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2018 DIGILAW 254 (CAL)

In the matter of: Samir Jain v. State of West Bengal

2018-02-14

DEBI PROSAD DEY

body2018
JUDGMENT : 1. It appears from the order dated 2nd December, 2016 that learned Judge directed that CRR No. 3999 of 2015, CRR No. 4000 of 2015, CRR No. 3816 of 2015, CRR No. 4001 of 2015 and CRR No. 3817 of 2015 to list along with this CRR two weeks after Christmas vacation. However, at the time of taking up CRAN No. 5506 of 2017 objection was raised on behalf of the opposite party no. 2 on the ground that the cause of action has already been shifted to Delhi and accordingly the opposite party no. 2 may be given the requisite liberty to take appropriate action in Delhi and to dispose of the CRR under reference being no. 808 of 2016. Pursuant to the order dated 9th of January, 2018 CRR No. 808 of 2016 has been fixed for hearing on 18th of January, 2018. However, that order was passed without looking into the order passed by this Court on 2nd of December, 2016. Learned Advocate appearing on behalf of the petitioner in CRR No. 4002 of 2015 submitted that he had no knowledge about the hearing of CRR No. 4002 of 2015 on 18th January, 2018 and accordingly the hearing of the said CRR should be deferred. At this stage learned Advocate appearing on behalf of opposite party no. 2 raised preliminary objection with regard to the maintainability of the instant case under Section 482 of the Code of Criminal Procedure. Learned Advocate for the opposite party no. 2 submitted that the First Information Report under reference should be directed to be closed with liberty to the complainant to prosecute the petitioner in Delhi, if there be any cause of action there. It is submitted that to avoid the prolixity of litigation and to avoid conflict of decisions between the two Courts, it is necessary in the interest of justice to direct the First Information Report stands closed. Learned Advocate for opposite party no. 2 further contended that if this Court does not accept such prayer of the opposite party no. 2 in that event the matter may be referred for consideration by the Hon’ble Court, which is adjudicating CP No. 93 of 1988. Learned Advocate for opposite party no. 2 further contended that if this Court does not accept such prayer of the opposite party no. 2 in that event the matter may be referred for consideration by the Hon’ble Court, which is adjudicating CP No. 93 of 1988. It is further submitted that since alternative remedy is available the instant application under Section 482 of the Code of Criminal Procedure is not maintainable in law and this Court cannot decide the disputed facts between the parties while adjudicating a proceeding under Section 482 of the Code of Criminal Procedure. Learned Advocate further contended that on the basis of peacemeal application under Section 482 of the Code of Criminal Procedure, the petitioner cannot ask for quashing of entire proceeding since other accused persons have not yet joined with the petitioner. Learned Advocate for the opposite party no. 2 vehemently contended that the state helped the petitioner and thereby conducted the investigation in a biased manner in order to give relief to the petitioner than to investigate in a fair and impartial manner. In support of his contention learned Advocate for the opposite party no. 2 has relied on a decision reported in Madhu Limaye vs. State of Maharashtra, AIR 1978 SC 47 and drew the attention of the Court to paragraph 11 of the said decision which may be reproduced below: “In R.P. Kapur vs. The State of Punjab, AIR 1960 SC 866 , Gajendragadkar J. as he then was, delivering the judgment of this Court pointed out, if we may say so with respect, very succinctly the scope of the inherent power of the High Court for the purpose of quashing a criminal proceeding. Says the learned Judge at pages 392-93 (of SCR): (at p. 889 of AIR):- Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution, or continuance of criminal proceedings against an accused person.” 2. Learned Counsel has also relied on the following decisions: (1) Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency, (2016) 10 SCC 458 (2) Mohit alias Sonu and Another vs. State of Uttar Pradesh and Another, (2013) 7 SCC 789 (3) Rishipal Singh vs. State of Uttar Pradesh and Another, (2014) 7 SCC 215 3. Learned Advocate for opposite party no. 2 has however submitted that the decision of the Hon’ble Supreme Court namely Prabhu Chawla vs. State of Rajasthan and Another in Criminal Appeal No. 842 of 2016 did not take notice of the decision reported in 1980 SCC (Cri) 695 and accordingly the said decision ought to be ignored by this Court. 