KARTIK DUTTA Vs. BASANTI PAUL (DUTTA) & ANR

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India challenging judgment of learned District and Sessions Judge, Hooghly in Criminal Motion No. 50 of 2014 arising out of order dated 21.4.2014 and 28.5.2014 passed by learned Sub-Divisional Magistrate, Sadar, Hooghly in connection with M.P. Case No. 473 of 2014 under Section 94 of the Code of Criminal Procedure, 1973. This application has been filed by petitioner Kartik Dutta against his wife Smt. Basanti Paul (Dutta) and the State of West Bengal as opposite party nos. 1 and 2 respectively. In the impugned order learned Sessions Judge, Hooghly has allowed the revisional application on contest modifying the order of learned Magistrate and directing the opposite party no. 1 to return only those articles of which the petitioner can produce receipt of purchase before the learned Magistrate.

(2.) It appears from the impugned judgment and the application under Article 227 of the Constitution of India that the opposite party no. 1 filed application under Section 94 of the Code of Criminal Procedure before the learned Sub-Divisional Magistrate, Sadar at Hooghly. The opposite party no. 1 made prayer for issuing Search Warrant for search and recovery of the articles as listed in her petition under Section 94 of the Code of Criminal Procedure, 1973. On the date of filing the application learned Sub-Divisional Magistrate, Sadar, Hooghly passed the order dated 21.4.2014 for issuing Search Warrant against the present petitioner Kartik Dutta. Subsequently, report was submitted regarding execution of Search Warrant. On 28.5.2014 said Sub-Divisional Magistrate recorded that the articles recovered by executing Search Warrant had been handed over to the opposite party no. 1 who is petitioner herein. At that time present petitioner filed a petition before the learned Magistrate which was rejected. At the time of hearing this case learned Advocate for the petitioner has drawn my attention to the fact that in the impugned judgment learned Sessions Judge has mentioned about search on the strength of Search Warrant under Section 94 of the Code of Criminal Procedure and seizure of 24 items of articles. He has argued that the petitioner has annexed a copy of application under Section 94 of the Code of Criminal Procedure wherein twenty-two items have been mentioned for recovery on Search Warrant. Learned Advocate has drawn my attention that the learned Sessions Judge has passed the impugned judgment as self-contradictory as learned Judge has observed that the search and seizure was no doubt illegally conducted.

(3.) On going through the impugned judgment I find substance in the submission of learned Advocate for the petitioner. In my view, if search and seizure is held illegal then it would be proper for the learned Sessions Judge to set aside the whole order of learned Magistrate which was considered as illegal under the estimation of learned Sessions Judge but learned Judge has not set aside the impugned orders dated 21.4.2014 and 28.5.2014. It is significant to note that said two orders were under challenge before the learned Sessions Judge, Hooghly. In the impugned judgment learned Sessions Judge has observed that "Under the given circumstance though the order that has been passed is illegal, yet I do not find any merit in the petition submitted by the present Revisionist before the trial court, as none of the articles that were seized illegally as per the order of the learned Magistrate belonged to the petitioner nor any receipts that the same were purchased by the Revisionist were produced on 28.5.2014 to claim back the same from the possession of O.P. No. 1 herein".