Calcutta High Court (Appellete Side)
Mr. Soumen Das vs The State Of West Bengal & Ors on 14 August, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.R. 845 of 2014
Mr. Soumen Das
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Sekhar Basu,
Mr. P.N. Sharma,
Ms. Mita Biswas
For the C.B.I. : Mr. Asraf Ali
Heard on : 14.08.2014
Judgement on : 14.08.2014
Joymalya Bagchi, J. : The order dated 29.01.2004 passed by the learned Judge
(Special) C.B.I. Court, Siliguri in Special R.C. Case No. 3/13 pending before the
learned Judge, (Special) C.B.I. Court, Siliguri refusing to discharge the petitioner
has been assailed.
The prosecution case as alleged is as follows:‐
The informant applied for Group‐D post in the Eastern Railway; he
qualified in written examination and physical tests; his medical tests were
scheduled to take place on 12.02.2013; due to postal delay, he received the letter
for medical test on the scheduled day itself i.e. 12.02.2013; hence, he could not
appear before the Medical Board for examination on the scheduled date; the
candidate met DRM (Divisional Railway Manager) on 14.02.2013 for the
refixation of his medical test; his medical test was re‐scheduled to be held on
19.02.2013; on 18.02.2013 visited Malda Town Railway Hospital to equip himself about the procedures of medical test and came to know from some staffs involved in medical tests were taking bribe from aspiring candidates; other candidates also corroborated such version and pointed out one Madhab Chandra Das who indulged in such corrupt practices; the candidate met said Madhab Chandra Das who told him that unless the latter paid Rs.1,000/‐ to Madhav he will not be declared medically fit; informant decided not to pay the bribe and resorted to legal action; he lodged a written complaint on 18.02.2013 to Mananiya Police Adhikschak, C.B.I., Kolkata, on the basis of said complainant; Shri S. Agnihotri, S.P., C.B.I., ACB, Kolkata registered a case and endorsed it to Sri Shantanu Kar, Additional S.P. of Police, CBI, CAB, Kolkata for investigation; in course of such investigation, a trap was laid against unknown public servants at Malda Town Divisional Railway Hospital on 19.02.2013; pursuant to such trap the petitioner who was then posted as Senior Divisional Medical Officer at Malda Town Railway Hospital and the aforesaid Madhab Chandra Das were intercepted for taking bribe and arrested.
In conclusion of investigation, charge‐sheet was filed before the learned Judge. Admittedly sanction order in respect of the petitioner did not accompany the charge‐sheet. In the absence of order of sanction against the petitioner the learned Judge declined to take cognizance on the aforesaid police report. Thereafter sanction order was filed before the learned Judge and the latter took cognizance of the alleged offences on 17.07.2013. Prayer for discharge was made before the learned Judge, inter alia, on the ground that the sanction order having not accompanied the charge‐sheet, the Trial Court was incompetent to entertain the case. Learned Judge by impugned order dated 29.01.2004 dismissed such plea on the ground that the cognizance of the alleged offences were taken only after the sanction order had been placed before the Court and hence the proceeding did not suffer from any lack of jurisdiction. It was also pleaded that no opportunity of hearing given to the petitioner prior to grant of such sanction. Such plea was also turned down on the premise that the order granting sanction is an executive action which does not call for an opportunity of hearing. Being aggrieved by the said order, the petitioner has prayed for quashing of the impugned proceeding including the impugned order passed therein refusing to discharge him from the case.
Mr. Basu, learned Senior Counsel, appearing on behalf of the petitioner, submitted that the police report in the instant case was not prepared and signed by the Superintendent of Police as required under paragraph 19.15 of the C.B.I. Manual. He submits that failure to do so rendered the police report invalid in law in as much as the same is required to be prepared and signed personally by the Superintendent of Police himself. He relied on (2007)1 SCC 110 (M.C. Mehta (Taj Corridor Scam) vs. Union of India & Ors. ) in support of such submission. He further submitted that sanction order was also invalid inasmuch as there was no materials were produced before the learned Judge that the procedure for sanction as laid down in paragraph 22.15 of the C.B.I. Manual had been adhered to.
