Calcutta High Court (Appellete Side)
Ansar Ali & Ors vs The Learned Chief Judicial Magistrate on 8 September, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
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08.09.2014
W.P. 7596 (W) of 2014
Ansar Ali & ors.
vs.
The Learned Chief Judicial Magistrate
North 24-Parganas
Mr. Phiroze Edulji
.........for the petitioner
Mr. Abhratosh Majumdar
........for the State
1. The petitioners (eight in all) are facing custodial trial
in connection with Sessions Case No. 88 of 2013.
Such case arose out of Barasat Police Station Case
No. 1285 of 2013 dated June 8, 2013 under Sections
376A/376D, Indian Penal Code (hereafter IPC). By
filing this writ petition, they seek to challenge an
order dated January 28, 2014 passed by the
Additional Sessions Judge, Bench - II, City Sessions
Court at Calcutta (hereafter 'Sessions Judge') in
connection with the said sessions case.
2. The facts giving rise to the order impugned as
appears from the writ petition are these.
3. Barasat P. S. Case No. 1285 of 2013 under Sections
376A/376D, Indian Penal Code (hereafter IPC) was
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registered on June 8, 2013 based on a written
complaint of one Sandip Ghosh. The first three
petitioners were arrested in connection therewith and
produced before the Chief Judicial Magistrate at
Barasat, North 24 Parganas (hereafter 'CJM') on the
same day. According to the petitioners, the CJM
neither made the first three petitioners aware of their
right to consult and be defended by a legal
practitioner nor provided them with an advocate from
the panel of the District Legal Services Authority at
the expense of the State, but remanded them to police
custody till June 18, 2013. The fourth, fifth and sixth
petitioners were arrested on June 8, 2013, and the
seventh and eighth petitioners were arrested on June
10, 2013 whereupon they were produced before the
CJM on the days following the respective arrests.
They were also not made aware of their rights by the
CJM. The family members of the petitioners had
approached several other advocates to represent the
accused but none agreed to appear for them.
Consequently, the accused continued to be
undefended before the CJM. Subsequently, the
Criminal Investigation Department, West Bengal took
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over investigation and on conclusion of investigation,
charge-sheet was filed against the petitioners on
August 29, 2013 for having committed offence
punishable under Sections
376A/376D/302/201/120B of the IPC. The
petitioners had filed a revisional application before
this Court (CRR 2583 of 2013) seeking transfer and
by an order dated August 12, 2013, a learned Judge
of this Court transferred the case to the Additional
Sessions Judge, Bench II. It has been pleaded in the
writ petition that perusal of orders dated June 8, 9
and 10, 2013 purportedly passed by the CJM would
reveal that the same are fabricated. That apart, the
CJM disobeyed the direction of the Apex Court made
in paragraph 484 of the judgment dated August 29,
2012, since reported in AIR 2012 SC 3565
(Mohammed Ajmal Mohammad Amir Kasab vs. State
of Maharashtra) when they were first produced before
the CJM on January 13, 2014. Each of the petitioners
had filed separate applications before the Sessions
Judge, praying for making a reference to this Court
for initiation of departmental proceedings against the
CJM in terms of the direction in Kasab (supra). The
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common prayer in such applications were considered
by the Sessions Judge and by the impugned order
dated January 28, 2014, all the 8 (eight) applications
were rejected. The relevant part of the order reads as
follows:
"Ld. Counsel for the petitioners have urged this
court to refer the matter to the Hon'ble High Court
so that appropriate departmental proceeding may
be taken up against the Ld. CJM, Barasat, 24-
Pgs.(N), but it is to be kept in mind that the
administrative power of this court is a bar to such
passing of order. That apart this court is not the
appellate court of the Barasat Court and thus there
can be no order passed against the actions or
inaction of Ld. CJM, Barasat by this court.
However, the petitioners are always at liberty to
move the Hon'ble Court seeking redressal of their
grievance in this matter."
4. The prayer in this writ petition, wherein the CJM is
the sole respondent, is to issue a writ in the nature of
certiorari setting aside the order impugned and for stay of all further proceedings of the sessions case till disposal of the writ petition. Significantly, there is no prayer for a mandamus to be issued, if at all the Court were to set aside the impugned order.
