Parag Mukherjee vs The State of West Bengal and Others

Shivakant Prasad, J.—1. This revisional application was directed against the order dated 16.4.2014 passed by the Additional District & Sessions Judge, 18th Court, Alipore in Criminal Motion No. 439 of 2012 setting aside the order dated 22.8.2012 passed by the learned Judicial Magistrate, 9th Court, Alipore in case No. C- 11369 of 2011.

After filing the said suit, on 23.01.2007 and on 13.2.2007 the petitioner''s uncle Sri Prantosh Mukherjee and his cousin brother Sri Snehasish Mukherjee received two notices from the learned Sub-Divisional Magistrate, Alipore Sadar. From the said two notices, police officers of Kasba Police Station filed two reports being Kasba Police Station P.R. No. 864 of 2006 and 867 of 2006 dated 30.12.2006 and 02.11.2006 respectively and prayed for issuance of proceedings under Section 107 of the Code of Criminal Procedure against the said two persons namely the petitioner''s said uncle and his said cousin brother. The said two reports were filed purportedly on the basis of two Kasba Police Station G.D.E. Nos. 2136 and 1986 dated 29.10.2006 and 27.10.2006 respectively. The said police report dated 30.10.2006 was forwarded under D.R. No. 8051/2006, whereas the police report dated 02.11.2006 was forwarded under D.R. No. 3808/2006.

On 05.02.2007 the Sub-Divisional Magistrate, Alipore initiated a proceeding under Section 107 of the Code of Criminal Procedure against the petitioner on the basis of a police report being Kasba Police Station P.R. No. 1005/2006 dated 28.12.2006. It is contended that General Diary leading to filing of the said police report was on the same day i.e. on 28.12.2006 under entry No. 2128 and a certified copy of the said police report dated 28.12.2006 wherefrom it appeared that without any specific allegation, police implicated the petitioner in the said case.

Sri Prantosh Mukherjee and Sri Snehasish Mukherjee moved a criminal revision petition being CRR No. 867 of 2007 before a single bench of this Court which was allowed by an order dated 25.6.2008 quashing the criminal proceeding. It is further submitted that during the pendency of the said criminal revision petition, all the three accused police officers namely, Sri Prabir Roy, Inspector-in-charge, Sri Haradhan Nandi, Additional Inspector-in-charge and Makhanlal Maity, Sub-Inspector were transferred from Kasba Police Station.

It is also submitted that the time spent for obtaining information about the names and place of posting and addresses of the opposite party No. 2 herein and two other police officers including the sanction to prosecute them criminally along with filing of writ petition, before this Court should be excluded under Section 470 of the Code of Criminal Procedure.

Moot contention is that opposite party No. 2 and two other police officers committed offences under Sections 219/500/34 of IPC by filing false report on 26.12.2006 deliberately with an intention to cause harm to the petitioner. The said false report was filed to defame the petitioner in the eye of his clients and the public at large to ruin his professional career because due to initiation of the said proceeding under Section 107 of Criminal Procedure Code, the petitioner had to appear before this Hon''ble Court as an accused and many of petitioner''s clients and friends enquired from him as to why police had filed the said report against him and many others have developed bad impression about the petitioner because of the said false and malicious report of the police.

The moot issue required for consideration before this Court is as to whether sanction as per the provision of Section 197 of Cr.P.C. is attracted as against the opposite party No. 2 or not. To answer the issue, it would be apt to reproduce Section 197 of Cri.P.C. dealing with provision for prosecution of judges and public servants which 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 removal from the office save by or with the sanction of the Government is accused of any offence alleged 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 with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]-

(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 the 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: [Provided that where the alleged offence was committed by person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.]

[Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860).]

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

[(3A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.]

[(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.]

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

Learned Counsel for the petitioner referred to a decision in case of the case of Fakhruzamma v. State of Jharkhand, in criminal appeal No. 2086 of 2013, Supreme Court of India dealt with Section 8. Rule 825, clauses (a) and (b) of the Jharkhand police manual which prescribed different departmental process punishments, including the punishment of dismissal and removal, to be inflicted upon the police officers up to the rank of police inspector. The provisions confers power on the Inspector General of Police or the Deputy Inspector General of Police to pass orders for removal of police officers up to the rank of Inspector. Before passing the order of removal, the Inspector General of Police or the Deputy Inspector General of Police need not obtain prior approval of the State Government. It has been observed in the said decision that a similar issue came up for consideration before the Hon''ble Supreme Court which has been covered by the judgement in Nagraj v State of Mysore reported in , (1964) 3 SCR 671 : AIR 1964 SC 269 wherein the scope of Section 197 Cr.P.C. read with Section 4(c), 8, 26(1) and 3 of the Mysore Police Act, 1908 was examined by the Supreme Court. Interpreting the above-mentioned provisions, a Three-Judge Bench of the Supreme Court held that an Inspector General of Police can dismiss a Sub-Inspector and, therefore, no sanction of the State Government for prosecution of the appellant was necessary even if he had committed the offences alleged while acting or purporting to act in discharge of his official duty.

