Satyaranjan Pal v. STATE OF WEST BENGAL — 1991 DIGILAW 475 (CAL)

JUDGMENT 1. THESE revisional applications are for quashing the proceeding being Special Case No. 1 of 1990 under Sections 409/ 120b of the Indian Penal Code pending before the 2nd Special Court at howrah. 2. THE facts leading to the instant revisional applications are as follows : one consignment of 5,000 pieces of nonjudicial stamps of denomination Rs. 40/- worth Rs. 2 lakhs was despatched by the Deputy Controller of Central stamp Depot, Indian Security Press, Nasik to the Treasury Officer, Suri birbhum under invoice No. NP-WB-254 and R R NO. PJ 474094 dated 15.7.86. The said consignment reached Howrah Railway Station on 20.9.86 in a sealed van with seal intact D.N. Ram, Assistant Parcel Clerk, S.E. Railway, who is petitioner no. 3 in Criminal Revision No. 661 of 1991 unloaded the box containing the stamps and kept the same in parcel strong room for safe custody in presence of R.D.F. Personnel. He, however, issued D.D. Messages to all concerned although the same was not delivered to them to conceal the actual position. Bimalendu Das, Commercial Supervisor, Strong Room - the petitioner No. 1 of Criminal Revision No. 661 of 1991 acknowledged the same from Sri D.N. Ram for safe custody and entered the particulars of the box in the sealed van unloading book. While the box was intact he with a purpose mentioned in the said register that one iron bans1 of the box was torn. On 22.9.86 the consignment was despatched to Srui. By P.K. Debnath, Assistant parcel Clerk who is petitioner no. 2 in the said Criminal Revision but the Guard guidance Sheet as prepared by Sri Debnath was not in conformity with the physical condition of the box with added entry. When the consignment was e opened at Sure Treasury office the entire stamps were found to be and were replaced by stone slabs, packets of paper, On receipt of information that theft has been committed causing huge loss to the Government, one case being r. C. No. 11/scb/87 Calcutta dated 7.10.87 was started under Section 379 of Indian Penal Code. Another consignment of Court fees stamp of denomination of Rs. 4 and 5/ worth Rs. Another consignment of Court fees stamp of denomination of Rs. 4 and 5/ worth Rs. 9,60,000/ - was despatched from the Central Stamp Depot, india Security Press, Nasik to asury Officer, Ramporhat under the invoice No. NP-WB-446 dated 4.9.00 and PW Bill No PJ-473439 and the said consignment reached Howrah Station in good condition on 16. 9.86. It was received by A.K. Haldar Assistant Parcel Clerk, who handed over the same to M.R. Bhattacharjee 'commercial Supervisor of Eastern Railway, Parcel section, Howrah who in his turn duly entered the particulars of the consignment in the relevant register. Satyaranjan Pal the petitioner in criminal Revision No. 290 of 91 who was Commercial Supervisor, Howrah parcel Strong Room had, however, surreptitiously noted the condition of the box as damaged in the strong room register but did not take any step to intimate the other authorities including the R.P.F. by issue of any message to avoid detection. The said box was despatched to Rampurhat by rail on 22.9.87 by R.K. Debnath one of the petitioners in Revisional Case No. 661 of 1991. He wanted to push through the said box with minor defect while the same was found to be a major defect and guard concerned mentioned it in the guard Guidance Sheet prepared by P.K. Debnath. The consignment reached rampurhat Railway Station on 22.9.87 but on open delivery the box was found to contain similar types instituted materials as in the other case and the entire stamps were found to be missing. On receipt of an information that theft has been committed in respect of Government property as mentioned above a case under Section 379 of Indian Penal Code being R. C. No. 13/scb/87 Calcutta dated 7.10.87 was started. 3. ON completion of investigation the police officer submitted a single charge-sheet against Satyaranjan Pal, Bimalendu Das, Dinanath Ram and prabhat Kumar Debnath alleging that they committed offences punishable under Section 409/120b of the Indian Penal Code. The said charge-sheet along with letter dated 2.1.90 was sent to the learned Judge. Second Special court, Howrah who on the basis of such charge-sheet appears to have taken cognizance and issued processes upon the accused persons by his order dated 2.1.90. 4. The said charge-sheet along with letter dated 2.1.90 was sent to the learned Judge. Second Special court, Howrah who on the basis of such charge-sheet appears to have taken cognizance and issued processes upon the accused persons by his order dated 2.1.90. 4. BEING aggrieved by such charge sheet and cognizance as has bin taken by the learned Judge by his order dated 2.1.90, the accused Satyaranjan Pal has filed criminal Revision No. 290 of 1991 and other accused persons i.e. Bimalendu Das, Prabhat Kumar Debnath and Dinanath Ram Filed Criminal revision No. 661 of 91 for quashing the cognizance as has been taken by the learned Judge, 2nd Special Court and also for quashing the proceeding in which such cognizance has been taken. Mr. Shekhar Kumar Bose, the learned advocate has appeared for the petitioner in Criminal Revision No. 290 of 1991 and Mr. C.R. Das, the learned advocate has made his submission on behalf of the petitioners in Criminal revision No. 661 of 1991. Both of them have challenged the aforesaid cognizance and the proceeding on the same ground. They have argued that the impugned proceeding is bad in law inasmuch as no sanction for prosecution against the petitioners who are the public servants, was obtained as required under Section 197 of the Code of Criminal Procedure. They have also argued that as all the documents and statements which were required to be submitted under Section 173 (5) of the Code of Criminal Procedure along