Madan Chakraborty vs Smt. Nanibala Mazumdar & Ors

Heard on : 11-12-2013 Judgment on : 15.1.2014 Ashim Kumar Roy, J.:

Since in all these criminal revisions a common question of law arose for adjudication, the same were taken up for hearing together and are disposed of by this common order.

The opposite parties in all the aforesaid six criminal revisions filed six separate complaints before the District Consumer Redressal Forum, Nadia against the proprietorship concern of the petitioner and two others including the manufacturer of the product making identical allegations. It is the case of the opposite party that they purchased six Power

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Tillers from the petitioner against valuable consideration but soon thereafter all those Power Tillers were found having manufacturing defects. All the aforesaid complaints were admitted and the District Consumer Forum proceeded in the matter in terms of the provisions of Section 13 of the Consumer Protection Act, 1986 and came to a finding that all those Tillers were defective and directed that the said power tillers be replaced by a new khazana brand Power Tiller in perfectly working condition by the opposite parties therein and in default they either jointly or severally refund the purchase money to each of the complainant, with interest and compensation.

Against the said order invoking Section 15 of the Consumer Protection Act, 1986 an appeal was preferred before the State commission but same was dismissed. Challenging the said order of dismissal the petitioner moved an application under Article 227 of the Constitution and this court dismissed the said application and upheld the order passed by the State commission affirming the order of the District Forum. The said order has already reached its finality.

Since the petitioner did not comply with the order so passed by the District Forum, the opposite party filed six separate applications under Section 27 of the said Act for enforcement of the order. In connection with those applications the District Consumer Forum directed issuance of notice against the petitioner and to show cause as to why in terms of provision of Section 27 of the said Act, no action be taken against him for non- compliance of its order. Since in spite of receipt of the notice the petitioner did not turn up before the District Consumer Forum, it issued warrant of arrest against him. The petitioner then appeared before the District Consumer Forum and also disclosed that he is ready to comply with the order passed by it and accordingly warrant of arrest issued against him was recalled. Then again the order of the District Forum was not complied with and the petitioner challenged the order in an appeal before the State Consumer Forum on the ground that the proceeding was bad in law. He lost there. Hence this criminal revision.

The learned Counsel for the petitioner first drew my attention to the provision of Section 27 of the Consumer Protection Act, 1986 and vehemently contended under the

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said provision the District Forum or State Forum or the National Commission as the case may be is vested with the same power, conferred on a Judicial Magistrate of 1st class under the Code of Criminal Procedure and thereby empowered it to hold a trial for non- compliance of its order and to pass sentence. He then contended before holding trial the Consumer Forum like a court of magistrate has to follow the procedure prescribed in Chapters XIV and XV of the Code of Criminal Procedure, which prescribed the condition requisite for initiation of a proceeding against an accused. But in this case the District Forum without following the same issued warrant of arrest. He submitted that entire proceeding is illegal, erroneous and without any authority of the law.

On the other hand, the learned Counsel for the opposite party as well as the learned Public Prosecutor appearing on behalf of the State resisted this application and contended that the question of following those provisions of the Code of Criminal Procedure, does not at all arise because on receipt of complaint about non-compliance of its order, the District Consumer Forum only issued a notice calling upon the petitioner to show cause as to why the proceeding under Section 27 shall not be instituted. Then they added that challenging the steps taken by the District Consumer Forum against him, the petitioner moved the State Consumer Forum and having lost there, if the petitioner is still aggrieved, his remedy lies before the National Commission not before this court.

I have given my anxious and thoughtful consideration to the rival submissions of the parties. I find there is sufficient force in the submission of the learned Counsel of the opposite party and the learned Public Prosecutor. The short point arises before me whether the order impugned is bad in law for non-compliance with the procedure prescribed in Chapters XIV and XV of the Code of Criminal Procedure. I have gone through the order impugned, if there is any illegality or irregularity, in the order passed by the District Consumer Forum and the order passed by the State Consumer Forum his remedy lies before the National Consumer Forum not before this court. Since, till date District Consumer Forum has not, in fact, taken any steps in terms of the power conferred upon it under Section 27 of the said Act, the question of examining the legality, propriety and

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correctness of such proceeding in exercise of my criminal revisional jurisdiction does not at all arise. In any event, in response to the show cause notice issued by the State Consumer Forum, the petitioner is obliged to be present before it and to comply with the order which has already reached its finality. If not the petitioner take any steps to comply with its order, without any further loss of time the District Consumer Forum should take necessary action against the petitioner to enforce its order.

None of this criminal revisions has any merit and stand dismissed.

As prayed for the impugned order of warrant of arrest shall remain stayed for a period of two weeks from this date. In the meantime, the petitioner shall have the liberty to surrender before the concerned District Consumer Forum and to take steps in accordance with law. If the petitioner does not surrender within the aforesaid period of two weeks the order of warrant of arrest shall stand revived and restored and the District Consumer Forum shall have the liberty to execute the same.

Criminal Section is directed to deliver urgent Photostat certified copy of this order to the parties, if applied for, as early as possible.

(Ashim Kumar Roy, J.)