Calcutta High Court (Appellete Side)
Debasish Chakraborty vs State Of West Bengal & Anr on 15 November, 2017
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
CRR No.155 of 2017
Debasish Chakraborty..................................Petitioner
Versus
State of West Bengal & Anr..........Respondents
For the Appellant/ : Mr. Rajdeep Majumder Petitioner : Mr. Moyukh Mukherjee For the Opposite party : Mr. Sital Samanta No.2 : Mr. Debabrata Acharya Heard on : 26.07.2017, 14.09.2017 Judgment on : 15.11.2017 Debi Prosad Dey, J. :-
This application under Section 401 and 397 read with Section 482 of the Code of Criminal Procedure has been filed for quashing the proceeding of complaint case no. 1881 of 2014 dated June, 19, 2014 for the offence punishable under Section 323/325 and 330 of the Indian Penal Code against the petitioner pending in the Court of Additional Chief Judicial Magistrate, Alipore. The petitioner is now discharging his duties as the assistant commissioner of police of the eastern Subarban division in Calcutta. The opposite party no. 2 has implicated the petitioner in the afore mentioned complaint case no. 1881 of 2014. The petitioner allegedly assaulted opposite party no.2 while he was in custody and ultimately opposite party no. 2 was released on bail by learned Additional Chief Judicial Magistrate on 14.12.2013. The opposite party no. 2 was thereafter treated at Bangur hospital on 15th December, 2013. The matter was reported to the superior officers of the petitioner but the superior officers of the petitioner did not pay any heed to the complaint of the opposite party no.2.
Long thereafter in the month of June, 2014 the opposite party no.2 filed the petition of complaint against the petitioner stating inter-alia that the opposite party no. 2 was subjected to assault during his custody under police and learned Additional Chief Judicial Magistrate after going through the statements of opposite party no.2, had issued summons upon the petitioner in connection with the case. The specific case of the petitioner is that the petitioner has been falsely implicated in such complaint case out of malice and that opposite party no. 2 never complained of any such assault on his person while he was produced before the learned Magistrate and he was never treated by any doctor during his custody under the police. The daughter of opposite party no.2, Smt. Suparna Ghosh had also lodged a complaint against Arun Saha and others on 14.01.2013 but she also did not make any allegation against the present petitioner with regard to alleged assault on the person of the opposite party no.2. The opposite party no.2 was duly examined by a medical practioner during his custody under police but the doctor did not find any injury on the person of opposite party no.2 and opposite party no.2 also did not make any allegation against the present petitioner before learned Magistrate. The further case of the petitioner is that the petition of complaint has been wrongly entertained by learned Additional Chief Judicial Magistrate, Alipore since learned Magistrate did not consider that such petition of complaint is not maintainable for not obtaining sanction under Section 197 of the Code of Criminal Procedure against the petitioner.
Learned Advocate appearing on behalf of the petitioner contended that the petitioner was posted as additional officer in charge of Jadavpur police station on the fateful date and the petitioner had no occasion to deal with the case under reference, in which the opposite party no. 2 was arrested. Secondly, the entire complaint reveals that there was excess in connection with investigation of a criminal case. The petitioner was duly discharging his official duty and he was in no way connected with the alleged offence. Learned Advocate appearing on behalf of the petitioner further contended that the entire petition of complaint is not maintainable for not obtaining sanction under Section 197 of the Code of Criminal Procedure against the present petitioner, who was then posted as officer in charge of Jadavpur police station. Previous sanction is necessary to file such a petition of complaint against the petitioner.
In support of his contention Mr. Majumdar learned Advocate for the petitioner has referred a decision reported in 2015(12) SCC 231 (D. T. Virupakshappa Vs. C. Subash). Mr. Majumdar has referred paragraph 6,7,8 and 9 of the said decision in support of his contention.
Paragraph 6,7,8 and 9 of the said decision may be reproduced below for proper appreciation of this case.
Insert 6,7,8,9 para " para 6 In the case before us, the allegations is that the appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197 CrPC, in case, the government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary.
