Calcutta High Court (Appellete Side)
Sk. Hafizul Haque & Ors vs The State Of West Bengal & Another on 22 January, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 2575 of 2018
With
CRAN 2 of 2019 (Old CRAN 2255 of 2019)
Sk. Hafizul Haque & Ors.
Versus
The State of West Bengal & Another
For the Petitioners : Md. Nurezaman, Adv.
Mr. Somen Bose, Adv.
For the Opposite Party No. 2 : Mr. Sandip Kr. Bhattacharya, Adv.
Mr. Dipta Dipak Banerjee, Adv.
Heard on : 18.11.2024
Judgment on : 22.01.2025
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Ajay Kumar Gupta, J:
1.
This instant application has been filed by the petitioners
under Section 482 read with Section 401 of the Code of Criminal
Procedure, 1973 challenging the legality, propriety and correctness of
the Impugned Order dated 18.05.2018 passed by the Learned
Additional District and Sessions Judge, Bench-II of City Sessions
Court, Bichar Bhawan, Calcutta in Criminal Revision No. 111 of 2017
arising out of an Order dated 04.02.2017 passed by the Learned 8th
Metropolitan Magistrate, Calcutta in Case No. C/15865 of 2007
under Sections 417/418/419/420/465/469/471 of the Indian Penal
Code, 1860.
2. By the said judgment, the Learned Additional District &
Sessions Judge dismissed the Criminal Revisional application and
affirmed the order dated 4th February, 2017 passed by the Learned
Metropolitan Magistrate, 8th Court at Calcutta. The Learned
Magistrate vide order dated 4th February, 2017 rejected the prayer of
the petitioners with a liberty to the petitioners to proceed with the
case after complying with the provision as laid down in Section 256
read with Section 302 of the Cr.PC.
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3. The brief facts, leading to filing of this Criminal Revisional
application, are that one complaint case was initially filed by Sk.
Ataul Haque through his Constituted Attorney, Sk. Sirajul Haque for
commission of offences u/s 417/418/419/420/465/469/471 of IPC
against Md. Jamil Ahmed, Opposite Party No. 2 herein before Learned
Chief Metropolitan Magistrate, Calcutta.
4. After considering the said petition of complaint, the Learned
Magistrate took cognizance u/s 417/418/419/420/465/469/471 of
IPC against Md. Jamil Ahmed and transferred the said case before
Learned Metropolitan Magistrate, 8th Court, Calcutta for inquiry, trial
and disposal.
5. Thereafter, the Learned Metropolitan Magistrate, 8th Court
has made an inquiry under Section 200 of CrPC and upon
considering S/A, a prima facie case found against the accused. A
summon was issued against the accused/opposite party no. 2 herein.
Thereafter, the accused appeared and obtained bail from the Learned
Court. The matter was fixed for evidence.
6. In the meantime, due to old age about 80 years and serious
health issue of Sk. Ataul Haque, an application u/s 410 of CrPC
before Ld. C.M.M., Calcutta was filed praying for transferring the case
to any other Court at the ground floor of the said building for his easy
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convenience for appearing in the Court. A notice was served upon the
accused but he did not appear on the date of hearing. Therefore, the
said petition was heard and the prayer was allowed vide order dated
30.08.2010 and directed to transfer the proceedings to Learned
Metropolitan Magistrate, 13th Court, Calcutta situated on the ground
floor for disposal.
7. Soon after, the accused/opposite party no. 2 challenged the
said impugned order dated 30.08.2010 after being dissatisfied before
Learned Chief Judge, City Sessions Court, Calcutta by filing the
Revisional Application being No. 307 of 2010 and the same was
transferred to the then Ld. Judge, Fast Track, 3rd Court, Calcutta for
further hearing.
8. During pendency of the said revisional application, the
original complainant, Sk. Ataul Haque expired on 30.01.2011 as such
the present petitioners, as the legal heirs and successors of Sk. Ataul
Haque (since deceased), executed combined power of attorney in
favour of Sk. Sirajul Haque to conduct and represent the criminal
case on their behalf.
9. On 30.06.2012, Learned Additional District & Sessions
Judge, Fast Track, 3rd Court, Calcutta, allowed the criminal revision
filed by the accused. The order of Ld. C.M.M., Calcutta, in respect of
5
transfer of the case record from Ld. 8th M. M.’s Court, Calcutta to Ld.
13th M.M.’s Court, Calcutta, was set aside. So, the said case was lying
pending before the Ld. M.M. 8th Court, Calcutta for further trial and
disposal.
