- (1.) A case relating to the offence punishable under Sections 120B/224 of the Indian Penal Code was started against one Bidyut Chatterjee, a Bench Clerk attached to the Court of the Learned Judicial Magistrate, 9th Court, Alipore and one Dolly Howlader, a Bangladeshi National. The allegation as against them are as follows; On 1.10.08. the accused Dolly Howlader was brought at Alipore Sadar Court, Bengal Lock Up from custody for her production before the Learned Judicial Magistrate, 9th Court, Alipore in connection with Jadavpur Police Station Case No. 355 (6) 08, under Section 224 of the Indian Penal Code. When the accused Bidyut Chatterjee, Bench Clerk 1, attached to the Learned Judicial Magistrate, 9th Court, Alipore along with one Law Clerk, Moloy Chatterjee produced the custody warrant before the Lock Up In-charge and got her released on the strength thereof. The said Dolly Howlader was handed over to the accused Bidyut Chatterjee. Subsequently, it was discovered that there was a note endorsed on the custody warrant for not releasing her from custody as she was a Bangladeshi National. The aforesaid case gave rise to Alipore Police Station Case No. 241, dated 30.10.08, under Sections 120B/224 of the Indian Penal Code.
(2.) Since within the statutory period no charge-sheet was submitted, the accused Bidyut Chatterjee moved an application under Section 167 (5) of the Code of Criminal Procedure before the Learned Court below, praying for his discharge from the case. The said application came up for hearing before the Learned Chief Judicial Magistrate, South 24-Parganas, Alipore. When the Learned Magistrate having found that sufficient evidentiary materials showing complicity of the accused Bidyut Chatterjee in the commission of the offence, were collected by the police before the expiry of the statutory period rejected his prayer for discharge under Section 167 (5) of the Code of Criminal Procedure. While passing such order the Learned Magistrate further found that from the evidentiary materials collected by the police sufficient incriminating materials have also been transpired against one Law Clerk, Moloy Chatterjee and the then Lockup In-charge Alok Kumar Mukherjee of the Bengal Lockup, disclosing their complicity in the commission of the offences. Accordingly, the Learned Magistrate directed issuance of summons against them. In this criminal revision the accused Alok Kumar Mukherjee challenged the said order of issuance of summons as against him.
(3.) The learned advocate Mr. Angshuman Chakraborty in support of this criminal revision urged the following points; (a) The Learned Magistrate has no authority to direct issuance of summons against any person not arraigned as accused, while considering the application under Section 167 (5) of the Cr.P.C. of an accused named in the FIR. (b) Earlier the Learned Magistrate took cognizance of the offence relating to the said case on April 21, 2009. Therefore, taking cognizance for the second time by the impugned order passed on May 19, 2009 is absolutely illegal and without jurisdiction. (c) Cognizance of the self-same offence cannot be taken twice. (d) Once the Magistrate take cognizance of offence against a particular accused it is not permissible for a Court to take cognizance of offence against another accused, subsequently on the self-same materials. (e) The accused was the Lockup In-charge and in complete bona fide he released the accused Dolly Howlader on the strength of a custody warrant, the genuinity whereof, he has no reason to doubt as was produced by the accused Bidyut Chatterjee, a Bench Clerk attached to the Court of the Learned Judicial Magistrate, 9th Court, Alipore. On the other hand, Mr. Joy Sengupta, Learned Counsel, appearing on behalf of the State submitted as follows; (a) There is no illegality in directing issuance of summons against an accused while disposing of the application under Section 167 (5) of the Code moved by another accused. (b) The cognizance is taken of an offence not against any offender and once cognizance is taken it becomes the duty of the Learned Court to find out the real offender. Mr. Sengupta in support of his contention relied on two case laws, viz., Raghubans Dubey Vs. State of Bihar, reported in AIR 1967 SC 1167 and Kishun Singh & Ors. Vs. State of Bihar, reported in 1993 SCC (Cri) 470.;