with the police report/charge-sheet were not placed before the learned Judge and were not taken into consideration by him at the time of taking cognizance, such cognizance as has been taken by him is bad in law and cannot be allowed to stand. In this connection they have referred to decision in the case of Satya narayan Musadi vs. State of Bihar reported in AIR 1980 Supreme Court 506. They have also argued that the facts disclosed in the Police report on the basis of which the learned Judge has taken cognizance do not constitute the offences under Section 409/120b and that such facts do not disclose that the accused persons entered into any agreement to commit the alleged offence or that there was any prior meeting of minds before the commission of the alleged offence. It has also been argued that there is no allegation in the police report that the consignment in question was entrusted to the custody of the petitioners or that they committed criminal breach of trust by removing the stamps from he box of the consignment. They have further argued that the uncontroverted allegations as made in the Police report do not establish the alleged offence and that in the interest of Justice the prosecution on the basis of such police report should not be allowed to continue. In support of the argument they have referred to a decision in the case of Madhavrao Jiwaji Rao Scindia vs. Samnhajirao Chandrojirao Angre, reported in AIR 1988 Supreme Court 709. They have also argued that offences involved in case No. R.C. 11/SCB/87 and case No. R.C. 13/scb/87 are two distinct and separate offences alleged to have been committed by separate set of accused persons, that both the offences cannot and should not be tried in one case and that the accused persons will be highly prejudiced in their defence if such offences are tried together in one case. 5. MR. Bhattacharjee, the learned Advocate appearing for the State has opposed the criminal revision. He has argued that no sanction is necessary under Section 197 of the code of Criminal Procedure for the prosecution of the petitioners inasmuch as they were not appointed by the Central Government and can be removed from the office without the sanction of the Central government. He has also argued that the consignments in question were actually entrusted with the petitioners who were employees working in the railway Parcel Strong Room and that they jointly removed the stamps from the box while it was kept in the said strong room. However, it was conceded that all the essential ingredients of offence punishable under Section 409/120b have not been disclosed in the charge-sheet. 6. FIRST let me consider whether any sanction of the Government is necessary for taking cognizance against the petitioners under Section 197 of the Code of Criminal Procedure and whether the cognizance as taken by the learned Judge is bad in law for lack of such sanction. It is not disputed that the petitioners are railway employees working at Howrah Railway Station and that they are public servants within the meaning of section 21 of the Indian penal Code. It is not disputed that the petitioners are railway employees working at Howrah Railway Station and that they are public servants within the meaning of section 21 of the Indian penal Code. It is also not disputed that no sanction was obtained from the government for prosecution of the present petitioners. Now the question is whether Section 197 of the Code of Criminal Procedure is applicable to the present petitioners. Satyaranjan Pal is a Commercial Supervisor Howrah (Parcel) and Bimalendu Das is the Commercial Supervisor, Parcel Strong room, D. N. Ram and P. K. Debnath are Assistant Parcel Clerks. There is nothing on record that they were appointed directly by the Central government nor is there any material to show that they cannot be removed from their office without the sanction of the Government concerned. Section 197 inter alia provides that no Courts shall take cognizance of an offence committed by Public Servants while acting or purporting to act in the discharge of his official duty without the previous sanction of the Government where such public servant is not removable from his office save by or with the sanction of the Government, So Section 197 is not applicable to all public servants. It is applicable to those public servants who are not removable from their office save by or with the sanction of the Government concerned. As there is nothing on record to show that the petitioners fail within the said category of Government servants, this Court is of the Opinion that Section 197 is not applicable in the case of the present petitioners and the Court may take cognizance of an offence committed by them in discharge of their duties without the previous sanction of the Government. So this contention fails. The prosecution has alleged that the accused-petitioners have committed offences punishable under Sections 409 and 120b of the Indian penal Code and the investigating officer has submitted report/charge-sheet accordingly and the learned Judge, Special Court appears to have the cognizance on such report as per his order dated 2. 1. 90. So this contention fails. The prosecution has alleged that the accused-petitioners have committed offences punishable under Sections 409 and 120b of the Indian penal Code and the investigating officer has submitted report/charge-sheet accordingly and the learned Judge, Special Court appears to have the cognizance on such report as per his order dated 2. 1. 