Mr. Ali, learned Counsel, appearing on behalf of the C.B.I., submitted that the police report was duly vetted by the Superintendent of Police and forwarded by him and therefore, it cannot be said that the said report was in contravention of the provisions of the Code or the C.B.I. Manual. He submitted that there was no difference of opinion between the Investigating Officer and the Superintendent of Police and hence the forwarding of the report by the Superintendent of Police will be deemed to be concurrence on his part as to the conclusion recorded in the said police report. He submitted that the sanction was granted in accordance with law and that the validity of sanction being a mixed question of fact and law required to be examined on evidence.
Investigation conducted by C.B.I. is to be guided by the executive instructions issued by the Central Government from time to time which in the C.B.I. Manual. Chapter 22 of the C.B.I. Manual relates to the manner of institution of the prosecution pursuant to investigation conducted by C.B.I. 22.1 of C.B.I. Manual reads as follows :
"22.1 In a case where a decision has been taken to prosecute the accused, a charge‐sheet under Section 173(2) Cr.P.C. shall be filed in the prescribed form in a Court of competent jurisdiction after obtaining the sanction for prosecution, wherever required. Detailed instructions on filing of charge‐sheets have been issued vide Policy Division Circular No. 13/2003, dated 10‐06‐2003 which should be strictly complied with. The Branch Public Prosecutor will vet the charge‐sheets in all cases and ensure that -
(a) charge‐sheet has been prepared on the final orders passed by the Competent Authority in CBI.
(b) These are prepared in accordance with the law, and are complete and correct in all respects;
(c) These lists of witnesses and documents are correctly entered in the charge‐sheet or attached thereto;
(d) No names of witnesses or documents necessary to prove the prosecution case are omitted.ʺ Paragraph 22.1 provides that the charge‐sheet under Section 173 sub section (2) of the Code of Criminal Procedure in prescribed form would be the starting point for prosecution in such cases. Charge sheet is not defined in the Code or the Manual. It is an expression used in common parlance to a police report defined in section 2(r) of the Code resulting in commencement of prosecution in contradistinction to a final/closure report in the case. Section 2(r) of the Code reads as follows :
"2.(r) "police report" means a report forwarded by a police officer to a Magistrate under sub‐section (2) of section 173."
Section 173 sub section (2) of the Code of Criminal Procedure, inter alia, provides as follows :
"173............................................... (1)................................................... (1A)................................................ (2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating‐
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170;
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C [section 376D or section 376E of the Indian Penal Code (45 of 1860)].]
(ii) The officer shall also communicate, in such a manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given."
A perusal of the said statutory provisions in the light of paragraph 22.1 of the Manual makes it clear that the charge‐sheet must be in prescribed form as per the requirements of section 173(2) of the Code and be forwarded by the Officer‐ in‐Charge of the police station. Superintendent of Police, C.B.I. under the Manual is deemed to be the Officer‐in‐Charge of a police station. In the instant case, a perusal of the charge‐sheet shows it satisfies the requirements of section 173 (2) of the Code and has been duly forwarded by the Superintendent of Police, C.B.I., ACB.
