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2003 DIGILAW 172 (CAL)

Sisir Kumar Bhattacharya v. State of West Bengal

2003-04-04

GORACHAND DE

body2003
JUDGMENT G.C. De, J. By this application under section 482 Cr. P.C. the present petitioner Sisir Kumar Bhattacharya, Chief Inspector of Food and Supplies, Government of West Bengal, has prayed for quashing of the charge sheet of the proceeding, being Metiaburuz P.S. Case No. 155 (6)/1994 dated 6.6.94 under sections 13 and 14 of the Foreigners Act now pending in the Court of Sub-divisional Judicial Magistrate, Alipore being B.G.R. Case No. 2428 of 1994. The present application was filed on 13th November, 2000 and by an order dated 15.11.2000 Rule was issued upon the State and it was also ordered that during the pendency of the Rule there shall be a stay of further proceeding in connection with the said B.G.R Case No. 2428 of 1994. 2. Lower Court records of the said B.G.R. Case No. 2428 of 1994 was also produced in course of hearing and Mr. Milan Mukherjee, ld. Counsel appearing on behalf of the present petitioner challenged the entire proceeding mainly on the ground that no case was made out against the present petitioner under sections 13 and 14 of the Foreigners Act, that investigation was perfunctorily made and the charge sheet was submitted against the present petitioner without any basis and that cognizance in the case after filing of the charge sheet was wrongly taken by the court below though no sanction was obtained under section 197 of the Code of Criminal Procedure. 3. Mr. S. Pachal, ld. Counsel appearing on behalf of the State respondent however contended that the case was properly investigated and thereafter charge-sheet was filed against four accused persons including the present petitioner showing him as absconder. It is also argued that steps have already been taken for obtaining sanction against the present petitioner and that the present petitioner against whom the process has already been issued by the court is not competent to move the present application without appearing before the ld. Magistrate who has already taken cognizance in the case. So Mr. Pachal contended that at this stage it would not be proper for this court to quash the entire proceeding, as prayed for by the petitioner. 4. The fact leading to the case is that the present petitioner namely, Sisir Kumar Bhattacharya was the Chief Inspector in the Directorate of Rationing, Govt. So Mr. Pachal contended that at this stage it would not be proper for this court to quash the entire proceeding, as prayed for by the petitioner. 4. The fact leading to the case is that the present petitioner namely, Sisir Kumar Bhattacharya was the Chief Inspector in the Directorate of Rationing, Govt. of West Bengal, and during the period from 11.3.93 to 8.11.96 he was posted as the Chief Inspector at Garden Reach Rationing Office. In course of discharging his official duties, it is alleged that he issued one ration card to a Pakthoon national, namely, Md. Nabi Khan and thereby helped that man to obtain citizenship of India illegally, and thus the present petitioner committed an offence under section 13 of the Foreigners Act. 5. It appears from the L.C.R. that the written complaint was sent to the Inspector in charge of Metiaburuz P.S. by D.I.O. (F.S.), South 24 Parganas alleging that one Md. Rahim Khan, son of late Kamal Khan, and Nabi Khan, son of late Lal Khan were Pakthoon nationals and they were arrested from Metiaburuz P.S. on 4.6.94 in connection with Metiaburuz P.S. case No. 152 dated 4.6.94 under sections 372/373/366A/354/366/ 120B of I.P.C. In course of their examination it was ascertained that accused Rahim Khan used to reside at P. 41 Golam Rasul Market P.S. Metiaburuz, District South 24 Parganas and accused Nabi Khan used to reside at B-44 Iron Gate Road P.S. Garden Reach, Calcutta 24. It was also ascertained that both of them had entered into Indian Territory and started residing in India without any valid documents or authority. Accordingly, both of them were forwarded to the court of S.D.J.M. Alipore for prosecution under section 14 of the foreigners Act after starting another case, being Metiaburuz P.S. Case No. 155 dated 6.6.94 and showing both the accused persons arrested in connection with the said case. 6. Police thereafter investigated the case and both the accused persons during the period of investigation were directed to be released on Bail by the ld. Sessions Judge, Alipore. On 13.5.96 Police submitted charge-sheet No. 85 dated 12.4.96 under section 14 of the Foreigners Act against Rahim Khan, Md. Nabi Khan, Sisir Bhattacharya and Mohan Lal Mondal showing the last two accused persons as absconders. On the same date the ld. S.D.J.M. by his order dated 13.5.96 took cognizance and issued W/A against the absconding accused persons. On 13.5.96 Police submitted charge-sheet No. 85 dated 12.4.96 under section 14 of the Foreigners Act against Rahim Khan, Md. Nabi Khan, Sisir Bhattacharya and Mohan Lal Mondal showing the last two accused persons as absconders. On the same date the ld. S.D.J.M. by his order dated 13.5.96 took cognizance and issued W/A against the absconding accused persons. Since the W/A issued were not executed till 4.9.2000, on 16.11.2000 the present petitioner moved an application before the ld. S.D.J.M. praying for stay of further proceeding of the case in view of the order passed by this court. On 16.2.2001 the ld. S.D.J.M. Alipore on perusal of the certified copy of the order passed by this Court stayed further proceeding of the case with a direction to transmit the L.C.R. to this Court as directed in the Rule issued. 