Calcutta High Court (Appellete Side)
Paresh Chandra Kar & Ors vs The State on 31 March, 2008
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
C.R.R. No. 2768 of 2002
With
C.R.R. No.2671 of 2002
Paresh Chandra Kar & Ors.
Vs.
The State .
For the Petitioner : Mr. Milon Mukherjee,
in CRR No.2768/02: Mr. Krishnapada Pal.
For the petitioner: Mr. Joymalya Bagchi,
in CRR 2671/02: Mrs. Anasuya Sinha.
For the State: Swapan Kumar Mallick.
Judgment on: 31.3.2008
S.P. Talukdar, J.: The present two Revisional Applications under Section
401 read with Section 482 of the Code of Criminal Procedure, being directed
against the same proceedings, were heard together in response to the submission
made by learned Counsel for the parties as well as for the sake of convenience.
The backdrop of the cases may briefly be stated as follows: -
As far back as on 11th November, 1987, the Chief Medical Officer of Health,
Birbhum, lodged a written complaint before the Officer-in-Charge of the Suri
Police Station, District Birbhum. It was in respect of information about
defalcation of Government money amounting to Rs.4.94 lakhs from the erstwhile
D.H.O's office at Suri, Birbhum. During the audit done by the officer of the
Accountant General, West Bengal on and from 11th of March, 1987 to 13th of
March, 1987 and between the 2nd April, 1987 to 30th April, 1987, it was found
that a huge amount of Government money to the extent of Rs.4.94 lakhs had
been drawn fraudulently during the period from 1.12.1982 to 31.7.1985. Names
of as many as 8 officers as suspects were mentioned in the said complaint. Some
officers/staffs of Birbhum treasury were also suspected to be involved in the
conspiracy.
On receipt of the said complaint which was filed by the C.M.O.H. being so
directed by the Deputy Secretary, Government of West Bengal, Department of
Health and Family Welfare, Suri Police Station Case No.15 dated 11.11.1987
under Sections 467/468/471/409/120B/477A/420 of Indian Penal Code was
started. After completion of investigation the District Enforcement Branch
submitted charge-sheet No.70 dated 22.10.1990 in G.R. Case No.663 of 1987 in
the Court of learned Sub Divisional Judicial Magistrate, Suri, Birbhum against
the accused persons namely Dhirendra Nath Gope, Arun Kumar Roy,
Dr.Achyutananda Mukherjee and Dr. Ajoy Kumar Mukherjee. Names of the
petitioners in C.R.R. No.2768 of 2002 were disclosed in column No.3 of the
charge sheet and it was mentioned that sanction for prosecution against such
petitioners was awaited and upon receipt of such sanction, charge-sheet would
be submitted against them. The investigating authority, however, sought for
discharge of three officials namely Sri Amitave Deb Roy, Anwar Ali Khan of
Birbhum Treasury and Gosaidas Mukherjee of D.H.O's Office for want of
sufficient evidence. It could be learnt that in response to the request for sanction
for prosecution of the petitioners as made by the Superintendent of Police in his
letter dated 20th October, 1989, the District Magistrate refused to accord
sanction for prosecution in respect of Kali Charan Banerjee, Sukumar Halder,
Dukha Haran Bouri and Narendra Chandra Dey being petitioners Nos. 3 to 6 in
C.R.R. Nop.2678 of 2002 and further opined the appointing authority of
petitioner Nos. 1 and 2 namely Paresh Chandra Kar and Pramatha Nath Dey not
to accord sanction to such malicious prosecution. Superintendent of Police,
Bhirbhum, by his Memo dated 1.10.1990 requested the District Magistrate to
review the decision but the District Magistrate by his letter dated 14.11.1990
informed that he could not find any scope to review the earlier decision.
The learned Sub Divisional Judicial Magistrate on receipt of the charge-
sheet by order dated 27th October, 1990 discharged the petitioners in C.R.R.
No.2768 of 2002 and three other accused persons from the said case. The
District Magistrate, Birbhum, after detection of such defalcation of funds made
inquiries and departmental proceedings were started. The authority concerned
found the reply submitted by the petitioner Nos. 1 and 2 satisfactory and as
such, no penal action was taken. In the said departmental proceedings,
petitioner Nos. 3, 5 and 6 were found not guilty. The petitioner No. 4 was
suspended from service on the ground of the said criminal case but after his
discharge from the case, he was reinstated. Even prior to the filing of the review
application, all the petitioners except number 6 retired from service. Long after
such discharge of all the petitioners from the criminal case, the learned Judge,
First Special Court, Birbhum at Suri by an order dated November 26, 1992
passed in Special Court Case No. 5 of 1992 (arising out of G.R. Case No.663 of
1987) took cognizance of the offence under Section 409 of the Indian Penal Code
and directed issuance of summons upon the petitioners fixing January 15, 1993
for their appearance. The petitioners being aggrieved by such order of the
learned Special Court, filed Revisional Application which was disposed of by
order date d 27.11.1997 and the Hon'ble Court declined to invoke revisional or
inherent jurisdiction to interfere with the order dated 26.11.1992.
