Calcutta High Court (Appellete Side)
Malay Chakraborty vs The State Of West Bengal & Anr on 30 November, 2009
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
C.R.R. No. 2751 of 2009
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
Malay Chakraborty
Vs
The State of West Bengal & Anr.
For the Petitioner : Mr. Himangshu De,
Mr. Suman De,
For C.B.I. : Mr. Ranjan Roy,
For the State : Mr. Aloke Roy Chowdhury.
Heard on : 07.09.2009
Judgement on : 30.11.2009
Syamal Kanti Chakrabarti, J:
The revisional application under Section 401 and 482 Cr.P.C.
has been preferred for quashing of the proceeding being Spl. Case
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No. 18 of 2008 now pending before the Learned Third Special Court,
Calcutta arising out of Crime No. 34 of 1996 dated 03.07.1996
under Sections 120B/420/409 of the Indian Penal Code and Sections
13(2)/13(1)(d) of the Prevention and Corruption Act read with
Section 20 of the Indian Telegraph Act, 1887.
Brief fact of the case giving rise to aforesaid criminal
proceeding as reflected in the FIR is that some unknown phone
Mechanics/ Mazdurs/ helpers of the Maintenance control Department
of 26 Exchange of the Calcutta Telephone while functioning in
their official capacity entered into criminal conspiracy with one
Sri Dipak Das, 12, Halder Lane, 1st floor, Calcutta and others to
cheat Calcutta Telephone. In furtherance of such common intention
such officials of maintenance control department by abusing their
official position had dishonestly connected in his STD telephone
line having no. 26-3108 in the name of Sri Dipak Das, 12, Halder
Lane, Calcutta which was installed in the 2nd Floor of the premises
to a STD / ISD line by connecting the line with the cable of
telephone numbers 26-7245 and 26-9064 standing in the name of Sri
Gayaprasad Das, 27/B, Crick Row, Calcutta and office of the
Director PMG, WB Circle, P-36, C.R. Avenue Calcutta respectively
having STD / ISD facilities. As a consequence huge unauthorised
STD / ISD calls metering from 55301 to 79216 units were
dishonestly made from telephone no. 26-3108 in the year 1995
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through the meters of telephone nos. 26-7245 and 26-9064. As a
consequence Calcutta Telephones sustained loss to the tune of
about Rs. 80,476/-. During the course of investigation CBI
authorities submitted charge sheet against three accused persons
namely, Sri Malay Chakraborty, Md. Washi and Jitendra Kumar on
28.02.1997. The said Malay Chakraborty is the present petitioner who surrendered before the Learned trial Court on 14.07.2008 and was released on bail.
Learned Counsel for the petitioner has contended that the allegations levelled against the present petitioner are baseless. Firstly, Md. Washi had claimed that it was his SDOP, Malay Chakraborty, the present petitioner, who made the verification and he asked him to install the telephone at the address mentioned in the form but from the copy of the relevant form BT 92 (L) it will appear that the petitioner directed the said Md. Washi to install the telephone in the room of one Deepak Das on the first floor of 12, Halder Lane but the said Md. Washi had installed the same on the second floor of 12, Halder Lane for which the petitioner cannot be held responsible at all. The second allegation against the petitioner as mentioned in the charge sheet is that the petitioner passed necessary order for supply of telephone connection but he has failed to furnish his own order contained in original form no. BT 92 (L) containing the signature of the person 4 who had obtained the telephone in the name of the said Dipak Das and he also could not keep any impression of the person who appeared before him at his office on the receipt of the work order in the name of Deepak Das. The petitioner has further contended that the disputed connection was installed in the flats of one Jitendra Kumar Ratnakar by Md. Washi and, therefore, it is within the special knowledge of the said Mr. Ratnakar and Md. Washi as to who had obtained the telephone in the fictitious name of one Deepak Das. The third contention of the petitioner is that he issued the memo of work on the basis of the work order issued by his higher official Co/City (commercial officer, City) in favour of Deepak Das and in fact in doing so he had carried out the order of his superior officer. The fourth contention of the petitioner is that under Rule 12 of the Telephone Rules it is the duty of the field staff to ensure that the telephone is provided only to the right person at the right place. Therefore, in the discharge of his official duties and particularly in carrying out orders of his superiors for extending the speedy telephone lines to the public without unnecessary harassment and unusual delay his conduct will come under the purview of the Section 79 of the Indian Penal Code as he was justified by law to do the job in good faith.
