DISTRICT: SOUTH 24-PARGANAS
IN THE
HIGH COURT AT CALCUTTA
CRIMINAL
REVISIONAL JURISDICTION
C. R. R. No. of
2018
In the Matter of
An application under Article 227 of the Constitution of India
And
In the Matter of
Order dated 23rd
day of November’ 2017, passed by Sri Shailendra Kumar Singh, The Learned
Additional District and Sessions Judge, Baruipur, District South 24-Parganas in
Criminal Motion Case No. 40 of 2017, whereby the Learned Judge was pleased to
affirm The Order passed by The Additional Chief Judicial Magistrate, at
Baruipur, District South 24-Parganas on 17th day of July’ 2017, in
Sonarpur Police Station Case no. 304 of 2007( G. R. no. 997 of 2007 ),
under Section 120B, 406, 467, 468, 469,
471, 474, and 423 of the Indian Penal Code’ 1860, pending before the
Learned 1st Court, of Additional Chief Judicial Magistrate, at
Baruipur, South 24 Parganas, West Bengal;
And
In The Matter of
Shri Krishnapada Mondal, Son of
Late Panchanan Mondal, residing at Village – Khurigachhi, Post Office &
Police Station – Sonarpur, Pin – 700 150, District – South 24 Parganas.
______Defacto Complainant / Petitioner.
-
Versus
–
1)
Sri
Rathikanta Mondal, Son of Late Ramanath Mondal, residing at Village –
Khurigachhi, Post Office and Police Station – Sonarpur, District – South 24
Parganas.
2)
Sri
Nilkanta Mondal, Son of Late Ramanath Mondal, residing at Village –
Khurigachhi, Post Office and Police Station – Sonarpur, District – South 24
Parganas.
3)
Sri
Ramkanta Mondal, Son of Late Ramanath Mondal, residing at Village –
Khurigachhi, Post Office and Police Station – Sonarpur, District – South 24
Parganas.
4)
Sri
Khokan Mondal, Son of Late Ramanath Mondal, residing at Village – Khurigachhi,
Post Office and Police Station – Sonarpur, District – South 24 Parganas.
5)
Smt.
Angurbala Mondal, Wife of Sri Deben Mondal, residing at Village – Sonarpur
Khirishtalla, Post Office and Police Station – Sonarpur, District – South 24
Parganas.
6)
Smt.
Jyotshna Mondal, Wife of Sri Bipad Chandra Mondal, residing at Village –
Radhanagar, Post Office and Police
Station – Sonarpur, District – South 24 Parganas.
7)
Smt.
Rekha Mondal, Wife of Sri Ajit Kumar Mondal, residing at Village – Khurigachhi,
Post Office and Police Station – Sonarpur, District – South 24 Parganas.
8)
Sri
Haran Chandra Mondal, Son of Late Bholanath Mondal, residing at Village -
Khurigachhi, Post Office and Police Station – Sonarpur, District – South 24
Parganas.
9)
Sri
Dilip Chandra Mondal, Son of Late Bholanath Mondal, residing at Village -
Khurigachhi, Post Office and Police Station – Sonarpur, District – South 24
Parganas.
10)
Sri
Pradip Mondal, Son of Late Bholanath Mondal, residing at Village - Khurigachhi,
Post Office and Police Station – Sonarpur, District – South 24 Parganas.
11)
Smt.
Shephali Dhali, Wife of Sri Rabin Dhali, residing at Village – Mahamayatalla,
Post Office and Police Station – Sonarpur, District – South 24 Parganas.
12)
Smt.
Sumitra Mondal, Wife of Sri Satyen Mondal, residing at Village – Phuladhar,
Post Office and Police Station – Sonarpur, District – South 24 Parganas.
13)
Smt.
Narendra Dhali, Wife of Sri Gobinda Dhali, residing at Village – Mahamayatalla,
Post Office and Police Station – Sonarpur, District – South 24 Parganas.
14)
Smt.
Sandhya Naskar, wife of Sri Sudershan Naskar, residing at Village – Kalayanpur,
Post Office and Police Station – Baruipur, District – South 24 Parganas.
15)
Smt.
Shanti Mondal, Wife of Late Bholanath Mondal, residing at Village –
Khurigachhi, Post Office and Police Stsation – Sonarpur, District – South 24
Parganas.
