Krishna Kumar Agarwal vs State Of West Bengal& Anr

The vokalatnama filed in court today be kept with the record.

In this revisional application, the petitioner has assailed the order dated 30th April, 2018 passed by learned Metropolitan Magistrate, 4th Court, Calcutta in C-1422 of 1989 under Sections 420/120B of the Indian Penal Code.

The dispute cropped up between the respondent no.2/complainant with Sitaram Kedia with whom he had an alleged agreement for sale of flat. Since the proposed flat purportedly could not be delivered to the complainant, she lodged the present case against them including the petitioner showing him as their agent and purported proposed executor of proposed transaction which never came to existence. It is further pointed out by learned advocate for the petitioner that the petitioner has filed the case in the year 1989. For the last 29 years, most of the occasions, the complainant/respondent no.2 took time and delayed the proceeding by filing vague applications. The complainant has also filed civil cases which are also pending before this Hon'ble court at the instance of the respondent no.2/complainant. The present criminal proceeding after much deliberation came to be concluded on 31.08.2015 when the learned Magistrate on conclusion of cross examination fixed the matter under Section 313 of the Code of Criminal Procedure, 1973.

Since 25.07.2016 to 23.04.2017 the entire proceeding was kept in abeyance at the instance of the complainant/respondent no.2. on the next date fixed on 30.04.2018 when the petitioner was absent for single day, due to his non-appearance, the warrant of arrest was issued. It appears from the order dated 19.04.2018 LCR was received along with copy of the judgment dated 28.03.2018 passed by Additional District & Sessions Judge, Fast Track Court in Criminal Revision No.55 of 2017 vide memo no.100 FTC 1 thereby the learned Judge had allowed the revisional application on contest with cost of Rs.3,000 to be paid by the complainant before the trial court. On compliance with the said order complainant deposited the said amount vide order dated 19.04.2018. On 23.04.2018 the complainant was absent by petition. The date was fixed for hearing of the application under Section 311 of the Code of Criminal Procedure. On the adjourned date the learned Judge found the accused no.3 for not having taken any steps and issued warrant of arrest with a direction to the complainant to put the requisite and fixed the matter on 5.5.2018 on execution and hearing of the application. The warrant of arrest was not issued for a considerable period of time. The said order was under challenge before this court.

However, learned Magistrate issued the warrant of arrest in one go without considering the conduct of the complainant himself. The fact cannot be lost sight of delay in the trial has been dragged by the complainant by taking several dated as the case was filed in the year 1989.

Learned advocate for the petitioner invites my attention to the decision in case of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. reported in (2007) 12 SCC 1. The observation as made in paragraph 53 onwards which provides for the circumstances under which non-bailable warrant should be issued. It reads thus:-

"As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personally liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any strait jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.

The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant."

Having regard to the principle as laid down and the proposition of law and in consideration of the totality of the evidence and the facts and circumstances as transpired from the case record, I am of the view that the order impugned issuing warrant of arrest against the petitioner/accused no.3 cannot be allowed to be sustained. Accordingly, the impugned order dated 30th April, 2018 passed by learned Metropolitan Magistrate, 4th Court, Calcutta in C-1422 of 1989 under Sections 420/120B of the Indian Penal Code is hereby set aside. However, the direction is given to the learned Magistrate to allow the petitioner to remain on the same bail as he was before and to dispose of the application under Section 311 within a period of one week from the date of communication of the order and to conclude the trial of the case in terms of the merit of the case.

The application being CRR 3655 of 2018 is disposed of.