It is submitted on behalf of the petitioner that Chief Judicial Magistrate, Alipore by order No. 1 dated 12.12.2011 took cognizance of the complaint filed under Section 219/500/34 of IPC against the opposite party No. 2 and two other police officers and the said case was transferred to the 9th Judicial Magistrate, Alipore for disposal in accordance with law. The Transferee Magistrate examined the petitioner under Section 200 Cr.P.C. and by his order dated 15.12.2011, process under Sections 219/500/34 of IPC against the opposite party No. 2 and two other officers was issued after taking into consideration the order of the High Court dated 17.01.2011 passed in W.P. No. 712(W) of 2011 wherein it was observed that Section 197 of Cr.P.C. is not attracted in case of the opposite party No. 2 and two other police officers because sanction of the Government was not required for their removal from their respective office. The opposite party No. 2 having entered appearance in the said case before the learned Judicial Magistrate prayed for his discharge from the case on the ground that the petitioner''s case has been lodged against him without any sanction of the Government of West Bengal under Section 197 of Cr.P.C. In consideration of the provision of Section 197 of Cr.P.C. as reproduced herein above, it would appear that the provision applies to only those public servants who were not removable from the office by or with the sanction of the Government.

It is evident from the order dated 17.01.2011 passed in W.P. No. 712(W) of 2011 that this Court was pleased to observe that although the petitioner had applied for seeking sanction under Section 197 of Code before the Secretary of the Government but the Secretary sat tight for a longer period in the matter of granting said permission and it was concluded that there is no reason to proceed on the basis that the persons were public servants not removal from their respective offices save by or with the sanction of the Government. As a matter of fact they were removable from their office according to the service rule by their respective superior officer and accordingly, it was observed that by not giving any attention to the application, the Secretary did not commit any wrong.

The learned Counsel for the petitioner in support of his case has adverted to Section 7 & 7(a) of relevant provision of Police Act, 1861, which provides that Inspector General, Deputy Inspectors-General, Assistant Inspectors-General and District Superintendents of Police are empowered to dismiss, suspend or reduce any police officer of the subordinate ranks or award any one of the following punishments-

"(i) fine of any amount not exceeding one month''s pay;

(ii) confinement to quarters for a term not exceeding fifteen days with or without punishment-drill, extra guard, fatigue or other duty;

(iii) deprivation of good-conduct pay;

(iv) removal from any office of distinction or special emolument."

Thus, it goes to show that the opposite party No. 2 herein was removal from his office as per the service rule as provided in the Police Act, 1861 and there is no requirement of sanction for his prosecution under the provision of Section 197 Cr.P.C.

In respect of application to the State of West Bengal, for Section 7 provision substituted for the punishment of subordinate ranks of police force in disciplinary cases was that the appointing authority, or an officer not lower in rank than the appointing authority, shall be competent to inflict all punishments on the members of the subordinate ranks of the police force in disciplinary cases.

Learned Counsel for the petitioner further fortified his argument by referring to the case of D.T. Virupakshappa v. C. Subash in Criminal Appeal No. 722 of 2015 arising from SLP(Crl.) No. 6684/2013 wherein the Hon''ble Apex Court observed that the protection given under Section 197 is to protect responsible public servant against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. 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 if sanction is granted, to confer on the Government, if they choose to exercise, complete control of the prosecution.

In Om Prakash and others v. State of Jharkhand Through The Secretary, Department of Home, Ranchi, guideline at Paragraph 32 has been summed up to this effect that the true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it.

This Court finds from the narration as given by the petitioner giving rise to a complaint under Section 500 IPC against the opposite party No. 2 and other police officers and the observation made by the Single Judge of this Court clearly go to show that the opposite party No. 2 appeared to be over jealous in his action and was even prohibited by the order of this Court that he will not interfere in the private dispute between the petitioner and the private respondent. Therefore, applying the settled principle of law and the guidelines in Paragraph 32 in case of Om Prakash case, it cannot be said that the action taken by the opposite party No. 2 and other police officers was in discharge of their official duties.

Accordingly, this Court finds that the impugned order dated 16.4.2014 passed by the Additional District & Sessions Judge, 18th Court, Alipore cannot be sustained and accordingly, set aside and the order rejecting the application of discharge of opposite party No. 2 and other police officers passed by the Learned judicial Magistrate, 9th Court, Alipore be affirmed.

Thus, criminal revision is allowed. There shall be no order as to cost. A copy of this order be sent to the learned court below for information and necessary action.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.