90. It has been argued on behalf of the petitioners that the facts disclosed in the police report on the basis of which the learned Judge took cognizance do not constitute the offences punishable under Sections 409/120b of the Indian Penal Code, that the learned Judge should not have taken cognizance on the basis of such report and that cognizance as taken by the learned Judge should be quashed and set aside. The learned Judge, Special Court appears to have taken cognizance under the provision of Section 190 (1) (b) of the Code of Criminal procedure. Under the provision of 190 (1) (b) the Magistrate (in the instant case the Judge Special Court) may take cognizance of any offence upon a police report of facts which constitute such offence. Thus it is clear that to enable the Magistrate/judge to take cognizance of any offence upon a police report, the said report shall contain the facts which constitute the alleged offence. In this case the accused persons are alleged to have committed offences of criminal breach of trust and criminal conspiracy. But in the four corners of the police report submitted in this case, there are no allegations that the accused persons entered into an agreement to commit an offence, nor is there any allegation that there was any prior meeting of minds to commit any offence. The charge-sheet/police report appears to be completely silent on this point. 7. THERE is no specific allegation in the police report that the accused persons were entrusted with the box containing the stamps or with any dominion over the said property. However, it has been pointed out on behalf of the opposite party-State that the petitioners are all employees working in the parcel strong room at Howrah Station. That the boxes containing the stamps were kept in the said strong room for safe custody and that therefore, the petitioners were entrusted with the said property or with dominion over the same so long the boxes remained in the strong room. That the boxes containing the stamps were kept in the said strong room for safe custody and that therefore, the petitioners were entrusted with the said property or with dominion over the same so long the boxes remained in the strong room. But from the police report itself it is very much clear that there were other railway employees working in the said strong room. So on the basis of the fact that the boxes were kept in the strong room, it cannot be said that the said boxes were entrusted exclusively to the petitioners or that they exclusively had any dominion over the said property. There is no allegation in the Police report that while the said boxes in the strong room the petitioners removed the stamp from the said boxes were in the strong room the petitioners removed the stamps from the said boxes and placed stone slabs and other papers in the boxes. In this case two separate offences are alleged to have been committed. One offence is alleged to have been committed in respect of the consignment under invoice no. NP-WB-254 and RR No. PJ 4740094 dated 15.7.86 and this has given rise to case No. RC/scb/87. Another offence is alleged to have been committed in respect of the consignment under invoice No. NP-WB-446 dated 4.9.86 and pw Bill No. PJ 473439 and this has given rise to case No. RC 13/scb/87. Prosecution made an attempt to connect accused Satyaranjan Pal with the coinssion of offence involved in case No. RC 13/scb/87 by alleging that he being a Commercial Supervisor, Howrah Parcel Strong Room surreptitiously noted the condition of the box as damaged in the strong room register but did not intimate other authorities by issuing any message. Besides this there is no other specific allegation against accused Satyaranjan Pal to connect him with the commission of the alleged offences. By no stretch of imagination it can be said that the said allegation, if uncontroverted, is prima facie sufficient to establish that he entered into an agreement with the other accused persons to commit an offence or that he committed the offence of Criminal breach of trust. 8. C The prosecution also attempts to connect the other accused persons with the commission of the offence involved in Case No. RC/scb/87. 8. C The prosecution also attempts to connect the other accused persons with the commission of the offence involved in Case No. RC/scb/87. It has been alleged that Assistant Parcel Clerk, D.N. Rani unladed the box, kept the same in the parcel strong room for safe custody but issued D/d Message to all concerned without delivering the same to them with a view to concealing the actual position. It has also been alleged that petitioner Bimalendu Das, commercial Supervisor, Strong Room acknowledged the same from Sri D.N. Ram, entered the same in the relevant book and that though the box was intact he with a purpose mentioned in the said book that one iron band of box was torn. It has further been alleged that the petitioner, P.K. Debnath despatched the consignment by rail on 22.9.1986 and prepared the Guard Guidance Sheet which was not in conformity with the actual physical condition of the box. With regard to the other consignment it has also been alleged by the prosecution that this petitioner also prepared the Guard Guidance Sheet which was not in conformity with the physical condition of the box. All these allegations if uncontroverted are not at all criminal conspiracy or criminal breach of trust and this court is of the opinion that even if these allegations are established by evidence then chances of conviction are bleak. In this connection, decisions of the Supreme Court in the case of Madhavrao Jacqui Rao Scindia vs. Sambhqjirao Chandrojirao Angre (supra) may be referred to. The Supreme court has observed as follows : "the legal position is well established that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the- Court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at preliminary stage. " Thus from the above decision it is clear that where the uncontroverted allegation as made by the prosecution does not prima facie establish the alleged offence and where in the opinion of the Court chances of an ultimate conviction are bleak, the Criminal prosecution should not be allowed to continue and should be quashed. In the instant case, as I have already stated above, the allegations as made in the charge-sheet/police report on the basis of which the learned Judge appears to have taken cognizance o not constitute the offence of criminal conspiracy or Criminal breach of trust. It is also clear to me that the allegations, if uncontroverted, do not prima facie establish the alleged offence. It has also been conceded on behalf of the opposite parties that all the essential ingredients of the alleged offences have not been alleged in the police report. So I hold that on the basis of such charge-sheet/police report the learned Judge should not have taken cognizance and that cognizance as taken by him is bad in law and should, therefore, be quashed. 