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2017 Supreme(Cal) 84
IN THE HIGH COURT AT CALCUTTA
SANKAR ACHARYYA, J.
Sri Kali Charan Shaw - Petitioner
Vs.
The State of West Bengal & Anr. - Respondents
CRR 138 of 2015
Decided On : 20-01-2017
For the Petitioner: Mr. J.K. Bhattacharya, Mr. Tapas Kumar Chatterjee, Mr. Sanjoy Ghosh
For the State : Mr. Arnav Chatterjee, Mr. Paban Kumar Gupta
The delay in lodging the FIR and the alleged after-thought fabricated story were matters of evidence and not suitable for consideration at the current stage. The defect in framing the charge was an irregularity curable by the trial court and did not vitiate the whole proceeding.
Headnote:
West Bengal Fire Services Act - Challenge to Orders - Sections 11J/26 of West Bengal Fire Services Act, 1950 - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Sections 11J and 26 of the West Bengal Fire Services Act, 1950, which deal with contravention of fire prevention and safety measures and the penalty for not obtaining a license for storing hazardous substances. The court also referred to the Code of Criminal Procedure, 1973, specifically Section 218, which deals with framing separate charges for distinct offences and the power of the trial court to alter or modify charges.
Fact of the Case:
The petitioner, a wholesale kerosene oil dealer, was accused of contravening fire safety provisions and using domestic L.P.G. cylinders for commercial purposes without a license. The petitioner challenged the orders on the grounds of false and frivolous criminal case, delayed FIR, and unjustified combined charge under the West Bengal Fire Services Act, 1950.
Finding of the Court:
The court found that the delay in lodging the FIR and the alleged after-thought fabricated story were matters of evidence and not suitable for consideration at the current stage. The court also held that the defect in framing the charge was an irregularity curable by the trial court and did not vitiate the whole proceeding.
Issues: The issues involved the validity of the FIR, the framing of the combined charge, and the irregularity in framing the charge.
Ratio Decidendi: The delay in lodging the FIR and the alleged after-thought fabricated story were matters of evidence and not suitable for consideration at the current stage. The defect in framing the charge was an irregularity curable by the trial court and did not vitiate the whole proceeding.
Final Decision: The revisional application was disposed of, and the court found no reason to set aside the impugned orders or to quash the whole proceeding as prayed for. The interim order, if any, stood vacated.
SANKAR ACHARYYA, J.
1. This is an application under Article 227 of the Constitution of India filed by the petitioner challenging three orders dated 06.03.2014, 07.06.2014 and 19.11.2014 passed by learned Judicial Magistrate, 5th Court, Barrackpore in G.R. Case No. 1784 of 2012 arising out of Khardah P.S. Case No. 276 of 2012. Petitioner has been made accused in that case. In the impugned order dated 06.03.2014 learned Magistrate passed the following order.
“Accused person on bail is present.
Ld. A.P.P. is also present.
Heard both sides. Perused the papers referred to u/s 173 Cr.P.C.
It appears prima facie that, the accused person has committed offences punishable under Sections 11J/26 of West Bengal Fire Services Act, 1950.
So a charge under the above Sections is framed, read over and explained to the accused person who pleaded not guilty by saying ‘Ami Nirdos’ and claimed to be tried.
Fix 07.06.14 for evidence of CSW – 1.
Issue summon accordingly.
Accused person is as before”.
2. On 07.06.2014 and 19.11.2014 the petitioner as accused remained present in the Court below but due to absence of witness evidence was not recorded on those dates and the case was adjourned.
3. Petitioner has challenged those orders on the grounds that a false and frivolous criminal case with allegation of cognizable offence has been brought against him by a delayed FIR dated 22.04.2012 relating to an occurrence dated 19.04.2012. Inter alia, further contention of the petitioner is that learned Judicial Magistrate framed unjustified combined charge under Sections 11 J and 26 of the West Bengal Fire Services Act, 1950. He has prayed for quashing of the impugned orders with a further prayer for a direction upon respondent for opening the padlock of the petitioner’s show room which was put during investigation of the case.
4. As per FIR lodged on 22.04.2012 against the petitioner the State prosecution alleged in substance that the petitioner is a whole-sale kerosene oil dealer. On 19.04.2012 fire broke out in his business premises and Fire Services authority extinguished the fire. The petitioner, without having licence used to refill L.P.G. to automobiles from domestic L.P.G. cylinders in the ground floor of the premises which is a ‘High Risk Buildings’ where fire broke out. He had also stock of huge quantity of kerosene oil without following the fire prevention safety measures. The petitioner remained untraced and did not produce relevant documents before the informant Station Officer of Lalkuthi Fire Station for which delay was caused in lodging the FIR.
5. At the time of hearing learned advocate for the petitioner submitted that G.D.E. no. 1561 dated 19.04.2012 was made at Khardah police station relating to the occurrence but certainly there was no allegation of commission of any cognizable offence but subsequently on 22.04.2012 the after-thought FIR was lodged with fabricating story against petitioner.
6. He submitted that such an FIR cannot be a foundation of a criminal proceeding. He cited a decision of a Division Bench of this High Court in the case of Mannalal Khatic Vs. The State reported in AIR 1967 Calcutta 479. He further submitted that framing of combined charge for two distinct offences under Sections 11 J and 26 of the West Bengal Fire Services Act, 1950 is not proper in a criminal trial. He submitted for setting aside the impugned orders and for quashing the whole proceedings.
7. Learned advocate for the state submitted that in the absence of any information with allegation of cognizable offence no FIR under Section 154 of the Code of Criminal Procedure, 1973 can be registered at police station and in this case also the FIR was lodged on 22.04.2012 only when it was noticed that the petitioner committed cognizable offence of dealing in inflammable LP Gas without having licence and using domestic L.P. Gas cylinders for commercial purpose violating the provisions of The West Bengal Fire Services Act, 1950 and L.P.G. Rules and Liquefied Petroleum G
