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2006 DIGILAW 336 (CAL)

RAJIV MISHRA v. BIVASH HAZRA

2006-06-12

SAILENDRA PRASAD TALUKDAR

body2006
Before Sailendra Prasad Talukdar, J. ( 1 ) THE Judgment of the Court was as follows : petitioner, Rajiv Mishra, filed this application under Section 482 of the criminal Procedure Code praying for quashing of the proceeding in connection with the Complaint Case No. 697c/02 under Sections 323/326/506/34/120b of the Indian Penal Code now pending before the Learned 3rd Court of Judicial magistrate, Howrah. ( 2 ) GRIEVANCES of the petitioner, as ventilated in the application, may briefly be stated as follows : - on 10th June, 2002, Opposite Party No. 1, Bivash Hazra, filed a petition of complaint against the present petitioner and four others being officials of the Calcutta Electric Supply Corporation Limited. He alleged that on. 23 05. 2002, howrah District Youth Congress organised a deputation under the leadership of the complainant, who was its Presedent, in front of Howrah Regional Office, c. E. S. C. Limited, G. T. Road (North), demanding sufficient power supply. It was a peaceful demonstration with members of the public joining the organisers. Complainant was addressing the gathering when some members of the organisation want to submit a written charter of demands, C. E. S. C. authority informed Golabari Police Station. Accused No. 5, being the petitioner herein, along with other Police personnel arrived at the spot and started brutal lathi- charge. The said accused No. 5 in conspiracy with four other persons made the complainant the target. Complainant suffered serious injuries and became unconscious on the spot. He was shifted to Howrah General Hospital where he had to be admitted for treatment. He was released from the Hospital after four days but continued to be under periodic medical checkup. In order to cover up Police started a false case with the allegation that the complainant and others ransacked C. E. S. C. properties. Complainant was let out on bail in connection with the said false case. He lodged complaint before the Human rights Commission and also intimated District Magistrate, Howrah and superintendent of Police, Howrah. A complaint was lodged in the local Police station by the associates of the complainant. Delay in filing of the complaint was due to physical injuries and mental shock suffered by the complainant. He lodged complaint before the Human rights Commission and also intimated District Magistrate, Howrah and superintendent of Police, Howrah. A complaint was lodged in the local Police station by the associates of the complainant. Delay in filing of the complaint was due to physical injuries and mental shock suffered by the complainant. ( 3 ) LEARNED Court of Magistrate after considering the complaint and the statements made by the complainant and another witness on solemn affirmation did not find any sufficient ground for proceeding and dismissed the petition of complaint by order dated 10. 06. 2002. ( 4 ) THEREAFTER, by order dated 13. 09. 2002, Learned Court in compliance with the direction given by the High Court in connection with a revisional application issued process against the accused persons. ( 5 ) PETITIONER in the instant case, arising out of an application under section 482 of the Criminal Procedure Code, alleged that on the basis of a complaint dated 23. 05. 2002 lodged by Assistant Officer (Administration), howrah Regional Officer, Golabari Police Station started a case being No. 143 dated 23. 05. 2002 under Sections 147/148/448/427/506/326 of Indian Penal code against him and 150 others. It was alleged in the said case that the complainant along with about 150 persons on 23. 05. 2002 at about 12. 00 hours being armed with lathi, brickbat etc. trespassed into the Regional Office of c. E. S. C. , assaulted the security guard, Akhil Chandra Biswas and damaged properties including furniture and also abused the employees of the Office in filthy language. On receipt of the said complaint, Police force rushed to the spot. They were received by the angry mob with abuses and some of them started throwing stones at them, thereby injuring two constables. Such incident gave rise to another case being Golabari Police Station Case No. 144 dated 23. 5. 