Calcutta High Court (Appellete Side)
Satinder Rai vs The State Of West Bengal & Anr on 10 January, 2017
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
1 10-01-17
AD Item no. 7 C.R.R. No. 2407 of 2009 Satinder Rai
-vs-
The State of West Bengal & Anr.
Mr. Subhasish Pachhal, Mr. Rameshwar Sinha ... for the petitioner.
Mr. Ayan Bhattacharjee, Mr. Abhijit Chowdhury.
... for the opposite party no. 1 This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure in which the present petitioner-accused, who is one Inspector, Railway Protection Force, has come up with a prayer for quashing of the proceedings instituted against him along two others which has been registered as C.R. Case No. 228 of 2007 under Sections 341/323/506 read with Section 34 of the Indian Penal Code, now pending before the learned Additional Chief Judicial Magistrate, Durgapur, District: Burdwan.
The fact relevant for the purpose of appreciation of this Court can be stated in brief thus :
That the opposite party no.1, who is one member of the Government Railway Police (GRP), lodged one complaint on 24th April, 2007 before the learned Additional Chief Judicial Magistrate, Durgapur, District: Burdwan, with the allegation that on 13-10-2006, this accused no.1 assaulted him by fist and blow when the complainant went to submit one written complaint to the office of Mr. S. Tirkey, Electric-in-Charge, JEE-1 at about 8-00 a.m. on 23-10-2006. It was 2 further alleged in the complaint that other accused persons, namely, Narayan Das and Rathin Chakraborty, instigated this petitioner and also used filthy languages. It is also there in the complaint that the victim/complainant was taken to Panagarh Railway Hospital and from there he was transferred to Andal Railway Hospital on the same day and from there he was referred to Asansol Railway Hospital all for his medical treatment where he was admitted for 13 days, that is upto 26-10-2006.
It is the contention of Mr. Pachhal, learned Advocate appearing on behalf of the petitioner, that in view of Section 20(3) of the Railway Protection Force Act, 1957 (hereinafter called as the said Act), the complaint ought to have been filed within three months from the date of alleged commission of the offence and that notice in writing of such proceeding and/or the cause thereof ought to have been given to the present petitioner and his superior officer at least one month before the commencement of such proceeding. Thus, Mr. Pachhal contended that as the complaint was filed on 24th April, 2007, it is hopelessly barred under Section 20(3) of the said Act as the period of limitation is three months from the date of commission of the offence and further non-service of notice as contemplated under that sub-section of Section 20 of the said Act.
In this connection, Mr. Pachhal has cited a Single Bench decision of this Court as reported in 2002 Cri. L. J. 4617 (Montek Singh -vs- State of West Bengal & Anr.) wherein in paragraph 19, the Court held that the proceeding initiated as "legal proceeding". The Court also observed in paragraph 23 that this being so, the provision of Section 20(3) of the said Act will certainly apply. The 3 Court in paragraph 25 held that the R.P.F Personnel were in discharge of their official duties. In paragraph 26, the Court observed that when no notice under Section 20(3) of the said Act was given, the prosecution cannot be said to be a valid one. The Court ultimately quashed the proceeding for non-compliance of Section 20(3) of the said Act. He ended his argument by saying that he has been exonerated in the disciplinary proceeding arising out of the same incident and the copy of such order of the enquiry report has been annexed being running page nos. 24 and 25.
In counter to all these, Mr. Chowdhury, leaned Advocate appearing on behalf of the opposite party no.1, submits that Section 20(3) of the said Act will apply only when the suit or proceeding has been initiated against the member of the force for any act done by him in the discharge of his duties. He contended by taking me to the complaint that the act of this accused-petitioner cannot be said to have been done in discharge of his duties. He further submitted that the decision of this Court as passed in Montek Singh (supra) can be distinguishable on fact as in that case the R.P.F Personnel had discharged his lawful duties.
In this context, he has cited a decision of the Bombay High Court as reported in 2005 Cri. L. J. 4665 (Rajkumar Anandilal -vs- State of Maharashtra) wherein the Hon'ble Single Judge held that the protection under Section 20(3) cannot apply in a case where the member of the R.P.F exceeded his jurisdiction of private defence. The Court observed in that case where the accused fired three bullets on the victim that such an act after cessession of the right of private defence cannot be said to be something done or intended to be 4 done under the powers conferred or in pursuance of any provision of the said Act and the Court declined to give any protection to such a R.P.F Personnel under Section 20(3) of the said Act.
Learned Advocate further submitted that it is the factual aspect to be proved by the learned Trial Court as to whether this petitioner was in discharge of public duties and prayed for to consider the fact that the victim was hospitalized for long 13 days.
He has also cited a decision of the Hon'ble Apex Court as reported in 2016(4) SCAL 348 (Devinder Singh & Ors. -vs- State of Punjab through CBI) wherein in paragraph 38, the Court observed that public servant is not entitled to indulge in criminal activities and to that extent, Section 95 of the Cr.P.C. has to be construed narrowly and in a restricted manner. The Court at the same time observed that liberal and wide construction be given while a public servant was in discharge of official duties.
Thus, the touchstone of Section 20 of the said Act is that whether the accused/R.P.F Personnel was in discharge of his duties. Here, in the instant case before this Court, the fact reveals that this accused assaulted the victim after the victim lodged a complaint with Mr. S. Tirkey.
The question is now whether such an act can be treated as in discharge of his duties. According to this Court, the alleged act of assault on the victim can in no stretch of imagination be said to be done by the accused-petitioner in the discharge of his duties.5
It is true that in view of Section 20 of the said Act, the act of one R.P.F. Personnel is protected if it is done in discharge of his duties. Sub-clause 3 of Section 20 is also to be read along with sub-section 1 and the main word used in the sub-section 1 is that to get the protection of the acts of the member of the Force, the act must be done by him in discharge of his duties.
The decision of our High Court as passed in Montek Singh (supra) can very much be distinguishable from the factual aspect of this case as in that case, the R.P.F. Personnel was very much in discharge of his official duties when there was a tussle between the R.P.F and the Hawkers at Howrah Station. Thus, the principle laid down in that case cannot apply in the factual aspect of this case.
The fact that this accused has been exonerated in the departmental proceeding cannot clinch the issue in favour of this petitioner that the proceeding pending against him be quashed only on that score. Departmental proceeding and criminal proceeding are too distinct and separate. The first one cannot influence the second one.
Section 482 of the Code has given the inherent power only to the superior court of the State and naturally, this power is to be exercised with more caution and very sparingly. A recent trend has developed that such power is to be exercised only in rare and rarest cases. When this Court has not given the protection to this accused-petitioner under Section 20 of the said Act, this Court is satisfied that the accused must face the trial as factual aspect is to be decided by the learned Trial Court on appreciation of evidence on record. 6
The observations made by this Court as regards Section 20 of the said Act will definitely bind the learned Trial Court. The learned Trial Court will, however, be at liberty to proceed with the trial in free hand.
Thus, this Court is satisfied that it is not a fit case where this Court can exercise its extra-ordinary power to quash the proceeding. The petition under Section 401 read with Section 482 of the Code, being devoid of any merit, is fit to be dismissed and I do that.
The matter is pending since long, this Court took seven long years to dispose of this criminal revisional application.
The learned Trial Court is, however, directed to proceed with the trial and preferably to finish the same within six months from this date.
The application, being CRR No. 2407 of 2009, is disposed of. Office is directed to communicate this order to the learned Trial Court at once.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Indrajit Chatterjee, J.)