Calcutta High Court (Appellete Side)
Chowdhury Masiar Rahaman vs State Of West Bengal & Anr on 31 March, 2011
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
C. R. R. 2070 of 2010
Chowdhury Masiar Rahaman
Vs
State of West Bengal & Anr.
For the Petitioner : Mr. Tapas Kumar Bhanja.
For the State : Mr. Swapan Kumar Mallick.
For the Opposite Party No. 2 : Mr. Debabrata Acharyya.
Heard on : 16.09.2010, 06.10.2010, 10.11.2010 & 11.11.2010.
Judgement on : 31.03.2011.
Syamal Kanti Chakrabarti, J.:
The present revisional application is filed for quashing the entire proceeding in CGR Case no. 4213 of 2008 arising out of Ekbalpore P.S. Case No. 559 dated 28.11.2008 under Section 338 of the Indian Penal 2 Code including order dated 05.05.2010 passed therein, which is now pending before the Court of the learned Chief Judicial Magistrate, Alipore.
2. The petitioner contends that his minor daughter aged about seven years was a student of Vidya Bharati (Mominpur). She was mercilessly beaten up by her Yoga Teacher Anita Das on 27.11.2008 on flimsy ground while her head got struck with a pillar and as a result she sustained cerebral haemorrhage. Though some symptom of her physical distress was manifested, she was forced to continue with the lesson till she became lost her sense. Then at a belated stage she was moved to CMRI hospital under deep coma where she died on 28.11.2008. He lodged a complaint to this effect to the Ekbalpore Police Station disclosing a cognizable offence but the Officer-in- Charge of the Police Station did not act in accordance with law. Following the death of his daughter the IO prayed for addition of the offence of Section 304A IPC in place of Section 338 IPC in the FIR which was allowed. The Child Welfare Committee also directed the IC of Ekbalpore Police Station on 08.12.2008 to start a case of negligence against the Yoga Teacher and the Headmistress of the school under Section 23 of the Juvenile Justice (Care and Protection of the Children) Act, 2000. But the investigation was not properly 3 made and as such on 02.02.2009 the petitioner filed a writ petition before this Hon'ble Court seeking for CBI enquiry against the mala fide investigation of the Ekbalpore Police Station, Public Prosecutor and the Chief Judicial magistrate concerned. But in the meantime the IO completed the investigation and submitted charge sheet. Therefore, the Hon'ble Court by order dated 29.07.2009 disposed of the said writ application being W. P. No. 2270(W) of 2009 with the observation that the petitioner will be at liberty to take whatsoever step or remedies that may be available to them before the criminal Court, including objecting to the charges that may have been cited and that if the petitioner follow the due process as recognized under the Criminal Procedure Code it may not be necessary for the petitioners to pursue this petition. The matter was further considered by a Division Bench of this Hon'ble Court in M.A.T. 833 of 2009 with C.A.N. 8232 of 2009 on 14.09.2009 and the appeal with C.A.N. was disposed of in view of the statements made by Mr. Nisith Adhikary, learned Additional Advocate General to the effect that in view of the peculiar circumstances of the case a Special Prosecutor will be appointed in this case before the Sessions Court so that complete justice is done to the parents of the deceased child. But no such prosecutor has been appointed by the State Government as per 4 commitment of the learned Additional Advocate General. On the contrary the learned Chief Judicial Magistrate has proceeded with the case as per perfunctory report of the IO, who has tried to shield the Headmistress, and filed charge sheet on lesser Section so as to ensure release of the Yoga Teacher on bail by filing charge sheet on bailable Section.
3. Therefore, the petitioner de facto complainant filed three applications before the learned Chief Judicial Magistrate, Alipore which have been disposed of by him by order dated 05.05.2010 which is also now being challenged.