16)
Shri
Nirad Baran Ghosh, Son of Late Gopal Chandra Ghosh, residing at Village –
Sahebpara, premises no. 4, at Sonarpur Station Road, Post Office and Police
Station – Sonarpur, District – South 24 Parganas.
17)
Shri
Johar Mondal, Son of Late Sarat Chandra Mondal, residing at Village –
Khurigachhi, Post Office and Police Station – Sonarpur, District – South 24
Parganas.
18)
Sri
Birendranath Sardar, Son of Late Santosh Sardar, residing at Village –
Darijangal, Police Station – Sandeshkhali, District – North 24 Parganas.
19)
Sri
Ganesh Naskar, of Village – Khurigachhi, Post Office and Police Station –
Sonarpur, District – South 24 Parganas.
20)
Shri
Satyen Mondal, Son of Shri Nemai Mondal, residing at Village – Phulerhat, Post
Office and Police Station – Sonarpur, District – South 24 Parganas.
________Accused /
Opposite Parties.
21)
State
of West Bengal.
_________Complainant / Opposite Party.
To
The Hon’ble
Jyotirmay Bhattacharya, The Acting Chief Justice and His Companion Justices of
the said Hon’ble Court
The
humble petition of the petitioner above-named
Most Respectfully Sheweth: -
1.
That the petitioner states that Your petitioner is a
peace loving citizen and is permanently residing at the address mentioned in
the Cause Title.
2.
That the Defacto Complainant / Petitioner
preferred one Complaint against the accused persons on 11-06-2007, before the
Learned Chief Judicial Magistrate, at Alipore, South 24 Parganas, under Section
156 (3) of Cr.P.C. for the Offences Committed to be punishable under Section
120B, 406, 467, 468, 469, 471, 474, and
423 of the Indian Penal Code’ 1860, which has been allowed and subsequently an
F.I.R. being no. 304, dated 20-06-2007,
has been drawn up by the Sonarpur Police Station.
3.
That on 14-09-2010, Charge
Sheet being no. 584 / 09 dated 31-08-2009, has been submitted by the
Investigating Officer of the case matter. The said charge sheet has been
submitted under Section 467, 468, 469, 471, 474, 423, 120B, and 406 of Indian
Penal Code’ 1860, against all the accused persons, FIR named. The said Charge
Sheet has been submitted by the Investigating Officer, after the expiry of more
than one year from the date of it’s preparation and forwarded by the Inspector
– in – charge of Police of the Sonarpur Police Station.
4.
That on 17-07-2017, the Learned
ACJM, at Baruipur, South 24 Parganas, filed for the present against the accused
person Shri Nirod Baran, and consequently recorded about the death of the
accused namely Radharani Kayal, Swapna Naskar, Molina Mondal, Nalina Naskar,
and Debala Mondal, the date of death has not been properly recorded therein,
However, the Learned ACJM, Baruipur, South 24 Parganas, and therefore the 19 (
nineteen ) accused persons out of the 25 ( twenty five ) accused persons
thereby qualified for the charge as to the next stage in the criminal
proceeding, and subsequently the said criminal case proceeding transferred to
the Learned ACJM 1st Court for disposal, and whereas the page of the
order sheet does not contain any signature of the Learned Magistrate, and
further whereas it has been appear as to 18-08-2017, and consequently cont.
thereafter to the next page of the order sheet which shows as GR. 997 of 2007,
Date : 17-07-2017, CR is received from GRO section for register in trial, today
stands fixed for consideration of framing of charge, all the (25) accused
persons is / are present and file hazira. Perused the report u/s 173 of Cr. P.
C., submitting by the I.O. of this case. Hd. Ld. Advocate, for the accused
person and the Ld. A.P.P. considered. It appear that there are sufficient
materials to presume that the accused persons have committed the offences under
Section 467/468/469/471/474/323/120B/406, of I.P.C. accordingly, the charge is
framed against the accused persons for the offence under section 467/468/469/471/474/323/120B/406,
of I.P.C. on a separate sheet of paper and is kept with the record. The
contents of the charge was read over and explained to the accused persons to
which they pleaded not guilty by saying “Nirdosh” and claimed to be tried. Fix
18-08-2017 for evidence. Issue summons upon CSW 1, 2.
Xerox copy of the certified copy of
said order dated 17-07-2017, and subsequent orders are enclosing herewith
collectively, and marked as Annexure – “P1”
5.