7. In the charge-sheet it was clarified that the present petitioner knowing fully well that Md. Nabi Khan a foreign national issued permanent ration card in his name and thereby helped Nabi Khan not only to stay in India as a citizen but also assisted Nabi Khan to contravene the provision of the Foreigners Act. In course of hearing Mr. Pachal further clarified that on the basis of the said permanent ration card Nabi Khan was competent to claim citizenship of this country and thereby the present petitioner abated to contravene the provision of the Foreigners Act. 8. In course of hearing in this case a supplementary affidavit on behalf of the present petitioner was filed pointing out that there was an existing ration card in the name of Nabi Khan during the period from 1989 to 1992. It was also pointed out that the said Nabi Khan was holding the ration card number 948164 issued in his name and it was registered in Ration Shop No. 3534 on 22.6.89. It was also indicated that for non-drawal of ration the said card was cancelled on 3.7.92. 9. Mr. Mukherjee, appearing on behalf of the present petitioner pointed out that issuance of the present ration card in the name of Nabi Khan is a simply renewal of the cancelled card as prayed for by him. It was also indicated that for non-drawal of ration the said card was cancelled on 3.7.92. 9. Mr. Mukherjee, appearing on behalf of the present petitioner pointed out that issuance of the present ration card in the name of Nabi Khan is a simply renewal of the cancelled card as prayed for by him. It was also argued that regular application for renewal was filed, before the department and on being satisfied about the genuinity along with the certificate issued by the local Councillor a new ration card was issued by way of renewal of the old card and as such the present petitioner had no knowledge about any illegality or impropriety in this regard. 10. In this case, specific point raised by the present petitioner is that the issuance of ration card which gave rise the present case is not altogether a new card, but it was renewal of an old card which was cancelled for non-drawal of ration as early as on 3.7.92. On production of the relevant Acts and Rules and also the Compendium of Orders and Circulars as issued by the Directorate of Rationing, the learned counsel on behalf of the present petitioner pointed out that there is a six-tier system for issuance of ration card which may be summarised as follows : (1) Forms are issued after examination and checking the relevant documents. (2) Filled in applications are received after checking necessary enclosed documents. (3) Applications are thereafter entered in the movement section. (4) Applications are sent to the Sub-Inspector for spot enquiry. (5) After being satisfied on the enquiry report, order of issue is given by the authorised officer. (6) The ration card is thereafter prepared and placed for signature of the authorised officer who signs his name after following the procedure. 11. The role of a Chief Inspector, like the present petitioner, is to put his signature on the ration card after it is being forwarded and cleared up by the office with the order of issue. It is interesting to note from the lower court records and the documents annexed with the charge-sheet that the proper enquiry was not made against the present petitioner in accordance with the rule. It is interesting to note from the lower court records and the documents annexed with the charge-sheet that the proper enquiry was not made against the present petitioner in accordance with the rule. It also appears from the materials produced by both the parties that since it was informed by the Police that Nabi Khan was a Pakthoon National, the Rationing Officer of Garden Reach in writing requested the O/C, Metiaburuz, to supply details so that the ration card already issued in favour of Nabi Khan can be converted into a temporary one, or to cancel the ration card. It is proper to mention that issuance of ration card for Foreign National is not completely prohibited by any Act or law of this country. Only it is indicated that in a proper case, a temporary ration card can be issued even to a Foreign National. Be that as it may, the O/C, Metiaburuz P.S. did not supply the details sought for and uptil now no reply has been received by the Department. 