2002. Investigation of both the cases ended in submission of charge- sheet and the cases are still pending. ( 6 ) THE case filed against the present petitioner and others could not proceed much though several dates were given. The said case was filed with the mala fide intention to harass the petitioner and in a way of counterblast of the two cases started against the complainant and others. ( 7 ) THE petition of complaint did not disclose how the present petitioner was involved in the alleged incident. The said case was filed with the mala fide intention to harass the petitioner and in a way of counterblast of the two cases started against the complainant and others. ( 7 ) THE petition of complaint did not disclose how the present petitioner was involved in the alleged incident. Whatever was done by the Police personnel was in discharge of their official duty and, as such, without obtaining sanction, as contemplated under Section 197 of Criminal Procedure Code, learned Court could not have taken cognizance of the alleged offence. ( 8 ) IN the circumstances, petitioner by filing this case sought for quashing of the proceeding. ( 9 ) THE crux of the present controversy as it appears after hearing learned Counsel for the parties is whether the proceeding under reference is liable to be quashed for want of sanction under Section 197 of Criminal procedure Code. ( 10 ) SECTION 197 (1) of Criminal Procedure Code reads as under: - "197, Prosecution of Judges and public servants.- (1) When any person who is or was a judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleging to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except will the previous sanction - (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. . . . . . . . . . " ( 11 ) MR. Moitra, appearing as learned Counsel for the petitioner, also invited attention of the Court to Section 132 of the Criminal Procedure Code. He contended that maintenance of public order and tranquility is the most essential function of Police force and on receiving information from the C. E. S. C, authority, the Police force had no choice but to act in the best interest of maintenance of law and order. He contended that maintenance of public order and tranquility is the most essential function of Police force and on receiving information from the C. E. S. C, authority, the Police force had no choice but to act in the best interest of maintenance of law and order. ( 12 ) SECTION 132 of the Code reads as under: - "132. Protection against prosecution for acts done under preceding sections.- (1) No prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 shall be instituted in any Criminal Court except - (a) with the sanction of the Central Government where such person is an officer or member of the armed forces ; (b) with the sanction of the State Government in any other case. (a) (2) (a) No Executive Magistrate or police officer acting under any of the said sections in good faith ; (b) no person doing any act in good faith in compliance with a requisition under section 129 or section 130 ; (c) no officer of the armed forces acting under section 131 in good faith, (d) no member of the armed forces doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby, committed an offence. " ( 13 ) ACCORDING to Mr. Moitra whatever was done by the Police was in good faith and with the sole intention to disperse an assembly engaged in illegal activity. ( 14 ) INTERESTINGLY enough, Mr. Safiullah, learned Public Prosecutor, while submitting on behalf of the State supported the stand taken on behalf of the present petitioner. Referring to the decision in the case of Abdul Wahab Ansari v. State of Bihar and Anr. , reported in 2000 Cr LJ 4631, it was submitted by him that the plea relating to want of sanction can be raised immediately after taking of cognizance and one need not wait till the Court reaches the stage of framing of charge. ( 15 ) MR. Moitra referred to the decision in the case of Ram Kumar v. State of Haryana, reported in 1987 Cr LJ 703, while submitting that a Court is wrong in holding that the sanction under Section 132 can be treated as a sanction under Section 197 of the Code of Criminalprocedure. ( 15 ) MR. Moitra referred to the decision in the case of Ram Kumar v. State of Haryana, reported in 1987 Cr LJ 703, while submitting that a Court is wrong in holding that the sanction under Section 132 can be treated as a sanction under Section 197 of the Code of Criminalprocedure. This, however, does not seem to be of much relevance in the present case. ( 16 ) REFERRING to the decision in the case of Bibhuti Bhusan Chakraborty v. State of West Bengal and Ors. , reported in (1980)2 Cal HN 388, it was submitted that if sanction is refused earlier, person affected should be heard before granting of the same. The present case does not seem to have any bearing to the aforesaid legal proposition. ( 17 ) MR. Moitra relied upon the decision in the case of Suresh Kumar bhikamchand Jain v. Pandey Ajay Bhusan and Ors. , reported in 1998 SCC (Cr) 1, while dealing with the scope and ambit of Section 197 of Cr. P. C. It was observed that "the legislative mandate engrafted in sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touched the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance. The accused after appearing before the Court on process being issued, by an application indicating that Section 