4. In Rishipal Singh (Supra) the Apex Court has enunciated the principle that the High Courts need to be circumspect and exercise of power under Section 482 in exceptional circumstances depend upon facts of each case and if allegations leading to criminal prosecution prima facie do not disclose or constitute offence, then power under Section 482 of the Code of Criminal Procedure can be exercised, however disputed questions of fact cannot be decided like trial Court. Hon’ble Apex Court has also decided in Mohit alias Sonu and Another (Supra) that when an order can be assailed in the High Court in revisional jurisdiction under Section 397/401 of the Code of Criminal Procedure then there should be a bar in invoking the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure. Learned Senior Counsel Mr. Basu appearing on behalf of the petitioner submitted that the decision of Sampelly Satyanarayana Rao (Supra) is related to Negotiable Instrument Act and cannot be given effect to in the context of the given facts and circumstances. Mr. Learned Senior Counsel Mr. Basu appearing on behalf of the petitioner submitted that the decision of Sampelly Satyanarayana Rao (Supra) is related to Negotiable Instrument Act and cannot be given effect to in the context of the given facts and circumstances. Mr. Basu further submitted that the Apex Court has not altogether ruled out the power of the High Court under Section 482 of the Code of Criminal Procedure but rider has been given in the case of Rishipal Singh (Supra). Learned senior Counsel further contended that the Hon’ble Apex Court has given a list of categories of cases where the inherent jurisdiction can and may be exercised by the High Court for quashing the proceedings under Section 482 of the Code of Criminal Procedure and the said case of Madhu Limaye (Supra) do not prevent the aggrieved parties to raise the matter before the High Court under Section. 482 of the Code of Criminal Procedure. It is further submitted that the case of Prabhu Chawla (Supra) has not been declared perincuriam and therefore nothing could be decided on the basis of such preliminary objection raised by learned Advocate for opposite party no. 2. 5. Learned Advocate for the State however handed over the case diary to this Court to look into the progress of investigation. 6. The opposite party no. 2 being the complainant of the case under reference has had every right not to proceed with the case and to pray for closure of the case before the High Court and the High Court in terms of Section 482 of the Code of Criminal Procedure may direct closure of the case on the basis of such prayer of the complainant after carefully considering the facts and circumstances of the case. However, no leave can be granted to the de-facto complainant to proceed further in different forum on the self-same cause of action. The concept of zero-F.I.R. comes into question. Secondly, the order dated 2nd December, 2016 reveals that some other criminal revisional applications have been filed with regard to the self - same case being no. CRR No. 3999 of 2015, CRR No. 4000 of 2015, CRR No. 3816 of 2015, CRR No. 4001 of 2015 and CRR No. 3817 of 2015. 7. Secondly, the order dated 2nd December, 2016 reveals that some other criminal revisional applications have been filed with regard to the self - same case being no. CRR No. 3999 of 2015, CRR No. 4000 of 2015, CRR No. 3816 of 2015, CRR No. 4001 of 2015 and CRR No. 3817 of 2015. 7. I find sufficient reasons to take up all the criminal revisional applications mentioned hereinabove with notice to all the petitioners since the aforesaid CRR are connected with the self-same case. Moreover, opposite party no. 2 is asking for closure of the case and the said prayer can safely be accepted. Secondly, the Hon’ble the Chief Justice of this High Court being master of roaster can allocate a particular case to a particular bench. This Court cannot exercise such jurisdiction and thereby pass order for listing of the case under reference before a particular Judge. This Court cannot encroach upon the exclusive jurisdiction of the Hon’ble the Chief Justice of this Court to that extent. Moreover, it requires full-fledged hearing of the criminal revisional applications giving opportunity to the petitioner as well as to the state of West Bengal to address on the points agitated at the time of filing such criminal revisional application. Opportunity of hearing will also be given to opposite party no. 2 to address all those points and in my considered view the instant criminal revisional application cannot be disposed of on the basis of such preliminary objection raised by learned Advocate for opposite party no. 2. It is, therefore, ordered that all the aforesaid criminal revisional applications along with 4002 of 2015 be listed under the heading “contested application” four weeks hence in order to avoid future complications. The interim order is extended for a period of six weeks hence. The department is directed to list all the criminal revisional application along with this criminal revision with notice to learned Advocate for both the parties four weeks hence. 8. Urgent photostat copy of this order be supplied to the parties, if applied for, upon compliance with all requisite formalities.