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3. The said order of the Writ Court was communicated to the learned Chief Judicial Magistrate, Alipore along with all the relevant papers and complaint case C-1046/98 was registered. It was stated in the petition of complaint before the learned Magistrate that Bhikari Paswan, husband of the complainant Smt. Lalti Devi was a worker of M/s. Victoria Jute Mill, Telinipara within the District of Hooghly. There was a dispute in between the management and the workers over non-payment of the wages/salaries for a long period. On 21.10.93 there was a demonstration by the workers and in order to disperse them, police had to use force. However, on 30.10.93 at the intervention of the District Magistrate, Hooghly some payments were made to the workers including Bhikari Paswan. On that night Bhikari was sleeping in his room when some persons knocked the door from outside. The complainant opened the door and found that S.I. Samar Dutta and other Police Officers of Telinipara outpost were standing in uniform outside the premises. The police personnel caught hold of Bhikari Paswan and started assaulting him ruthlessly in presence of the complainant and other members of the family and as a result of that Bhikari started bleeding from his mouth and nose. They then took away Bhikari Paswan forcibly with them. Subsequently, father of Bhikari went to Telinipara outpost and found him lying injured on the floor. The father of Bhikari then approached Mr. H. P. Singh, the then Additional Superintendent of Police, Hooghly, who was at that time present in the outpost, to allow him to talk with Bhikari. But Mr. Singh ruthlessly asked the father of Bhikari to leave the outpost and threatened him. However, he was asked to come to the outpost in the morning. When in the next morning the father of Bhikari had been to that outpost, he was told by a constable that Senior Police Officials took away Bhikari from the said outpost. The father of Bhikari then contacted his lawyer of Chandannagore Court in order to secure bail for his son. But he was informed that Bhikari was not produced in the Court. As such, he searched for his son in the Bhadreswar Police Station as well as in the Srirampore Police Station. As he could not find out his son, he approached the O.C., Bhadreswar Police Station and requested him to record a diary regarding kidnapping of Bhikari Paswan by the Police Officers. But when the O.C., Bhadreswar Police Station refused to receive any diary he then met the Additional Superintendent of Police, Hooghly. Said Officer also refused to entertain the complaint of the father of Bhikari and instead asked him to write on a plain blank paper that his son was missing. As the father of Bhikari did not get any assistance whatsoever from the police officers, so he submitted a written complaint to the Chief Minister, West Bengal with a copy to the Home Secretary and S.P., Hooghly. In the said complaint, the father of Bhikari clearly stated that police officers under the leadership of Additional Superintendent of Police, Hooghly kidnapped his son, Bhikari from his residence on the night of 30.10.93 illegally. The complainant alleged that the police officers abducted her husband Bhikari Paswan and subsequently, in all probability, have murdered him. As such, by filing the said petition of complaint, the complainant prayed for issuing process against the accused persons, who are all police officers. Proceeding on the basis of the direction in the Division Bench judgment of this Court and on the basis of the aforesaid complaint the learned Magistrate took cognizance of the matter and thereafter recorded statements of the witnesses on solemn affirmation. Subsequently, from the materials on record the learned Chief Judicial Magistrate was of the opinion that there was a strong prima facie case for proceeding under Section 364/120B IPC against all the four accused persons and as the offence was triable exclusively by the Court of Sessions, so he, by his order dated 14.02.2000 committed the case to the Court of learned Sessions Judge, South 24-Parganas, Alipore. The learned Sessions Judge, Alipore, after taking cognizance under Section 193 Cr. PC, transferred the case to the Court of learned Additional Sessions Judge, 6lh Court, Alipore for disposal. It appears from Order No. 5 dated 01.04.2000 that the learned Additional Sessions Judge, pointed out that offence in question took place within the Sessions Division of Hooghly and as per provisions of Sections 177 to 185 Cr. PC the Court of the Additional Sessions Judge, Alipore is not empowered to take cognizance of such offence ordinarily. He also pointed out that he did not receive any-order under Section 407(1) Cr. PC transferring the case in question from Hooghly Sessions Division to the Sessions Division of South 24-Parganas. Secondly, he further pointed out that one of the accused H.P. Singh is a public servant not removable from his office save by or with the sanction of the Government and the offence alleged against him was apparently committed while acting or purporting to act in the discharge of his official duty as Additional S. P., Hooghly. According to the learned Court below, under such circumstances, sanction of the State Government is necessary for proceeding against that accused as per provisions of Section 197 Cr. PC. In order to avoid future legal complications over these two matters, the learned Additional Sessions Judge felt it necessary to refer the matter to the High Court under Section 395(2) Cr. PC for decision before the trial is undertaken. Two questions were referred to this Court for decision as per provisions of Section of 395(2) Cr. PC and they are as follows :

1. Whether the cognizance and subsequent trial of the case in a different Sessions Division is maintainable in law,
2. and whether the Sessions case is maintainable against accused H. P. Singh who happens to be a public servant against whom no sanction as contemplated under Section 197 of the Code of Criminal Procedure has been obtained.

