In the High Court at Calcutta
Constitutional Writ Jurisdiction
Original Side
W.P. No. 110 of 2005
G.A. No. 507 of 2005
Calcutta Securities Brokers Welfare Association & Anr
Versus
Calcutta Stock Exchange Association Ltd. & Ors.
Mr. U. Bose, adv , for the petitioner
Mr. H.K.Mitra, adv. for the first respondent.
Mr. P.K. Dutt, adv. for the second respondent.
Mr. K. Mohammad Ali, adv. for the sixth respondent
Mr. D. Dhar, adv. for the added respondent.
Mr. T.K. Banerji, adv. for the eighth and ninth respondents
Before:
The Hon’ble Mr. Justice
Jayanta Kumar Biswas
Date : 16.12.2005
Dictated Order
The Court – In course of hearing of this writ petition a question arose whether the first petitioner ( a Welfare Association of Calcutta Securities Brokers) can maintain a writ petition being not a juristic person. Facing with the question, counsel for the petitioners sought leave to proceed only with the case of the second petitioner who is a member of the first respondent (Calcutta Stock Exchange Association Ltd.). He has submitted that name of the first petitioner may be directed to be expunged.
In view of the above-noted submissions, I permit counsel for the petitioners to proceed with the writ petition only with the case of the second petitioner. To keep the records of the case straight, I make the order that name of the first petitioner shall be deemed to be expunged, and that in so far as the first petitioner is concerned, the writ petition shall be deemed to be dismissed on the ground that it is not entitled, as an association, to invoke the writ jurisdiction of this court.
Regarding the case of the second petitioner his counsel has confined the scope of the grievance to the allegation of misappropriation of moneys forming part of the settlement guarantee fund controlled by the first respondent. His submission is that materials accompanying the writ petition would show that directors of the first respondent and its other office bearers misappropriated moneys that formed a part of the settlement guarantee fund and in which the second petitioner had also contributed from time to time. His contention is that since no action was taken by the authorities to institute appropriate criminal case, even when joint parliamentary committee recommended investigation into the case, it is necessary that this court exercises its writ powers for making an order directing the central bureau of investigation to register a case and make investigation.
In course of hearing, counsel for the second petitioner made his position very clear by saying that except relief to the above-noted extent his client does not want any other relief in this case. He has fairly conceded that his client did not send any information to the police authority concerned regarding commission of any offence by anyone in connection with the settlement guarantee fund. He has also not disputed the position that his client did not approach the court of competent judicial magistrate with the requisite complaint praying for an order either directing registration of FIR and making investigation or taking cognizance and issuing the process.
Counsel for the respondents (the authorities) have argued that with the expunction of name of the first petitioner the writ petition lost its utility, and that the second petitioner singly would not be entitled to seek any relief, since there is nothing to show that he is aggrieved by any action or inaction on the part of any of the respondents in the case. They have hastened to add that in the wake of recommendations made by the joint parliamentary committee steps were taken against the brokers concerned and criminal cases were also instituted before the competent criminal courts.
Counsel for the added respondent says that if the writ petition is dismissed on merits, then his client would suffer. I am unable to appreciate the purport of his submission. In the capacity of a respondent in the writ petition, the added respondent cannot seek relief even when the writ petition dismissed. The added respondent cannot claim the relief that could have been claimed by the second petitioner in the writ petition.
It seems to me that the second petitioner has unnecessarily invoked the writ jurisdiction of this court. An order directing the central bureau of investigation to register a case and make investigation cannot be made as a matter of course and for mere asking. No exceptional situation has been pointed out to show why the second petitioner did not send information regarding the allegation to the police authority concerned or why he did not approach the court of competent judicial magistrate with his complaint. He chose to come to the writ court straight, and in my opinion, he did so without any valid reason.
If he thought that directors of the first respondent and its other office bearers deserved to be prosecuted for committing various offences including the offence of misappropriation of moneys that formed part of the settlement guarantee fund, nothing prevented him from sending the requisite information to the police authority concerned or from approaching the court of the competent judicial magistrate by presenting the requisite complaint seeking an order either for registering an FIR and making investigation, or for taking cognizance and issuing the process.
I think it should be noted here that in course of hearing counsel for the second petitioner prayed for such liberty from me. Suffice it to say that the second petitioner was always at liberty, and is still at liberty, subject to the provisions regarding limitation, to approach the court of the competent judicial magistrate with his complaint. Exercise of his such right is not dependent on liberty to be granted by the writ court or by any other court.
I do not find any reason to make any order directing any investigating agency to register any complaint (there is in reality no such complaint) as an FIR and make investigation. If the second petitioner thinks that he needs to pursue the matter further, he would be free to pursue it by approaching the appropriate criminal courts in accordance with law.
For these reasons, I am unable to give any relief to the second petitioner in exercise of my writ powers. Accordingly, I dismiss the writ petition, obviously with the above-noted observations. There shall be no order for costs in it.
In view of the final order dismissing the writ petition, noting remains to be decided in the interlocutory application (GA No. 507 of 2005) taken out by the first respondent for an order striking the writ petition off the records, on the ground that it is not maintainable. Hence I order that that interlocutory application shall be deemed to be disposed of also without any order for costs in it.
It is made clear that nothing in this judgment and order shall prevent the second petitioner from approaching the competent civil court or any other forum, for seeking relief regarding which nothing has been decided in this writ petition. I also make it clear that this clarification will entitle the second petitioner to approach the competent civil court, or other forum provided he is otherwise entitled in law to approach such court or forum.
All parties shall act on a signed xerox copy of this judgment and order to be supplied on the usual undertakings.
Sd/-
(Jayanta Kumar Biswas, J)