The Learned Lawyer for the petitioner has also pointed out that the complaint was lodged on 03.07.1996 against unknown 5 persons and the charge sheet was prepared on 28.02.1997 but the same was filed before the Court on 21.11.2005 and the petitioner received summons on 14.06.2008, i.e., after 12 years and he is unnecessarily harassed for such protracted trial which goes against the spirit of Article 21 of the Constitution guaranteeing a right in favour of the accused to be tried speedily. Therefore, such proceedings against the present petitioner should be quashed. The Learned Lawyer for the opposite party has vehemently opposed the move and claims that it was the responsibility of the present petitioner to verify the existence of the applicant Deepak Das before issuing any such memo of work and since detection of the offence the relevant original document BT 92 (L) which lying in the custody of the petitioner is not traceable it is suspected that he had wilfully withheld the document to conceal his guilt. He had relied upon principles laid down in 1980 SCC (Cri) 383, 2004 C Cr LR (Cal) 752 and AIR 1988 Supreme Court 709 in support of his contention.
I have carefully gone through the submissions made by Learned Advocates for both parties, perused above principles and the Case Diary.
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The ratio in AIR 1988 Supreme Court 709 postulates that the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations made prima facie establish the offence. It is also for the Court to take into consideration the special features which appeared in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
The principle followed in 2004 C Cr LR (Cal) 752 is an echo of the ratio postulated in AIR 1988 SC 709. In 1980 SCC (Cri) 383 on the otherhand it has been set at rest that Section 79 I.P.C. makes an offence a non-offence only when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified. The bona fide belief, although mistaken, eliminates the culpability if the offender can irrefutably establish that he is actually justified by law in doing the act or 7 alternatively, that he entertained a mistake of fact and in good faith believed that he was justified by law in committing the act, then, the weapon of Section 79 demolishes the prosecution.
The Learned Lawyer for the opposite party no. 2, CBI, has argued that the above principles cannot be applicable at this stage and the petitioner may take such plea in course of trial before the Learned Court below since sufficient prima facie materials have been collected against the petitioner and others to prosecute them and for this purpose charge sheet has already been submitted and the Learned Court below has taken cognisance. Therefore, the instant proceeding should be continued to reveal the truth and responsibilities of the officials of Calcutta Telephone for the loss sustained.
Perusal of the Case Diary reveals that in course of investigation the mechanism of alleged offence has been unearthed. On physical verification of particular jumper having cable code of telephone no. 26-9064 and 26-7245 it was found that the original cable code of both these numders are 027J and 027K 430 respectively, whereas, on physical jumper tracing on different dates, 26-9064 and 26-7245 were found on 027B 955 which is the original cable code of telephone no. 26-3108. Thus, the tampering of the jumper of telephone nos. 26-9064 and 26-7245 was made. From 8 the materials in case diary it also transpires that the accused Md. Washi installed the telephone connection under instruction of SDOP(IV) Sri Malay Chakraborty, the present petitioner. To prove the direction or instruction so made by the present petitioner, prosecution has relied upon the copy of the BT 92 (L). No plausible answer is forthcoming how the prosecution got such copy if the original one was really withheld by the petitioner. At least disappearance of original form has no bearing in determining prima facie responsibility of the petitioner in the alleged offence.
Moreover, from the extract of the copy of the said form it appears that the present petitioner issued the said memo of work with a direction to erect a DEL with single Inst. to the subscriber Deepak Das at the 1st floor of 12, Halder Lane. In column 2 (address where telephone is required, correspondence will be made at this address) there is specific mention of "12 Halder Lane, 1st floor, Calcutta - 700 012". In such work order there is also an endorsement of CO/CT dated 28/04 to the effect "issue work order". This instruction was unqualified and not subjected to any verification or any other responsibility to be discharged by the person to whom it is addressed before implementing the work order. The consequence of delegation of such instruction calls for immediate attention of the subordinate officer to give effect to 9 the direction and in consequence thereof the present petitioner asked the said linesman to install the telephone at the subscriber's address at the 1st floor of 12, Halder Lane on the basis of initial direction of CO/CT. But the linesman without ascertaining existence or identification of Dipak Das who happened to be subscriber in this case had admittedly installed the connection at the 2nd floor and did not carry out the order of the present petitioner. Where written order is issued to do some work at a given place and on the basis of such work order if anybody does such work at another place without any knowledge and tacit consent of the issuing authority, the person issuing such work order cannot prima facie be held liable for commission of any offence involved therein for want of culpability as decided in 1980 SCC (Cri) 383 and I am inclined to rely on such principle in deciding merit of instant application.