4. By one petitioner filed on 22.11.2009, the de facto complainant sought for cancellation of the bail of the accused Yoga Teacher, Anita Das under Section 437(5) Cr.P.C. The learned Chief Judicial Magistrate while dealing with this application has observed that as soon as the said accused Anita Das got bail on 06.12.2008 the de facto complainant moved an application on 10.12.2008 for cancellation of such bail but the same was rejected by the Court on 23.12.2008. The same matter has been reagitated before him on 22.11.2008. The learned Court below has observed that the object of cancellation of bail as contemplated in Section 437(5) Cr.P.C. stands 5 on a different footing from the rejection of bail and as such on the basis of mere apprehension of the de facto complainant the liberty granted to the accused cannot be curtailed and there is no scope for recalling the order passed by the Court on 23.12.2008 rejecting his prayer. So he has rejected the said petition as there is no adverse report against the accused on bail for misusing such liberty. Learned lawyer for the petitioner has drawn my attention to the principle laid down in (2010)1 C.Cr.L.R. (Cal) 149 (Rekha Bhakat -Vs.- State) to show that the alleged offence of assault upon the victim will come under the purview of Section 302 IPC and not under Section 304A IPC. In the said case this Hon'ble Court rejected prayer for anticipatory bail of the accused. But in the instant case learned Court has already granted bail which has not yet been misused. So I hold that said principle will be inapplicable in the instant case.
5. In another petition dated 28.01.2010 under Section 319 Cr.P.C. the de facto complainant has prayed for issuing summons upon the Headmistress and some other teachers who forced his daughter to continue lesson in spite of her physical distress till she lost her sense and the members of the Managing Committee also should be summoned as co-accused in this case. The learned Court below has 6 also rejected such prayer mainly on the ground that while it took cognizance of the offence under Section 304A IPC by order dated 23.12.2008 the same has neither been assailed before higher forum nor the same has been set aside. If the order passed by him is lawful and maintainable in law at present and not interfered with either by the revisional Court or by the learned Appellate Court as stated above, the same cannot be reopened for consideration at the present stage.
6. By another petition the petitioner has prayed for alteration of the charge from Section 304A to Section 304 IPC. The learned Court below also rejected such prayer at that stage. Being aggrieved by and dissatisfied with such order the de facto complainant has preferred this revisional application questioning the legality and propriety of the entire proceeding.
7. Learned lawyer for the petitioner has contended that though the FIR was lodged for commission of cognizable offence from the very initial stage, police has conducted the investigation in a colourable manner and tried to protect the Headmistress and other members of the Managing Committee who after the commission of the alleged offence by the Yoga Teacher initially delayed the treatment of the victim 7 student which has resulted in her tragic death. Therefore, such type of proceeding should be quashed. He has relied upon the principle laid down in the case of State of Hariyana & Ors. -Vs.- Chowdhury Bhajan Lal & Ors. reported in AIR 1992 SC 604. In the said case it has been held by the Hon'ble Apex Court that the commencement of investigation in a cognizable offence by a police officer is subject to two conditions, firstly, the police officer should have reason to suspect the commission of a cognizable offence as required by Section 157(1) and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case as contemplated under clause (b) of the proviso to Section 157(1). Further, as clause (b) of the proviso permits the police officer to satisfy himself about the sufficiency of the ground even before entering on an investigation, it postulates that the police officer has to draw his satisfaction only on the materials which were placed before him at that stage, namely, the first information together with the documents, if any, enclosed. In other words, the police officer has to satisfy himself only on the allegations mentioned in the first information before he enters on an 8 investigation as to whether those allegations do constitute a cognizable offence warranting an investigation.
