Calcutta High Court (Appellete Side)
2011/2010 on 2 July, 2010
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
02.07.2010
142) C.R.R. No. 2011 of 2010 In re: Md. Rabiul Islam Molla ... Petitioner Mr. Abhijit Chatterjee ... for the petitioner The subject-matter of challenge in this Criminal Revision is a First Information Report (FIR) relating to the offence punishable under Sections 420/406 of the Indian Penal Code and Section 46 of the Special Marriage Act.
Mr. Chatterjee, Learned Counsel appearing for the petitioner, vehemently urged before this Court that the allegations contained in the FIR does not disclose commission of any offence. He further submitted that since the petitioner is a public servant, therefore, no proceeding can be launched against him without a prior sanction under Section 197 of the Code of Criminal Procedure. So far as the first submission of Mr. Chatterjee is concerned, it would be evident from the following allegations made in the petition of complaint that a prima facie case against him has been certainly made out:
"Mr. Rabiul Islam Molla was restrained from acting as a Non-official Marriage Officer with effect from 12.7.2005 following his malpractice, irregular illegal works against which he moved Hon'ble High Court and filed a Writ Petition. As per Hon'ble Court's order, the then Secretary, Judicial Department (presently) Hon'ble Justice of Kolkata High Court) examined his case and passed a "reasoned order" dt. 24.11.06 that the order of his restrain was a justified order. He (Mr. Rabiul Islam Molla) again moved Hon'ble High Court against that order of the then Secretary Judicial Department but no order staying or setting aside the order of Secretary, 2 Judicial Department, Government of West Bengal dt. 24.11.06 has been passed by the Hon'ble Court.
A Marriage Officer can solemnize a marriage under the Special Marriage Act, 1954 with Registers and Receipt Book and other related forms etc. taking those from the Registrar General of Marriages and of the Judicial Department with necessary authentication as to page making of the different Registers either by the Registrar General of Marriages or by the Special Officer attached to the Registrar General of Marriage Office.
This being the background and legal position, Mr. Rabiul Islam Molla is seen to have committed the following offences:
i). He has indulged in solemnization of marriages under Special Marriage Act, 1954 subsequent to 12.07.2005. When due to his restrainment order he had no competence to solemnize a single marriage. Thus knowing fully well that he is not competent to solemnize marriage, he indulged in solemnization of hundreds of marriages and thereby he cheated the parties to the marriage (viz. the bride and the bridegroom). When he acted u/s 13 of the Special Marriage Act, 1954 to solemnize marriage. He also cheated the Husband and the wife when he acted u/s 16 of the Special Marriage Act. 1954 to register marriages which invite action against him u/s 420 I.P.C.
ii). He took fees for such solemnization/registration and served no legal and lawful services. Thus he caused criminal breach of trust which comes under section 406 I.P.C.
iii). He issued Marriage Certificate with certificate Book page No. 473 on 18.8.2009.
against Notice Sl. No.480/09 under section 13. of Special Marriage Act. 1954 on 04.07.2009. (Annexure-A) though there are documentary evidences that he assigned certificate sl. no. 1796 vide certificate Book page no. 1796 on 07.11.2007 (Annexure B.) This shows he has used the certificate.
Thus he resorted to forgery in of preparation of marriage related documents which offence on his part attracts section 466 of the I.P.C. In support of this, I am enclosing a Xerox copy of certificate of marriage issued u/s 13 in between Rajib Nandy and Sohagi Dutta enclosed as 2 3 Annexure 'A' to this letter which has resulted in a series of heinous criminal activities as contained in the petition of Smt. Sohagi Duitta which is enclosed as Annexure 'C' to this letter.
Iv. Mr. Rabiul Islam Molla is learnt to have been indulging in committing such offences from the Bar Association Room of D. Harbour which is under your Administrative Jurisdiction for which this F.I.R. is being lodged with you."
So far as his next submission is concerned, I do not find any force therein. Section 197 of the Code of Criminal Procedure prohibits a Court to take cognizance if any public servant committed an offence in discharge of his official duties, not the police to undertake investigation when the allegations make out commission of cognizable offences. Apart from that, all public servants are not covered under the protection of Section 197 of the Code of Criminal Procedure, save and except those public servants who are not removable from their office, except with the prior sanction of the Government, if is accused of any offence alleged to have committed by him while acting or purporting to act in discharge of his official duty. Nothing could have been brought to the notice of this Court to show that the present petitioner belongs to such category of public servant.
This Criminal Revision has no merit and accordingly stands dismissed. Criminal Section is directed to supply the urgent Photostat certified copy of this order to the party, if applied for.
(Ashim Kumar Roy, J.) 3 4 4 5 5