) of the previous direction of this Hon’ble Court posting the trial to a single court was to conclude an analogous and expeditious trial. Such perception must be now read into the changed circumstance of the petitioner-accused post his accident in the year 2012. Taking a leaf from the eminent poet Robert Frost that it is essential “not to miss the wood for the trees”, in the larger interest of concluding the trial expeditiously this Court in exercise of its power under Section 482 Cr. Taking a leaf from the eminent poet Robert Frost that it is essential “not to miss the wood for the trees”, in the larger interest of concluding the trial expeditiously this Court in exercise of its power under Section 482 Cr. P.C. is constrained to agree with the reasoning advanced by the learned 1st Fast Track Court and hesitates to embrace the reasoning applied by the learned Chief Judge. However, this Court at the same time opines that the petitioner-accused must be put to terms by way of compensatory costs in favour of the opposite parties 2 and 3 in view of the vexatious tactics adopted by him and noticed above in this judgment. In the backdrop of the above discussion the order impugned dated 26th March, 2013 of the learned Chief Judge is kept in abeyance and GR Case No.1217 of 1999 and GR Case No.1457 of 1999 are directed to be placed before a competent court located on the ground floor by the Ld. Chief Judge. The petitioner-accused must pay costs of Rs.25,000/- (twenty five thousand) each in favour of the opposite party Nos. 2 and 3. Upon payment of such costs the learned Magistrate shall proceed with the hearing of both the GR Cases and complete the same expeditiously as directed by the Hon’ble Court vide order dated 20th May 2010. In the event the costs are not paid within a period of 2 weeks from date the order impugned of the learned Chief Judge dated 26th March, 2013 shall stand revived. In the event costs are paid as directed the order dated 26th March, 2013 shall stand permanently set aside. CRR 1575 of 2013 with CRR 1297 of 2011 and CRAN 2688 of 2013 are disposed of with the above direction. There will be, however, no order as to costs.