Calcutta High Court (Appellete Side)
Smt. Sadhana Das vs State Of West Bengal & Ors on 2 May, 2012
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present:
The Hon'ble Mr. Justice Kanchan Chakraborty
C.R.R. 874 of 2008
Smt. Sadhana Das
-vs.-
State of West Bengal & Ors.
For the petitioner...................................Mr. Sekhar Bose,
Mr. Subhasish Roy
For the opposite party Nos. 2 & 3 :...... Mr. Haradhan Banerjee,
Mr. Soumya Bandopadhyay
Heard on : 06.07.2011, 02.01.2012, 04.01.2012, 27.01.2012,10.04.2012.
Judgment On : 2nd May, 2012
Kanchan Chakraborty, J.
The challenge in this revisional application is to the order dated 28th December, 2007 passed by the learned Chief Judicial Magistrate, Alipore, South 24-Parganas in Case No. C-1107 of 2001. The relevant portion of the said order is set out below:-
"After giving anxious consideration to the facts and circumstances of the case I find that the instant complaint has been quashed by the Hon'ble Supreme Court only on the ground for want of sanction. It is true that only the accused No. 1 moved the petition before the Hon'ble Supreme Court and he obtained such order in his favour. It is settled law the observation and decision of the Hon'ble Supreme Court is the law of the land. Therefore, if the Hon'ble Supreme Court on the basis of prayer of the accused No. 1 has been pleased to observe that the relevant complaint is bad in law for lack of sanction there is no other option but to hold that the said findings of the Hon'ble Supreme Court is also applicable in respect of the other two accused persons namely S.M. Kundu and Sudhir Sikdar @ Sudhangsu Kr. Sikdar though they did not move the Hon'ble Supreme Court in this regard. It is also to be mentioned that the accused No. 1 was the Assistant Commissioner of Police attached to Eastern Suburban Division, Calcutta Police where as the accused No. 2 S.M. Kundu was the Officer Incharge of Phoolbagan Police Station, Calcutta and the accused No. 3 Sudhir Sikdar @ Sudhangsu Kr. Sikdar was a police constable attached to Phoolbagan Police Station, Calcutta. The allegation against the three accused persons, were that they murdered the husband of the complainant on the day of General Election of Assembly. In dealing with the case the Hon'ble Supreme Court on the basis of the petition of the accused No. 1 has been pleased to observe specifically that after considering the allegation they opined that lack of sanction is fatal for the instant complaint and the Hon'ble Supreme Court has been pleased to give the complainant a liberty to the effect that the decision of the Hon'ble Supreme Court shall not prejudice the rights of the complainant in any prosecution after the requirements of section 197(1) of the Cr.P.C. are complied with. Therefore, if on the self-same incident a public servant is given immunity for the lack of sanction, there is no reason to give same immunity to 2 other public servants against whom similar allegations were made by the complainant in the same course of transaction. Therefore, in my considered opinion as there is lack of sanction in respect of other two accused persons namely S.M. Kundu and Sudhir Sikdar @ Sudhangsu Kr. Sikdar as per observation of the Hon'ble Supreme Court, I do think that the order dated 24.3.2006 passed by the Hon'ble Supreme Court in connection with the accused No. 1 is still applicable in respect of other two accused persons. In other words as the complaint has been quashed by the Hon'ble Supreme Court for want of sanction, the same observation is also applicable in respect of other two accused persons. However, as per observation of the Hon'ble Supreme Court, the complainant is given liberty to the effect that if the complainant obtains sanction in respect of other two accused persons, the complaint can certainly proceed with the said prosecution. I do not find any reason to implement the order dated 16.6.01. The petition dated 4.12.07 stands rejected."
