Calcutta High Court (Appellete Side)
Haraprasad Ghosh vs The State Of West Bengal & Anr on 7 September, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item no. 126
Aloke/AB/RP
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.R. 3071 of 2016
HARAPRASAD GHOSH
VS.
THE STATE OF WEST BENGAL & ANR.
For the petitioner : Mr. Dipak Kr. Sengupta, Sr. Advocate
Mr. Narayan Chandra Das, Advocate
Mr. Ashok Kr. Chowdhury, Advocate
For the opposite party no. 2 : Mr. Subhasis Roy, Advocate
Mr. Biplab Dey, Advocate
Mr. Avik Ghosh, Advocate
For the State : Mr. Ayan Basu, Advocate
Heard on : September 7, 2017
Judgement on : September 7, 2017
Joymalya Bagchi, J. :
Order dated 07.09.2016 passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Alipore, South 24-Parganas in S.C. No. 29(8)/2015 refusing to discharge the petitioner from the accusation of having caused the custodial death of an undertrial, Md. Alam is the subject matter of challenge in this petition. The primary issue involved in the discharge petition is that the petitioner who was police officer attached to the police station could not have been proceeded in the instant case without requisite sanction granted by the State Government.
The prosecution case, as alleged, against the petitioner is to the effect that the victim Md. Alam had been abducted from his residence on 29.03.1995 at about 4 a.m. and had been kept in illegal detention at police Fari No.28 at Kachhi Sudah with Garden Reach police station. The petitioner was the officer-in-charge of the said police station at the material point of time. It has been alleged in the petition of complaint by the mother of the victim, that is, Jubeda Khatun that she alongwith others went to the police station to meet her son but they were not allowed to do so by the petitioner. On the next day when the mother of the victim again visited the police station the petitioner demanded a sum of Rs.4,000/- for releasing Md. Alam. As she was unable to pay the amount, Md. Alam was subjected to inhuman torture in the said police outpost. Her mother could hear the cries of her son while he was being subjected to such inhuman torture. The mother of the victim prayed to the petitioner to spare her son but such prayer fell into deaf ears. She was informed that until and unless she paid the bribe money, her son would not be released. Hearing this, she fell sick and remained indisposed. The inhuman torture on the detenue continued and finally on 8.4.1995 he was shown 'arrested' and thereafter a judicial remand was procured on 9.4.1995 remanding the victim to judicial custody.
Seeing the victim was in precarious health condition, the Superintendent of Jail refused to receive him and he was sent back to the Court which passed necessary order to admit him to jail hospital where he breathed his last on the next day i.e. on 10.4.1995.
Over the allegations of custodial torture resulting in death of Md. Alam, his mother, Jubeda khatoon instituted the criminal proceeding against the petitioner as the then Officer in Charge of Garden Reach Police Station and other Police Officers attached therein. By order dated 10.7.1996 learned Chief Judicial Magistrate, South 24 Parganas at Alipore took cognizance of the alleged offences and proceeded to hold enquiry under Section 202 of the Cr.P.C.
At that stage, the petitioner assailed the proceeding before this court in CRR No.2494 of 1996. Records were called for and the said revision petition was finally disposed of on 25.2.2000 directing the learned Magistrate to re-record statements of witnesses and re-examine the complainant and the doctor who held post mortem over of the body of the victim afresh as the lower court records which had been called for had gone missing from this Court.
Subsequent to such direction, enquiry under Section 202 Cr.P.C. was held afresh and the complainant and her witnesses including the post mortem doctor were examined. In conclusion of enquiry, process was issued against the petitioner and other accused persons who surrendered before the Magistrate and were enlarged on bail. Subsequently, the matter was committed to the Court of Sessions.
At this stage, the petitioner prayed for discharge primarily on the ground that the proceeding could not have been continued without a valid sanction issued by the State Government in view of the notification being 2103-PS dated 19.11.2010 extending the privilege of sanction under Section 197(2) Cr.P.C to all subordinate ranks of Police Officers enrolled or appointed under the Police Act, 1866 charged with the maintenance of public order. Such prayer was, however, turned down by the learned trial court who proceeded to frame charges against the petitioner.
Mr. Sengupta, learned senior counsel appearing for the petitioner submitted that the petitioner was a member of the police force charged with the maintenance of public order and, therefore, the continuation of the impugned proceeding without valid sanction from the State Government rendered the same without jurisdiction.
He further submitted that the requirement of sanction may be raised at any stage of the proceeding and in view of the fact that the allegations of torture were levelled against him in his capacity as the Officer in Charge of Garden Reach Police Station having control and custody over the victim within the precincts of the police outpost, it is undeniable that such allegations were intrinsically connected with the discharge of his official duty. He, accordingly, prayed for discharge of the petitioner. In this regard, he has relied upon various authorities in support of his contentions.
On the other hand, Mr. Roy appearing on behalf of the opposite party no.2 submitted that the requirement of sanction in the instant case is irrelevant on the following scores:-
Firstly, the notification extending the privilege of sanction to subordinate ranks of the police force charged with the maintenance of public order was not filed on 19.11.2010 and could not apply retrospectively to this case wherein cognizance had been taken way back in 1996.
