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Abdul Samad Bepari Vs. Manasha Charan Bakshi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported inAIR1964Cal1,67CWN977
AppellantAbdul Samad Bepari
RespondentManasha Charan Bakshi
Cases ReferredK. N. Tapuria v. State
Excerpt:
- .....of 1958, k. n. tapuria v. state (cal). in this case also the accused without appearing before the learnedmagistrate in pursuance of a summons moved a petition before this court against the order by which the process was ordered to be issued. their lordships, inter alia, observed that the case being a summons case they did not think it necessary for the petitioner, to surrender in court before moving the court for a rule. on a consideration of these two decisions, it appears to me that there is no hard and fast section regarding the maintainability of a petition like this and there being no statutory provision or the rules made thereunder, i would like to say that this petition is entertain able by this court when the accused petitioner has prayed before me that the entire proceeding.....
Judgment:
ORDER

K.C. Sen, J.

1. This Section is directed against the order of the learned Additional Chief Presidency Magistrate, Calcutta, dated 15th March, 1963. the petitioner Abdul Samad Bepari has prayed for quashing proceedings pending against him under Section 417, Indian Penal Code. It will appear that under the order of the learned Magistrate process has been ordered to be issued upon him under the aforesaid section. The facts out of which this case arises was that on the 3rd June, 1960 the complainant opposite party Manasha Charan Bakshi filed a petition before the Court of the Additional Chief Presidency Magistrate against the accused petitioner alleging that the latter on certain false representations, induced the com-plainant opposite party to copy out, sign and deliver to the petitioner a letter which was drafted personally by the petitioner and that the complainant opposite party also alleged the t the petitioner was trying to utilise the said letter for interfering with the lights and interest of the complainant in respect of the shop room and godown at Posta Bazar at the premises No. 231 Maharshi Debendra Road, Calcutta. It is alleged by the petitioner that in that petition dated 3rd June, 1960 no allegation was made for taking any action against him; rather he prayed that the petition which was filed by him should be ordered to be filed. In pursuance of this petition an order accordingly was made but on a much later date, that is on the 8th February, 1963 a cryptic petition without stating any facts whatsoever as to accusation against the accused party was filed before the Additional Chief Presidency Magistrate with a prayer that the previous petition filed on the 3rd June i960 should be reopened and for issuing a warrant of arrest against the accused. It is further alleged that the learned Additional Chief Presidency Magistrate did not examine the complainant and witness in accordance with the law on the day when that petition was filed on the 8th February 1963, but instead he called for the record in which the previous petition dated 3rd June, 1960 was filed. On the 12th February 1963 the learned Magistrate examined the complainant and some of his witnesses and thereafter, sent the case to another Presidency Magistrate for an enquiry under Section 202, Criminal P.C. On a receipt of the report from the Magistrate the learned Additional Chief Presidency Magistrate examined the matter, heard the accused also regarding his objection as to the maintainability of the complaint. He, however, negatived the pleas as raised by the accused petitioner and on a perusal of the evidence already heard by him as also on the evidence recorded in the enquiry proceedings he issued summons upon the present petitioner under Section 417, I. P. C.

2. Mr. A, K. Dutta, the learned Advocate appearing for the accused petitioner, has submitted before me several points in support of his contention that the entire proceeding before the learned Additional Chief Presidency Magistrate was unwarranted by law. Firstly, he submits that as a matter of fact no accusation was made in the previous petition dated 3rd June, I960 nor did the complainant ask the Court to bestir itself to take action in due course of law. What he did on the next day, that is, on the 8th February, 1963 was to ask the learned Additional Chief Presidency Magistrate to reopen the previous complaint and to take cognizance of the same. This, according to Mr. Dutta, was not in accordance with the appropriate provision of the Code of Criminal Procedure as the learned Additional Chiel Presidency Magistrate ought not to have taken any cognizance on the second petition nor was he justified in restoring the previous petition for his passing an order to the effect that both the petitions taken together constituted a complaint within the meaning of Section 4. Cl. (h), Criminal P.C. Apart from this submission Mr. Dutta has also contended that the Magistrate ordered the subsequent petition to be put up on a later date for consideration along with the file. This he could not do under Section 200, Criminal P. C as it was incumbent upon him to examine the complainant and witnesses forthwith.