Smt. Sadhana Das filed a petition of complaint, being case No. C-1107 of 2001, in the Court of the learned Chief Judicial Magistrate, South 24-Parganas at Alipore against the opposite party nos. 2 and 3 as well as Sankaran Moitra alleging therein that on 10th May, 2001, i.e., the date of Assembly Election in West Bengal, her husband Rabindra Nath Das was murdered by the opposite party nos. 2 and 3 at the instance of Sankaran Moitra. Sankaran Moitra was the Assistant Commissioner of Police attached to Eastern Suburban Division, Calcutta Police, at that relevant period of time whereas the opposite party No. 2, S.M. Kundu, was the Officer-in-Charge of the Phoolbagan Police Station, Calcutta and the opposite party No. 3, Sudhir Sikdar @ Sudhangsu Kr. Sikdar, was a Police constable attached to Phoolbagan Police Station, Calcutta at the relevant period of time. The learned Chief Judicial Magistrate, Alipore, recorded the statement of the complainant and the witnesses under Section 200 of the Code of Criminal Procedure and, thereafter, had taken cognizance of the offence against the three accused persons under Sections 302/201/109 read with Section 120B of the Indian Penal Code. One First Information Report was also lodged with the Foolbagan Police Station, being Foolbagan Police Station Case No. 112 of 2001, under Section 304 of the Indian Penal Code. Smt. Sadhana Das reported the matter to various higher authorities of the police. Sankaran Moitra, accused no. 1, filed an application for anticipatory bail, which was refused by this Court on 20.06.2003. Sankaran Moitra challenged that order in the Hon'ble Apex Court and his prayer for Special Leave to Appeal was rejected by the Hon'ble Apex Court on 28.07.2003. Sankaran Moitra, in the meanwhile, filed an application under Section 482 of the Code of Criminal Procedure before this Court praying for quashing of the proceedings on the ground that the learned Chief Judicial Magistrate had no jurisdiction to entertain the complaint since the condition precedent for entertaining complaint, a sanction under Section 197(1) of the Code of Criminal Procedure was required which had not been obtained.
This Court by an order dated 11.07.2003 dismissed the application and observed:
"In its considered view Section 197 Cr.P.C. has got no manner of application in the present case. Under Section 197 Cr.P.C. sanction is required only if the public servant was, at the time of commission of offence, 'employed in connection with the affairs of the Union or of a State' and he was 'not removable from his office save by or with the sanction of the Government'. The bar under Section 197 Cr.P.C. cannot be raised by a public servant if he is removable by some authority without the sanction of the Government.
Committing an offence can never be a part of an official duty. Where there is no necessary connection between the act and the performance of the duties of a public servant, section 197 Cr.P.C. will not be attracted. Beating a person to death by a police officer cannot be regarded as having been committed by a public servant within the scope of his official duties.
....................
....................
Committing of an offence of murder can never be a part of an official duty. Where there is no necessary connection between the act and the performance of the duties of a public servant, Section 197 of the Code will not be attracted. Merciless beating by a police officer causing death of a person can never be said to be an act in discharge of his official duty."
Sankaran Moitra challenged the order of this Court before the Hon'ble Apex Court in an Appeal, being Criminal Appeal No. 330 of 2006. The Hon'ble Apex Court was pleased to allow the appeal and ordered:
"We thus allow this appeal and setting aside the order of the High Court quash the complaint only on the ground of want of sanction under Section 197(1) of the Code of Criminal Procedure. The observations herein, however, shall not prejudice the rights of the complainant in any prosecution after the requirements of Section 197(1) of the Code of Criminal Procedure are complied with."
Upon receiving the said order of the Hon'ble Apex Court, the learned Magistrate passed the order impugned whereby the learned Magistrate extended the benefit of the order passed by the Hon'ble Apex Court to the opposite party nos. 2 and 3 and rejected the prayer of the petitioner dated 04.12.2007 whereby she prayed for implementation of the order dated 16.06.2001 passed by the learned Magistrate. The learned Magistrate on 16.06.2001 found sufficient grounds for proceeding with the case under Sections 302/201/114 of the Indian Penal Code against (1) Sankaran Moitra, (2) S.M. Kundu (opposite party no. 2 herein) and (3) Sudhir Sikdar @ Sudhangsu Kr. Sidkar (opposite party no. 3 herein) and issued warrant of arrest against them.
