Samarendra Nath Kundu & Anr vs Sadhana Das & Anr

Manoj Misra, J

This appeal impugns the judgment and order of the High Court at Calcutta ‘The High Court’ dated 02.05.2012 in Criminal Revision No. 874 of 2008, by which the  revision application of the  first-respondent Smt. Sadhna Das (hereinafter referred to as the complainant) against  the  order of  Chief Judicial Magistrate, Alipore,  South  24- Parganas ‘The learned Magistrate’ dated 28.12.2007 in Case No. C-1107 of 2001 was allowed and the learned Magistrate was directed to proceed against the accused (the appellants herein).

FACTS

The relevant facts are as under:

(i) The  complainant  i.e.,  the  wife  of  the  deceased  made  a complaint against three police officials namely, Sankaran Moitra (an Assistant Commissioner of Police), S.M. Kundu (the first-appellant), Officer-in-Charge of Phoolbagan Police Station, Calcutta and Sudhir Sikdar alias Sudhangshu Kumar Sikdar (the second-appellant), a Police Constable attached to the Phoolbagan Police Station, Calcutta. In the complaint it was, inter alia, alleged that at the instance of Sankaran Moitra, the other two accused, namely, the appellants herein, murdered complainant’s husband.

(ii) The learned Magistrate took cognizance on the complaint and, after following complaint case procedure as contemplated under the Code of Criminal Procedure, 1973 ‘Cr.P.C.’, summoned the accused under Sections 302/201/109 read with Section 120-B of the Indian Penal Code, 1860 ‘IPC’.

(iii) Sankaran  Moitra  filed a petition  under  Section  482 of Cr.P.C. for quashing the proceedings on the aforesaid complaint, inter alia, on the ground that no cognizance could have been taken without a proper sanction as contemplated in Section 197 of Cr.P.C.

(iv) The High Court vide order dated 11.07.2003 dismissed the  aforesaid  petition  holding  that  beating  a person  to death cannot be regarded as an act in the discharge of official duties.

(v) Aggrieved by High Court’s order, Sankaran Moitra  filed Criminal Appeal No. 330 of 2006 before this Court, which was allowed vide order dated 24.03.2006 ‘Reported as Sankaran Moitra v. Sadhna Das & Another, (2006) 4 SCC 584’. While allowing  the  appeal,  this  Court  noticed/  observed  that the incident occurred on the day of elections to the State Assembly; the accused applicant was in uniform; the counter affidavit filed on behalf of the State revealed that on the election day, information was received at the police station regarding violent clashes between supporters of two political parties upon which the applicant  had  arrived  at  the  spot  in  his  official  vehicle and, thereafter, a lathi charge took place; and husband of  the complainant may have received injuries in that lathi charge, resulting in his death. After noticing/observing as above, this Court held that as maintenance of law and order and prevention of breach of public order on the polling day was part of the officers’ duty, the act was done in the performance of duty or in purported performance of duty, therefore protection of Section 197(1)  would  be  available.  The  operative  portion  of  the order reads thus:

“25.…We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction.

We thus allow this appeal and set aside the order of the High Court quash the complaint only  on  the  ground  of  want  of  sanction  under Section 197(1) of the Code of Criminal Procedure. The observations herein, however, shall not prejudice the rights of the complainant in any prosecution after the requirements of Section 197(1) of the Code of Criminal Procedure are complied with.”

(vi) The learned Magistrate upon receiving the aforesaid order of this Court, vide order dated 28.12.2007, extended the benefit of this Court’s order to the appellants as well.

(vii) Aggrieved  by  the  order  of  the  learned  Magistrate  dated 28.12.2007, the complainant ( i.e., the first-respondent) filed a criminal revision before the High Court.

(viii) By the impugned order, the criminal revision was allowed, inter alia, on the ground that this Court’s order in  Sankaran  Moitra  was  qua  Sankaran  Moitra  alone, and it did not apply to  other accused  against whom no sanction was required.

We have heard learned counsel for the parties.

SUBMISSIONS ON BEHALF OF APPELLANTS

The submission of the learned counsel for the appellant, inter alia, is that the Government of West Bengal ‘The Government’, vide notification dated 19.11.2010, under sub-section (3) of Section 197 of Cr.P.C., has extended the benefit of the provisions of sub-section (2) of Section 197 to all subordinate rank police officers enrolled or appointed under the Police Act, 1861 charged with the maintenance of public order. As a result, vide letter dated 06.12.2010, the Government sought opinion from the Commissioner of Police, Calcutta ‘The Commissioner’ qua grant of sanction to prosecute  the  appellants.  In  response  thereof,  the  Commissioner wrote  letter  dated  15.12.2010  stating  that  it  is  not  a  fit  case  for according sanction as police officer(s) had discharged their duties in the capacity of public servant on the day of elections to the State Legislative  Assembly.  Relying  on  the  said  letter,  on  behalf  of  the appellants, it was contended  that the incident occurred while the appellants  were  discharging  their  duties  pursuant  to  direction  of their superiors and as, by notification dated 19.11.2010, requirement of sanction is  essential even for police officers in the subordinate  ranks,  there  exists  no  justification  to  prosecute  the appellants in absence of the sanction. Therefore, the appeal be allowed, the order of the High Court be set aside and the order of the learned Magistrate be restored.