That it is pertinent to state that the Learned Court of ACJM,
Baruipur, and the 1st Court of Learned ACJM, Baruipur, South 24
Parganas, is a same and identical Learned Court, presided over by the Learned
Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, and
whereas at the first part of the order dated 17-07-2017, is directed for the
charge by the next date as on 18-08-2017, against the 19 ( nineteen ) accused
persons, before the Learned 1st Court of the Judicial Magistrate, at
Baruipur, South 24 Parganas, and in the Second part of the Order Sheet it is
awesome found that the charge has been framed against the 25 ( twenty five )
accused persons, and the next date is fixed on 18-08-2017, for evidence and
issued summons on CSW 1, 2, thereof.
6.
That on 18-08-2017, the
evidence started and completed for the CSW 1 and 2, in presence of the accused
persons, as appeared from the order sheet dated 18-08-2017, and the next date
is fixed for the evidence as on 19-08-2017, consequently by the Learned
Magistrate, but without any direction and or issuance of summons on CSW,
thereafter.
7.
That on 19-08-2017, it has been
appeared from the order dated 19-08-2017, as (19) accused are absent by
petition, no PW, to 15-09-2017, for evidence, issue fresh summons upon CSW 3
& 4. Therefore, the order dated 18-08-2017, and 19-08-2017, drawn much
apprehension in the conduct of judicial proceeding by the Learned Magistrate,
and therefore starting from the order dated 17-07-2017, up till the order dated
19-08-2017, the defacto complainant while in receipt of the summons, enquire
about and taken the certified copy of all order which obtain on 07-09-2017, and
lost his faith thereby in the Learned Court of the Additional Chief Judicial
Magistrate, at Baruipur, South 24 Parganas, as to get justice in terms of the
prescribed provisions of the Law as well as in the factual circumstances
including the circumstances of the Learned Court in dealing with the judicial
proceeding, thereof, in abeyance of the interest of administration of justice,
thereof.
8.
That the Defacto Complainant
beg to states and submits that the defacto complainant reasonably and genuinely
apprehend to get justice in terms of the facts and in terms of the prescribed
provisions of the established law, in the 1st Court of the Learned
Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, and
therefore challenging the entirety and proprietary of the order dated
17-07-2017, and consequently the order dated 18-08-2017, and 19-08-2017, passed
by the Learned 1st Court of Additional Chief Judicial Magistrate, at
Baruipur, South 24 Parganas, in GR no. 997 of 2007, before the Hon’ble Court,
as to set aside the order dated
17-07-2017, and consequently the order dated 18-08-2017, and 19-08-2017, passed
by the Learned 1st Court of Additional Chief Judicial Magistrate, at
Baruipur, South 24 Parganas, in GR no. 997 of 2007, in the interest of
administration of justice.
9.
That in view of the facts as
stated aforesaid, the defacto complainant preferred one Revisional application
being Criminal Motion no. 40 of 2017, challenging the Order dated 17-07-2017,
passed by the Learned 1st Court of the Additional Chief Judicial
Magistrate, at Baruipur, South 24 Parganas, before the Learned Additional
District Session Judge, at Baruipur, South 24 Parganas, and whereas on hearing
the said criminal motion, the Learned Additional District Session Judge, at
Baruipur, South 24 Parganas, was pleased to pass necessary order and dismissed
the said criminal motion, viz, order dated 23rd day of November’
2017, the extract of the operative portion of the said order is furnished
herein below :
“
Thus this revisional application is dismissed on contest. There will be no
order as to costs. The impugned order is hereby affirmed. However, Ld. 1st
Additional Chief Judicial Magistrate, Baruipur, South 24 Parganas, is directed
rectify the error in the impugned order as regards the numbers of accused
persons who stood for trial. The interim order, if any, stands vacated.”
10.
That being aggrieved by and dissatisfied with the Order dated 23rd day of
November’ 2017, passed by Sri Shailendra Kumar Singh, The Learned Additional District and
Sessions Judge, Baruipur, District South 24-Parganas in Criminal Motion Case
No. 40 of 2017, whereby the Learned Judge was pleased to affirm The Order
passed by The Additional Chief Judicial Magistrate, at Baruipur, District South
24-Parganas on 17th day of July’ 2017, in Sonarpur Police Station
Case no. 304 of 2007( G. R. no. 997 of 2007 ), under Section 120B, 406,
467, 468, 469, 471, 474, and 423 of the
Indian Penal Code’ 1860, pending before the Learned 1st Court, of
Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, West
Bengal, Your petitioner begs to move this Criminal
Revisional Application under Article 227 of the Constitution of India before
Your Lordship on the following amongst other
G R O U N D S
I.