The complainant has come up with this application challenging the legality, validity and propriety of the order passed by the learned Magistrate on 28.12.2007 whereby the opposite party nos. 2 and 3 were favoured by the Court by way of extending the benefit of the order of the Hon'ble Apex Court given only in favour of Sankaran Moitra.
There is a confusion galore at the bar as to the true spirit and meaning of the order passed by the Hon'ble Apex Court whereby the appeal preferred by Sankaran Moitra was allowed and the order passed by this Court dismissing his application for quashing of the proceeding.
Mr. Sekhar Basu, learned advocate for the petitioner, contended that the appeal preferred by Sankaran Moitra was allowed and the order of the High Court was set aside because of want of sanction under Section 197(1) of the Code of Criminal Procedure so far as the appellant, Sankaran Moitra, was concerned. Although the Hon'ble Court used the words "quash the complaint", this does not necessarily mean that the entire prosecution initiated by Smt. Sadhana Das against the opposite party nos. 2 and 3 was also quashed.
Mr. Basu contended further that the Hon'ble Court further held "the observations herein, however, shall not prejudice the rights of the complainant in any prosecution after the requirements of Section 197(1) of the Code of Criminal Procedure are complied with."
Mr. Basu contended that the decision of the Hon'ble Apex Court in Criminal Appeal No. 330 of 2006 if is read as a whole, it could certainly and unmistakably lead to the only conclusion that the decision was applicable to the appellant, Sankaran Moitra only because sanction under Section 197(1) of the Code of Criminal Procedure was a pre-requisite to prosecute him and not to the opposite party nos. 2 and 3 for whom no sanction under Section 197(1) of the Code of Criminal Procedure is required.
Mr. Basu submitted that the officer-in-charge of a police station and a constable attached to a police station are not "public servant" removable from their office by the government. He has drawn attention of this Court to Section 197(1) of the Code of Criminal Procedure as well as Section 21 of the Indian Penal Code. So, when the Hon'ble Court allowed the appeal preferred by Sankaran Moitra, not by the opposite party nos. 2 and 3 herein, only on the ground of want of sanction required under Section 197(1) of the Code of Criminal Procedure to prosecute Sankaran Moitra, the learned Magistrate should not have extended the benefit of the order to the opposite party nos. 2 and 3. He contended that the learned Court misread the judgment of the Hon'ble Apex Court and being completely misconceived passed the order impugned which is liable to be set aside.
Mr. Banerjee, learned advocate for the opposite party nos. 2 and 3, contended that the order passed by the Hon'ble Apex Court is to be given literal meaning without importing any further meaning. When the order of the Hon'ble Apex Court clearly says that the complaint was quashed, the learned Magistrate was absolutely right in rejecting the application of Sadhana Das praying for implementation of the order dated 16.06.2001 whereby the learned Magistrate issued warrant of arrest and wanted to proceed with the case against all the three accused persons. He submitted further that in view of Section 21 of the Indian Penal Code, the opposite party nos. 2 and 3 are also public servants and, therefor, sanction under Section 197(1) of the Code of Criminal Procedure is also a pre-requisite for prosecuting them. He has referred to a notification of the Government of West Bengal, Home (Political) Department, Secret Section, being No. 2104-P.S., dated 19th November, 2010, published on Friday, December 3, 2010 in The Kolkata Gazette. By this notification, the Government of West Bengal in exercise of the power conferred by sub-section (3) of Section 197 of the Code of Criminal Procedure, directed that the provisions of sub-section (2) of Section 197 of the Code of Criminal Procedure shall apply to all sub-ordinate ranks of police force, enrolled or appointed under the Police Act, 1861 charged with the maintenance of public order.
Mr. Banerjee contended that by virtue of this gazette notification, the provisions of Section 197 of the Code of Criminal Procedure are also applicable to the opposite party nos. 2 and 3. In support of his contention, Mr. Banerjee referred to a decision of the Hon'ble Apex Court in State of West Bengal vs. Shew Mangal Singh & Ors., reported in 1981 AIR 1917.