3. Before dealing with the submissions I would now proceed to consider a preliminary objection as raised by Mr. F. M. Sanyal, the learned Advocate appearing for the complainant opposite party. He submits that this petition before the Court is not maintainable in as much as after the issue of the summons the accused did not submit to the jurisdic-tion of the court and therefore unless he did so, such a petition before the High Court was barred. In sup-port of this contention Mr. Sanyal has not been able to show relevant provision of the law and he con-cedes that there is no direct provision in this regard in the Statute Book. He, however, contends that in this Court the practice is that in such cases unless the accused appears before the learned Magistrate after the process is issued he has no locus stand to file a petition in revision in this Court. In support of his contention he has referred me to an unreported decision made by late N. K. Sen J, in the case of Kanailall Jatia v. Ramkrishnadas Gupta Criminal Revn. No. 750 of 1957 : : AIR1958Cal128 . In this case, his Lordship observed inter alia;

It will be noticed that none of the cases have proceeded beyond the stage of summonses having been issued. Save petitioner No. 1, the other petitioners have not even submitted to the jurisdiction of the Court. The applications so far as they are concerned should not ordinarily be entertained at all but since the petitioner No. 1 has by a petition undertaken to produce the books, I will consider the entire matter now before me.

From this observation it will appear that his Lord-ship did not refer to any hard and fast Section but has made a cursory observation to the effect that in cases like this the petitions should not ordinarily be entertained. The expression 'Ordinarily' as used by his Lordship shows that no hard and fast Section in cases like this can be laid down and each case has to be decided on its own merits, The next case to which I would make a reference is that decided by J. P. Mitter and S.K. Sen, JJ., in Criminal Revn. Case No. 948 of 1958, K. N. Tapuria v. State (Cal). In this case also the accused without appearing before the learned

Magistrate in pursuance of a summons moved a petition before this Court against the order by which the process was ordered to be issued. Their Lordships, inter alia, observed that the case being a summons case they did not think it necessary for the petitioner, to surrender in Court before moving the Court for a Rule. On a consideration of these two decisions, it appears to me that there is no hard and fast Section regarding the maintainability of a petition like this and there being no statutory provision or the Rules made thereunder, I would like to say that this petition is entertain able by this Court when the accused petitioner has prayed before me that the entire proceeding from the stage of issuing of summons was not warranted by law. Apart from this consideration, it will appear that the accused person did really appear before the Court through an attorney to raise his objection that the petition of complaint was not maintainable. In such circumstances, I do not think that the non-appearance of the accused before the learned Magistrate after summons, renders the petition before me, as not entertain able. In these circumstances, the preliminary objection as raised by Mr. Sanyal cannot be accepted.

4. Regarding the merits of the case, it will appear from the record that on 3rd June, 1960 the complainant filed a petition before the learned Additional Chief Presidency Magistrate alleging that about the end of Falgun 1366 B. S. one Abdul Samad Bepari approached the complainant, describing him self as brother of the deceased Abdul Rashid Bepari and falsely represented that he was ready and willing to advance Rs. 25,000/- (rupees twenty five thousand) for starting business in raw vegetables in partnership with the complainant and that he had the necessary qualifications and permission for doing so and on such false representations induced the complainant to copy out, sign and deliver to him a letter which was drafted personally by the accused. I cannot accept the contention raised by Mr. Dutta that no accusation was made inasmuch as the recitals in paragraphs 5 and 6 of the petition are clear enough to show that definite accusation of cheating was made. Furthermore, it appears that the section under which the accusation is sought to be made has also been made in the preamble of the petition. The only lacuna in this petition is that he did not take any steps to ask the Court to take appropriate action under the Code of Criminal Procedure on such petition. In paragraph 7 it has been stated that the accused was reported to be staying in Pakistan and in the prayer portion it has been stated that in such circumstances, the complainant begs to file this petition for future reference. In so far as the prayer portion is concerned, as stated before, no submission has been made to take action on the petition, but so far as the other contentions as to the accusation are concerned, the recitals therein are complete for holding that a prima facie case against the accused petitioner was made out. In the second petition, however, dated 8th February, 1963 the complainant has urged that the accused has come back to Calcutta and was living at No. 85, Beadon Street with his friend Suresh Chandra Saha and accidentally the complainant saw him at the City Civil Court premises on 7th February, 1963. As he has come back to India the complainant expressed his willingness to proceed against the accused under Section 417, Penal Code, the accusations whereof were already stated in the petition previously filed. Accordingly, he really prayed to reopen the case which was ordered to be filed and to issue warrant of arrest against the accused and direct the officer-in-charge, Burtolla Police Station to execute warrant of arrest. The learned Magistrate after calling for the previous petition was of opinion that these two petitions taken together constituted a complaint in its true sense and there fore cognizance thereupon could be taken. Mr. Dutta has criticised the action taken by the learned Magistrate inasmuch as the second petition itself not having shown a prima facie case under Section 417 I. P. C., the process was not required to be issued . under the law. On a careful consideration of the definition of complaint in the Code of Criminal Procedure, it appears to me that it is not always essential that all the details should be given in the petition of complaint and if there is some justifiable reason to hold from the petition that an accusation has been made against a certain person that is, in my opinion, sufficient for a Magistrate to take cognizance of an offence. Now in this instant case I have already stated that the accusations were thoroughly made out in the previous petition and what he states in the second petition is that the case might be reopened and if upon consideration of the two petitions the learned Magistrate said that the accusations had been made and he was satisfied that a prima facie case for taking cognizance was made out, then in that event, I am inclined to hold that there has not been any irregularity or illegality on the part of the Magistrate to take cognizance of the offence.

