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2002 DIGILAW 328 (CAL)

Md. Salauddin v. State of West Bengal

2002-05-10

GORACHAND DE

body2002
JUDGMENT Gorachand De, J.: By this application under section 482 of the Criminal Procedure Code, 1973 (hereinafter referred to as 'the Code' for brevity), a prayer has been made for quashing the entire proceeding of G. R. Case No. 787 of 1995 which arose out of section (DD) Case No. 153 dated 1.4.95 under section 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act' for brevity). 2. One D. P. Bhattacharyya, Inspector of Police, Anti Rowdy Section, Detective Department, Lalbazar, Calcutta lodged a complaint with the Deputy Commissioner of Police, Detective Department, Calcutta Police alleging that while the de facto complainant was making an inquiry over a dispute between one Dr. Sunil Kumar Mondal and the present petitioner, the petitioner was called at the office of the Anti Rowdy Section on 29.3.95 on the basis of a telegraphic message sent on 28.3.95. On 29.3.95 the present petitioner appeared before the de facto complainant while the latter was examining certain documents in connection with the dispute, and, at that point of time, the petitioner in a whispering tone expressed his intention to reward the de facto complainant suitably if the inquiry report went in his favour. It is also alleged that the petitioner had told the de facto complainant that he would again visit on 1.4.95 in the afternoon when he would hand over a petty amount as a token of good wish to the de facto complainant. So it was alleged in the complaint that the present petitioner was nurturing an evil desire to gratify the de facto complainant. 3. The said complaint was forwarded to the Deputy Commissioner of Police, Detective Department, Lalbazar through the AC, Anti Rowdy Section, Detective Department. On the complaint the DC, DD made an endorsement that "AC, ARS will please register a case under section 12 of the Act and take up its investigation". That endorsement was made on 1.4.95. On the basis of the said endorsement, Mr. P. K. Lahiri, Assistant Commissioner, ARS, DD started Hare Street P.S. Case No. 153 dated 1.4.95 at 14-45 hrs. and took up the case for investigation. On 1.4.95, the present petitioner came before the de facto complainant and placed Rs. 2000/- in cash inside a file which was handed over to the de facto complainant. The present petitioner was immediately arrested. and took up the case for investigation. On 1.4.95, the present petitioner came before the de facto complainant and placed Rs. 2000/- in cash inside a file which was handed over to the de facto complainant. The present petitioner was immediately arrested. A seizure list was prepared in respect of the said cash money along with other papers kept in the file and the present petitioner was produced before the court on 2.4.95 when he was remanded to police custody. On 5.4.95, the charge-sheet was filed under section 12 of the Act and the accused was produced before the Third Special Court at Calcutta where Case No.2 of 1995 was started. Subsequently on the basis of an order passed by this court in Criminal Misc. Case No. 1106 of 1995, the present petitioner was released on bail on executing a bond on 10.4.95. 4. At the time of framing of charge it was detected by the ld. Special Judge that the copy of the letter of complaint dated 25.10.94 sent by Dr. Sunil Kumar Mondal to the Chief Minister and other senior officials of the State was not produced and no copy was served on the accused, and accordingly an order was passed to supply a copy of the said complaint to the present petitioner for the purpose of consideration of charge. But till 30.10.95 the copy was not served to the present petitioner for which the case could not be taken up for consideration of charge. Accordingly, on 4th December, 1995 the petitioner moved this court for quashing the entire proceeding. 5. In course of hearing, the ld. counsel appearing on behalf of the present petitioner practically took two specific points indicating the illegality in the entire proceeding. The first contention is that the Assistant Commissioner of Police, ARS, DD being not an Officer-in-Charge of a police station within the meaning of section 2(o) of the Code and the Lalbazar being not a police station within the meaning of section 2 (s) of the Code, the starting of the instant case was illegal and liable to be quashed. In diluting this point, the ld. counsel further pointed out that the drawing up of FIR under section 154 of the Code can be done by an Officer-in-Charge of the police station and not by any other person. 6. But the ld. In diluting this point, the ld. counsel further pointed out that the drawing up of FIR under section 154 of the Code can be done by an Officer-in-Charge of the police station and not by any other person. 