10. Thereafter, Ld. M. M. 8th Court, Calcutta dropped the
proceeding on 06.08.2012 and discharged the opposite party no. 2 in
view of prayer made by the accused and as per judgment dated
30.06.2012 passed in Criminal Revision No. 307 of 2010 by the
Learned Additional Sessions Judge, 3rd Fast Track Court, Bichar
Bhawan, Kolkata.
11. The petitioners herein challenged the said impugned order
dated 06.08.2012 before the Learned Chief Judge, City Sessions
Court, Calcutta in Criminal Revision No. 173 of 2012 and the
Learned Court was pleased to pass the order on 21.01.2013, inter
alia, as under:
“That this Crl. Revisional application is disposed of on
contest but without cost. The impugned order dated
06.08.2012 passed in Crl. Case No. 15865 of 2007 by
Ld. Metropolitan Magistrate, 8th Court, Calcutta is set
aside. The Ld. Trial Court shall dispose of the
application submitted before him by the present
revisionists i.e. Smt. Khodaja Bibi and nine others
after considering this question whether they can step
6into shoes of their predecessor-in-interest i.e. Sk.
Ataul Haque and thereafter dispose of the case as
Warrant Procedure as laid down in Cr.P.C. The Ld.
Magistrate should not be influenced by an
observation made by this Court or made by the Ld.
3rd Fast Track Court, Calcutta in that Crl. Revn.
Sent down the LCR along with this order at once for
compliance.”
12. The legal heirs and successors of Late Ataul Haque, through
their Constituted Attorney, Sk. Sirajul Haque filed a fresh petition
praying for substitution on 20.03.2013. When the said petition was
fixed for hearing, it was pointed out that one of the legal heirs in the
meantime expired so that the Constituted Attorney had no authority
to proceed with the case with his previous power of attorney. Learned
Trial Court directed the petitioners to take proper steps in compliance
of Section 256 read with Section 302 of CrPC by rejecting their prayer
for substitution on 04.02.2017 and fixed the next date i.e. on
04.05.2017 for necessary steps by the petitioners.
13. Being aggrieved by and dissatisfied with the said order and
direction dated 04.02.2017 passed by the Learned Metropolitan
Magistrate, 8th Court Calcutta, the petitioners herein filed Revisional
7
application being No. 111 of 2017 before the Learned Chief Judge,
City Sessions Court at Calcutta. The said matter was transferred to
the Learned Additional District and Sessions Judge, Bench – II,
Bichar Bhawan, Calcutta and after hearing the parties, the Learned
Additional District and Sessions Judge dismissed the same on
18.05.2018 and passed order, inter alia, as under:
“Considered the submission of both sides and
the judgment referred by Ld. Advocate for the
revisionist. After thorough perusal of the orders of the
Ld. Trial Court, I find that the Constituted Attorney
played a vital role in this case. He suppressed the
fact of death of original complainant and, thereafter,
when the matter has come into the notice of the Court
then he again filed another power of attorney but in
the meantime, one of the legal heirs died but that
factum also has been suppressed by that person. So
the power of attorney, on the basis of which he was
trying to get into the trial Court and also before the
Revisional Forum, is not acceptable in the eye of law
because one of the executes died in the meantime and
according to the legal position, due to death of one of
the executes, it becomes inoperative.
So, on the basis of the said logic, I first want to
observe that the person, who is representing here as
Constituted Attorney and filed this revision, has no
locus standi at all. Secondly, as the legal heirs of the
8original complainant are not at all substituted in the
Trial Court so revision of that legal heirs, through a
Constituted Attorney, also cannot be accepted.
Thirdly, I find by the said order Ld. Trial Judge did
not cease the right of the legal heirs of original
complainant to step into the shoe of their predecessor
but only directed them to follow the provision of law
for such substitution. So in my view, the manner, in
which the said petition was disposed of, does not
suffer from any illegality rather it can be said that it is
very much justified and in accordance with correct
proposition of law and thus, in my opinion, there is no
merit in the instant revision and it is liable to be
dismissed on contest and the order passed by the Ld.
Trial Court is to be affirmed”.
Hence, this Criminal Revisional application.
14. Heard the arguments and submissions made by the rival
parties and upon perusal of the Impugned Order dated 18.05.2018
passed by the Learned Additional District and Sessions Judge,
Bench-II of City Sessions Court, Bichar Bhawan, Calcutta, this Court
is of the view that earlier the Learned Metropolitan Magistrate, 8th
Court, Calcutta has given a liberty to the petitioners to proceed with
the case after complying with the provision as laid down in Section
256 read with Section 302 of the CrPC on relying a judgment passed
9
in the case of Jimmy Jahangir Madan Vs. Bolly Cariyappa
Hindley (D) by Lrs.1.