8. I have perused the Case Diary, impugned order with all connected materials on record. The paryer for quashing the proceedings, if allowed, will, in my opinion, suppress the remedy and shall advance the mischief. It appears that the claim of the de facto complainant is destructive inasmuch as for improper investigation of a case he has sought for quashing of the entire proceeding and thereby intending to make himself without any remedy which is opposed to the public policy and detriment to the administration of real justice. The movement of investigation of a case on the basis of FIR is generally straight and not cyclical or retrogate. Once it starts it must reach its logical conclusion and should not be interrupted for ever or revert back to a new platform to begin with afresh. The grievances placed before me may, therefore, be summarised as follows:-
a) He lodged a complaint to the local police station for cognizable offence which is non-bailable but the police started the case under Section 304A IPC in order to enable the accused persons to secure their bail immediately. In his FIR dated 28.11.2008 he has informed the Officer-in-Charge, Ekbalpore Police Station that on 27.11.2008 at 3:30 P.M. his daughter was assaulted by the Yoga Teacher and she 9 was removed to the Calcutta Hospital where she had undergone an operation but still remained in unconscious state. On the previous date, i.e., on 27.11.2008 the Headmistress of the Vidya Bharati (Mominpur) School lodged FIR to the effect that the victim, an 8 years old student of class II, was scolded by her Yoga Teacher Mrs. Anita Das during the Yoga class (2:30 to 3:10 P.M.) and her head was pushed by hand on this dated. At about 3:30 P.M. during English class the child complained of headache and became restless and then fainted. Her guardian was informed over telephone immediately and she was removed to CMRI Emergency at abut 4:15 P.M. where she was admitted. Obviously the FIR was accordingly recorded on the basis of first complaint dated 27.11.008 lodged by the Headmistress.
It is alleged that the real incident has not been narrated in the FIR by the Headmistress which is first in point of time indicating suppression of fact. On the basis of this first FIR of the Headmistress, the Eabalpore Police Case no. 559 dated 28.11.2008 was started under Section 338 IPC. Subsequently, IO's prayer for adding 304A was allowed in view of sad demise of the victim.
b) From the statement of other classmate of the victim it will appear that the victim was assaulted by the Yoga Teacher at the time of incident and consequently her head was pressed against a pillar resulting in serious injury which was intentionally caused by the Yoga Teacher and there was no accidental injury. The culpability of the offence is very much explicit in the conduct of the Yoga Teacher which is intended to be concealed.
c) In the Postmortem report it has been found that at the scalp there is a bruised area on the occipital, along adjunct parietal area of 6" x 4" 10
situated on the right side of scalp. It is bluish red. At the forehead there are two identical subcuttings bruised area of 1/3" x 1/3", circular. It shows instrumental. According to autopsy surgeon death was due to the effects of subdural and intracerebral heamorrhage antimortem in nature.
d) There is a circular being no. 906-L.S./1C-896-Ls/03 dated 29.06.2004 issued by the Director of School Education, Secondary Branch (Law Cell), Government of West Bengal discouraging the practice of resorting to corporal punishment in the classroom which is undesirable from the teachers. Therefore, it was brought to the notice of all teachers in primary and secondary schools in the State of West Bengal with the intimation that caning or other type of corporal punishment to the student is strictly prohibited and if any teacher resorts to such type of punishment that will be dealt with strictly. This circular has been violated by the Yoga Teacher for which the gravity of the alleged act should be reassessed in its proper perspective.
e) From the nature of injury and the conduct of the accused Yoga Teacher it will appear that the corporal punishment was inflicted upon the minor student knowing fully well that such injury may be grievous in nature. Nevertheless the IO has submitted charge sheet in this case under Section 304A IPC read with Section 23 of Juvenile Justice Act only to secure bail of the Yoga Teacher which is abuse of the process of law.
f) The Headmistress and other members of the Managing Committee of the school concerned have also abated the alleged offence for which they should also be impleded in the case and the learned Court below 11 has wrongly rejected the application under Section 319 Cr.P.C. and thereby failed to exercise his discretionary power to secure the ends of justice.
g) Instead of accepting the report of the IO the learned Court below ought to have remitted the matter for further investigation by CBI or to any other agency for as admissible under Section 173(8) Cr.P.C.
h) In MAT 833 of 2009 with CAN 8232 of 2009 the learned Additional Advocate General has committed before the Hon'ble Court that a special prosecutor will be appointed before the Sessions Court so that complete justice is done to the parents of the deceased child but no action has so far been taken by the State.