197 (1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. " ( 18 ) IT was also observed that question of sanction can be considered at any stage of the proceeding. ( 19 ) MR. " ( 18 ) IT was also observed that question of sanction can be considered at any stage of the proceeding. ( 19 ) MR. Moitra submitted that if the act or omission for which the accused is charged has reasonable connection with discharge of his duty, it must be held to be official to which applicability of Section 197 of the Code cannot be disputed. In this context, Mr. Moitra invited attention of the Court to the decision in the case of Shri S. K. Zutshi and Anr. v. Shri Bimal Debnath and Anr. , reported in JT (2004)6 SC 323. ( 20 ) IN the said case it was held that "the policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and it sanction is granted, to confer on the government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. " ( 21 ) IT was further held that the Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omission which are done by a public servant in discharge of its official duty. ( 22 ) THE aforesaid legal position was further reiterated in the decision in the case of Rakesh Kumar Mishra v. The State of Bihar and Anr. , reported in jt (2006)1 SC 1 : (2006)1 C Cr LR (SC) 552. ( 23 ) MR. Moitra submitted that a similar view was taken in the case of K. Kaiimuthuv. State by D. S. P. , reported in (2005)2 E. Cr. N 324, and in the case of State of Orissa through Kumar Raghvendra Singh and Ors. v. Ganesh Chandra jew, reported in JT (2004)4 SC 52. ( 24 ) THE Apex Court in the case of State of H. P. v. M P. Gupta, reported in (2004)2 SCC 349 : 2004 C Cr LR (SC) 473, while discussing about the scope of Section 197 of the Criminal procedure Code held that the bar under section 197 of Cr. P. C. regarding Court's power to take cognisance is absolute and complete. The Court cannot take cognizance of complaint against a public servant unless sanction is obtained from the appropriate authority. P. C. regarding Court's power to take cognisance is absolute and complete. The Court cannot take cognizance of complaint against a public servant unless sanction is obtained from the appropriate authority. In the said case it was observed that "the mandatory character of the protection afforded to a public servant is brought out by the expression, "no Court shall take cognizance of such offence except with the previous sanction", Use of the words "no" and "shall' makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. " ( 25 ) IN response to the submission made by Mr. Safiullah on behalf of the Opposite Party/state in regard to Section 132 of the Code of Criminal procedure, Mr. Joumalya Bagchi submitted that if the allegations in the complaint do notjndicate that the Police authority concerned acted or purported to act under Section 127 and Section 128 of the Code and in so doing committed some offence complained of, the Court can have no ground for looking to the sanction of the government and in the absence of such sanction for refusing to entertain the complaint. ( 26 ) MR. Bagchi referring to the decision in the case of Nagraj v. State of Mysore, reported in (1964)1 Cr LJ 161, submitted that the Court must proceed with the complaint in the same manner as it would have done in connection with complaints against any other person in such a situation. ( 27 ) HE then submitted that in order to get the benefit of Section 132 of the Code, it is for the accused to establish that the alleged offences were committed during the performance of his duties in the circumstances as mentioned in Section 129 to Section 131 of the Code. ( 28 ) IT was emphatically submitted by Mr. Bagchi appearing as learned counsel for the O. P. /complainant that each case is to be decided in its factual context. Referring to a Special Bench decision of this Court in the case of state v. Samar Dutta and Ors. ( 28 ) IT was emphatically submitted by Mr. Bagchi appearing as learned counsel for the O. P. /complainant that each case is to be decided in its factual context. Referring to a Special Bench decision of this Court in the case of state v. Samar Dutta and Ors. , reported in (2004)4 Cal HN 390 : 2004 C Cr LR (Cat) 821, he submitted that if the acts constituting the alleged offence do not come within the purview of official duty, there cannot be any protection under section 197 of the Code. ( 29 ) HE was right in submitting that use of filthy abuses cannot be an act connected with the discharge of official duly and, as such, could not require any sanction. (Ref : G. P. Pedke v. Syed Javed AH, reported in 1991 Cr LJ 1481 ). ( 30 ) HE then contended that the act complained of must have some nexus in the discharge of official duties of the accused or under the colour of his office. He added that the question whether the petitioner acted