Calcutta High Court
Sankaran Moitra vs Smt. Sadhana Das And Anr. on 7 July, 2003
Equivalent citations: (2004)1CALLT34(HC)
JUDGMENT D.P. Sengupta, J.
1. In the present application the petitioner has come up for quashing of the proceeding being case No. C-1107 of 2001 under Sections 302/201/120B/109 of the Indian Penal Code.
2. The allegation made in the petition of complaint is that on 10th May, 2001 during Assembly Election the husband of the complaint, being a supporter of a particular political party, was engaged in distributing food packets to the polling agents in a booth situated at Subhas Sarobar (Beliaghata Lake). When the complaint was returning after casting her vote at about 2.15 p.m. she found that a Tata Sumo car was proceeding in a high speed by waving a red cloth. She also found a crowd there and she came to know from them that police had severely assaulted her husband Topi Das with lathi as a result of which her husband became unconscious and was removed to hospital. On further enquiry she came to know that her husband was assaulted by the police with lathi on his head by the Officer-in-charge of the Phoolbagan Police Station and one Moitrababu, previous Officer-in-charge of the said Police Station at about 2.00 p.m. without any reason. The complainant also came to know that her husband was talking with the O.C., Phoolbagan P.S. and at that point of time the previous Officer-in-charge of the said Police Station who is now the Assistant Commissioner of Police, E.S.D., Calcutta came there in a police jeep and gave instruction to assault the husband of the complainant. As directed by him the officer-in-charge of Phoolbagan P.S. directed the police constable namely, Sudhir Sikdar to beat the complainant's husband, Constable Sudhir Sikdar started assaulting the victim mercilessly with a lathi. The victim tried to run away to save his life but the said accused persons chased him. The husband of the complainant fell down in the lake and requested those police personnel with folded hands not to assault him. But in spite of such request the said constable struck successive blows on the head, forehead and other different parts of the body of the victim. As a result of such assault the victim became unconscious and fell down in the lake. The said police officers then left the place. The people of the locality brought the body of the victim out of water and took him to Divine Nursing Home where the doctor declared him dead.
3. On the basis of the aforesaid complaint the learned Magistrate by his order dated 28.5.2001 took cognizance of the offence. After examining the complainant and other witness and recording their initial depositions the learned Magistrate was of the view that there are sufficient materials for proceeding with the case under Sections 302/201/114 of the Indian Penal Code. Considering the gravity of the offence the learned Magistrate issued warrant of arrest against the said three accused persons.
4. It may be mentioned here that the petitioner preferred an application for anticipatory bail before this Court in connection with the aforesaid case and the prayer for anticipatory bail was refused by this Court. The petitioner now has come up before this Court with a prayer for quashing of the aforesaid proceeding.
5. The first point raised by Mr. Dutt, learned Advocate appearing for the petitioner is that the order of taking cognizance of offence suffers from serious illegality as cognizance of offence was taken without any sanction for prosecution under Section 197 of the Code of Criminal Procedure. It is the contention of Mr. Dutt, learned Advocate of the petitioner, that the petitioner being a public servant and the act alleged having been committed in discharge of his official duty, the learned Magistrate cannot take cognizance of the offence in absence of sanction for prosecution in violation of the mandatory provision of Section 197 of the Code. But I am unable to accept such contention of the learned Advocate of the petitioner. In my considered view Section 197 Cr. PC has got no manner of application in the present case. Under Section 197 Cr. PC sanction is required only if the public servant was, at the time of commission of the offence, "employed in connection with the affairs of the1 union or of a State" and he was "not removable from his office save by or with the sanction of the Government. The bar under Section 197 Cr. PC cannot be raised by a public servant if he is removable by some authority without the sanction of the Government.
6. Committing an offence can never be a part of an official duty. "Here there is no necessary connection between the act and the performance of the duties of a public servant, Section 197 Cr. PC will not be attracted. Beating a person to death by a police officer cannot be regarded as having been committed by a public servant within the scope of his official duties.
7. The second point raised by Mr. Dutt is that the learned Magistrate acted illegally in issuing warrant of arrest at the first instance. The learned Magistrate should have issued summons at the first instance since the case is instituted on the basis of a complaint. In support of his contention Mr. Dutt relies upon a judgment of the Hon'ble Supreme Court reported in J.T. 2000 (Supp-I) SC-278 (Maninder Kaur v. Teja Singh). In the said judgment it was held by the Hon'ble Apex Court that normally when a case is instituted on a complaint the Court issues summons to the accused to appear in Court and on such appearance, instead of being arrested he would apply for bail and unless there are compelling circumstances the Court would allow the accused to remain on bail, at least till the charge is framed.