6. But the ld. counsel appearing on behalf of the opposite party-State contended that under section 36 of the Code, the Assistant Commissioner, ARS; DD being a police officer, superior in rank to an Officer-in-Charge of a police station, is competent to exercise the same power of an Officer-in-Charge of a police station and there was no irregularity in the manner of drawing up of the FIR and taking up of the case for investigation by the AC, ARS, DD. 7. In reply, the ld. counsel for the present petitioner placed reliance on the decision of the Kerala High Court in State of Kerala vs. Kolakkacan Moosa Haji & Ors., 1994 Cri. L. J. 1288, in which after analysing sections 2(o) and (s) of the Code and the scope of section 36 of the Code, the High Court took the view that a case is to be instituted by the Officer-in-Charge of a police station, but the investigation can be taken up by any higher officer. The same view was affirmed by the Apex Court in CBI vs. State of Rajasthan, 2001 C. Cr. L. R. (SC) 116. In Regulation 5 of Police Regulation, Calcutta, the power of investigation of a particular case is given to a superior officer, but the charge-sheet is to be filed through the Officer-in-Charge of a police station. In the above cited CBI case (supra) the Apex Court took the view, of course in a different fact situation, that it is permissible for any superior officer of police to take over the . investigation from an Officer-in-Charge of a police station either suo motu or on the direction of the superior officer, but the power to record a case under section 154 is given to the Officer-in-Charge of a police station within the meaning of section 2(o) of the Code. 8. In the instant case it appears that the AC, ARS, DD himself drew the FIR, signed it and thereafter proceeded to investigate the case. This starting of the case by the ARS, DD is not permissible under the Code though its investigation is permissible under section 36 of the Code. 8. In the instant case it appears that the AC, ARS, DD himself drew the FIR, signed it and thereafter proceeded to investigate the case. This starting of the case by the ARS, DD is not permissible under the Code though its investigation is permissible under section 36 of the Code. So drawing up of the FIR itself appears to be not in conformity with the law. Secondly, it is to be noted that the FIR was drawn at 14-15 hrs. on 1.4.95 though the complaint was made on 29.3.95. It appears from the record that the present petitioner was arrested on 1.4.95 and was produced before the ld. Magistrate on 2.4.95 with a forwarding report. In the said forwarding report, it is indicated that the petitioner accused came before the AC, ARS, DD, Lalbazar at about 2-00 P.M. on 1.4.95 and handed over the file containing some papers along with Rs. 2000/- in cash. So, this indicates that the accused was arrested before the drawing up of the formal FIR at 2-45 P.M. on the same day (1.4.95). But surprisingly enough the FIR is completely silent about handing over the file containing cash amount of Rs. 2000/- along with the documents. The delay in lodging the FIR is also not explained though the alleged offence is said to have been committed on 29.3.95. The delay in drawing up the FIR after 72 hours also remains unexplained which strikes at the root of the FIR. 9. In this connection, the ld. counsel for the present petitioner rightly pointed out that in the FIR it is alleged that on 29.3.95, the petitioner expressed "his intention to reward" the complainant "suitably if the inquiry report goes in his favour". In the said complaint, it is also indicated that the petitioner told the de facto complainant that he would again visit his office on 1.4.95 afternoon when he would hand over a petty amount as a token of good wishes. The ld. counsel questioned whether this intention to reward the de facto complainant would come under the purview of section 12 of the Act read with section 107 of the IPC. In section 107 of the IPC, abatement of a thing has been clarified. The ld. counsel questioned whether this intention to reward the de facto complainant would come under the purview of section 12 of the Act read with section 107 of the IPC. In section 107 of the IPC, abatement of a thing has been clarified. Under section 12 of the Act, "whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abatement, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine". 