in the course of performance of duties or, whether the defence taken by him is pretended or fanciful can only be examined during the course of trial. Referring to the decision of the Learned Single Bench of this Court in the case of Swapan Sarkar v. Santanu Bhowmik, reported in (2004)4 Cal HN 278, it was submitted by Mr. Bagchi that question of sanction should better be left open for decision in the main judgment which may be delivered after conclusion of trial. ( 31 ) ATTENTION of the Court was invited to the decision in the case of Raj kishor Roy v. Kamleshwar Pandey and Anr. , reported in JT (2002)6 SC 48, in this regard. ( 32 ) IT was then contended that question of requirement of sanction for prosecution can be raised at any time after cognizance of the offence is taken, may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. Mr. Bagchi referred to the decision in the case of P. K. Pradhan v. State of Sikkim represented by the c. B.. , reported in (2001)6scc 704 : 2001 C Cr LR (SC) 545, in this regard. Mr. Bagchi referred to the decision in the case of P. K. Pradhan v. State of Sikkim represented by the c. B.. , reported in (2001)6scc 704 : 2001 C Cr LR (SC) 545, in this regard. ( 33 ) IT was further submitted on behalf of the Opposite Party/complainant that how far the act complained of against the accused had any reasonable connection with the official duty unsigned to him is necessary to be assessed. If it cannot be concluded from the facts available on record that the act as alleged in the complaint was committed by the petitioner/accused person in the discharge of official duty, the trial must be allowed to proceed and the accused in such a situation does not deserve to be discharged on the ground of want of sanction alone, (Ref: Binod Kumar Singh v. State of Bihar, reported in 1985 Crlj 1878 ). ( 34 ) THIS Court was reminded that criminal trial should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence. This finds support in the decision in the case of Bakhshish Singh brar v. Smt. Gurmej Kaur and Anr. , reported in AIR 1988 SC 257 :1988 C Cr LR (SC)1. ( 35 ) MR. Bagchi then submitted that it is well settled that mere fact that the accused proposes to raise a defence of the act having purported to be done in exercise of duty will not in itself be sufficient to justify the case being thrown out for want of sanction. (Ref: Pukhraj v. State of Rajasthan and Anr. , reported in AIR 1973 SC 2591 ). ( 36 ) MR. Bagchi further contended that Section 197 of Criminal procedure Code should neither be too narrowly construed nor too widely. In the case of Bhagwan Prasad Srivastava v. N. P. Mishra, reported in 1970 Cr lj 1401, it was held that "the narrow and pedantic construction may render it otiose for it is no part of an official duty - and never can be - to commit an offence. In our view, it is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. In our view, it is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. " It was further held that "the question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. " ( 37 ) THE legal position as discussed earlier, however, requites to be examined in the context of the facts and circumstances of the present case. As admitted by the Opposite Party/de facto complainant, a demonstration was held in front of the Office of the C. E. S. C. , Howrah region on the day of the alleged occurrence. It is also not in dispute that the C. E. S. C. officials intimated the concerned Police authority and it can be said that it was a call to intervene so that "law and order" is maintained. It is naturally expected that in response to such call, the concerned Police authority is must rush to the spot and take necessary action while discharging their official duties. The controversy then arises as to what is the nature of intervention permitted by law in the backdrop of the situation as revealed from the facts and circumstances of the present case. ( 38 ) WHILE referring to that it was submitted on behalf of the petitioner that the legal complexion as to the requirement of sanction for taking of cognizance of an offence in such background has undergone radical changes from time to time. Referring to the decision in the case of Sankaran Moitra v. Sadhna Das and Anr. , the Apex Court in connection with Criminal Appeal No. 330 of 2006, it was submitted by learned Counsel for the petitioner that the sole determining factor is whether the act was done in the performance of duty or in purported performance of duty. The Apex Court analysing the factual backdrop of the said case observed that "the High Court has stated that killing of a person by use of excessive force could never be performance of duty. . . . . . . . . . . . The Apex Court analysing the factual backdrop of the said case observed that "the High Court has stated that killing of a person