- (1.) By filing the instant application under Article 227 of the Constitution of India, the applicant Sri Bata Krishna Mondal has prayed for setting aside the order dated 26.11.2007 passed in Misc. Petition Case No. 1 of 2007 arising out of O.S. No. 13 of 2004, now pending in the Court of learned Civil Judge (Senior Division), 3rd Court, Midnapore under Section 340 read with Section 195 (1)(b)(i)(iii) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr. P. C.).
(2.) Having heard the learned lawyers of the parties concerned and also on perusal of the materials on record it could be detected that the present petitioner by filing Misc. Petition Case No. 1 of 2007 in the Court of learned Civil Judge (Senior Division), 3rd Court at Midnapore sought for criminal action against the opposite parties after holding preliminary enquiry as envisaged in the said section.
(3.) Mr. Manjit Singh, the Learned lawyer appearing for the petitioner while arguing the case drew this Court's attention to the contents of the impugned order dated 26.11.2007 as also the application under Section 340 of the Cr. P. C. as well as some other important materials on record and emphatically argued and submitted that the learned Court below while disposing of the petition under Section 340 of Cr. P. C. committed gross mistake and illegality by rejecting the same inasmuch as the learned Court below ignoring the provisions of law as also the principles relied upon by different Hon'ble Courts as also the Hon'ble Apex Court rejected the petition under Section 340 Cr. P. C. and thus caused miscarriage of justice to his client. In support of his contention he has relied upon the ruling reported in (2002) 1 SCC 253 (Pritish Vs. State of Maharashtra and Others) and strenuously urged that in a case like the present one, the Court below ought to have referred the petition under Section 340 Cr. P. C. to the local Judicial Magistrate having jurisdiction after holding preliminary enquiry and on being satisfied that the petition contains grounds for proceeding with the matter against the alleged persons. Further, he has submitted that the learned Court below should not have allowed any opportunity to the opposite parties to participate in the proceeding initiated on the basis of the petition under Section 340 Cr. P. C. Lastly, he argued that it is a fit case wherein the impugned order deserves to be set aside.;