ASHOK ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE two petitioners who are accused persons in connection with a Criminal Case being G.R. No. 61 of 2007 arising out of Tala P.S. Case No. 05 dated January 10, 2007 under Section 403/420/406/120B/34 IPC challenge in this application under Section 482 read with Section 483 of the Cr.P.C. the order dated 13th May, 2008 passed by learned Additional Chief Judicial Magistrate whereby the learned Magistrate in supersession of his earlier order dated 22nd February, 2007 whereby he accepted the FRT submitted by the I.O. decided to reopen the matter. The facts are these :

(2.) THE learned A.C.J.M., Sealdah heard the accused persons as also the complainant and observed that when fraud has been alleged to had been practised it was proper that the complainant should appear before him on 13th November, 2007 for the purpose of hearing of the matter. Before the learned Magistrate the complainant totally denied about appointment of any such person, namely Smt. Rina Mondal as caretaker. The learned Magistrate further observed that Smt. Rina Mondal and the process server who submitted the report on 6th of October, 2007 are required to be examined and cross-examined so as to determine whether there wa' at all any caretaker in the name of Smt. Rina Mondal and whether she was authorized to accept the notice. Accordingly. learned Magistrate fixed 11th of June, 2008 for evidence.

(3.) MR . Kalyan Kumar Bandyopadhyay, learned senior advocate appearing for the petitioners submitted at the outset that in the petition of complaint the petitioner put his address as 109, Indra Biswas Road, Kolkata and it is the said address whereupon notice was served and the mere fact that Smt. Rina Mondal accepted the notice does not signify that it was a fictitious service. Rina Mondal having been found in the premises as a caretaker of the house and she having claimed the notice on behalf of complainant/petitioner it cannot be said by any amount of reasoning that fraud has been practiced upon the complainant. It is submitted that the order of recalling the order of discharge is itself unlawful because the application for recalling the order of discharge has not been made by the complainant but by Kamal Krishan Pathak alleged holder of power of attorney; at no point of time the complainant had expressed his own interest in the matter of pursuing the case. The alleged power of attorney holder is not authorized to say and plead that Smt. Rina Mondal does not reside at the premises because the said Kamal Krishna Pathak is not a resident of 109, Indra Biswas Road, Kolkata and he has not disclosed how he came to allege that Smt. Rina Mondal did not reside in the premises or that she was a fictitious person or that she was not authorized to receive the notice. It has been submitted by Mr. Bandyopadhyay that the jurisdiction and auth-rity of a holder of a power of attorney does not extend to anything and everything which does not strictly come in terms of the power of attorney executed by the principal. Mr. Bandyopadhyay submits that the learned Magistrate was without any jurisdiction seek for external evidence in the search of his quest whether fraud was practiced by the I.O or the O.C. in connivance with the accused persons or not. If elements of fraud could not be deciphered within the four corners of the judicial record containing documents and papers the learned Magistrate is not legally obligated upon to seek for evidence externally so as to have the petitioner's case substantiated. Since the learned Magistrate did not specifically direct at what address the notice would be required to be served the police authority was well within their jurisdiction to serve the notice in one of the addresses of the petitioner which is located at 109, Indra Biswas Road, Kolkata. Once the learned Magistrate was satisfied with the service of notice and upon such satisfaction FRT was ac and accused persons consequently were discharged such satisfaction cannot be reversed by non-satisfaction so as to launch an enquiry merely at the asking of the complainant who would merrily reside in USA keeping a so- called power of attorney holder who in the petition for recalling of the order of discharge did not disclose as to under what authority he could level the allegation against the accused persons that they allegedly connived with the police personnel in the platter of service of notice upon Smt. Rina Mondal and who did not disclose in the petition as to how he could be able to derive a knowledge that Rina Mondal was not authorized to accept the notice or that notice was not at all served upon Rind 'vlundai. Since the petition was not supported by any affidavit of Sint. Rina Mondal that no police personnel ever met her by tendering the notice or that she did not reside in the cited address the learned Magistrate ought not to have reopened the matter which he is not legally empowered to do in view of the provision contained in Section 362 of the Cr.P.C. Mr. Bandyopadhyay submitted that there was no irregularity in the service of notice and in the seizure list de facto-complainant had furnished the same Kolkata address. At no point of time the defacto- complainant came before the learned Magistrate to tell that he did not have the Kolkata address any more or that no notice or correspondences should be sent in his name to the cited Kolkata address. Since Smt. Rita Mondal actually received the notice it will not be possible for anyone else to disprove the same. The learned Magistrate became a functus officio once the order of discharge was passed and in this connection a decision in State of Kerala v. M.M. Manikantan, 2001 SCC (Cri) 808 : [2001(2) All India Criminal LR (S.C.) 586] has  been cited. My attention has been drawn to a Full Bench decision of this court in Harjeet Singh v. State of West Bengal, (2005) 1 C.Cr.LR (Cal) 598 : [2005(3) All India Criminal LR (Cal.) 759] wherein this court held that Section 362 of the Code gives a complete bar to any court including the High Court to either review or recall an order or judgment passed even if it is found subsequently that had offended the principles of natural justice. Mr. Bandyopadhyay submitted that the principle enunciated in Section 362 Cr.P.C. operates even in a case of alleged fraud. At the last leg of argument Mr. Bandyopadhyay submitted that the application for recalling is not supported by a verification or an affirmation and the same cannot be relied upon.