15. In the said case, the Hon’ble Court allowed the prayer of the
legal heirs of the original complainant to proceed with the case
through their power of attorney holder. The Hon’ble Apex Court after
considering the relevant provision of Section 302 of CrPC, set aside
the Lower Court’s order. However, kept open to the legal heirs to
continue the proceeding filed by their predecessor against accused
according to law.
16. It is not disputed by the learned counsel appearing on behalf
of the petitioners that during pendency of the application filed by the
power of attorney holder, one legal heir has been expired and without
taking any proper steps, the petitioners wanted to continue the said
proceeding on the basis of combined power of attorney and for that
reason, the Learned Court below has given liberty to the petitioners to
proceed with the case upon complying the provisions as laid down in
Section 256 read with Section 302 of the CrPC.
17. Being aggrieved by and dissatisfied with the correctness,
legality and propriety of the said Impugned Order, petitioners have
filed a Revisional application before the Learned Additional District
1
2004 12 SCC 509.
10
and Sessions Judge, Bench-II of City Sessions Court, Bichar Bhawan,
Calcutta.
18. The Learned Judge rightly observed that the legal heirs of
the original complainant were not at all substituted in the Learned
Trial Court. So, revision through constituted attorney of the legal
heirs is also cannot be accepted. Finally, it was observed that the
Learned Trial Court does not cease the right of the legal heirs of the
original complainant to step into the shoe of their predecessor and
liberty was given to follow the provisions of law for such substitution
and to continue the proceeding further.
19. This Court is of the opinion that the Orders passed by the
Learned Magistrate as well as Learned Additional District and
Sessions Judge, do not suffer from any infirmity or illegality.
Furthermore, Court has already given liberty to the petitioners to take
steps in accordance with law in view of the provisions as laid down in
the Code of Criminal Procedure for substitution and continuation of
the proceeding.
20. Section 256 of Code of Criminal Procedure, 1973 reads as
follows:
“256. Non-appearance or death of
complainant.–(1) If the summons has been issued
11on complaint, and on the day appointed for the
appearance of the accused, or any day subsequent
thereto to which the hearing may be adjourned, the
complainant does not appear, the Magistrate shall,
notwithstanding anything hereinbefore contained,
acquit the accused, unless for some reason he thinks
it proper to adjourn the hearing of the case to some
other day:
Provided that where the complainant is
represented by a pleader or by the officer conducting
the prosecution or where the Magistrate is of opinion
that the personal attendance of the complainant is not
necessary, the Magistrate may, dispense with his
attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as
may be, apply also to cases where the non-
appearance of the complainant is due to his death.”
Section 302 of Code of Criminal procedure reads as follows:
“302. Permission to conduct prosecution.–(1)
Any Magistrate inquiring into or trying a case may
permit the prosecution to be conducted by any person
other than a police officer below the rank of inspector;
but no person, other than the Advocate-General or
Government Advocate or a Public Prosecutor or
Assistant Public Prosecutor, shall be entitled to do so
without such permission:
Provided that no police officer shall be permitted
to conduct the prosecution if he has taken part in the
investigation into the offence with respect to which
the accused is being prosecuted.
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(2) Any person conducting the prosecution may do so
personally or by a pleader.”
21. Consequently, this Court finds there are specific provisions
in the CrPC and same is required to be followed by the petitioners
before the Learned Trial Court otherwise, Learned Court cannot be
proceeded with the proceedings filed by the predecessor of the
petitioners. More so, he is no more. As such, the Criminal Revisional
application has devoid of merit. The impugned order under challenge
calls for no interference by this Court.
22. Accordingly, CRR No. 2575 of 2018 is dismissed.
Connected application being CRAN 2/2019 (Old CRAN 2255/2019)
is also, thus, disposed of.
23. The petitioners are given liberty to take appropriate steps to
substitute the legal heirs and successors of the original complainant
by filing proper application before the Learned Trial Court. In turn,
the Learned Trial Court shall decide the same independently and in
accordance with law as early as possible since the proceeding is
pending since 2007.
24. Let a copy of this Judgment be sent to the Learned Trial
Court for information.
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25. Case Diary, if any, is to be returned to the learned counsel
for the State.
26. Interim order, if any, stands vacated.
27. All parties will act on the server copies of this Judgment
uploaded from the official website of this Court.
28. Urgent photostat certified copy of this Judgment, if applied
for, is to be given as expeditiously to the parties on compliance of all
legal formalities.
(Ajay Kumar Gupta, J)
P. Adak (P.A.)
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