SRIMANTA BANERJEE Vs. ASHOKA DAS

JUDGEMENT

(1.) For quashing the proceedings of Case No. 792C/02 pending before the learned Chief Judicial Magistrate, Howrah the present petitioner who has been arrayed along with three others in the said proceedings on the basis of a' Petition of Complaint filed by the Opposite Party No. 1 has moved his application.

(2.) Shri Sudipto Moitra learned senior Counsel duly assisted by Shri Subhasish Pachhal canvassed several points in support of the prayer for quashing. Shri Moitra at the very outset submitted that the Petition of Complaint does not make out any case whatsoever against the petitioner. According to Shri Moitra, in fact, there is no whisper of any allegation against the petitioner in the said Petition of Complaint; and neither any overt act has been attributed to the petitioner nor any role played by the Petitioner in the Complaint has been described; as such, the learned Chief Judicial Magistrate while taking' cognizance on the basis of the Petition of Complaint and issuing process against the petitioner completely misdirected himself both in law and in fact.

(3.) Secondly, Shri Moitra submitted that a plain reading of the Initial Ejahars of the Complainant and her witnesses would show that the complicity of the petitioner does not transpire in the alleged occurrence, which persuaded her to file the Petition of Complaint. In fact, it was a mechanical exercise of power by the learned Chief Judicial Magistrate while taking cognizance and issuing process against the Petitioner. Thirdly, Shri Moitra submitted barring the fact that the petitioner was attached to the Police Station as Sub-Inspector he had no role to play in the alleged incident. As such, the arraignment of the petitioner in the present case would be an abuse of process of law. Fourthly, Shri Moitra submitted that the petitioner hereinabove was not in any way either connected with the investigation of the case in connection with which the son of the Opposite Party No. 1 was arrested or he was present when the incident of death of her son took place in the police station. Fifthly, Shri Moitra submitted there has been a serious procedural illegality as after taking cognizance the learned Chief Judicial Magistrate resorted to the provisions of Section 202 of the Code of Criminal Procedure (for short, the said Code) and thereafter issued process which according to Shri Moitra, was in violation of Section 200 of the said Code and for this purpose the entire proceeding was liable to be quashed.