by use of excessive force could never be performance of duty. . . . . . . . . . . . If it was done in performance of duty or purported performance of duty Section 197 (1) of the Code cannot be by-passed by reasoning that killing a man could never be done in an official capacity and consequently Section 197 (1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197 (1) of the Code of Criminal Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " ( 39 ) MR. Bagchi submitted that the observation was that of the majority bench with one learned member having a difference of opinion. Mr. Bagchi submitted that the Apex Court while coming to the aforesaid conclusion also relied upon the facts disclosed on affidavit and according to Mr. Bagchi, while dealing with an application under Section 482 of the Criminal Procedure Code, this Court is not empowered to place reliance on materials disclosed from such affidavit in opposition or the like. ( 40 ) MR. Bagchi, while dealing with an application under Section 482 of the Criminal Procedure Code, this Court is not empowered to place reliance on materials disclosed from such affidavit in opposition or the like. ( 40 ) MR. Bagchi added that the majority Bench of the Apex Court while coming to the aforesaid conclusion did not also take into consideration the earlier three Judges' Bench decision of the Apex Court. He further submitted that the Court is not authorised to travel beyond the averments made in the complaint. According to him, if the allegations in the complaint do not indicate that the Police authority had acted or purported to act under Sections 127 and 128 of the Code, the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the complaint. It was his further contention that if there is a conflicting stand taken by the same Court in two judgments, this Court is not bound to follow the "latter decision" but may accept the "better decision". ( 41 ) GRIEVANCES, thus, ventilated by learned Counsel Mr. Bagchi, certainly cannot be brushed aside. But the fact remains that a decision is required to be considered in the backdrop of it's own facts. ( 42 ) MR. Bagchi expressed his concern and anxiety in the matter while submitting that if sanction for prosecution is a per-requisite in all such cases, it will virtually amount to the end of rule of law. His further concern is that the police authority taking advantage of such undeserved statutory protection may even be emboldened to settle personal scores - thereby showing thumb to the administration of justice. ( 43 ) NO doubt, the conflicting decisions, though may not be in the nature of antagonistic contradictions, sometimes create painful embarrassment. But as stated earlier, each case deserves to be decided on its own merits. In the present case, arrival of the Police force at the spot and taking necessary action in order to maintain law and order certainly come within the scope of discharge of official duty. Then the question arises as to whether assaulting the de-facto complainant could be brought within the said scope. In the present case, arrival of the Police force at the spot and taking necessary action in order to maintain law and order certainly come within the scope of discharge of official duty. Then the question arises as to whether assaulting the de-facto complainant could be brought within the said scope. The Court while analysing that aspect is required to strike a balance and in such a situation, it cannot be denied that it will be more prudent to insist for sanction before cognizance is taken. ( 44 ) CONSIDERING all such facts and materials and having regard to the discussion made above, I am inclined to hold that the grievances ventilated in the present application cannot just be brushed aside under the carpet. It is also worth mentioning that over the incident, two cases were started against the present Opposite Party/de-facto complainant and after completion of investigation, charge sheets were submitted. The said cases are reportedly still pending. ( 45 ) ADMITTEDLY, no sanction was obtained for prosecuting the present petitioner who is a Police Officer in the cadre of Indian Police Service. ( 46 ) THUS, the present application being C. R. R. No. 206 of 2005 be allowed. The case being No. 697c/02 now pending before the learned trial court be quashed. The present petitioner accordingly stands discharged. ( 47 ) HAVING regard to the nature of the allegations made in the said case question of proceeding with the case as against others also does not arise and, thus, the entire proceeding be quashed. This disposes of all pending applications including C. R. A. N. No. 370 of 2005. ( 48 ) CRIMINAL Department is directed to supply urgent xerox certified copy of this order, if applied for, to the learned Counsel for the parties, after due compliance with the legal formalities.