12. In the charge-sheet, it is indicated that the Police contacted the High Officials of Food Department. But there is no enquiry to show or to indicate that any attempt was made to peruse the documents received by the different offices of the Food Department for the purpose of issuance of ration card in favour of accused Nabi Khan. It is also to be noted from the annexure 'P-1' of the supplementary affidavit filed by the present petitioner that the Sub-Inspector Amar Chandra Biswas of the Food Department intimated the Rationing Officer of Garden Reach about the issuance of the earlier ration card in favour of Nabi Khan and the factum of cancellation of the said card due to non-drawal on 3.7.92. In the said communication, it is also indicated that the previous ration card was registered with A.R. 3534 on 22.6.89 and that the ration card was authenticated on 26.6.89. In the said communication, it is also indicated that the previous ration card was registered with A.R. 3534 on 22.6.89 and that the ration card was authenticated on 26.6.89. From annexure 'P-2' of the supplementary affidavit, it further transpires that the Rationing Officer, Garden Reach, by a letter dated 21.11.94 informed the Officer-in-charge, Metiaburuz Police Station that all the relevant registers of the office were handed over to the Investigating Officer on 10.11.94, that the impugned application was received on the basis of recommendation of the People's Representative as indicated in the register itself and that the Recommending Authorities never disclosed that the purported ration card holder was a Foreign National. In the said letter, a proposal was also given to convert the ration card into a temporary ration card, or to cancel the ration card in the event it is found that the ration card holder was a Foreign National. 13. So, from the materials on records, it is specifically clarified that the questioned ration card in the name of Nabi Khan was re-issued against the cancelled ration card after following the six-tier system as indicated hereinabove. It is also indicated that the present petitioner practically had no criminal intent to issue a false ration card by passing different procedures laid down by the Department. It is indicated that the present petitioner signed the questioned ration card as it was recommended for issuance on the basis of local enquiry as well as formal enquiry under the rules. By any stress of imagination it cannot be construed that the present petitioner issued a forged or fabricated ration card in the name of Nabi Khan by-passing the established and accepted principles. 14. It is contended that the present petitioner attempted or abated to contravene the provisions of the Foreigners Act, 1946 and thereby committed an offence under section 13 of the Act and as such he is liable to be prosecuted under section 14 of the Act. While elucidating his arguments the learned counsel for the State contended that on the basis of the impugned ration card, Nabi Khan has the capability to claim citizenship of this country. But the learned counsel appearing on behalf of the present petitioner rightly argued on production of the Citizenship Act, 1955 and Citizenship Rule, 1956 that for obtaining citizenship of this country. But the learned counsel appearing on behalf of the present petitioner rightly argued on production of the Citizenship Act, 1955 and Citizenship Rule, 1956 that for obtaining citizenship of this country. Ration card has no role to play and that it is not compulsory to produce ration card for the purpose of acquiring citizenship of this country. So, it is not clarified how by issuing the impugned ration card the present petitioner abated or attempted to contravene the provision of the Foreigners Act, 1946 or the rules made thereunder. Judging from this point also, no prosecution can be initiated against the present petitioner. 15. Lastly, it is to be noted that the learned Magistrate took cognizance of the case against the present petitioner without any valid sanction order required under section 197 of the Code of Criminal Procedure. So, taking of cognizance itself is bad in law in respect of the present petitioner and as such no case can proceed against the present petitioner in the manner done in this case and question of execution of Warrant of Arrest issued against him cannot arise. 16. After due consideration of the materials on records and the circumstances, there is reason to believe that failure of justice will occasion and injustice would be caused to the present petitioner if the present proceeding against him is allowed to be continued any further. Since no specific case could be started against the present petitioner, the question of giving sanction by the authority also did not arise, and in fact the Food Department in spite of request by the Investigating Authority did not issue an order of sanction, which is required under the law, till filing of the charge-sheet or till cognizance in this case was taken. So, it is rightly argued that for the purpose of preventing abuse of the process of court and also for securing ends of justice, it is necessary to quash the entire proceeding against the present petitioner Sisir Kumar Bhattacharya. 17. So, in allowing the present application filed by the present petitioner, it is ordered that the entire proceeding against the present petitioner shall stand quashed and the petitioner shall stand discharged from the case. Rule issued is accordingly made absolute. 18. It is made clear that this court has not gone into the merits of this case in respect of the other three accused persons. 19. Rule issued is accordingly made absolute. 18. It is made clear that this court has not gone into the merits of this case in respect of the other three accused persons. 19. Let a copy of this order "along with the Lower Court Record" be sent down to the learned S.D.J.M. at Alipore for his information and taking action. 20. Urgent xeroxed certified copy of this order be given to the parties, if applied for. Appeal allowed.