I have carefully gone through the decision referred to by Mr. Banerjee and found that the factual aspect and legal question raised before the Hon'ble Apex Court were quite different than that of this case. There was no issue before the Hon'ble Apex Court as to who was public servant and whether sanction under Section 197 of the Code of Criminal Procedure was required to prosecute a police sub-inspector or a constable.
A bare reading of Section 197 of the Code of Criminal Procedure and Section 21 of the Indian Penal Code leaves no room of doubt that a public officer who is not removable from his office by the Government, is not protected under Section 197 of the Code of Criminal Procedure. The opposite party nos. 2 and 3 are, no doubt, public servants, but they are not protected under Section 197 of the Code of Criminal Procedure simply because they are not removable from their office by the government.
A plain reading of the order passed by the Hon'ble Apex Court in Criminal Appeal No. 330 of 2006 makes it also abundantly clear that the case against the appellant, Sankaran Moitra, was quashed and the order of this Court was set aside only for want of sanction to prosecute Sankaran Moitra. The Hon'ble Court has not passed any direction as to the fate of the prosecution against the opposite party nos. 2 and 3, rather, if the judgment of the Hon'ble Apex Court is read as a whole, it would indicate clearly that the order was applicable only to Sankaran Moitra and cannot be extended to the opposite party nos. 2 and 3, who being public servants are not protected under Section 197 of the Code of Criminal Procedure.
The gazette notification, referred to by Mr. Banerjee, is dated 19.11.2010. It is having great impact in view of the fact that it affects substantive rights. The notification is conspicuously silent regarding its effect either retrospectively or prospectively. In this regard, reference of a decision of the Hon'ble Apex Court in Hitendra Vushnu Thakur & Ors. vs. State of Maharashtra & Ors., reported in AIR 1994 SC 2623, can well be taken for consideration. The Hon'ble Apex Court culled out the principles relating to the ambit and scope of amending act as follows:
"(i) A statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment, whereas a Statute which merely affects procedure, unless such a construction is textually impossible is presumed to be retrospective in its application, should not be given an extended meaning, and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature.
(iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law.
(iv) A procedural Statue should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished.
(v) A Statute which not only changes the procedure but also creates a new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided either expressly or by necessary implication."
The notification, referred to above, no doubt affects the substantive right and in view of the principles laid down by the Hon'ble Apex Court in Hitendra Vishnu Thakur (supra), it can be presumed to be prospective in operation because the notification is completely silent about its retrospective operation either expressly or impliedly.
I have bestowed serious thought over the issue and found that the Hon'ble Apex Court allowed the Criminal Appeal No. 330 of 2006 preferred by Sankaran Moitra against an order passed by this Court dismissing his application under Section 482 of the Code of Criminal Procedure for quashing of the proceeding. The opposite party nos. 2 and 3 were not the parties in that appeal. So, the benefit of that appeal should not be extended to the opposite party nos. 2 and 3 simply because the Hon'ble Court allowed the appeal and set aside the order of this Court as there was want of sanction required to prosecute Sankaran Moitra only. No doubt, the learned Magistrate misread the order and favoured the opposite party nos. 2 and 3 who were not the parties either to the revisional application under Section 482 of the Code of Criminal Procedure in this Court or in the Criminal Appeal No. 330 of 2006 before the Hon'ble Apex Court. This apart, sanction to prosecute them was not required at the relevant period of time for they being not public servant removable from their office by the Government.
Therefore, I find substance in the submission of Mr. Basu and am of the opinion that the order passed by the learned Magistrate is not sustainable in law and is liable to be set aside.
Accordingly, the order impugned is set aside.
The learned Magistrate is directed to proceed with the case against the opposite party nos. 2 and 3 without delay.
The revisional application stands disposed of.
In the facts of the present case, there will, however, be no order as to costs. Interim order, if there be any, stands vacated.
Let photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of necessary formalities.
(Kanchan Chakraborty, J.)