5. At the outset, it ought to be placed on record that this writ petition was heard along with W.P. 7378 (W) of 2014 (IIndrani Chakraborty v. State of West Bengal & ors.) wherein an order passed by the CJM dated 5 December 6, 2013 in GR Case No. 2116 of 2013 was under challenge. Such GR case arose out of a different FIR. The writ petitions were heard together since judicial orders of the criminal courts were subjected to challenge therein, without the aggrieved party taking recourse to the remedy available in terms of the provisions of the Code of Criminal Procedure (hereafter the Cr.P.C.) and whether a writ petition would be maintainable against an order passed by a criminal court in exercise of judicial functions was the common question that arose for decision. However, I have considered it proper to deliver a separate judgment on this writ petition in view of the preliminary objections taken by Mr. Majumdar, learned advocate for the State to its maintainability on other grounds, which do not feature for decision in W.P. No. 7378(W) of 2014.
6. The preliminary objections of Mr. Majumdar are two- fold. He has first argued that in terms of provisions contained in Section 3(1) of the Judges (Protection) Act, 1985 (hereafter the Act), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a judge for any act, thing or 6 word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. Assuming arguendo that the CJM had not complied with the directions in Kasab (supra), the same affords no ground for the petitioners to apply before the Sessions Judge for making a reference to this Hon'ble Court for drawing up departmental proceedings against the CJM in view of the protection guaranteed by Section 3(1) of the Act.
7. It has next been argued by Mr. Majumdar that the petitioners have not approached the Court with clean hands. The fourth, fifth and sixth petitioners had applied before the Sessions Judge under Section 340, Cr.P.C. and prayed for the following relief:
"(a) make a preliminary inquiry into the commission of offence, as stated in paragraph 24 above, and af ter recording a f inding to that effect, make a complaint thereof in writing to the Learned Magistrate of the First Class having jurisdiction for taking cognizance and prosecution of the person or persons appeared to have committed such offence in or in relation to the judicial proceeding of Barasat Police Station Case No. 1285 of 2013, which was subsequently transferred to this Learned Court;"
8. Such application was considered by the Sessions Judge on February 13, 2014. While rejecting the application, the Sessions Judge held that the provisions of Section 7 340 of the Cr.P.C. were not applicable to the case at hand. The order dated February 13, 2014 had been carried in appeal before this Court under Section 341, Cr.P.C. by the fourth, fifth and sixth petitioners being CRA 235 of 2014. An Hon'ble Division Bench of this Court by order dated April 8, 2014 dismissed the appeal. Relevant portion of the order passed by the Hon'ble Division Bench is set out hereinbelow:
"Having heard the learned counsel for the Appellants and the learned counsel for the State, we are satisf ied that the Appeal itself is not maintainable.
Let it be recorded that every Judicial Officer is protected under The Judicial Officers' Protection Act, 1850, which, inter alia, lays down in Section (1) thereof that no Judge, Magistrate, Justice of Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction.............
We are further of the view that the Subordinate Court Judges are additionally protected under the Judges' Protection Act, 1985 by reason of Section (3) thereof.
Consequently and having heard that this Appeal itself is not maintainable, we are not inclined to interfere.
The Appeal stands dismissed."
(underlining in original) 8
9. According to Mr. Majumdar, the petitioners ought to have disclosed in this writ petition the fact of rejection of the application under Section 340, Cr.P.C., filed by the fourth, fifth and sixth petitioners. Not having so disclosed, he submitted that the writ petition ought to be thrown out at the threshold on the ground of gross suppression of a material fact.
10. I shall be failing in my duty if I do not record that Mr. Majumdar advanced erudite submissions to impress the Court that Certiorari jurisdiction of the High Court is not to be invoked for interfering in orders passed either by the civil court or criminal court of competent jurisdiction and that it is the remedy made available by the general law that should be pursued by an aggrieved party. However, the arguments would be relevant and instructive for a decision on W.P. No. 7378(W) of 2014 referred to supra, which I propose to decide by a separate judgment.