9. The opposite party no. 2, the accused Yoga Teacher has opposed the move and claimed that the concept of vicarious liability is alien to criminal jurisprudence and the Headmistress and Managing Director who were not present at the time of the alleged offence cannot be impleaded as co-accused in the case and the learned Court below has rightly rejected the prayer which will be quiet consistent with the ratio enunciated in the case of M. S. Grewal and Anr. -Vs.- Deep Chand Sood & Ors. (2001 SCC (Cri) 1426). Learned lawyer for the opposite party no. 2 has also drawn my attention to the principle laid down in the case of Pepsi Foods Limited and Anr. -Vs.- Special Judicial Magistrate & Ors. [1998 SCC (Cri) 1400] to substantiate his claim that the learned Court below has rightly rejected the prayer for 12 impleading the Headmistress and other members of the Managing Committee as co-accused in the case at the present stage of trial without scrutinising the evidence brought on record which cannot be treated as non-application of mind. Therefore, such petition should be dismissed.
10. Having heard the learned lawyer for both the parities and on perusal of materials on record, I find that the points raised by the de facto complainant relates to some vital questions of fact which cannot be decided by the revisional Court before consideration of the charge on the basis of all the materials on record by the learned Trial Court. The function of the investigating officer is to collect materials and to place the same before the learned Court concerned and merely on account of citing a Section of the Penal Code in the charge sheet submitted, by IO the gravity of the offence is neither conclusive nor binding upon the learned Trial Court. Therefore, the reference to any Section of the Penal Code in narrating alleged offence by the IO is not sacrosanct. It requires securiny by learned Trial Court at the time of consideration of charge. Then it will be the duty of the learned Magistrate to consider from the facts and surrounding circumstances of the present case as to the nature of the assault, the effect of such 13 assault upon the victim and consequences thereof along with the mens rea or culpability of the persons involved in such offence. It has already been pointed out that this Hon'ble Court by order dated 29.07.2009 has already given liberty to the de facto complainant to agitate all these points in the Court below but that should be at the appropriate moment. The learned Court below has not yet fixed any date for consideration of charge while the de facto complainant will get sufficient opportunity to ventilate his grievance on the eight points mentioned above. The rejection of an application under Section 319 Cr.P.C. before consideration of charge will not prevent the learned Trial Court to consider at a later stage whether any other person involved in the alleged offence will be summoned and impleaded as co-accused if in course of trial sufficient material transpires against him or them because such discretionary power can be exercised at any stage of trial. Therefore, from this point of view also the de facto complainant has not been prejudiced at this stage on account of reluctance of learned Trial Court to exercise such power at pre-trial stage. If the prayer for quashing the entire proceeding, as prayed for by the petitioner is allowed, I hold that it will also be an abuse of the process of law because the de facto complainant will be without any remedy for the tragic death of his 14 minor daughter and the person or persons responsible for such tragic death will go unpunished which cannot be the object of administration of justice in any way. So far as the commitment of the learned Additional Advocate General is concerned, it appears to me that time has not yet reached to fulfil the commitment unless it is decided by the learned Trial Court that the offenders have committed cognizable offence which is triable by the Court of Sessions. The bona fide intention of the State to engage a special prosecutor reflected in the candid submission of the learned Additional Advocate General is still operative in favour of the de facto complainant and legality and propriety of such commitment cannot be looked into by the revisional Court at this stage unless the learned Trial Court considers and finally decides the offences for which the accused persons involved will face the trial. From all these points I hold that the instant application is premature and not sustainable in law and the learned Court below in rejecting the prayers by his order dated 05.05.2010 in particular has not committed any error or illegality which should be interfered with by the revisional Court.
11. Therefore, I hold that there is no merit in this revisional application which is accordingly dismissed. The learned Court below is directed 15 to proceed with the case as per law and in light of the observations made above giving liberty to the de facto complainant to agitate on all the points mentioned above for his consideration at the time of framing of charge and if he holds that the offenders have committed cognizable offence it will be committed to the Court of learned Sessions Judge in due course after compliance of all statutory formalities. In that event the State will engage a special prosecutor to conduct the case as committed by the learned Additional Advocate General at the time of disposal of M. A. T. 833 of 2009 with C. A. N. 8232 of 2009.
12. Let the case diary be returned.
13. Urgent photostat certified copy of this order, if applied for, be supplied to the respective parties, upon compliance of all requisite formalities.
(Syamal Kanti Chakrabarti, J.)