Hence, in my considered opinion the said charge‐sheet satisfies the requisite parameters as laid down in paragraph 22.1 of the C.B.I. Manual read with Section 173 sub section (2) of the Code of Criminal Procedure. Cognisance taken on such charge sheet cannot be said to be without jurisdiction. Coming to the issue of the report of the Superintendent of Police prepared under paragraph 19.15 of the CBI Manual, I am of the opinion that the same relates to a report prepared by the Superintendent of Police in course of investigation conducted by CBI under Chapter 19 of the Manual. Chapter 19 of the Manual provides the manner in which various reports are to be prepared culminating in filing of charge‐sheet under Chapter 22 thereof. Chapter 19 of the Manual commences with paragraph 19.1 which provides for preparation of a final report by the Investigating Agency. The primary purpose of the final report is to apprise the Superior Officers and Law Officers of C.B.I. as to merits and demerits of the case and passing of final order/opinion thereon by the Competent Authority. Part I of the final report in prescribed form is prepared by Investigating Officer. Part II of such report shall contain the opinion of the Law Officer as per paragraph 19.4 of the Manual. It shall also indicate whether sanction is necessary or not. The report shall also contain comments of Supervisory Officers in prescribed columns as provided in paragraph 19.6 of the Manual. Such final report is the foundation of the report prepared by the Superintendent of Police under 19.15 of the Manual. 19.15 of the CBI Manual reads as follows :
"SP's Report is a very important document and should be prepared personally by the SP in the prescribed format. The concerned Departments/Government Undertakings assess the CBI investigation of their cases solely on the basis of the SP's Reports. The report should be grammatically correct, clear and unambiguous. The report should be brief without repetitions and should contain all necessary data. The internal differences of opinion among CBI Officers should not find mention in the SP's Report, which should advance all arguments to justify the final order passed by the Competent Authority, in the CBI. The final recommendation should be precise. If sanction is required, the relevant Section (including sub‐section) of law under which sanction is required should be mentioned with brief grounds. In some of the cases, charge sheets cannot be filed and only complaints by certain statutory authorities can be filed in the Court. In such cases, the relevant section prescribing the filing of a complaint should be mentioned in the SP's Report. It should be borne in mind by the SP that the efficiency and the quality of work done by the CBI would be viewed mainly on the basis of the SP's Report and, therefore, no effort should be spared to make it factually correct, systematic, cogent and logical."
Paragraph 19.16 of the Manual provides as follows :‐ "19.16 The following instructions should be carefully noted in connection with the preparation of SP's Reports:‐
(a) ..............
(b) The Report should contain all useful and relevant information from the Final Reports/Records of the case. However, information of a Departmental nature which is of interest to CBI Officers only, e.g. need not be incorporated in the SP's Report."
It is, therefore, clear that on the basis of the final report prepared by the Investigating Agency the Superintendent of Police is to prepare his own report and the latter shall be sent to various superior authorities including the competent authority of CBI and the concerned departments for their perusal and necessary action. Upon obtaining of sanction, if necessary, the charge‐sheet is to be filed under Chapter 22 of the Manual. Hence, the SP's report is not the charge sheet under section 173(2) Cr.P.C. on which cognisance is taken. Coming to the facts of the instant case, I find that the Superintendent of Police perused the materials collected by the Investigating Agency and concurred with the latter's opinion that the materials so collected in the course of investigation was sufficient to file a charge‐sheet against the petitioner and other accused persons. Accordingly, the Superintendent of Police endorsed his satisfaction by forwarding the police report prepared under section 173(2) of the Code to the concerned Court. The act of Superintendent of Police in endorsing and forwarding the police report of the Investigating Officer is in due compliance of the requirements of Section 173 sub Section (2) of the Code of Criminal Procedure. It has been strenuously argued that as the Superintendent of Police did not prepare an independent report as envisaged under Chapter 19.15 of the Manual no charge‐sheet could have been filed in the instant case. I am unable to agree with such proposition. It may be true that the Superintendent of Police had not prepared a report in his own writing. He, however, vetted the police report prepared by the Investigating Agency and recorded his satisfaction as to its conclusion by making an endorsement thereon and forwarded the same. When there is no divergence of opinion between the Superintendent of Police on the one hand and the Investigating Agency or the Law Officers on the other hand as to the conclusion of investigation the endorsement of the SP on the police report of the Investigating Agency and forwarding the same to the concerned Court would amount to his concurrence as to the factual matrix of the case as reflected in the police report and the opinion contained therein to file charge sheet against the accused persons. This in my considered opinion would amount to substantial compliance of the provisions laid down in the CBI Manual including 19.15 thereof. That apart, jurisdiction of a Court to take cognisance on a police report is circumscribed by section 190 (1)(b) of the Code and by no stretch of imagination the same may be infracted by any irregularity in preparation of reports in Chapter 19 of the Manual. Section 190(1)(b) of the Code, inter alia, provides that a Magistrate may take cognizance of an offence on the basis of a police report of such facts. As discussed earlier, police report is defined in section 2(r) of the Code as a report forwarded by a police officer under section 173(2) of the Code. The charge‐sheet filed in the instant case satisfied the requirements of section 173(2) of the Code and was duly forwarded by the Superintendent of Police (who is deemed to be the Officer‐in‐Charge of a police station under the Manual). The requirements of the Code as well as Chapter 22 of the CBI Manual are accordingly satisfied in the matter of initiation of prosecution. Hence, cognizance taken on such police report cannot be faulted.
