JUDGMENT S.C. Majumdar, J. This is an application under S.401 and 482 of the Code of Criminal Procedure, 1973 for quashing the charge framed against the accused petitioner under Ss. 217 and 218 of the Indian Penal Code read with S.34 of the Penal Code and S.13B(c) of the Calcutta Police Act 1866 along with S.34 of the Penal Code in case No. C/96 of 1970 by Metropolitan Magistrate's 6th Court, Calcutta. The facts of the case are that Jugal Kishore Dhandhania filed a petition of complaint to the effect that on 7.11.1969 at about 9.30 p.m. about 25 men came to his premises at No. 203, Chittaranjan Avenue and hurled bombs which exploded with loud bang but he escaped injury. He rang up Lall Bazar Police Station seeking for police help and also informed Jorasanko police station about this. Fortyfive minutes after the incident S.I. P. Chakraborty of Jorasanko police station came to the place of occurrence and took away some bombs and the remnants of the exploded bomb. On the following day i.e. on 8.11.69, the complainant wrote a letter to the accused No.1 Ajit Kumar Chatterjee narrating the incident and asking him to take up the case. On 9.11.69 at about 11.15 pm. one of the offenders who threw bomb on the complainant, was arrested by S.I. S. Ghosh who was accused No.3 in the case before the Metropolitan Magistrate. The accused No. 3 took the said person on arrest to the accused No. 1. Thereafter the complainant wanted to get information regarding the said case and about the persons on arrest, but without any success. The complainant was suspicious that proper investigation was not being done in the case and he moved the Joint Commissioner of Police and even the then Deputy Chief Minister. Again on 14.12.69 there was another incident of bomb throwing at the premises No. 138, Ramdulal Sarkar Street, Calcutta but nothing was done against the offenders. The complainant was suspicious that proper investigation was not being done in the case and he moved the Joint Commissioner of Police and even the then Deputy Chief Minister. Again on 14.12.69 there was another incident of bomb throwing at the premises No. 138, Ramdulal Sarkar Street, Calcutta but nothing was done against the offenders. Again on 2.1.70 the complainant moved a petition before the Additional Chief Presidency Magistrate, Calcutta praying for an order on D.C.D.D. for investigation and under S.156(3) of the Code of Criminal Procedure the matter was intimated to D.C.D.D. Thereafter the complainant came to know that one person was arrested by accused No.3 on 9.11.69 and he was taken to the accused No.1 but the accused No. 1 without taking any bond for appearance of the arrested person released him in violation of his statutory duties under S.76 of the Calcutta Police Act, 1866 which lays down that "every person taken into custody without a warrant by a police officer shall be taken to the Police Station in order that such person may be detained until he can be brought before a Magistrate, or until he shall enter into recognizances, with or without sureties, for his appearance before a Magistrate". The corresponding provision of the Indian Penal Code also casts a duty on a Police officer to take cognizance of an offence when an offender is arrested and when an arrest is made, by a Police officer under S.46 of the Code of Criminal Procedure, he should not be released except in accordance with law. It was also the case of the petitioner that there was violation of the statutory duties of the police in this case under S. 13B(c) of the Calcutta Police Act, 1866. Thus in this case, there was a dereliction of duty of the police officer who is the petitioner in this case. In the case started before the Metropolitan Magistrate’s court, the complainant examined eleven witnesses and on scrutiny of the evidence the learned Metropolitan Magistrate framed charges against the present petitioner and others. The charge framed against the accused No. 1 was under S. 217, 218/34 of the Indian Penal Code and under S. 13B(c) of the Calcutta Police Act, 1866, read with S. 34 of the Penal Code. The charge framed against the accused No. 1 was under S. 217, 218/34 of the Indian Penal Code and under S. 13B(c) of the Calcutta Police Act, 1866, read with S. 34 of the Penal Code. Against accused No.2 charge was framed under S. 218 of the Indian Penal Code and S. 13B(c) of the Calcutta Police Act, read with S.34 of the Indian Penal Code and against accused No.3 under S.217 of the Indian Penal Code and under S. 13B(c) of the Calcutta Police Act read with S. 34 of the Indian Penal Code. 2. It is against the charge that was framed in this case that the present petitioner has moved the court for quashing the charge. The only point for consideration is whether on the basis of the facts, evidence and circumstance on record the charge as framed can stand. 