There are four other accused persons belonging to the District Health
Department namely Dhirendra Nath Gope, Dr. Achyutananda Mukherjee, Dr.
Ajoy Kumar Mukherjee and Arun Kumar Roy implicated in the case. The last
name accused person absconded and there was no initiative on the part of the
police authority in arresting him. The other three accused persons filed an
application before the learned Special Court praying for their release. Learned
Special Court by order dated 16.8.2002 passed in Special Court Case No.5 of
1992 framed charges against the petitioners under Sections 120B and 409 of the
Indian Penal Code. The charges against them are that they in between 1st
December, 1982 and 31st July, 1985 agreed to do an illegal act to wit passed
number of forged bills and prepared and delivered cheques in respect of an
amount of Rs.4.94 lakhs (Approximate) and they passed forged bills, prepared
and delivered cheques in pursuance to the agreement with the officers and clerks
of the District Health Department, Birbhum.
Being aggrieved by such order dated 16.8.2002 the above named accused
persons as petitioners filed application being C.R.R. No.2768 of 2002.
As earlier mentioned, two other accused persons as petitioners, namely Dr.
Ajoy Kumar Mukherjee and Dr. Achyutananda Mukherjee filed separate
application i.e. C.R.R. No.2671 of 2002 being aggrieved by the order dated
16.8.2002passed by the Special Court. It was claimed by the petitioners that enquiry was initiated on the basis of some reports published in the local papers that huge amount of Government money had been misappropriated by the employees of the offices under different Health Institutions, who were in charge for the period from 1.12.1982 to 31.7.1985. The report revealed that there were discrepancies in between actual withdrawal of cash from Treasury and records in the office. The departmental inspection report revealed that the officers namely Arun Kumar Roy, Dhirendra Nath Gope and Gosaidas Mukherjhee were allowed to prepare, encash and disburse bills in violation of Rules. The C.M.O.H. admitted such irregularities as was pointed out by the A.G., West Bengal and stated that such lapses were perhaps caused due to blind reliance on the Assistants and for lack of supervision on the part of the administration and treasury. During investigation the police authority obtained sanction for prosecution of the petitioners Dr. Ajoy Kumar Mukherjee and Dr. Achyutananda Mukherjee though such sanction was not obtained for proceeding against the treasury officers. On 27.10.1990 police authority submitted charge sheet against the petitioners in C.R.R. No.2671 of 2002 as well as against Dhirendra Nath Gope and Arun Kumar Roy under Section 409 of Indian Penal Code. Prayer for discharge of the treasury officers was made in absence of the sanction of the Governor. The learned Sub Divisional Judicial Magistrate, Suri, Birbhum on the basis of such charge sheet took cognizance of the offences in connection with the case involving the above named accused persons and discharged the treasury officers. By order dated 26.11.1992 the learned Special Court took cognizance under Section 409 of Indian Penal Code against the Treasury officers who were earlier discharged by the Sub Divisional Judicial Magistrate. There had been inordinate delay at various stages due to laches on the part of the prosecution. By order dated 16.8.2002 the learned Special Court rejected the prayer of the petitioners for discharge and framed charges under Sections 409/420/468/471/120B Indian Penal Code against the two petitioners and charges under Sections 409/120B were framed against the Treasury Officers. Learned Special Court further framed charges against the co-accused, Dhirendra Nath Gope. The petitioner No.1, Dr. Ajoy Kumar Mukherjee was about 76 years having serious ailments at the time of filing of the revisional application. The other petitioner,Dr. Achyutananda Mukherjhee was 78 years at that time and he had already undergone Bypass Surgery and is bedridden and under care of the doctors. Being aggrieved by such orders dated 27.10.1990 and 16.8.2002 the said petitioners approached this Court with the prayer for quashing of the proceedings.