FOR THAT the Learned Trial Judge failed to consider
the provisions of law while passing the impugned order;
II.
FOR THAT the impugned proceeding is an abuse of the
process of The Court and as such it calls for interference;
III.
FOR THAT a Court proceeding ought not to be
permitted to degenerate into a weapon of harassment or persecution;
IV.
FOR THAT on 17-07-2017, the
Learned ACJM, at Baruipur, South 24 Parganas, filed for the present against the
accused person Shri Nirod Baran, and consequently recorded about the death of
the accused namely Radharani Kayal, Swapna Naskar, Molina Mondal, Nalina
Naskar, and Debala Mondal, the date of death has not been properly recorded
therein, However, the Learned ACJM, Baruipur, South 24 Parganas, and therefore
the 19 ( nineteen ) accused persons out of the 25 ( twenty five ) accused
persons thereby qualified for the charge as to the next stage in the criminal
proceeding, and subsequently the said criminal case proceeding transferred to
the Learned ACJM 1st Court for disposal, and whereas the page of the
order sheet does not contain any signature of the Learned Magistrate;
V.
FOR THAT whereas it has been
appear as to 18-08-2017, and consequently cont. thereafter to the next page of
the order sheet which shows as GR. 997 of 2007, Date : 17-07-2017, CR is
received from GRO section for register in trial, today stands fixed for
consideration of framing of charge, all the (25) accused persons is / are
present and file hazira. Perused the report u/s 173 of Cr. P. C., submitting by
the I.O. of this case. Hd. Ld. Advocate, for the accused person and the Ld.
A.P.P. considered;
VI.
FOR THAT there are sufficient
materials to presume that the accused persons have committed the offences under
Section 467/468/469/471/474/323/120B/406, of I.P.C. accordingly, the charge is
framed against the accused persons for the offence under section
467/468/469/471/474/323/120B/406, of I.P.C. on a separate sheet of paper and is
kept with the record. The contents of the charge was read over and explained to
the accused persons to which they pleaded not guilty by saying “Nirdosh” and
claimed to be tried. Fix 18-08-2017 for evidence. Issue summons upon CSW 1, 2.
VII.
FOR THAT the Learned Court of
ACJM, Baruipur, and the 1st Court of Learned ACJM, Baruipur, South
24 Parganas, is a same and identical Learned Court, presided over by the
Learned Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas,
and whereas at the first part of the order dated 17-07-2017, is directed for
the charge by the next date as on 18-08-2017, against the 19 ( nineteen )
accused persons, before the Learned 1st Court of the Judicial
Magistrate, at Baruipur, South 24 Parganas, and in the Second part of the Order
Sheet it is awesome found that the charge has been framed against the 25 (
twenty five ) accused persons, and the next date is fixed on 18-08-2017, for
evidence and issued summons on CSW 1, 2, thereof.
VIII. FOR THAT on 18-08-2017, the evidence started and completed for the
CSW 1 and 2, in presence of the accused persons, as appeared from the order
sheet dated 18-08-2017, and the next date is fixed for the evidence as on
19-08-2017, consequently by the Learned Magistrate, but without any direction
and or issuance of summons on CSW, thereafter.
IX.
FOR THAT on 19-08-2017, it has
been appeared from the order dated 19-08-2017, as (19) accused are absent by
petition, no PW, to 15-09-2017, for evidence, issue fresh summons upon CSW 3
& 4.
X.
FOR THAT the order dated
18-08-2017, and 19-08-2017, drawn much apprehension in the conduct of judicial
proceeding by the Learned Magistrate, and therefore starting from the order
dated 17-07-2017, up till the order dated 19-08-2017, the defacto complainant
while in receipt of the summons, enquire about and taken the certified copy of
all order which obtain on 07-09-2017, and lost his faith thereby in the Learned
Court of the Additional Chief Judicial Magistrate, at Baruipur, South 24
Parganas, as to get justice in terms of the prescribed provisions of the Law as
well as in the factual circumstances including the circumstances of the Learned
Court in dealing with the judicial proceeding, thereof, in abeyance of the
interest of administration of justice, thereof.
