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2020 DIGILAW 74 (CAL)

Debashis Maity v. State Of West Bengal

2020-01-17

JAY SENGUPTA

body2020
JUDGMENT Jay Sengupta, J. - This is an application praying for quashing of a proceeding in which a process was issued under Sections 323, 380 and 447 of the Penal Code. 2. Learned counsel appearing on behalf of the petitioner submits as follows. No prima facie is made out against the present petitioner as would be evident from a plain reading of the petition of complaint and the initial deposition. Referring to the initial deposition, it is submitted that no specific role has been ascribed to the present petitioner. Although cognizance was taken under Sections 147, 323, 380, 427, 447 and 506 of the Penal Code, the process was issued only under Sections 323, 380 and 447 of the Penal Code. As such, the petitioner cannot be hauled up for such offences in the absence of Section 147 of the Penal Code. 3. Learned counsel appearing on behalf of the complainant-opposite party submits as follows. There are appears to be a technical defect in the order dated 12.12.2017 issuing process, in as much as, Section 147 of the Penal Code was not imputed. However, even without Section 147, the case is sustainable against the petitioner under Sections 323, 380 and 447 of the Penal Code. 4. I have heard the submissions of the learned counsels appearing on behalf of the petitioner and the complainant-opposite party and have perused the revision petition. 5. Although it appears that on 18.2.2017, cognizance was taken of offences under Sections 147, 323, 380, 427, 447 and 506 of the Penal Code, quite surprisingly, process was issued against the accused under Sections 323, 380 and 447 of the Penal Code. From a plain reading of the petition of complaint and the initial deposition, I find no reason for the learned Magistrate not to issue process under Section 147 of the Penal Code as well. Whether this is a conscious omission or an inadvertent error, it appears that the order dated 12.12.2017 suffers from this infirmity. 6. Accordingly, I set aside the order dated 12.12.2017, remand back the matter to the learned trial court for proceeding afresh from that stage on. It is needless to mention that the subsequent orders are also set aside. 7. Since bail was earlier granted to the petitioner, the petitioner shall be at liberty to appear and pray for bail before the learned court below in case process is issued. It is needless to mention that the subsequent orders are also set aside. 7. Since bail was earlier granted to the petitioner, the petitioner shall be at liberty to appear and pray for bail before the learned court below in case process is issued. In such event, the application for bail shall be considered in accordance with law. 8. With these observations, the revisional application is disposed of. 9. Urgent photostat certified copy of this order may be supplied to the parties expeditiously, if applied for.