Reference to (2007)1 SCC 110 (supra) is of in sequence in the factual matrix of the case. In the cited decision, the dispute as the opinion of the Superintendent of Police was different from the opinion of the Attorney General and Senior Public Prosecutor as to the result of investigation. In that backdrop, the Apex Court, inter alia, held that the opinion of the Superintendent of Police and the report prepared by him in terms of paragraph 19.15 of the Manual is of paramount significance as he is deemed to be the Officer‐in‐Charge of the police station. The opinion of the Superintendent of Police is, therefore, the requisite opinion of the Officer‐in‐Charge, as envisaged, under Sections 170 and 173 of the Code of Criminal Procedure and would prevail over that of the Law Officers of the State. Accordingly, direction was given to forward all papers of investigation including the SP's report to the Court for its consideration and acceptance. In the instant case, I find that there is no such difference of opinion and the Superintendent of Police was ad idem with the opinion of the Investigating Agency as to the result of investigation, Accordingly, Superintendent of Police recorded his concurrence to the conclusion in the police report by endorsing and forwarding the same as required under Section 173(2) of the Code. Therefore, the action of the prosecuting agency in filing the charge‐sheet so forwarded by the Superintendent of Police cannot be said to be contrary to the ratio laid down by the Apex Court of M.C. Mehta's Case. It is pertinent to note that in the concurring opinion of Sinha, J. it has been observed as follows :
"43. The CBI Manual, thus, is subject to the provisions of the Code of Criminal Procedure. In case of conflict, although none has been pointed out, evidently, the Code of Criminal Procedure shall prevail. Even under ordinary laws, the investigating officer has a statutory duty to investigate into an offence upon receipt of a first information report as envisaged under Section 154 of the Code of Criminal Procedure. Section 157 thereof provides for the procedure for investigation, wherefor the only duty cast on the investigating officer is to maintain his case diary in terms of Section 172 of the Code of Criminal Procedure."
Similar view is also expressed in 24 of the said report by referring to earlier judgements of the Apex Court.
It is therefore clear when there is conflict between the express provisions in the Code and the Manual, the former shall prevail. Manual is silent as the form and manner of preparation of police report/charge sheet referred to in Chapter 22 of the Manual. Such police report/charge sheet is to comply with the provisions of the Code so as to enable a Court to take cognisance thereon. The said requirements being fulfilled in the facts of the case, I do not find any jurisdictional error in taking cognisance and initiation of proceeding.
I find that the sanction of order has been passed by the competent authority. Illegality in the order of sanction is a mixed question of law and fact. It has been argued that steps for taking requisite opinion from CVC and other departmental authorities as per the Manual are not been reflected in the order of sanction. This is not a case of absence of sanction but alleged invalidity in the order of sanction which may be best appreciated during trial. [see Dinesh Kumar Vs. Chairman, (2012) 1 SCC (Cri.) 509 (para 9 and 10] That apart, order of sanction cannot be viewed in a hypertechnical manner and prosecution is entitled to lead evidence aliunde to supplement any alleged deficiency in such order. ]See Md. Iqbal M. Shaikh Vs. State of Maharashtra (1998) 4 SCC 494 (para 10)], State of Maharashtra Vs. Mahesh Jain, (2013) 8 SCC 119 (para 14.1 to 14.7)] It would be premature to examine the validity of the order of sanction on the anvil of alleged infractions in the procedure of obtaining the same prior to leading of prosecution evidence in the course of trial. I keep the issue as the validity of sanction open to be agitated during trial in accordance with law, if so advised.
With the aforesaid observations, the revisional application is disposed of.
(Joymalya Bagchi, J.) s.das/P.A. to J. Bagchi, J