Calcutta High Court (Appellete Side)
Subhash Chandra Nandi vs The State Of West Bengal on 26 August, 2016
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present :
THE HON'BLE JUSTICE SANKAR ACHARYYA
C.R.R. No. 1107 of 2014
In the matter of :
Subhash Chandra Nandi
Vs.
The State of West Bengal
For the petitioner : Mr. Sabir Ahmed, advocate.
Mr. Pritheeraj Sen, advocate.
Ms. Pampa Dey (Dhabal), advocate.
For the State : Mr. Subir Banerjee, Ld. APP.
Heard on : 09.08.2016, 10.08.2016
Judgment on : 26.08.2016
SANKAR ACHARYYA, J.
This revisional application under Article 227 of the Constitution of India has been filed by petitioner for quashing of the proceedings in G.R. Case No. 2677 of 2013 pending in the Court of learned Chief Judicial Magistrate, Burdwan arising out of Burdwan Police Station Case No. 1001 of 2013 dated 18.08.2013 under Sections 186/353/341/332/506, Indian Penal Code.
The petitioner is retired Principal of Burdwan Raj College. While he was in service as Principal of that college he was appointed as venue-in-charge for West Bengal Police Recruitment Examination in the venue Burdwan Raj College which was held on 18.08.2013. During continuance of examination an altercation took place between petitioner and Inspector of police namely Lala Mir on the issue of entry of an examinee in that hall at 12:30 p.m. although the examination started at 12:00 noon. After completion of the examination said Lala Mir lodged a complaint against the petitioners at Burdwan police station and charge-sheet dated 30.11.2013 was submitted against the petitioner by police under Sections 186/353/341/332/506 of the Indiean Penal Code. On 27.01.2014 learned Chief Judicial Magistrate, Burdwan took cognizance of the said offences.
At the time of hearing learned counsel raised the only point for quashing of the proceeding that while the petitioner was discharging his official duty as a public servant (venue in charge for the West Bengal Police Recruitment Examination) in Burdwan Raj College alleging his certain acts a complaint was lodged at Burdwan police station by a police officer who was also acting in that venue not in a position superior to petitioner. Petitioner was acting as a public servant at the relevant time and was under the cloak of protection under Section 197 of the Code of Criminal Procedure. Learned counsel advanced his arguments that learned Magistrate took cognizance of the offences although the investigating agency did not obtain any sanction under Section 197 of the Code. As such, the taking of cognizance is bad in law and the proceeding on the basis of such cognizance in G.R. Case No.2677 of 2013 is liable to be quashed. In order to strengthen his submission he relied on the decisions of the Hon'ble Supreme Court in Rakesh Kumar Mishra Vs. State of Bihar and Others reported in (2006) 1 SCC (Cri) 432 and Gauri Shankar Prasad Vs. State of Bihar and Another reported in (2000) 5 SCC 15.
After filing of this revisional application on prayer of petitioner interim order was passed for stay of further proceedings of G.R. Case No. 2677 of 2013. An order was passed for producing the case diary. On 09.08.2016 learned Additional Public Prosecutor has submitted a copy of case diary.
Learned counsel for the State did not dispute that on the date of alleged occurrence the petitioner was a public officer. He submitted that as per allegations of FIR in the case the acts complained of have no nexus with the official duty of the petitioner and so he cannot claim protection under Section 197 of the Code of Criminal Procedure. He relied on the observation of the Hon'ble Supreme Court made in paragraph 18 in Rajib Ranjan and Others Vs. R. Vijay Kumar reported in (2015) 1 SCC 513.
On perusal of the materials available in the copy of the case diary it appears that the investigating police officer took no step for obtaining sanction before submitting charge-sheet against the petitioner as accused. In the FIR the informant has described himself as venue liaison officer and other police personnels as detailed for written examination in Burdwan Raj College venue for recruitment to the posts of Sub-Inspector/Lady Sub-Inspector in West Bengal Police on 18.08.2013. The present petitioner was described as principal of Raj College although in fact he was the venue-in-charge also at that venue for the said examination. In FIR the informant complained that the accused/petitioner appeared at 12:15 hrs. on 18.08.2013 in the examination hall and area (Annexure Building) and began to shout loudly and compelled the informant and others to come out from varandah of the annexure building and directed his staff to put lock on the gate and pushed the informant touching his body. In this way the petitioner misbehaved and deterred them from discharging lawful duty and refrained the police constables from discharging their lawful Govt duty. Accused/petitioner also abused and insulted the informant and other police personnels in a rude and rough manner in presence of examinees and college staffs and others.
In this revisional application the petitioner has annexed the copies of documents relating to the recruitment examination dated 18.08.2013 including instructions to venue-in-charge and duties of the venue liaison officer. As per said documents, the entire arrangements relating to the conduct of the examination at the venue is the personal responsibility of the venue-in-charge. The liaison officer was basically responsible for liaison between the coordinating superior, District Police/City police and the venue-in- charge who was conducting the examination at the venue.