Secondly, he submitted that the petitioner as Officer in Charge of the Garden Reach Police Station could not have been said to be a member of the police force charged with maintenance of public order.
Finally, he submitted that in view of the facts and circumstances of the case, which clearly portrays a case of illegal detention of the victim inside the police station and in view of the large number of injuries found on the person of victim which remained wholly unexplained by the petitioner who was in control and custody of the victim, the allegations cannot, by any stretch of imagination, be said to be intrinsically connected with the discharge of official duty of a police officer. He has also relied on authorities to bolster such argument.
The issues, which, therefore, fall for decision are:-
(a) Whether the notification no.2103-P.S. dated 19.11.2010 applies to the prosecution of the petitioner who was the then Officer in Charge of Garden Reach Police Station in respect of his involvement in the custodial death of the victim which occurred in 1995 and cognizance whereof had been taken in 1996.
(b) Whether the allegations in the impugned prosecution can be said to be acts committed by a police officer, that is, the petitioner in discharge of his official duty thereby attracting the necessity of sanction under Section 197 Cr.P.C.
For a better appreciation of the aforesaid issues, the notification is set out hereinbelow:-
GOVERNMENT OF WEST BENGAL Home (Political) Department Secret Section NOTIFICATION No.2104-P.S. Dated Kolkata the 19th November 2010 In exercise of the power conferred by sub-section (3) of section 197 of the Code of Criminal Procedure, 1973 (2 of 1974) (hereinafter referred to as the Code), the Governor is pleased hereby to direct that the provisions of sub-section (2) of section 197 of the Code shall apply to all sub-
ordinate ranks of Police force, enrolled or appointed under the Police Act 1861 (5 of 1861) charged with the maintenance of public order.
By order of the Governor, Sd/- A. G. GHOSH OSD & Ex-officio Spl. Secy. To the Govt.of West Bengal.
Sanction to prosecute is a procedural safeguard involving a vested right of the accused and, therefore, such right should inhere in the accused at the time when the offence is committed or at least, when the proceeding is instituted against him by taking cognizance of the alleged offences. It has been argued that sanction being a beneficial procedural safeguard engrafted to protect a public servant from frivolous prosecutions ought to be given retrospective operation in all pending proceedings.
It is true that procedural laws operate retrospectively as no one can claim a vested right in procedure but certain matters relating to procedure also involve substantive rights, e.g. right to appeal is a substantive right within the scheme of procedural law and cannot be said to have retrospective in operation. (see Garikapati Veeraya vs. N. Subbiah Choudhry & Ors., AIR 1957 SC540).
Similarly, in certain situations laws of limitation which are procedural in nature may not apply retrospectively. In M.P. Steel Corporation vs. CCE, (2015) 7 SCC 58, the Apex Court held as follows:-
58. ...Though periods of limitation, being procedural law, are to be applied retrospectively, yet if a shorter period of limitation is provided by a later amendment to a statute, such period would render the vested right of action contained in the statute nugatory as such right of action would now become time-barred under the amended provision.
As sanction to prosecute, being a jurisdictional fact, clothes a Court with requisite jurisdiction to take cognizance of an offence and affects vital substantive rights of parties to a proceeding, I am of the opinion any amendment of law incorporating the requirement of sanction must operate prospectively until and unless such retrospective operation is expressly stated in law or can be inferred by necessary implication.
I have examined the aforesaid notification from that angle and I find that there is nothing in the said notification which gives an impression that the benefit of sanction shall be extended to subordinate rank of police officers retrospectively so as to immunize an accused in appropriate cases from prosecution when the offence sought to be prosecuted occurred in 1995 and cognizance thereof had been taken in 1996.
I find that a learned Single Judge of this Court in an unreported decision dated 2nd May, 2012 in CRR No.874 of 2008 (Smt. Sadhana Das vs. State of West Bengal & Ors.) had the occasion to deal with the selfsame notification and had held that the said notification would be prospective in operation as the notification is completely silent as to its retrospective operation either expressly or impliedly. The Court in arriving at such conclusion had strongly relied on the enunciation of prospective operation of amending statutes affecting substantive rights as laid down in Hitendra Vishnu Thakur vs. State of Maharashtra, (1994) 4 SCC 602. I have no reason to differ from the ratio of the said judgment.
Learned senior counsel appearing for the petitioner had relied on The Prohibition & Excise Supdt. Vs. Toddy Tappers Coop. Society, AIR 2004 SC 658 and Commissioner of Central Excise, Bangalore vs. Mysore Electrical Industries Ltd., (2006) 12 SCC 448, to assert his contention that the notification ought to be read retrospectively as it extends the beneficial safeguard of sanction to subordinate ranks of the police force charged with maintenance of public order.
In Commissioner of Central Excise, Bangalore (supra) the Apex Court was dealing with issues of reclassification of items under the Excise Act and held that such reclassification should operate prospectively as it affects the substantive rights of the parties therein. I am of the opinion that the aforesaid ratio laid down by the Apex Court, in fact, reinforces the proposition that laws affecting substantive rights are prospective in nature.
