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2019 DIGILAW 273 (CAL)

MD NAZRUL GAZI v. STATE OF WEST BENGAL

2019-02-26

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : BISWANATH SOMADDER, J. 1. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the connected applications. 2. The instant appeal arises out of a judgment and order dated 1st November, 2018, passed by a learned Single Judge in W. P. 22043 (W) of 2018 (Mst. Ruma Khatun Bibi vs. The State of West Bengal & Ors.). 3. By the impugned judgment and order, the learned Single Judge was pleased to dispose of the writ petition with the following direction:- "In those circumstances, the Officer-in-Charge, Shasan police station is directed to complete the investigation as expeditiously as possible but not later than a period of two months from date. Any articles that may be recovered by the police after due satisfaction may be made over to the writ petitioner in accordance with law. With the aforesaid direction, W. P. 22043 (W) of 2018 is hereby disposed of." 4. The present appeal has been preferred by the private respondents in the writ proceeding, namely, Md. Nazrul Gazi, Md. Nizamuddin Gazi @ Chattu and Azaharuddin Gazi @ Pighu. 5. The specific contention of the appellants is that the writ petition was moved before the First Court without serving them notice. 6. At the time of hearing of the matter, we inspected the original records of the First Court. It appears from the affidavit of service filed before the First Court that there is no proof of service of notice upon any of the private respondents who are the appellants before us. 7. In such circumstances, we are of the view that the impugned judgment and order is not sustainable on this ground alone since the order was passed without giving any opportunity of hearing to the private respondents in the writ proceeding, being the appellant herein. The rights of the appellants are squarely affected by the impugned judgment and order dated 1st November, 2018. 8. As such, the impugned judgment and order is liable to be set aside and is accordingly set aside. 9. The appeal and the connected applications stand disposed of accordingly. 10. Urgent photostat certified copy of this order, if applied for, be given to the parties. Arindam Mukherjee, J. : I agree.