SHAMS TABREZ Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner Shams Tabrez has prayed for quashing of the criminal proceeding of G.R. No.905 of 2014 arising out of Calcutta Leather Complex P.S. Case No.62 of 2014 under Sections 409/120B of the Indian Penal Code pending before the Court of Learned Additional Chief Judicial Magistrate, Baruipur, South 24-Parganas. Similarly, the petitioner Iftekhar Najam has also prayed for quashing of the criminal proceeding of G.R. No.905 of 2014 arising out of Calcutta Leather Complex P.S. Case No.62 of 2014 under Sections 409/120B of the Indian Penal Code pending before the Court of Learned Additional Chief Judicial Magistrate, Baruipur, South 24-Parganas. Both the revisional applications arise out of the same criminal proceeding and as such both the revisions are disposed of by this common judgement.

(2.) One Imran Ahmed Khan, Honorary General Secretary of CLC Tanners Association (in short the opposite party no.2) filed a written complaint before the police on the basis of which Calcutta Leather Complex Police Station Case No.62 of 2014 dated February 20, 2014 under Sections 409/120B of the Indian Penal Code was registered. The contents of the said written complaint disclose that in the month of October, 2013 the new Managing Committee took over charge of Calcutta Leather Complex Tanners Association. The averments made by the opposite party no.2 in the said written complaint indicate that the new Managing Committee came to learn that the petitioner Iftekhar Najam and the petitioner Shams Tabrez and others sold out three Mobile Chrome Recovery Unit Components including pumps, p.h. meters, gear motors, trolley tyres and tubes etc. valued at Rs.80 Lakh approximately as iron scrap while they were discharging the duty as office bearers of Calcutta Leather Complex Tanners Association on January 25, 2012, April 21, 2012, May 23, 2012 and November 9, 2012. The said Mobile Chrome Recovery Unit Components including pumps, p.h. meters, gear motors, trolley tyres and tubes were the assets of Government of West Bengal, but the same were sold out without seeking prior approval from the Government of West Bengal. The show cause notice was served on both the petitioners on February 13, 2014 calling upon them to explain why action will not be taken against them for abusing official position by selling out the property of Government of West Bengal and thereby committing criminal breach of trust. Without waiting for reply of the show cause notice from the petitioners, the opposite party no.2 filed the written complaint for initiating criminal proceeding against the petitioners and others. The police investigated the said criminal case and submitted chargesheet against both the petitioners before the Court of Learned Magistrate on March 11, 2015. Learned Magistrate issued warrant of arrest against both the petitioners on the basis of prayer of the Investigating Officer who claimed that the petitioners absconded and evaded the arrest. By filing supplementary affidavit the petitioners have challenged the order dated March 11, 2015 by which Learned Magistrate issued warrant of arrest against the petitioners. The petitioners have also prayed for quashing of the criminal proceeding on the ground that no offence is made out against the petitioners for facing the trial under Section 409/120B of the Indian Penal Code.

(3.) By referring to various terms of agreement dated May 18, 2005 executed by and between Government of West Bengal, Calcutta Leather Complex Tanners Association (hereinafter referred to as CLC Tanners Association) and M. L. Dalmia & Co. Ltd. for establishment and maintenance of Calcutta Leather Complex, Mr. Sekhar Basu, Learned Senior Counsel for the petitioner Shams Tabrez contends that the said agreement is a contract within the ambit of Article 299 of the Constitution of India and the terms and conditions of the contract are binding on the parties. Mr. Basu submits that if the petitioners as office bearers of CLC Tanners Association have violated any term of the said contract, the remedy is available in the contract itself. He specifically submits that there is termination clause in the contract for violation of any term of contract by CLC Tanners Association. Mr. Basu argues that the State of West Bengal has no grievance against CLC Tanners Association or its previous office bearers for violation of any term of the contract and as such the State of West Bengal has not initiated the criminal proceeding against the petitioners. He further argues that the present criminal proceeding cannot be started by the police on the basis of complaint of the opposite party no.2 who happens to be the Honorary General Secretary of CLC Tanners Association, when the State of West Bengal has no grievance against CLC Tanners Association for violation of terms of the contract. By referring to the provisions of Section 204 and Section 87 of the Code of Criminal Procedure Mr. Basu submits that the order of issuance of warrant of arrest against the petitioners by showing them as absconders is not justified under the law. He has also relied on several decisions reported in AIR 2015 SC 2195, (2013) 4 SCC 506, (2008) 1 SCC (Cri) 259, (2014) 3 SCC 321 and 1960 Cri.L.J 1436 in support of his above contention.