5. The next contention as urged by Mr. Dutta is that even assuming that he took cognizance of the offence as stated in this petition it was wrong on his part to record the evidence of the complainant and his witnesses on a subsequent date. Section 200 contemplates that the complainant and the witnesses present, if any, should be examined on oath at once. The words 'at once' indicate that ordinarily the complainant who is present in person with his witnesses should be examined. I must say that in the usual course of business the complainant and his witnesses who are present should forthwith be examined, but in this case it appears that in terms of the second petition the previous petition was required to be called for, for the purpose of ascertaining whether the accusations were clearly made out therein and if in doing so, the learned Magistrate deferred the case for a very short time for examination of the complainant I think no illegality or irregularity has been committed. It would have been highly improper if the learned Magistrate alter calling for the original petition would have kept the complaints pending for a long time, without disposing them of as promptly as possible. In this case I must observe that in terms of the second petition, promptness was adopted by the learned Magistrate and, as such, it cannot be said that any illegality has been committed. I have already stated that each case must be decided on its own circumstances and the circumstances which presented themselves before the learned Magistrate, in my opinion, required postponement of the examination of the complainant and witnesses for a short time.

6. It will appear that the learned Magistrate accepted these two petitions as a petition of com-plaint within the meaning of Section 4 (h) of the Code of Criminal Procedure and proceeded upon the footing that in view of the proviso (b) of Section 200 Cr. P. C., he as a Presidency Magistrate was not required to record the statement of the complainant and his witnesses. Undoubtedly, an oral complaint is on the same footing with a written complaint and in the case of an oral complaint, it is incumbent upon such Magistrate to record the statement of the complainant and his witnesses. The learned Magistrate, however, has discussed the procedure which has to be observed in the matter of oral complaints, but inasmuch as he has accepted the two petitions in writing as forming part of the complaint, it can-not be said that he was required to record the statements of the complainant and his witnesses on the footing that complaint was an oral one. Apart from this donsideration, I am of opinion that even if there was any irregularity that does not at this stage vitiate the proceeding before the Additional Chief Presidency Magistrate as no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered in revision on account of any error, omission or irregularity in the com-plaint under Section 537 of the Code of Criminal Procedure, unless any failure of justice has been occasioned thereby. I do not consider that in the instant case any failure of justice has been caused by issuing summons against the accused petitioner and as such, the contentions raised by Mr. Dutta cannot be accepted.

7. As regards the merits, Mr. Dutta has said that no case has been made out under Section 417 I. P, Code. It is needless to repeat what I have already said that in the first petition accusation was completely set out and the stage has not reached as yet when it can be categorically stated that no case has been made out. In the circumstances, I am of opinion that the learned Magistrate had prima facie jurisdiction to issue summons upon consideration of all the aspects of the case under Section 417 of the Indian Penal Code.

8. I have taken into consideration the overall position as placed before me. I am of opinion that on the face of the observation made by me before the accused petitioner will not be prejudiced, if in pursuance of the summons he appears before the Magistrate and stands his trial under Section 417 of the Indian Penal Code. In the result, the order of the learned Magistrate complained of is hereby affirmed and the Hale stands discharged.

9. Let the records be sent down at once to the Additional Chief Presidency Magistrate.


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