Since no prior animosity between informant and the accused/petitioner was complained and the alleged incident took place within the venue Burdwan Raj College (Varandah) while the recruitment examination was going on and the accused/petitioner was conducting the examination shouldering his personal responsibility also in addition to his official responsibility for smooth completion of the examination prima facie it cannot be said that the complained act was done by petitioner as venue-in-charge not in the discharge of his official duty. From the very face of the FIR it is crystal clear that the informant complained about some unbecoming behaviour of the accused/petitioner in course of his discharging official duty. In my opinion there is direct nexus between the official duty and the act complained against the petitioner. As such, sanction under Section 197 of the Code of Criminal Procedure is a mandatory prerequisite for taking cognizance of the offences alleged against the accused petitioner.
The facts of the case discussed in (2015) 1 SCC 513 (supra) are not at all similar to this case. The ratio of that decision is not applicable in this case. In the reported case in paragraph 18 it was held, "The ratio of the aforesaid cases, which is clearly discernible is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations, namely, the allegations pertain to fabricating the false records which cannot be treated as part of the appellants' normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied".
In this case under consideration of this Court there is no allegation that the act, complained of, was done by petitioner for his wrongful gain or wrongful loss of the informant or to defeat the aim of justice or like others. It is also not alleged that the petitioner had any grudge against the informant or other police personnels. The attending circumstances exhibit a clear picture that whatever the petitioner did was for the purpose of management of the recruitment examination in his venue which might have gone beyond limit to some extent but without any malice. In Rakesh Kumar Mishra Vs. State of Bihar and Others (supra) the Hon'ble Supreme Court referred to another decisions of Supreme Court in Arulswami Vs. State of Madras reported in (1967) 1 SCR 201 :
AIR 1967 SC 776 : 1976 Cri. L. J. 665 and quoted -
"It is not therefore every offence committed by a public servant that required sanction for prosecution under Section 197 (10 of the Criminal Procedure Code, nor even every act done by him while he is actually engaged in the performance of his official duties, but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is within the scope of the official duty or in excess of it that the protection is claimable".
In the said decision in Rakesh Kumar Mishra (supra) it was held, -
"It would be appropriate to examine the nature of power exercised by the Court under Section 197 of the Code and the extent of protection if affords to public servants, who, apart from various hazards in discharge of their duties, in the absence of a provision like the one mentioned, may be exposed to vexatious prosecution".
Said principle is squarely applicable and thus followed in this judgment.
Certainly, there cannot be any criminal complaint alleging perfect discharge of official duty against a public servant. Sometimes, in discharge of official duty, a responsible and sincere public servant leaves some scope of criticism/adverse criticism without any 'mens rea' for committing a crime. Facts of a case speak about the state of affairs. Sanction under Section 197 of the code is required to be accorded or refused by the appropriate authority after careful consideration of the facts with prima facie materials in support of it before prosecuting a public servant. In case of casual dealing with a matter of sanction for criminal prosecution a sincere public servant may be made accused in a vexatious criminal prosecution against him despite his discharging official duty with full devotion. Therefore, the grant of sanction under Section 197 of the Code is not mere a formality but it has very important significance.
In Gauri Shankar Prasad Vs. State of Bihar and Another (supra) the Supreme Court held, "Coming to the facts of the case in hand, it is manifest that the appellant was present at the place of occurrence in his official capacity as Sub-Divisional Magistrate for the purpose of removal of encroachment from government land and in exercise of such duty, he is alleged to have committed the acts which form the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances, it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under Section 197 Cr.P.C.
Therefore, the High Court erred in holding that Section 197 CrPC is not applicable in the case".
The case in which the Apex Court made such observation succinctly was that the appellant who was in his official capacity as Sub-Divisional Magistrate had gone with a large number of labourers and constables to the place of complainant for removal of encroachment from government land and in exercise of such duty he allegedly took away the licensed gun of the complainant and under his order the constables dragged the complainant out from his clinic and demolished pucca gate, boundary walls, isolation ward, gairaz and cowshed.
This case under the revisional application does not speak of so grave allegations made against the appellant in Gauri Shankar Prasad Vs. State of Bihar and Another (supra).
In summing up, the discussions made in foregoing paragraphs of this judgment I find and hold that this is a fit case for quashing of the proceedings in G.R. Case No. 2677 of 2013 arising out of Burdwan P.S. Case No. 1001 of 2013 dated 18.08.2013 and for setting aside the order dated 27.01.2014 of taking cognizance passed by learned Chief Judicial Magistrate, Burdwan.
Accordingly, the revisional application is allowed. The impugned order dated 27.01.2014 passed by learned Chief Judicial Magistrate, Burdwan in G.R. Case No. 2677 of 2013 taking cognizance of offences under Sections 186/358/341/323/506 of the Indian Penal Code is set aside. The proceedings of G.R. Case No. 2677 of 2013 arising out of Burdwan P.S. Case No. 1001 of 2013 dated 18.08.2013 is quashed. Interim orders passed earlier stand vacated.
Urgent Photostat certified copy of this judgment, if applied for, be made available to the parties or their advocates on record expeditiously in compliance of usual legal formalities.
(SANKAR ACHARYYA, J.,)