I also find from the case record that in the instant case the only material against the petitioner is the statement of co- accused Md. Washi. Chargesheet has already been filed on the basis of statement of co-accused only. Since chargesheet has already been filed in this case on the basis of statement of co-accused only it is to be considered whether continuation of the instant proceeding against him will serve any ends of justice. Continuous influxes of human feelings are conducted and regulated by human 10 thought which is translated into action and, therefore, it is excepted that there shall be a concatenation between such thought and action and the action obviously will be the outcome of thought or mens rea in this case. In the instant case the petitioner asked Md. Washi, the linesman to install telephone connection at the 1st floor of 12, Halder Lane to the subscriber Dipak Das as directed by his superior. Instead of complying with such direction the linesman Md. Washi has installed the telephone on the 2nd floor of the said premises without identification of the proposed subscriber Dipak Das. He has not submitted any report to the present petitioner after compliance of such direction and in such circumstances the petitioner obviously did not get any second chance to see whether his order was properly carried out by subordinate staff and the prosecution has failed to collect any material against the present petitioner to show that at any point of time the present petitioner passed a written order and asked his subordinate to comply it in an oblique manner within his knowledge and tacit consent. There is obviously no material to show that there was any meeting of the mind in furtherance of any conspiracy amongst the petitioner, the linesman Md. Washi, the subscriber Dipak Das telephone holder and Jitendra Kumar for installing the telephone on the 2nd floor. Therefore, the highhandedness in the alleged transaction was made prima facie behind the back of the present petitioner and under the colour of 11 his aforesaid order which was exploited otherwise. Consequently, under no stretch of imagination it can be held that continuation of such proceeding against the present petitioner will serve any fruitful purpose on the background of the fact that the chance of success of the prosecution against him is quite bleak in this case. When a person has applied for new connection the petitioner was very much within his ambit to issue work order in the discharge of his official duties and is entitled to get immunity if anybody exploits or wrongly implements his direction in oblique manner and so I hold that the principles laid down in 1980 SCC (Cri) 383 are equally applicable in the facts and circumstances of this case.
I also find that the present proceeding against the petitioner is continuing for last 13 years and the petitioner has become a victim of protracted trial which obviously is not in consonance with the spirit of Article 21 of the Constitution. It is equally surprising to note why the charge sheet filed by IO on 28.02.1997 was withheld by the prosecution and placed before Court eight years thereafter on 21.11.2005. This type of unusual delay or remissness on the part of IO must have some adverse presumption against the prosecution in deciding prima facie liability of the accused petitioner.
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Therefore, I hold that the materials collected against the present petitioner in course of investigation if examined in the light of ratio of the cases reported in 1980 SCC(Cri) 383 and AIR 1988 SC 709 will not disclose any prima facie case established against the present petitioner and it would be sheer abuse of the process of law if the proceeding is allowed to be continued against him. Accordingly I fully subscribe to the fourfold arguments advance by Learned Advocate for the petitioner.
Considering all these aspects, I hold that in the instant case the direction given by the petitioner to the co-accused Md. Washi was very much within the scope and ambit of his official power and he had lawfully exercised such power in directing the co-accused to install telephone in the 1st floor of the premises in question on the basis of direction of CO/CT dated 28.04.1994 to the effect "Issue Work order". As the co-accused installed such telephone in the 2nd floor in violation of the written order of the present petitioner the former cannot be held responsible either for such act or any loss sustained in consequence of ding such act in any manner and continuation of such proceeding against the present petitioner after 12 years will obviously amount to abuse of the process of law.
13Therefore, I hold that to prevent the abuse of the process of law the instant proceeding against the present petitioner should be immediately stopped and as such the proceeding against him is hereby quashed and he is released from his bail bond. But the case, however shall proceed against rest as per law. Supply urgent certified copies, if applied for.
(S. K. Chakrabarti, J.)