8. I have gone through the said judgment and in my considered view the said judgment is not applicable in the present case. The Hon'ble Supreme Court has held that normally in the cases instituted on the complaint the Court should issue summons to the accused at the first Instance. But it has never been held by the Hon'ble Apex Court that such practice should be followed in all the cases and in graver offence like the present one. Section 204 Cr. PC provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient grounds for proceeding and the case appears to be (a) a summons case, he shall issue his summons for the attendance of the accused, or (b) a warrant case he may issue a warrant or, if he thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Magistrate. Section 204 make it clear that in a warrant case when the Magistrate take cognizance of the offence, he may issue warrant of arrest if he thinks fit. The order issuing warrant of arrest clearly indicates that such warrant was issued by the learned Magistrate considering the gravity of the offence. Apart from this such warrant of arrest was issued long back, i.e., on 16.6.2001, which was never challenged by the petitioner in any Court and at such a belated stage, i.e., more than two years after such issuance of W/A the petitioner cannot be allowed to challenge it. In my view the nature of offence is so grave that the learned Magistrate was justified in issuing warrant of arrest at the first instance.
9. Mr. Dutt also relies on a judgment of the Hon'ble Apex Court (Smt. Nagawwav. Veranna). In the said judgment the Hon'ble Supreme Court has laid down the circumstances in which an order of the Magistrate issuing process against the accused can be quashed or set aside. Mr. Dutt relies on sub-paragraph (2) of paragraph 5 of the said judgment which is as follows:
"Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused".
10. In my view the said judgment of the Hon'ble Supreme Court is also not applicable in the present case. In the petition of complaint and also in the initial depositions of the witnesses specific allegations have been made alleging commission of offence by the accused persons. In my view, these are sufficient for the purpose of proceeding further in the matter.
11. Mr. Dutt next relies upon a judgment of this Court reported in 1984 (1) CHN (Narayan Chandra Pramanik v. Ananda Motion Das and Ors.). It has held by the Division Bench of this Court that whether sanction is necessary or not may have to be determined from stage to stage. Such being the legal position the petitioner was right in contending that his application ought not to have been rejected straightway but he should have been given liberty to agitate the point and place materials in support thereof even at subsequent stages. In paragraph 11 of the said judgment it was held as follows:
"... Magistrate is competent to go into the question as to whether or not the complaint was entertainable without a sanction. The accused petitioner ordinarily may not have a right to intervene at the stage of commitment proceeding but in the peculiar facts and circumstances of the case where the accused is factually before the Court and the commitment proceeding has not yet been concluded we see no reason why he would not be entitled to raise a point which goes to the very root of the matter and even affects the jurisdiction of the Court to entertain the complaint without a sanction, if there was really any necessity for it. To that extent the petitioner is entitled to intervene and show that sanction was in fact necessary."
12. In my view, the said judgment is also not applicable in the present case as I have already held in this judgment that Section 197 of the Code has no manner of application in the present case.
13. Mr. Sudipto Moitra, learned Advocate appearing for the complainant opposite party submits that there is no doubt that the question whether any sanction is necessary for prosecution is to be determined at the stage of taking cognizance of the offence. Such point was taken into consideration by the learned Magistrate, as it appears from the order of taking cognizance, at the stage of taking cognizance and considering the nature of the offence and the circumstances in which it was committed he was of the view that sanction under Section 197 of the Code is not required for taking cognizance of the offence. It is further pointed out by Mr. Moitra that such point of sanction was also raised by the petitioner before the Division Bench of this Court while moving the application for anticipatory bail. It was also held by the Division Bench, while rejecting the prayer for anticipatory bail, that sanction under Section 197 of the Code is not required in the present case. In support of his contention Mr. Moitra furnishes before this Court the order passed by the Division Bench, from which it appears that it was held by the Division Bench that in the facts and circumstances of the present case no sanction for prosecution is required for taking cognizance of the offence.
14. It is the further submission of Mr. Moitra that the present accused petitioner being in a high position in the police department is evading arrest although warrant of arrest was issued against him long back, i.e., on 16.6.2001. According to Mr. Moitra this Court should not interfere with the present proceeding on any of the grounds agitated by the petitioner and the application is liable to be dismissed.
15. I have heard the learned Advocates of the respective parties. I have also perused the petition of complaint as also the initial depositions of the witnesses examined. Committing an offence of murder can never be a part of an official duty. Where there is no necessary connection between the act and the performance of the duties of a public servant, Section 197 of the Code will not be attracted. Merciless beating by a police officer causing death of a person can never be said to be an act in discharge of his official duty. From the evidence of the doctor who held postmortem examination of the victim it appears that he found as many as six serious injuries on the dead body and in his opinion death was due to the effects of head injuries which is antemortem and homicidal in nature. This P.M. report clearly indicates the nature and extent of injuries inflicted by the accused persons on the victim. Other witnesses also give a vivid description of the offence committed by the accused persons.
16. In view of the discussions made above I am of the view that the present application does not have any merit and is not a fit case for interference by this Court. In my opinion if this Court interferes with the present proceeding on any of the grounds agitated by the petitioner, people will loose their confidence in the administration of justice.
17. The present application accordingly fails and the same is dismissed. The learned Magistrate is directed to proceed with the matter with utmost expedition in accordance with law.
Criminal section is directed to supply the urgent certified copy of this order to the learned Advocates of the parties for which, it applied for.