XI.
That the Defacto Complainant
beg to states and submits that the defacto complainant reasonably and genuinely
apprehend to get justice in terms of the facts and in terms of the prescribed
provisions of the established law, in the 1st Court of the Learned
Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, and
therefore challenging the entirety and proprietary of the order dated
17-07-2017, and consequently the order dated 18-08-2017, and 19-08-2017, passed
by the Learned 1st Court of Additional Chief Judicial Magistrate, at
Baruipur, South 24 Parganas, in GR no. 997 of 2007, before the Hon’ble Court,
as to set aside the order dated
17-07-2017, and consequently the order dated 18-08-2017, and 19-08-2017, passed
by the Learned 1st Court of Additional Chief Judicial Magistrate, at
Baruipur, South 24 Parganas, in GR no. 997 of 2007, in the interest of
administration of justice.
XII. FOR THAT
the Article 21 of the Constitution of India guarantees fair trial. A fair Trial
is impossible if there is no concise of Law prevail only through the Learned
Judicial Magistrate, therefore the right to get justice by the defacto
complainant, in terms of the Article 21 of the Constitution of India, violated
in the hands of the Learned Judicial Magistrate;
XIII. FOR THAT
the Learned Court below did not apply any application of judicial
interpretation and therefore failed to understand the necessity of fresh charge
read over in accordance with the Law;
XIV. FOR THAT
the defective and purposive trial only breed the defective and abusive process
of Law during trial, and further more it cannot rectified by aiding with any
provisions of the Criminal Procedure Code’ 1973;
XV. For that
the impugned order, if allowed to stand, would result in failure of justice.
11.
That the application is made bona fide and
for the ends of justice.
Under
the aforesaid circumstances, it is most humbly prayed that Your Lordship may
graciously be pleased to issue a Rule calling upon the opposite parties to show
cause as to why the impugned Order dated 23rd day of November’ 2017, passed by Sri Shailendra
Kumar Singh, The Learned Additional District and Sessions Judge, Baruipur, District
South 24-Parganas in Criminal Motion Case No. 40 of 2017, should not be set aside and upon hearing the causes that may be shown to
make The Rule absolute
And
Pending disposal of The Rule all further proceedings
of Sonarpur Police
Station Case no. 304 of 2007( G. R. no. 997 of 2007 ),
under Section 120B, 406, 467, 468, 469,
471, 474, and 423 of the Indian Penal Code’ 1860, pending before the
Learned 1st Court, of Additional Chief Judicial Magistrate, at
Baruipur, South 24 Parganas, West Bengal, be stayed till the disposal of the present
revisional application
And
and/or to pass such other further Order/Orders as
Your Lordship may deem fit and proper
And
Your petitioner as in duty bound shall ever pray.
A F F I D
A V I T
I, Shri
Krishnapada Mondal, Son of Late Panchanan Mondal, aged about 40 years, by faith
Hindu, residing at Village – Khurigachhi, Post Office & Police Station –
Sonarpur, Pin – 700 150, District – South 24 Parganas, do hereby solemnly affirm and say as follows: -
1.
That I am the
petitioner in the instant case, I am well acquainted with the facts and
circumstances of the case and as such I am competent to affirm this affidavit.
2. That the statements made in Paragraph 1, 2, and 8 are true to my
knowledge, those made in Paragraphs 3, 4, 5, 6, 7, 9, and 10, are true on the
basis of records and the rest are my humble submission before this Hon’ble
Court.
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Prepared in my Office
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Deponent is known to me
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Clerk to
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Advocate
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Advocate
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Solemnly affirmed before me
this day of January, 2018
C O M M I S S I
O N E R
DISTRICT: SOUTH 24-PARGANAS
IN THE HIGH COURT AT CALCUTTA
CRIMINAL
REVISIONAL JURISDICTION
C. R. R. No. of
2018
In the Matter of
Krishnapada Mondal
……..Petitioner
Versus
Shri Rathikanta Mondal and others
……… Opposite Parties
An application under Article 227 of the Constitution of India
Advocate – on – record :
Ashok Kumar Singh
Advocate,
Bar Association Room No. 15,
High Court, Calcutta.
Mobile Number : 9883070666