10. So, it is sufficiently clear that the offence under section 12 of the Act is complete as soon as an abetment of the offence under section 7 or under section 11 of the Act is made. The actual offence under section 7 is taking of illegal gratification by a public servant in respect of an official act. Under section 11, the offence is complete when a public servant obtains valuable thing without consideration from person concerned in proceeding or business transacted by such public servant. On 29.3.95 excepting the intention to reward, there was no other action on the part of the petitioner which could be treated as abetment. In fact, abatement of an offence is not contemplated under section 12 of the Act. Simply expressing an intention to reward some public servant for getting a favour cannot be construed as an abetment of the offence under section 7 or under section 11 of the Act unless some tangible action is taken. The offence of abetment can be construed to be complete as soon as some illegal gratification or valuable thing is given to the public servant for getting some favourable order from that public servant. If the public servant accepts that illegal gratification or valuable thing, then the offence under section 7 or under section 11 is complete, but if such acceptance was not there, the simple fact of tendering the illegal gratification or valuable thing for getting a favourable order from a public servant is to be treated as an abetment within the meaning of section 12 of the Act. But in the instant case the alleged tendering of the illegal gratification was done at about 2-00 P.M. on 1.4.95. But in the instant case the alleged tendering of the illegal gratification was done at about 2-00 P.M. on 1.4.95. This tendering of money was not treated as an offence while drawing up the FIR at 2-45 P.M. It is already stated above that in the FIR, the alleged offence is stated to be the 'intention' of the petitioner. It was merely an 'intention' and not an 'abetment'. 11. In this connection, it is also to be noted that the copy of the complaint made to the Chief Minister and other higher officials was never produced before the court nor it was handed over to the present petitioner and as such, the contents of that complaint were unknown to the present petitioner when he was called on by a telephonic message on 29.3.95. The present petitioner was brought to the ARS, DD on the basis of a telephonic message that his presence was necessary for an urgent work. The urgent work was never disclosed. So it would not be possible on the part of the present petitioner to know as to for what benefit he was to give an illegal gratification. Moreover, the present petitioner did not go to the Lalbazar on 1.4.95 of his own. It appears from an endorsement of the AC, ARS, DD on the back of the telephonic message that the petitioner was directed to come on 1.4.95 at 1-00 P.M. along with all documents. So, the statement in the FIR that the petitioner told the de facto complainant that he would again visit the office on 1.4.95 afternoon for handing over a petty amount was not correct, because the appearance of the petitioner on 1.4.95 was made compulsory by the AC, ARS, DD. 12. The ld. counsel appearing for the State tried to argue that the offence was started on 29.3.95 and it was completed on 1.4.95 and as such, there was no illegality in the FIR. But it is already discussed above that in the FIR it is simply indicated that the present petitioner expressed his intention and nothing more. So, there was no offence on 29.3.95 and accordingly, drawing up of the FIR was without any basis. But it is already discussed above that in the FIR it is simply indicated that the present petitioner expressed his intention and nothing more. So, there was no offence on 29.3.95 and accordingly, drawing up of the FIR was without any basis. If mere intention to bribe without any corroboration is treated to be an offence, then there will be no end of drawing up of FIR at the instance of the public servant, and it is apprehended that it will be misused at the hand of a class of public servant for extracting illegal gratification. So it is rightly argued by the ld. counsel for the present petitioner that the alleged offence, which according to the de facto-complainant was an evil desire to gratify, not supported by any overt act, nor witnessed by any other independent or available witness, was not complete on 29.3.95 and as such, no case was born on that date. Hence, placing reliance on the guidelines indicated by the Apex Court in AIR 1992 Supreme Court 604 (State of Haryana vs. Bhajan Lal) it is held that the FIR does not constitute any offence or make out a case against the accused. Accordingly, the entire investigation is bad in law. 13. In view of the discussion hereinabove made and keeping in view the facts and circumstances, I hold and conclude that the drawing up of FIR in this case is bad in law and the consequent investigation and filing of charge-sheet in respect of an offence which is not complete on 29.3.95 is illegal and cannot be sustained in law, and that allowing the proceeding to continue would be an abuse of the process of the Court, and accordingly in the light of the observations made by the Apex Court in 1977 Supreme Court Cases (Cri) 404 (State of Karnataka vs. L. Muniswamy) I come to a conclusion that ends of justice require that the proceeding ought to be quashed. 14. In the result, the application succeeds and the entire proceeding of G. R. Case No. 787 of 1995 is hereby quashed. The accused petitioner be discharged from the bail bond. All interim orders vacated. Let a copy of this order along with the L.C.R. be sent to the Court below forthwith. Appeal succeeded.