ABDUL SAMAD BEPARI Vs. MANASHA CHARAN BAKSHI

JUDGEMENT

(1.) THIS rule is directed against the order of the learned Additional Chief Presidency Magistrate, Calcutta, dated 15th March, 1963. The petitioner Abdul Samad Bepari has prayed for quashing proceedings pending against him under Section 417, Indian Penal Code. It will appear that under the order of the learned Magistrate process has been ordered to be issued upon him under the aforesaid section. The facts out of which this case arises was that on the 3rd June, 1960 the complainant opposite party Manasha Charan Bakshi filed a petition before the Court of the Additional Chief Presidency Magistrate against the accused petitioner alleging that the latter on certain false representations, induced the complainant opposite party to copy out, sign and deliver to the petitioner a letter which was drafted personally by the petitioner and that the complainant opposite party also alleged that the petitioner was trying to utilise the said letter for interfering with the rights and interest of the complainant in respect of the shoo room and godown at Posta Bazar at the premises No. 231 Maharshi Debendra Road, Calcutta. It is alleged by the petitioner that in that petition dated 3rd June, 1960 no allegation was made for taking any action against him; rather he prayed that the petition which was filed by him should be ordered to be filed. In pursuance of this petition an order accordingly was made but on a much later date, that is on the 8th February, 1983 a cryptic petition without stating any facts whatsoever as to accusation against the accused party was filed before the Additional Chief Presidency Magistrate with a prayer that the previous petition filed on the 3rd June 1960 should be reopened and for issuing a warrant of arrest against the accused. It is further alleged that the learned Additional Chief Presidency Magistrate did not examine the complainant and witness in accordance with the law on the day when that petition was filed on the 8th February 1963, but instead he called for the record m which the previous petition dated 3rd June, 1960 was filed. On the 12th February 1963 the learned Magistrate examined the complainant and some of his witnesses and thereafter, sent the case to another Presidency Magistrate for an enquiry under Section 202, Criminal Procedure Code On a receipt of the report from the Magistrate the learned Additional Chief Presidency Magistrate examined the matter, heard the accused also regarding his objection as to the maintainability of the complaint. He, however, negatived the pleas as raised by the accused petitioner and on a perusal of the evidence already heard by him as also on the evidence recorded in the enquiry proceedings he issued summons upon the present petitioner under Section 417, I.P.C.

(2.) MR . A.K. Dutta, the learned Advocate appearing for the accused petitioner, has submitted before me several points in support of his contention that the entire proceeding before the learned Additional Chief Presidency Magistrate was unwarranted by law. Firstly, he submits that as a matter of fact no accusation was made in the previous petition dated 3rd June, 1960 nor did the complainant ask the Court to bestir itself to take action in due course of law. What he did on the next day, that is, on the 8th February, 1963 was to ask the learned Additional Chief Presidency Magistrate to reopen the previous complaint and to take cognizance or the same. This, according to Mr. Dutta, was not in accordance with the appropriate provision of the Code of Criminal Procedure as the learned Additional Chief Presidency Magistrate ought not to have taken any cognizance on the second petition nor was he justified in restoring the previous petition for his passing an order to the effect that both the petitions taken together constituted a complaint within the meaning of Section 4, Clause (h), Criminal Procedure Code Apart from this submission Mr. Dutta has also contended that the Magistrate ordered the subsequent petition to be put up on a later date for consideration along with the file. This he could not do under Section 200, Criminal Procedure Code as it was incumbent upon him to examine the complainant and witnesses forthwith.

(3.) BEFORE dealing with the submissions I would now proceed to consider a preliminary objection as raised by Mr. F.M. Sanyal, the learned Advocate appearing for the complainant opposite party. He submits that this petition before the Court is not maintainable inasmuch as after the issue of the summons the accused did not submit to the jurisdiction of the court and therefore, unless he did so, such a petition before the High Court was barred. In support of this contention Mr. Sanyal has not been able to show relevant provision of the law and he concedes that there is no direct provision in this regard in the Statute Book. He, however, contends that in this Court the practice is that in such cases unless the accused appears before the learned Magistrate after the process is issued he has no locus standi to file a petition in revision in this Court. In support of his contention he has referred me to an unreported decision made by late N.K. Sen, J. in the case of Kanailall Jatia v. Ramkrishnadas Gupta, Criminal Revn. No. 750 of 1957 : (AIR 1958 Calcutta 128). In this case, his Lordship observed inter alia; "It will be noticed that none of the cases have proceeded beyond the stage of summonses having been issued. Save petitioner No. 1, the other petitioners have not even submitted to the jurisdiction of the Court. The applications so far as they are concerned should not ordinarily be entertained at all but since the petitioner No. 1 has by a petition undertaken to produce the books, I will consider the entire matter now before me." From this observation it will appear that his Lordship did not refer to any hard and fast rule but has made a cursory observation to the effect that in cases like this the petitions should not ordinarily be entertained. The expression "Ordinarily" as used by his Lordship shows that no hard and fast rule in cases like this can be laid down and each case has to be decided on its own merits. The next case to which I would make a reference is that decided by J.P. Mitter and S.K. Sen, JJ. in Criminal Revn. Case No. 948 of 1958, K.N. Tapuria v. State (Cal). In this case also the accused without appearing before the learned Magistrate in pursuance of a summons moved a petition before this Court against the order by which the process was ordered to be issued. Their Lordships, inter alia, observed that the case being a summons case they did not think it necessary for the petitioner to surrender in Court before moving the Court for a Rule. On a consideration of these two decisions, it appears to me that there is no hard and fast rule regarding the maintainability of a petition like this and there being no statutory provision or the Rules made thereunder, I would like to say that this petition is entertainable by this Court when the accused petitioner has prayed before me that the entire proceeding from the stage of issuing of summons was not warranted by law. Apart from this consideration, it will appear that the accused person did really appear before the Court through an attorney to raise his objection that the petition of complaint was not maintainable. In such circumstances, I do not think that the non -appearance of the accused before the learned Magistrate after summons, renders the petition before me, as not entertainable. In these circumstances, the preliminary objection as raised by Mr. Sanyal cannot be accepted.