STATE Vs. GUBDEEP SINGH

JUDGEMENT

(1.) THIS is a Reference under Section 438 of the Criminal procedure Code made by Shri K. C. Roy, sessions Judge, Burdwan, recommending that the order dated 3. 1. 73 passed by shri R. K. Ghatak, Sub-divisional Judicial magistrate, Burdwan, in G. R. Case no. 2012 of 1972, issuing search-warrant and forfeiting the surety's bond for a non-compliance of an earlier order passed on 13. 12. 72, is bad in law and as such should be set aside; and that the learned Sub-divisional Judicial Magistrate, Burdwan should be directed to dispose of the truck in question, after hearing both the parties on their different petitions, in accordance with law.

(2.) THE fact leading on to the reference can be put in a short compass. One Haripujan Singh lodged a F. I. R. at the Burdwan Police Station, which was registered at Burdwan P. S. Case no. 55 (11)72, under Sections 307 and 326 Indian Penal Code against the accused Gurdeep Singh and three others. An investigation followed and in course thereof the I. O. seized a truck, being no. WGA 3340. Papers relating to the purchase of the Truck were produced by the aforesaid Gurdeep Singh before the I. O and he prayed for a return of the truck. The learned Magistrate -by his order dated 30. 11. 72 released the truck to the owners on a Jimma-nama for Rs. 20,000/-, and by a further order dated 1. 12. 72, he further directed the said Gurdeep Singh to file a Jimmanama on behalf of his partner Amarjit singh also. In the meanwhile, one harbhajan Singh, describing himself as the father of Amarjit Singh, filed an application praying that the surety may be directed to produce the vehicle in court. The learned lawyer for Gurdeep singh submitted thereupon that the said applicant, Amarjit Singh, is not his partner, Amarjit Singh and ultimately on 9. 12. 72 the learned Magistrate rejected the said application holding that harbhajan Singh has no local standi. On 12. 12. 72 Amarjit Singh filed an application, basing his claim as a partner and praying that Gurdeep Singh may be directed to produce the vehicle before the Court and the learned magistrate by his order dated 13. 12. 72, directed Gurdeep Singh to produce the vehicle at once for the purpose of the hearing of the application. Gurdeep thereupon filed an application on 14. 12. 72 stating, inter alia, that the real amarjit Singh, who is his partner, did not file the application or any other application in the case and the application filed on 12. 12. 72 is in the name of one Amarjit Singh, who is a boy aged about 4 or 5 years. Gurdeep Singh filed a further application on the same date praying for the hearing of the matter, after going through relevant material relating to the purchase of the vehicle. Both the applications were put up for hearing on 15. 12. 72. Gurdeep singh had in the meanwhile filed another application on 20. 12. 72, praying for staying the earlier order passed by the learned Magistrate on 13. 12. 72 and for a disposal of the matter on a consideration of the previous two applications filed by him on 14. 12. 72. The learned sub-Divisional Judicial Magistrate thereupon fixed 22. 1. 7s for orders. Amarjit Singh filed an application on 23. 12. 72 praying for a search-warrant and taking the lorry back in custody alleging that the petitioner was by-passing the directions given by the learned Magistrate on flimsy grounds. The petition was directed to be put up on 28. 12. 72 and ultimately on 3. 1. 73 an order was passed to this effect "issue search warrant fort feinting the surety's bond since) he has not complied with my order dated 13. 12. 72. Being aggrieved by the said order Gurdeep Singh filed a revisional application before the Session Judge, burdwan and this Reference was made under Section 438 Criminal Procedure code recommending that the impugned order should be set aside and the matter should be disposed of after hearing both the parties on the basis of the different applications filed.

(3.) MR. Gobinda Chandra Pal, Advocate appearing on behalf of the accused, gurdeep Singh supported the Reference; mr. Benoyendra Nath Mukherjee, advocate appeared on behalf of Amarjit singh and opposed the Reference; and mr. Sanat Kumar Rakshit, Advocate appearing on behalf of the State supported the Reference. After the matter was heard in part Mr. Benoyendranath mukherjee appearing on behalf of Amarjit Singh, raised a point of law that under Section 515 Criminal Procedure code an appeal lies in the first instance to the learned Sessions Judge and as such the revisional application filed before him was incompetent vitiating the ultimate Reference made under section 438 Criminal Procedure Code. During the arguments, an interesting point of law cropped up as to whether section 515 Code of Criminal Procedure enjoins only an appeal or also a revisional application to the District Magistrate or to be more precise to the sessions Judge, in view of Section 116 of the West Bengal Separation of Judicial and Executive. Functions Act, 1970 (West Bengal Act VIII of 1970) whereby the words "or District Magistrate shall be appealable to" the District magistrate" were substituted by the words "shall be appealable to the Sessions Judge". As there was some cloud on the point, this Court requested Mr. Jyotish Chandra Bose, Advocate, to appear as Amicus curiae, to assist the court and Mr. Bose readily agreed to do so. After an adjournment the matter came up for final hearing today.