DEBABRATA RAY CHOUDHURI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This application is at the instance of the de-facto complainant and is directed against the order dated March 15, 2010 passed by the learned Additional Chief Judicial Magistrate, Alipore in B.G.R. Case No.5842 of 2008 arising out of Jadavpur P.S. Case No.791(12) of 2008.

(2.) The short fact of the case is that the de-facto complaint filed a petition under Section 406/408/120B/34 of the Indian Penal Code before the learned Additional Chief Judicial Magistrate, Alipore for sending the same to the Jadavpur P.S. for investigation. On the basis of the order of the learned Additional Chief Judicial Magistrate, Alipore, the Jadavpur P.S. started the said case and investigation was going on. The learned Court issued warrant of arrest against the accused/opposite party no.2 herein. But, since the opposite party no.2 is working abroad, the learned Additional Chief Judicial Magistrate, Alipore passed an order for impounding his passport to secure his attendance. In the meantime, the opposite party no.2 filed an application for anticipatory bail before the Honble High Court and then the Honble High Court granted anticipatory bail subject to the condition laid down in Section 438(2),(i),(ii) and (iii) of the Code of Criminal Procedure. Thereafter, the opposite party no.3 appeared before the learned Additional Chief Judicial Magistrate, Alipore and prayed for bail which was granted by the learned Additional Chief Judicial Magistrate, Alipore. At the time of granting bail, the opposite party no.2 was permitted to leave India subject to the condition that he should attend this Court regularly on all subsequent dates of this case as well as when his presence was needed by the investigating officer for the purpose of smooth progress of the investigating work. The order of impounding the passport was recalled by the impugned order. Being aggrieved by such orders, this application has been preferred by the de-facto complainant.

(3.) Mr. Roychowdhury submits that a magistrate cannot recall his order and any order passed by the magistrate shall remain in force unless and until it is set aside or modified by the higher forum, such as, the District Judge, the High Court or the Apex Court. In the instant case, initially, the learned Additional Chief Judicial Magistrate, Alipore passed the order directing the I.O. to impound the passport by the order dated September 9, 2009. It has not been set aside by any higher forum, but, by the impugned order, the learned Additional Chief Judicial Magistrate, Alipore has recalled that order. He also contends that a magistrate cannot also recall and modify either of his own order or any order passed by the higher forum. In the instant case, the learned Magistrate has set aside the order of the Honble High Court by permitting the opposite party no.2 to leave India which was prohibited by the Honble High Court at the time of grant of the anticipatory bail. Therefore, the order impugned cannot be supported. It must be set aside.