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Judgment
In this application the petitioner has prayed for quashing of the proceedings in connection with Hirapur Police Sation GDE No. 275/08 dated
05.09.2008 under Sections 41 of the Code of Criminal Procedure read with Sections 379/411 of the Indian Penal Code and Hirapur Police Station
GDE No. 447 dated 07.09.2008 under Section 4(1) of the Bengal Criminal Law Amendment Act giving rise to Hirapur Police Station N.C.R. No.
1246 of 2008 dated 07.09.2008. As per the prosecution case the petitioner was arrested in connection with Hirapur Police Station Case No. 275 dated
05.09.2008 which was apprehended by the CISF personnel on the allegation that he was carrying 40 Kgs of ferro allow, ferrow manganese and
silicone manganese stones under the seat of his motorcycle bearing no. WB 38U 4632, Make : Zeus, black colour as per the seizure list.
The accused was granted bail on being apprehended the Hirapur Police Station GDE No. 275/08 dated 05.09.2008 under Sections 41 of the Code of
Criminal Procedure read with Sections 379/411 of the Indian Penal Code and Hirapur Police Station GDE No. 447 dated 07.09.2008 under Section
4(I) of Bengal Criminal Law Amendment Act giving rise to Hirapur Police Station N.C.R.No. 1246 of 2008 dated 07.09.2008. It is submitted that the
impugned proceeding suffers from gross illegality as because Section 379/411 of the Indian Penal Code cannot be clubbed along with Section 41 of the
Code of Criminal Procedure and the proceeding so lodged against the petitioner has not yielded any complaint being filed by the prosecution and
accordingly the petitioner has prayed for quashing the case under provision of section 167(5)(i) of the Code of Criminal Procedure because beyond the
period of six months the investigating agency could not start specific case against the petitioner.
In was incumbent on the part of the learned Magistrate to have discharged the petitioner on this score itself. The manner in which the proceeding has
been started by the prosecuting agency shows a custody of the seized articles with the petitioner does not inspire any confidence upon the story of the
prosecution and accordingly the petitioner has prayed for quashing the proceeding as a whole. It is also pointed out by the learned advocate for the
petitioner that it is impossible to carry 40 kgs. of ferro allow, ferrow manganese and silicone manganese stones under the seat of his motorcycle as
alleged against the petitioner. My attention is invited to the Case Diary.
Learned advocate for the State submits that prosecution really vitiates because it is fact that no specific case was started against the petitioner when
on apprehension he was arrested under the provision of Section 41 of the Code of Criminal Procedure. Learned advocate appearing for the petitioner
draws my attention to the relevant provision of Bengal Act VI of 1930 as also first schedule of the said Act. I am fully in agreement with the learned
advocate appearing for both the parties that continuance of the proceeding mentioned above would amount to misuse of the process of the Court.
Hence, the proceedings in connection with Hirapur Police Sation GDE No. 275/08 dated 05.09.2008 under Sections 41 of the Code of Criminal
Procedure read with Sections 379/411 of the Indian Penal Code and Hirapur Police Station GDE No. 447 dated 07.09.2008 under Section 4(1) of the
Bengal Criminal Law Amendment Act giving rise to Hirapur Police Station N.C.R. No. 1246 of 2008 dated 07.09.2008 is hereby quashed and set
aside.
CRR No. 1791 of 2015 is disposed of accordingly. The Case Diary is returned to the learned advocate for the State. Urgent xerox certified copies of
this order, if applied for, be made available to the parties upon compliance of the requisite formalities.