HARMINDER SINGH ATWAL Vs. D P MAJUMDER

JUDGEMENT

(1.) Heard the submissions of the learned Senior Advocate Mr. Balai Chandra Ray appearing with the learned Advocate, Mr. Milon Mukherjee and the learned Advocate for the State, Mrs. Alokananda Bhose. None of the learned Advocates for the accused opposite parties is appearing. Considered the materials on record.

(2.) From the record it evinces that the accused opposite parties Nos. 1 to 10 herein were committed to the Court of Session on an allegation of an offence under Section 395 of the Indian Penal Code and the learned Assistant Sessions Judge, Asansol, by order dated 8th December, 1980, in Sessions Case No. 111 of 1980 directed issuance of summons on the witnesses of the de facto complainant, who were not examined. At that stage the said order was challenged and also the proceeding derived from the order of commitment of the learned Magistrate were also challenged in this Court in revision being Criminal Revision No. 22 of 1981 under Section 482 of the Code of Criminal Procedure. A single Judge of this Court after hearing the learned Advocate for the parties dismissed the petition made under Section 482 of the Code of Criminal Procedure and found that the order of the learned Assistant Sessions Judge is an interlocutory order and the learned single Judge of this Court also did not find any fault in the committal order. In ultimate analysis the learned Single Judge dismissed the revisional application. Against that the opposite party No. I herein moved the Hon'ble Supreme Court in appeal being Appeal No. Special Leave to Appeal (Criminal) No. (S) 1655 of 1984. The Supreme Court by its order dated 17th January, 1990, inter alia, directed the learned Sessions Judge to expedite the trial since the matter is pending for a long time and the trial be held from day to day. The matter went back to the Court of the learned Assistant Sessions Judge, Asansol, for commencement of the trial again and at that stage the case was transferred to the ld. Court of Special Judge (under E. C. Act) - Cum Additional Sessions Judge and the matter came to the Court of the learned Additional Sessions Judge and at that stage a revision was taken out before the learned Sessions Judge, Burdwan, at the instance of the State challenging the order dated 31st March, 1980 and 10th April, 1980 passed by the learned Sub-divisional Judicial Magistrate, Asansol, in C. R. Case No. 287 of 1980. The order dated 31st March, 1980 relates to taking cognizance of offence complained of, by the learned Sub-divisional Judicial Magistrate and the order dated 10th April, 1980 relates to the sanction as contemplated under Section 197 of the Code of Criminal Procedure on the ground that the accused Nos. 8 and 9 were the process-servers and are public servants and to launch a criminal proceeding against them sanction is required. The learned Sessions Judge after hearing the parties and considering the materials on record overruled the contention of the State so far as the order dated 10-4-80 is concerned and the learned Judge held that the order of the learned Sub-divisional Magistrate, dated 31-3-80 by which the learned Magistrate took cognizance is bad as no cognizance was taken. This has been held by the learned Sessions Judge by his order dated 16th March, 1993 in Criminal Motion No. 123 of 1992. This revisional order is the subject matter of challenge before this Court in revision.

(3.) The question for decision before this Court is whether that revisional order of the learned Sessions Judge is sustainable in law or is illegal.