4. Said order of the learned Additional Sessions Judge referring those two questions before the High Court for decision, was placed before the Hon'ble Chief Justice who was pleased to constitute a Division Bench for answering the reference. It appears that several Division Benches were entrusted with the matter from time to time and ultimately the matter was taken up by the Division Bench of Hon'ble Justice Nure Alam Chowdhury and Hon'ble Justice Prodyot Kumar Sen. The said Division Bench, by its order dated 19.07.2000 was of the opinion that the Writ Court did not make any reference with regard to the provisions of Section 407(1) Cr. PC while directing that the Court of the learned Chief Judicial Magistrate, Alipore will be the Competent Court for disposing of the matter. So, the Division Bench observed :

10. However, we are of opinion that it cannot be said that by passing such direction any prejudice has been caused to the client of Mr. Mukherjee. In the case , Dwaraka Nath vs. Income Tax Officer, it has been decided that High Court can issue writs of any nature. Article 226 confers a wide power on the High Court to reach injustice wherever it is found but this does not mean that High Court can function arbitrarily under this Article. So far as the direction given by the Division Bench, it does not appear to us that those directions can be termed as "arbitrary" and to our mind it did not cause any prejudico to the accused persons. Mr. Mukherjee, learned Advocate for Mr. H. P. Singh further argued that the Division Bench was not at all justified in declaring the Chief Judicial Magistrate, Alipore to be the 'Competent Court' for taking cognizance and as such, as the offence took place in the Hooghly District, so the said offence cannot be tried in a Sessions Division of 24-Parganas (South) unless there is a clear order of transfer of the case under Section 407 Cr. PC. But at the outset, it must be pointed out that the Hon'ble Division Bench did not transfer any case from one Sessions Division to another Sessions Division because when the order was passed at that time there was no existence of any case. So, question of transferring the case from one Sessions Division to another, by exercising the provisions of Section 407 Cr. PC does not arise at all so far as the present matter is concerned. What the Division Bench directed in respect of the alleged kidnapping of Bhikari Paswan by the police officers, was that there should be a petition of complaint and for that reason the Division Bench directed that learned Chief Judicial Magistrate, Alipore will be the proper Court for taking cognizance of the offence and to take further steps in that respect. It should be borne in mind that the present case has got very peculiar facts. A worker of the Jute Mill was allegedly kidnapped by the police officers of the police station with the active aid and assistance of a high police official of the Hooghly District. If we look into the order passed by the Division Bench, then it will appear that probably it was in the mind of the Court that if the petition of complaint is filed in the Hooghly District where those police officers were posted, then the complainant would not be in a position to proceed with the petition of complaint properly and freely. Under the present day situation of our country, this apprehension in the mind of the Court cannot be said to be baseless and improper. There are many instances where a complainant or a witness to the occurrence could not depose freely in the Court out of fear. We have already pointed out that it is the duty of the Writ Court to see that proper justice is done in all the cases and a complainant should not be denied of justice simply because of the presence of some influential persons on his other side. Keeping this in mind, the Division Bench passed the said order which in our opinion was proper and appropriate, under such circumstances.

11. Mr. Mukherjee, learned Advocate for Mr. H. P. Singh also drew our attention to the question No. 1 of the reference as made by the learned Additional Sessions Judge as to whether the Sessions Court of Alipore could try the offence which allegedly took place in the Sessions Division of Hooghly. According to Mr. Mukherjee, unless there is order of transfer under Section 407 Cr. PC the Sessions Court of Alipore cannot try the offence which took place in the Hooghly District. Of course, Section 407 of the Cr. PC provides for such a transfer. But it appears that when the Division Bench passed that order, at that time there was no existence of a case and the Division Bench directed the Chief Judicial Magistrate, Alipore to take step under Section 200 Cr. PC and thereafter to proceed according to law. It appears from the record that the learned Chief Judicial Magistrate recorded the initial statements of the witnesses and thereafter, as a prima facie case under Section 366/120B of the IPC was made out, so he committed the case to the learned Sessions Judge, Alipore. The order as passed by the learned Chief Judicial Magistrate in committing the case to the Sessions Judge, Alipore appears to us to be in conformity with the direction of the Division Bench. As a Chief Judicial Magistrate, he is subordinate to the Sessions Judge, Alipore and naturally when a prima facie Sessions triable case has been made out, the said Magistrate has got no other alternative but to commit the same to the learned Sessions Judge to whom he was subordinate, as per the provisions of the Criminal Procedure Code. If we look into order of the Division Bench, then it will appear that direction was given to the learned Magistrate to take all steps as per law. We could easily gather the intention of the Division Bench in passing that order that the case should be tried in the Sessions Division of Alipore and not in the Sessions Division of Hooghly, just because of the fact that there is no specific mention of this in the order of the Division Bench, it cannot be said that the order of commitment as passed by the learned Judicial Magistrate, Alipore is bad in the eye of law. Moreover, if we look into the provisions of Section 462 Cr. PC which runs as follows :