3. It is well settled that the principle of quashing a proceeding after it charge has been framed rests upon the proposition that if on the face of the record and on the basis of the available evidence, if on rebutted, no case is made out then the prosecution should not be allowed to continue in a fruitless way. In the case of R.P. Kapoor v. State of Punjab reported in 1960 SC 866 this proposition has been laid down which has been widely followed in subsequent decisions Now the learned Magistrate has held that in this particular case the G.D. entry No. 138 dt.7.11.69 was made, but long after that the First Information Report was recorded which is marked Ext. 15. This recording of the First Information Report long after the G.D. entry is ipso facto an act of negligence on the pari of the Police Officer. Secondly, the finding of the learned Magistrate is this that the man who was arrested by the accused No.3 was produced before the accused No.1 and the accused No.1 without taking any bond for recognizances and without any reason whatsoever, released him and thirdly, the reasoning of the learned Magistrate was that the accused person bad a duty to perform to the State and to the public in question under the provisions of the Police Act, 1866 and that duty having been departed from, the charges were framed. Now let us see what Sections 217 and 218 lay down: Section 217: Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save any person from legal punishment, or subject him to a less punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with line, or with both. Section 218: Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both. 4. Section 13B(c) of the Calcutta Police An, 1866 also lays down that any Police Officer who is guilty or any wilful breach or neglect of any provision of law or of any rule or order which it is his duty as such Police Officer to observe or obey, is liable to imprisonment which may extend to three months or to fine which may extend to one hundred rupees and which may be deducted from any salary due to him or to both. 5. Therefore mere dereliction cannot be sufficient to sustain the charge but there must be the requisite mens rea behind the dereliction. The basis of the cause of action of the complainant is the G.D. entry No. 856 dt. 7.11.69. That G.D. entry is absolutely not specific. 5. Therefore mere dereliction cannot be sufficient to sustain the charge but there must be the requisite mens rea behind the dereliction. The basis of the cause of action of the complainant is the G.D. entry No. 856 dt. 7.11.69. That G.D. entry is absolutely not specific. It dose not mention any person by name or by appearance. It only mentions the incident of hurling of bombs and nothing else. About the arrest of a person by accused No.3, the production of the said person before the accused No.1 and ultimately of his release by accused No. 1 there is practically speaking no evidence. Firstly, because the mere taking in a jeep does not go to show that he was arrested and it is clear explanation of the petitioner that the said man was taken for interrogation but as the complainant did not take the risk of identifying the said man nor did take the risk of disclosing the name of the club or the miscreants and wanted to make out a case getting him behind the curtain, the Police Officer did not think it proper to keep the said man who was brought for interrogation in custody because that would have amounted to wrongful detention which would be actionable both in Civil and Criminal Courts. It is true there has been considerable delay in drawing up the First information Report, but drawing up of the formal First Information Report, has nothing to do with the investigation of the case as after local investigation wars made by the officers and after all probable witnesses of the locality are examined, then the only formal First Information Report need be drawn up and the allegation of dereliction of duty simply on the basis of a delayed First Information Report is not sufficient. 6. As we have already pointed out Ss. 217 and 218 of the Indian Penal Code clearly show that without requisite mens rea Or allegation or prima facie proof of the same, no charge can be based and the same thing can be said of S. 13B(c) of the Police Act, because here also it says that a Police Officer is liable to imprisonment only in case he is guilty of any wilful breach or neglect of any provisions of law. On this point there is decision of the Supreme Court case under S. 44 of the Madras Police Act, viz. Biyabani S.A. v. State of Madras ( AIR 1954 SC 645 ). In that case a Police officer absented himself from duty without any information for a period of more than three months. When he came and sought for permission to join he was taken to custody and convicted and sentenced under S.44 of the Madras Police Act. His defence was that he was kidnapped by the Rajakars and after getting him free from the kidnappers, he made himself available to his authorities. He could adduce no evidence of his kidnapping. It was only his statement before the authorities. It was held by the Supreme Court that S.44 of the Madras Police Act makes out that absence from duty must be a wilful act of dereliction and not merely a physical act. A physical act of absence may form the basis of disciplinary proceedings but not of a criminal prosecution. 7. Under these circumstances, it is clear that here also the wilful neglect has not been made out from any iota of evidence on record. Under these circumstances, the aforesaid case must be followed here and the proceeding pending against the petitioner must be quashed. Hence, it is ordered that the Rule be made absolute. P.C. Borooah, J : I agree. Proceeding quashed.