Para 7 The issue of "police excess" during investigation and requirement of sanction for prosecution in that regard, was also the subject- matter of State of Orissa V. Ganesh Chandra Jew, wherein, at para 7, it has been held as follows:
7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty.
Para 8 in Om Prakash, this Court, after referring to various decisions, particularly pertaining to the police excess, summed up the guidelines at para 32, which reads as follows:
32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it. The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained or are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code because the acts complained or ar so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood.
Para 9 In our view, the above guidelines squarely apply in the case of the appellant herein. Going by the factual matrix, it is evident that the whole allegation is on police excess in connection with the investigation of a criminal case. The said offensive conduct is reasonably connected with the performance of the official duty of the appellant. Therefore, the learned magistrate could not have taken cognizance of the case without the previous sanction of the State Government. The High Court missed this crucial point in the impugned order."
Ultimately the Hon'ble Court has been pleased to observe that the sanction is necessary in case of any allegation of police excess in connection with the investigation of a criminal case and thereafter the Hon'ble Apex Court has been pleased to quash the proceedings initiated against the petitioner.
Learned Advocate on behalf of opposite party no.2 contended that the opposite party no.2 was subjected to assault by the petitioner and he was accordingly treated at Bangur hospital on 15.12.2013. Learned Advocate on behalf of the opposite party no.2 further contended that the opposite party no.2 was waiting for action against the petitioner by his superiors but the superiors did not take any action against the petitioner and that is why there was delay in filing such petition of complaint against the petitioner. It is further contended that the CCTV footage of Jadavpur police station will justify such assault on the person of opposite party no.2 by the petitioner. Learned Advocate for opposite party no.2 has also relied on a decision reported in 2015(8) SCC 744 (D. K. Basu Vs. State of West Bengal) and has drawn the attention of the Court to paragraph 33 and 34 of the said decision, wherein the Hon'ble Court has expressed that the states would install CCTV cameras in all the police stations in a phased manner depending upon the nature and the extent of violation and the states would install CCTV cameras in prison also.
Learned Advocate appearing on behalf of the opposite party no.2 has fairly conceded that the complainant ought to have taken sanction in terms of Section 197 of the Code of Criminal Procedure before filing such petition of complaint and has also conceded to the principle of law as laid down in the decision reported in 2015(12) SCC 231 (Supra).
It is therefore apparent from the materials on record as well as from the submissions of learned Advocates that the opposite party no.2 has filed a petition of complaint against the petitioner on the ground that he was subjected to torture during his custody in connection with a criminal case. The factual aspect, as transpires in the decision of D. Birpakkho (Supra), reveals that the appellant was allegedly assaulted and detained in police station for some time to get a confession from him to the effect that he was involved in a murder case and accordingly learned Magistrate took cognizance, registered the case and issued summons to the appellant under Section 323 and other Sections of Indian Penal Code. High Court declined to interfere with such order of learned Magistrate under Section 482 of the Code of Criminal Procedure. Hon'ble Apex Court held that the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197 of the Code of Criminal Procedure, in case, the Government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary. The magistrate could not have taken cognizance of the case without the previous sanction of the State Government.
It is therefore apparent that learned Magistrate was not at all justified in taking cognizance of the petition of complaint filed by opposite party no.2 and learned Magistrate was also not justified in issuing summons against the present petitioner without having any sanction of the State Government. The principle enunciated by the Hon'ble Apex Court squarely applies in the context of the given facts and circumstances of this case. Learned Advocate for opposite party no.2 however contended that the complainant may be permitted to file such complaint after obtaining necessary sanction from the State Government. In the premises set forth above the order of learned Magistrate in respect of taking cognizance and issuance of summons against the petitioner in complaint case no. 1881 of 2014 dated June, 19, 2014 is accordingly quashed. The opposite party no.2 will not be precluded from taking any action with regard to his grievances against the petitioner after obtaining sanction under Section 197 of the Code of Criminal Procedure from appropriate authority.
The application is accordingly allowed.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)