TARA DUTTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This Special Bench of three Judges has been constituted under extraordinary circumstances arising out of the present Criminal Revision Case No. 676 of 1973 as well as Criminal Revision Case No. 854 of 1973 (Bimal Chandra Samaddar v. Ranjit Samaddar). Both the Revision Cases have been heard by this Bench. In the instant case on the 16th July, 1973 a petition of complaint was filed on behalf of Shyam Sundar Singhania in the Court of the Police Magistrate at Alipore. On the same day the complainant was examined and summons was issued under Section 406 of the Code of Criminal Procedure for alleged criminal breach of trust. On 27th August. 1973, the accused petitioner Tara Dutta made an application to this Court under Section 439 read with Section 561-A of the Code for quashing the proceeding. On August 27, 1973, Talukdar. J. issued a rule calling upon the District Magistrate, 24-Parganas as also Shyam Sundar Singhania to show cause as to why the proceedings complained of in the petition should not be quashed or such other or further order or orders be made as to this Court may seem fit and proper. The learned Judge also granted an ad interim stay. The matter ultimately came up for hearing before R. Bhattacharya, J. on 10th September. 1974. Bhattacharya, J. obviously had his doubts about the view expressed by Talukdar, J. in MacCulloch v. State, reported in (1974) 78 Cal WN 307 = (1974 Cri LJ 182). The view of Talukdar, J. inter alia, was that a Magistrate after a complainant is examined under Section 200 of the Code should enquire of the complainant whether any of his witnesses was present in court and if no witnesses were present, the Magistrate should mention that fact in the order sheet. His Lordship further held that an order under Section 200 which is issued without complying with the above procedure must be set aside and the defect could not be cured under Section 537 of the Code. His Lordship sitting with A. N. Banerjee, J has adhered to the same view in a judgment delivered on February 20 1974 in Brahmananda Goyal v. N. C. Chakra-barti (1975) 79 Cal WN 60 = (1974 Cri LJ 1079) R. Bhattacharya, J. directed on the 10th September, 1974 that the matter be placed before the Chief Justice under the second proviso to Sub-rule (2) to Rule 9 of Part I of Chapter II of the Appellate Side Rules, for appropriate and necessary orders for referring it to a Division Bench taking criminal cases for decision. The said proviso is as follows:--

(2.) R. Bhattacharya, J.'s order of September 10. 1974 was placed before the Acting Chief Justice Mr C. N Laik on the 17th September. 1974. The Acting Chief Justice directed that the matter be heard by a Division Bench presided over by him.

(3.) On 3rd October, 1974, the Acting Chief Justice sitting with our learned Brother N. C. Mukherji, J. heard the matter. The reference was held to be incompetent on the ground that the entire case had not been sent up.