Mr. Milon Mukherjee, appearing as learned Counsel for the applicants in C.R.R. No.2768 of 2002 first invited attention of the court to the copy of the charge sheet at page 44. It is found that four persons were sent up for trial whereas nine others were initially not sent up for want of sanction and prayer for discharge was made in respect of three other accused persons against whom sufficient material was not available.
By order dated 26.11.1992 the Special Court took into consideration the aforesaid fact of nine accused persons being not sent up for trial for want of sanction. Taking the view that sanction was not required for prosecuting them before the Special Court, the learned Judge directed issuance of summons upon them. The fact however, is that those nine accused persons as well as three others were discharged by the learned Sub Divisional Judicial Magistrate by order dated 27.10.1990.
Mr. Mukherjee referring to the first schedule of the Code of Criminal Procedure submitted that the offence under Section 409 of the Indian Penal Code is triable by the Court of Magistrate. Reference was made to the Criminal Law Amendment Act, 1949 in the backdrop of the learned Special Court's taking of cognizance. It was submitted that the petitioners in the revisional application, as referred to, were found not guilty in the disciplinary proceedings. It was further contended that the list of witnesses as given in the charge sheet does not show the name of hand writing expert of the government. Taking clue from there it was contended by Mr. Mukherjee that this be itself negatives the charge of "forgery".
It was further submitted on behalf of the applicants that in order to constitute an offence under Section 409 of the Indian Penal Code, there must be the elements which constitute the offence under Section 405 of Indian Penal Code. In fact, Section 405 of Indian Penal Code defines criminal breach of trust as follows: -
Criminal breach of trust- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
It was then mentioned that in the case under reference there could be no question of any entrustment, nor any misappropriation. On behalf of the said petitioners it was further contended that Section 5 of the Criminal Law Amendment Act and the Schedule II therein clearly indicate that sanction for prosecution is required under Section 197 of the Code of Criminal Procedure.
In this context, it may be mentioned that the order by which the learned Special Judge held that sanction was not required was challenged by filing a revisional application being Cr. Rev. No.735 of 1993 but with no success.
Mr. Bagchi, appearing as learned Counsel for the petitioners in C.R.R. No.2671 of 2002 referring to the materials on record submitted that the petitioners are doctors who were posted during different periods and as such, there could be no possibility of any union of mind. As such, there could be no conspiracy. He further submitted that as Chief Medical Officers, some of the petitioners were functioning as administrative heads. It was then submitted that even assuming that the allegations are true, how could such administrative heads be held responsible so as to justify proceeding against them with a criminal case. In absence of any material indicating commonness of purpose, there could be no justification for any allegation of conspiracy.
It was then contended that the audit report is the foundation of the case. Thus, Mr. Bagchi sought to assail the Criminal Proceedings under reference mainly on the ground that the facts and materials on record by no stretch of imagination indicate that there could be any conscious culpability. Since the petitioners/ doctors were in charge during different periods, there could be no meeting of minds and consequently, no criminal conspiracy. Expressing surprise, Mr. Bagchi contended that for strange reasons the Accounts Officers were not implicated nor those working in the field and in charge of maintenance of accounts.
It may be mentioned that Mr. Mallick, appearing as learned Counsel for the State/Prosecution, in absence of any case diary, on which he could lay hands, just submitted that court's interference in exercise of its power under Section 482 of the Code of Criminal Procedure may not be justified at this stage.
There is another significant aspect, which was effectively highlighted by Mr. Mukherjee as well as by Mr. Bagchi appearing for the respective petitioners in the two cases. According to them, continuation of the proceedings which virtually has not progressed the least even after 18 years of filing of charge sheet will be in violation of Article 21 of the Constitution.
Referring to the decision in the case of Rakesh Kumar Mishra vs. State of Bihar and Ors., reported in (2006) 1 SCC 557, Mr. Mukherjee submitted that Section 197 of the Code of Criminal Procedure is required to be construed strictly while determining its applicability to any act or omission in course of service. Where act or omission performed by a public servant has reasonable connection with discharge of his duty it must be held to be official but an accused facing prosecution for offence under the Prevention of Corruption Act, 1947 or Prevention of Corruption Act, 1988 cannot claim any immunity on the ground of want of sanction if he ceased to be a public servant on the date when the court took cognizance of the said offence. It was then submitted that even if a public servant acts in excess of his duty, if there exists a reasonable connection between act complained of and the official duty, the excess will not deprive him of the protection. In this context, Mr. Mukherjee derived support from the decision in the case of K. Kalimuthu vs. STATE by DSP (2005) 4 SCC, 512. Relying upon the decision in the case of P. K. Pradhan vs. State of Sikkim represented by C.B.I. (2001) 6 SCC, 704, Mr. Mukherjee submitted that question of requirement of sanction for prosecution can be raised at any time after cognizance of the offence is taken, may be even at the time of conclusion of trial or after conviction.
