DIPAK SAHA Vs. SURESH PANDEY

JUDGEMENT

(1.) The present case arises out of an application Under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 for quashing the proceeding of Case No. C/3680 of 2009 Under Section 384/34 of the Indian Penal Code which is pending before the Learned Metropolitan Magistrate, 9 th Court, Calcutta and also setting aside the order dated 9.6.2011 passed by the learned Metropolitan Magistrate, 9 th Court, Calcutta in the said Case No. C/3680 of 2009.

(2.) The relevant facts of the present case are, in a nutshell, as follows:

(3.) Opposite Party No. 1 herein as complainant filed a petition of complaint before the Learned Additional Chief Metropolitan Magistrate, Calcutta praying for sending the said petition of complaint to the Officer-in-Charge Burtolla, Police Station for investigation after treating the petition of complaint as F.I.R. Under Section 156(3) of the Code of Criminal Procedure. But the Learned Additional Chief Metropolitan Magistrate without sending the petition of complaint to the concerned Police Station, treated the same as complaint Under Section 2(d) of the Code of Criminal Procedure with an observation that the dispute was purely civil dispute relating to non-performance of a contract. Thereafter, the case was transferred to the Metropolitan Magistrate, 9 th Court for enquiry under the provision of Section 200 of the Criminal Procedure Code. Being aggrieved by the said observation of the Learned Additional Chief Metropolitan Magistrate, the complainant preferred a revisional application before the High Court which was registered as CRR No. 286 of 2010. The Hon'ble'ble Justice Ashim Kumar Banerjee disposed of the said revisional application with the following observation ".....Once the learned Magistrate took cognizance and directed the said complaint to be heard by a Magistrate, the earlier part of the order and/or observation referred to above, must be taken as a prima facie view of the learned Magistrate and such view must not prejudice the learned Magistrate who would be hearing the complaint Under Section 200 of the Criminal Procedure Code. The learned Magistrate should proceed in accordance with law and pass appropriate order on the same.