Jayanta Kumar Biswas, J.@mdashThe petitioner in this Article 226 petition dated September 9, 2010 is questioning the summons to witness dated September 2, 2010 (at p.23) issued by the Sub-divisional Magistrate, Kharagpur in connection with a complaint lodged with him by one Aditya Kumar Dey.
2. Mr. Acharya, counsel for the petitioner, argues as follows. The petitioner is the president of the managing committee of Baragarh Sasanka Sekhar Bodh Niketan in Baragarh of the district Paschim Medinipur. The petitioner apprehends that the complaint, not served on him with the summons, has been lodged against him. The Sub-divisional Magistrate did not have jurisdiction to issue the summons.
3. It is evident from the summons, issued using Form No. 33 set forth in the Second Schedule to the Code of Criminal Procedure, 1973, that the petitioner has been summoned as a witness on the ground that he is likely to give material evidence or to produce document and other thing necessary for adjudication of the issues involved in the complaint.
4. Even if the petitioner is the president of the managing committee of the institute, that does not give him a right to say that the Sub-divisional Magistrate cannot summon him as a witness. u/s 6 of the Code, Executive Magistrates are one of the classes of Criminal Courts. The Sub-divisional Magistrate has issued the summons qua an Executive Magistrate. Hence I do not find any reason to say that it has been issued without jurisdiction.
5. If the petitioner is the person against whom the allegations have been made in the complaint, then he is free to apply before the Sub-divisional Magistrate taking the plea that he cannot be asked to depose as a witness in proof of the case of the complainant. But his speculation cannot be a ground not to obey the summons. It is not that he has been required u/s 91 of the Code merely to produce a document or other thing. If he fails to appear, the Court may issue a warrant for his arrest u/s 87 of the Code.
6. For these reasons, the petition is dismissed. The department is directed to give permanent case number at once. No costs. Certified xerox.
