SWAPAN SARKAR Vs. SANTANU BHOWMIK

JUDGEMENT

(1.) This revisional application is directed against the order dated 5th August, 2003 passed by the learned Chief Judicial Magistrate (hereinafter called the CJM), Jalpaiguri rejecting thereby prayer of the petitioner to recall or cancel the W/A issued against the petitioner and also for quashing the criminal proceeding being case No. C.R. 531 of 2001.

(2.) The facts of the case as it appears from the averments of the application, is that, the petitioner is now posted as Sub-Divisional Police Officer (hereinafter called the SDPO), Tehatta in the District of Nadia. The opposite party lodged a complaint case being C.R. No. 531 of 2001 against him in the Court of the learned CJM, Jalpaiguri for alleged offence under sections 342/323/506 of the Indian Penal Code (hereinafter called the IPC) on 21.12.01. After taking cognizance the learned CJM transferred the case to the Court of learned SDJM, Jalpaiguri for disposal and the learned SDJM by order dated 18.3.02 dismissed the complaint under section 203 of the Code of Criminal Procedure (hereinafter called the Code). The opposite party preferred a revision in this Court being C.R.R. No. 755 of 2002 assailing the order dated 18.3.02 passed by the learned SDJM. By order dated 11.7.02 this Court remitted back the said matter to the Court of learned CJM, Jalpaiguri setting aside the order dated 18.3.02 passed by the learned SDJM. Thereafter, by order dated 1.10.02 learned CJM issued process against the petitioner under sections 342/323/506 of the IPC. On 13.2.03 the petitioner through the learned Government counsel filed an application before the learned CJM praying for exemption from personal appearance and after hearing the learned advocates of both parties the learned CJM by order dated 13.2.03 rejected the application and issued non-bailable warrant of arrest against the petitioner. On 30.7.03 the petitioner filed an application before the learned CJM praying for recalling or cancelling W/A issued against him but, the learned Magistrate by order dated 5.8.03 dismissed the said application.

(3.) After the order of dismissal of complaint dated 18.3.02 passed by the learned SDJM, Jalpaiguri no fresh cognizance was taken by the learned CJM over that complaint. At the relevant point of time the petitioner was posted as Deputy Superintendent of Police, Headquarters, Jalpaiguri and in the discharge of his official duty within the meaning of section 197 of the Code along with his subordinate officers attended the alleged place of occurrence regarding an incident on 17.11.01 date of Kali Puja festival in connection with Kotwali P.S. Case No. 360 dated 17.11.01. The opposite party was brought to Kotwali P.S. for interrogation in connection with the aforesaid Kotwali P.S. case and after thorough interrogation he was allowed to go home as nothing could be found against him. The aforesaid fact was duly entered in Kotwali P.S. G.D. Entry No. 879 dated 17.11.01. In order to wreck vengeance and malign the dignity of petitioner the opposite party had made frivolous and vague allegation against the petitioner in the complaint. The continuation of the criminal proceeding is bad in law as it was filed in contravention of provisions of section 197 of the Code and, before taking cognizance or lodging complaint no prior sanction from the concerned authority was taken in respect of the incident in which the petitioner was performing and discharging his official duties.