11. Per contra, Mr. Edulji, learned advocate representing the petitioners, made a valiant effort to persuade me to hold that the order of the Sessions Judge impugned herein is liable to correction in exercise of Certiorari power. The sole point, according to him, is 9 whether the Sessions Judge had jurisdiction or not to refer the matter to the Hon'ble High Court. The matter was being heard by the court at Barasat, whereafter it was transferred to the Sessions Judge at Kolkata. The Sessions Judge had the jurisdiction to hear the matter. In Kasab (supra), it was held that it was the duty and obligation of a magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner engaged by him or through legal aid. Thereafter, the bench directed all the magistrates in the country to faithfully discharge this duty and obligation and clarified that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings. Discrepancies in the orders of the CJM were pointed out to highlight the acts of commission/omission of the CJM and for appropriate orders for upholding the judicial process of dispensing proper justice. A host of decisions of the Apex Court was referred to by Mr. Edulji to impress 10 the Court that it has jurisdiction and ought to interfere in the interest of justice.
12. Countering the objection of Mr. Majumdar to the maintainability of the writ petition, Mr. Edulji referred to sub-section (2) of Section 3 of the Act and contended that a judge in the discharge of his official or judicial duty or function has no license to act in disregard of law, or to enjoy an absolute immunity. Sub-section (2) authorizes the appropriate authority to take such action (civil, criminal or departmental proceedings or otherwise) against any person who is or was a judge and, therefore, the application that the petitioners had filed before the Sessions Judge, ought to have been allowed by referring the misdemeanour of the CJM to this Court for taking appropriate action in the light of the decision in Kasab (supra).
13. Insofar as the order of the Hon'ble Division Bench dated April 8, 2014 dismissing CRA 235 of 2014 is concerned, it was submitted by him that the writ petition itself was presented before the Court on March 5, 2014 and, therefore, such order could not have been disclosed therein and, thus, question of suppression does not arise.
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14. Having heard the parties, I of the firm view that the question as to whether the order of the Sessions Judge is open to be questioned in writ proceedings need not be decided on this writ petition. It would be an unnecessary exercise having regard to the view I propose to take to the effect that the objections of Mr. Majumdar are well-founded.
15. The applications filed by the petitioners before the Sessions Judge could not have been entertained by her in view of sub-section (1) of Section 3 of the Act. Although the Sessions Judge has not referred to the provisions of the Act as precluding her to allow the prayers of the petitioners, there can be no doubt that sub-section (1) of Section 3 of the Act imposes a prohibition on Courts to either entertain or to continue civil or criminal proceedings against any person who is or was a judge in respect of any act, thing or word committed, done or spoken by him while acting or purporting to act in the discharge of his official or judicial duty or function. The Sessions Judge though has not referred to the Act, has reached conclusions which could be upheld by referring to the provisions thereof.
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16. Reference to sub-section (2) of Section 3 of the Act by Mr. Edulji is misconceived. Such provision reserves the power of the Central Government/the State Government/the Supreme Court/any High Court/any other authority to take such action against any person who is or was a judge. If at all a judge by any act, thing or word committed, done or spoken by him in the discharge of his official or judicial duty or function has exposed himself to be proceeded against, it is for the competent authority to decide whether action as mentioned in sub-section (2) of Section 3 of the Act ought to be taken and should a decision to initiate action be taken, what consequences would follow. Since it is in the realm of discretion of the competent authority, it is neither permissible for the writ Court to direct such authority to exercise its discretion in a particular direction, nor can it be directed by a Court to activate itself in view of the embargo imposed by sub-section (1) of Section 3 of the Act.
17. It is true that the order dated April 8, 2014 was not in existence when the writ petition was presented before this Court; but by then, the order dismissing 13 the application under Section 340, Cr.P.C. had seen the light of the day. In all fairness, the petitioners ought to have disclosed the same in the writ petition. However, I need not examine the effect of suppression alleged by Mr. Majumdar having regard to the order dated April 8, 2014 of the Hon'ble Division Bench. It also refers to the provisions of the Act and I respectfully share the view expressed therein.
18. There is no merit in the writ petition. The same stands dismissed without costs.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) 14