In The Prohibition & Excise Supdt. (supra) procedure of analysis of adulterated toddy was given retrospective effect in order to address the issue of public health and order. The instant case does not involve any procedure of scientific examination which falls in the broad species of procedures for collection of evidence. On the other hand, Dayal Singh vs. State of Rajasthan, AIR 2004 SC 2608, the Apex Court held that amelioration of standards in a food item would not be construed to operate retrospectively to the benefit of an accused in food adulteration cases.
Issue of sanction affects a substantial right of parties to a lis. Access to justice to a victim of crime is not only a substantive right but a fundamental right. [See Imtiyaz Ahmad vs. State of Uttar Pradesh & Ors., (2012) 2 SCC 688 (Para-25)]. Such access to justice of a victim cannot be restricted by the retrospective operation of any amendment or change in law necessitating sanction for prosecution, particularly when such amendment had not come into force when the cognisance of the offence was taken and the proceeding was instituted against the accused.
Locus standi of the complainant is ordinarily alien to criminal law. Any person, particularly, a victim is entitled to knock the doors of a Court of law in order to prosecute a criminal. Only in specified cases where law requires prosecution to be instituted by specified entities or pursuant to sanction from an appropriate authority such substantive right stands curtailed. Access to justice of a victim being an essential part of the fundamental right of life when already availed of under a procedure established by law which does not require sanction, cannot be abrogated by a purposive interpretation of retroactive operation of a notification whose plain reading does not give such impression.
Hence, I am of the opinion that the clear words of the notification dated 19.11.2010 do not yield to any retrospective operation and must apply prospectively. It cannot stand in the way of access to justice to a victim complaining of custodial violence and death of her son at the hands of a police officer while in police custody when the cognizance of such offence had been taken by the Court prior to the promulgation of the notification.
Without prejudice to the aforesaid discussion, I have also applied my mind to the issue as to whether the alleged acts of the petitioner can be said to be intrinsically connected with his discharge of official duty or not. It has been strenuously argued with reference to various authorities that the action of the police officer was in due discharge of official duty as the incident occurred while the victim was detained by him in custody in discharge of his official duty. The factual matrix of the case shows that the petitioner had illegally detained the victim on and from 29.3.1995 in the police outpost and he had demanded bribe for the release of the detenue. His mother repeatedly visited the police station and prayed for her son's release but was told that he would be released only after payment of bribe money. She heard the plaintive cries of her son while he was tortured with the precincts of the police station. It has also come on record that when the victim was ultimately produced before the Magistrate he was in a precarious physical state. Even the jail authorities refused to receive him. He was, therefore, sent to jail hospital where he breathed his last. Evidence of the postmortem doctor shows extensive injuries on the victim's body which prima facie supports the allegation of custodial violation. In Matajog Dobey vs. H. C. Bhari, AIR 1956 SC 44, the Apex Court held that there must be a reasonable nexus between the offence and due discharge of official duty of the public servant. No man of ordinary prudence would infer such a link between the extensive injuries suffered by the victim in police lockup and his consequential death and the due discharge of official duty by a police officer. The word 'reasonable nexus' must be based on objective standards and cannot be pressed into service when the allegations of custodial violence are so wanton and grave that they go for beyond the realm of 'ordinary excesses' or 'erroneous assumption of statutory duty'. The facts in Sankaran Moitra vs. Sadhna Das & Anr., (2006) 4 SCC 584, are completely different from the instant case. The police officers in the cited case were ensuring maintenance of law and order during the course of election and under such circumstances it was alleged that the victim had been shot dead. No such pressing requirement to illegally detain and/or use force on the victim in custody appears from the factual matrix of the instant case so as to give rise an impression that the offences complained of can be said to have been committed in discharge of official duty. It must be borne in mind that official duty may give advantage to a public servant to commit a crime but such situational advantage is not to be construed as a live link or reasonable nexus so to embalm him with the privilege of sanction until and unless it appears that the acts complained of are intrinsically connected with his official duty. Similarly, in D.T. Virupakshppa vs. C. Subash, 2015 Cri.L.J. 2589, the allegations of assault on the detenue were intrinsically connected with his interrogation in custody. Furthermore, no marks of assault were found on the person of the detenue. The factual matrix of the said case is, therefore, clearly distinguishable from the present one where the victim was illegally detained for a couple of days on demand of bribe and subjected to custodial violence resulting in his death due to several inexplicable injuries on his person.
For the aforesaid reasons, I am constrained to hold that there is no ground to interfere with the impugned order.
The revision petition is, therefore, dismissed.
The trial Court is directed to proceed with the trial with utmost expedition and to conclude at an early date.
I make it clear that the observations made by me are for the purpose of dismissal of the instant petition and shall not have any bearing on the subsequent trial which needless to mention shall be decided independently on the basis of evidence adduced without being swayed by the observations made by me in this order.
Lower Court Records be sent down forthwith.
Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.
(JOYMALYA BAGCH, J.)