Mr. Bagchi submitted that for the offence under Section 409 of Indian Penal Code, it must be proved that a person entrusted with property or with any dominion over property in his capacity as public servant commits criminal breach of trust in respect of such property, as defined in Section 405 of Indian Penal Code, meaning thereby that he dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property. It implies the existence of mens rea i.e., a guilty mind. Mr. Bagchi in this context relied on the decision in the case of L. Chandraiah vs. State of A.P. & Anrs., reported in (2003) 12 SCC, 670 and Sethsur Surangbhai vs. State of Gujarat 1984 (Supp) SCC 207.
In course of submission, reference was also made to the decision of the Apex Court in the case of Superintendent and Remembrancer of Legal Affairs, W.B., vs. Mohan Singh and Ors., reported in AIR 1975 Supreme Court, 1002. It was contended on behalf of the petitioners that mere fact that a similar application for quashing the proceedings on a former occasion was rejected by the High Court is not necessarily a bar to the quashing of the proceedings at the latter stage.
As mentioned earlier, it was contended on behalf of the petitioners that continuation of further proceedings of the case will be in utter violation of Article 21 of the Constitution. In the case of Motilal Saraf vs. State of J & K & Anr., (2206) 10 SCC 560, it was held that the speedy trial is implicit in the spectrum of Article 21 of the Constitution. Speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21 and the law must ensure "reasonable, just and fair" procedure which has a creative connotation. In fact, deriving support from the said decision, another learned Single Bench of this court in the case of Pasang Yolmo vs. The State of West Bengal and Ors., reported in 2007(2)CLJ (Cal) 563 quashed the criminal proceeding.
In the case of Dilip Kumar Mukherjee vs. Central Bureau of Investigation & Ors., (2007) 2 C.Cr. LR (Cal) 342 this bench dealt with Article 21 of the Constitution in the context of the need for delivering speedy justice. In the present case the alleged irregularities giving rise the penal offences, as discussed earlier, were committed during the period of 1.12.1982 to 31.7.1985 i.e., about two and half decades back. Mr. Mallick, as the learned Counsel for the State was painfully compelled to take an indifferent attitude since he could not get equipped with the case diary. For the reasons as discussed earlier, I fully appreciate the stand taken by the learned Counsel for the petitioners that further continuation of the criminal proceeding will be in violation of Article 21 of the Constitution.
Having regard to the nature of the alleged crime, the circumstances of its commission, the manner in which the investigation was conducted, the way the criminal proceeding has proceeded so far and the time already spent, I find no rational justification for allowing the proceeding to continue any further. Our administration of justice certainly demands that there should be an end and without it, it would be a wild goose chase amounting to abuse of the process of court. The fact that the allegations made in the charge-sheet are not entirely free from inherent hollowness cannot just be ignored. Assuming that there had been functional disorder, it cannot be said that all those linked up with running of the day-to-day administration were actually involved in any act of criminal misappropriation.
To justify continuation of a criminal proceeding, it is not necessarily enough that there are certain allegations. Interest of justice demands that in appropriate cases, the court should lift the veil or unveil the mystery in order to ascertain the actual nature of the allegations. True, a criminal proceeding can be quashed in exercise of this court's power under Section 482 of the Code only in rarest of the rare cases. But the discussion made earlier conclusively indicates that this case falls in the said category. Thus, keeping in mind the guidelines as given in various decisions by the Apex Court particularly in the case of State of Haryana vs. Bhajan Lal, AIR 1993 SC 1544 - the court does not find any rational justification for allowing the criminal proceeding to continue any further.
Accordingly, this court finds it difficult to brush aside the grievances ventilated in the two applications, which deserve to be allowed. Accordingly, the cases being C.R.R. No.2671 of 2002 and C.R.R. No.2768 be allowed. The criminal proceeding being Special Court Case No.5 of 1992 arising out G.R.Case No.663 of 1987 now pending before the learned Special Court, Birbhum, be quashed. The petitioners/accused persons in the two cases are reportedly on bail and they be discharged from their respective bail bonds at once.
Let a copy of this judgment be sent to the learned Special Court immediately for information and necessary action.
Urgent Xerox certified copy may be supplied to the parties by the Criminal Department upon compliance of requisite formalities.
(S. P. Talukdar, J.)