9. THE cognizance as taken by the learned Judge has also been challenged on another ground. It has been argued that the documents and the statements cited in the Police report are very much the part of the Police report, that said documents and statements were not placed before the learned Judge at the time of taking cognizance by him that he took cognizance mechanically/without applying his mind to the facts of the case and that cognizance as taken by him is, therefore, bad in law. Charge-sheet/police report was filed under the provision of Section 173 (2) of the Code of Criminal Procedure. Charge-sheet/police report was filed under the provision of Section 173 (2) of the Code of Criminal Procedure. Section 173 (5) enjoins that when the police offer submits his report/charge-sheet he shall forward to the Magistrate along with the report all the documents or relevant extracts thereof on which the prosecution proposes to rely and all the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. So it is clear that the charge-sheet/police report is to be submitted to the Magistrate along with aforesaid documents and statements and that such documents and statements are part of the said polices report. It has been so held by the supreme Court in the case of Satya Namyan Musadi vs. Slate of Bihar (supra). Since the said documents and statements are the part of the police report they are to be placed along with said report before the Magistrate/judge at the time of taking cognizance by them and the learned Magistrate/judge before taking cognizance must look into the said reports and also into the documents and statements. But in the instant case simply the Police report together with a letter was placed before the learned Judge and the learned Judge appears to have taken cognizance only upon such police report without looking into the aforesaid documents and statements. So it appears to me that the learned judge has taken cognizance mechanically without applying his mind to the facts of the case and such cognizance is also bad in law. 10. IN the instant case two separate offences are alleged to have been committed one in respect of the consignment under invoice No. NP-WB-254 and RR No. PJ 474094 dated 15. 7. 86 and the other in respect of consignment under invoice No. NP-WB-446 dated 4. 9. 86 and PW. Bill-No. PJ 473439. For each offence separate case was started. But after completion of investigation the police officer filed only one charge-sheet against all the accused persons in both the cases and the learned Judge appears to have taken cognizance on the basis of such charge-sheet against all the accused persons. 9. 86 and PW. Bill-No. PJ 473439. For each offence separate case was started. But after completion of investigation the police officer filed only one charge-sheet against all the accused persons in both the cases and the learned Judge appears to have taken cognizance on the basis of such charge-sheet against all the accused persons. It has been argued on behalf of the petitioners that since the aforesaid two offences are distinct and separate and are alleged to have been committed by different sets of persons they cannot be tried together in the same case and that the petitioners would be highly prejudiced in their defence if such trial is allowed to be continued. In my opinion the contention as raised on behalf of the petitioners must be upheld. The petitioner Satyaranjan Pal is alleged to have committed the offence in respect of consignment under invoice No. NP-WB-446 dated 4. 9. 86 and PB Bill No. PJ 473439 and there is no allegation that he also committed the offence in the respect of the other consignment. Similarly petitioners D. N. Ram and Bimalendu Das are alleged to have committed the offence in respect of the other consignment and there is no specific allegation that they also took part in commission of offence which is alleged to have been committed by Satyaranjan Pal. Since there were two separate and distinct offences alleged to have been commiitted by two sets of persons and since there were two separate cases started, the accused persons by submission of one charge-sheet would be seriously prejudiced in their defence. In that view of the matter the single charge-sheet/police report as submitted against the accused of both the cases must be set aside. However, the investigating officer may file separate/supplementary charge-sheets against the accused of each case if it is not otherwise barred. In view of what I have held above the instant revision must be accepted. 11. REVISIONAL applications are allowed. Rules are made absolute. The proceeding being Special Case No. 1 of 1990 pending before the 2nd Special court, Howrah under Sections 409/120b is hereby quashed. 12. LET the case record together with the copy of this order be sent down immediately. This Judgment shall govern criminal revision No. 290 of 1991 and criminal Revision No. 661 of 11991. The petitioners - accused are discharged from heir bail bonds. Rules made abs lute.