LAWS(CAL)-1994-9-21

GAUTAM KUNDU Vs. STATE OF WEST BENGAL

Decided On September 26, 1994
GAUTAM KUNDU Appellant
V/S
STATE OF WEST BENGAL Respondents

JUDGEMENT

(1.) In this revisional application the petitioner prays for quashing the Criminal Misc. Case No. 355/93 pending in the Court of the learned Chief Judicial Magistrate, Alipore under Section 410, Cr. P.C. In the said case wife/opposite party herein prayed for withdrawal and transfer of Sec. Q-1 Case No. 66/91 from the Court of the learned. Additional Chief Judicial Magistrate, Sealdah to any other Court. On the basis of a complaint of the wife forwarded under Section 156(3), Cr. P.C. police recorded an FIR and ultimately on completion of investigation submitted charge-sheet on or about 18-1-92 against the accused persons including the husband/petitioner herein under Sections 498A and 406, IPC. In that connection there had been various proceedings in different Courts between the parties. In course of time the de facto complaint/wife filed an application before the Chief Judicial Magistrate, Alipore for withdrawal and transfer of the said Criminal Case from the Court of the learned Additional Chief Judicial Magistrate, Sealdah to any other Court. On that application under Section 410, Cr. P.C. the learned Chief Judicial Magistrate, Alipore passed an order dated 22-9-93 directing for issuing notice and also called for the record. As I have already mentioned the husband accused has prayed for quashing the said proceeding pending in the Court of the learned Chief Judicial Magistrate, Alipore. The learned Judge of this Court taking up the matter at that time, by an order dated 19-8-94 stayed all further proceedings in the said Misc. Case No. 355/93 pending before the learned Chief Judicial Magistrate, Alipore until further order with liberty to pray for vaction or variation of the interim order upon notice to the other side. Thereafter the wife/opposite party herein filed an application before this Court on 5-9-94 for vacating the said interim order of stay and also for dismissing the revisional application. It is the contention of the wife, inter alia, that the Additional Chief Judicial Magistrate, Sealdah could not frame charge against the accused person as there was filing of petitions, one after another, on different pleas in different Courts. On the other hand, it is the contention of the husband that in spite the direction of this Court the application regarding the custody of seized ornaments etc. is not being disposed of.

(2.) My attention has been drawn by the learned Advocate for the wife to the fact that against the order of the learned Chief Judicial Magistrate, Alipore on the application under Section 410, Cr. P.C. the husband and the family members moved an application under Article 22 6/11/1993 and there was an order of stay. As against that the wife preferred an appeal before the Division Bench and ultimately, the Division Bench presided over by M. G. Mukherji, J. by order dated 23-12-93 stayed the order of the learned single Judge and directed the learned Chief Judicial Magistrate, Alipore to proceed with the application under Section 410 Cr. P.C. and finally by an order dated 8-7-94 the Division Bench disposed of the appeal with a direction, interalia, that the proceeding under Section 410 Cr. P.C. should be disposed of in accordance with law and any direction passed contrary to or causing an impediment to appropriate disposal of the case as passed by the writ Court would be improper. Subsequently, in August 1994, the husband and others moved an application challenging the order of the learned Chief Judicial Magistrate but the same was summarily dismissed on technical ground. Then the husband and others also moved an application against the order of the learned Chief Judicial Magistrate before the learned Sessions Judge, Alipore and against the order of the learned Sessions Judge the wife moved this Court and this Court stayed the order of the learned Sessions Judge dated 29-7-94. Another application was moved on the same grounds as in the present petition before this Court and there was a limited stay order which was however not extended. It is the grievance of the wife that the husband has again filed the present revisional application for harassing the wife. There is no doubt that there has been plethora of judicial proceedings between the parties.

(3.) However, the questions that have now fallen for consideration are these :- (1) whether the Chief Judicial Magistrate can, under Section 410 Cr. P.C., exercise jurisdiction for withdrawal of a case from the file of the Additional Chief Judicial Magistrate, and, (2) whether a third party can move the Chief Judicial Magistrate for withdrawal and transfer of a case which rests on charge sheet submitted by the police after investigation.