SUBMISSIONS ON BEHALF OF COMPLAINANT

Per contra, on behalf of the complainant (i.e., the first- respondent) it was submitted that the deceased had received multiple injuries as could be evinced from paragraphs 71, 72 and 73 [71. "Dr. Rabindra Basu, who performed post-mortem examination, state that he found the following injuries on the person of Topi Das:

One abrasion with a reddish crust 1.4 inches x .3 inch more or  less transversely placed across left side of forehead lower part being placed 1 inch above lateral 1/3rd left eye brow.

One abrasion .4 inch x .3 inch with reddish crust placed 1 inch above medial end of left eyebrow and½inch lateral to midline.

One linear abrasion .6 inch x .1 inch with reddish crust over lateral aspect of uppermost part of left forearm.

One  abrasion  = x .1  inch  with  reddish  crust  over  postern  lateral  aspect  of  upper 1/3rd of left forearm.

One abrasion½x .1 inch over dorsum of left hand.

One linear abrasion .4 inch x .1 inch with reddish rust over dorsal aspect of web between index and middle finger."

On internal examination, he noticed the following injuries:

One haematoma in the scalp tissue 3½inches x 2 inches over right temporal region.

One haematoma in the scalp tissue over vault of the skull 4 inches x .4 inch over parieto-occipital region of scalp.

One haematoma in the scalp tissue over vault of the skull 4 inches x 3 inches involving left parieto topper (sic) region.

One haematoma 2½inches x 1½inches over left frontal region (forehead).

Extradural Haemorrhage over vault of the brain involving posterior aspects of both parietal lobes.

Thin  layscror  (sic)  sub-aural  haemorrhage  all  over  both  the  cerebral  hemisphere inching under surfaced.

He then stated:

"All  the  internal  organs were  congested.  Larynx and  trachea  were  found  congested and the lumen was filled up with shaving lathery froth with and sand seen even below bifunction of trachea. Lungs were voluminous, doughy filled and on section and squeezing copious amount of frothy blood mixed fluid came out. Heart showed Grade- II atteroma (sic) at the root of aorta.

On the basis of my findings I have the following opinion: "Death was due to the effects of head injuries associated with drowning ante-mortem and homicidal in nature.

The injuries which I found are consistent with a trauma caused by blunt weapon such as Lathi."] of  this  Court’s  judgment  in  Sankaran  Moitra  (supra)  which clearly indicate that it was a case of brutal murder. Moreover, the judgment in Sankaran Moitra (supra) would not apply to the appellants  as  on  the  date  of  cognizance,  the  appellants  were  not protected by Section 197 of Cr.P.C. Further, the notification dated 19.11.2010 applies only to those cases where cognizance is taken after 19.11.2010. Thus, the appeal is liable to be dismissed.

DISCUSSION

Upon  consideration  of  the  rival  submissions  and  perusal  of the materials available on record, in our view, following issues fall for our consideration:

(1) Whether the appellants, who are co-accused, are entitled to the benefit of this Court’s decision in the matter of co-accused Sankaran` Moitra?

(2) Whether the benefit of notification dated 19.11.2010 would be available to the appellants?

ISSUE No. 1:

In so far as the first issue is concerned, it is important to note that this Court had quashed the proceedings against Sankaran Moitra  not  on  the ground  that  no offence  has been committed  by him or that no offence at all was committed, but for want of sanction. The proceedings were quashed as he was a public servant (i.e., Assistant Commissioner of Police) not removable from his office save by or with the sanction of the Government and  the offence  alleged  was  committed  by  him  while  acting  or  purporting to act in the discharge of his official duty. In those circumstances, this  Court  took  the  view  that  he  was  entitled  to  the  protection  of sub-section (1) of Section 197 and, therefore, in absence of sanction, the complaint and the proceedings were liable to be quashed. What is important to note is that in the case of Sankaran Moitra there was no dispute that he was not removable from office save by or with the sanction of the Government. What is also important is that it was left open to proceed against Sankaran Moitra after obtaining the sanction. In such circumstances, the benefit of decision in SankaranMoitra(supra) would be available to the appellants only if they were not removable from office save by or with the sanction of the Government.

‘Government’ is not defined in Cr.P.C. therefore, by virtue of Section 2 (y) of Cr.P.C., we would have to refer to the definition of‘Government’ as provided in IPC. Section 17 of IPC defines‘Government’ as follows:

“The word Government denotes the Central Government or the Government of a State.”

In Nagraj v. State of Mysore AIR 1964 SC 269 : (1964) 3 SCR 671: 1963 SCC OnLine SC 249, this  Court  held  that  if  the Inspector General of Police can dismiss a Sub-Inspector, no sanction of the State Government would be necessary for such an

officer even if he had committed the alleged offence while acting or purportingto act in the discharge of his official duty. Following the above decision, in Fakhruzammav. Stateof Jharkhand (2013) 15 SCC 552, paragraph 6 it was held that previous sanction is required  for prosecuting only such public servants who could be removed by sanction of the Government.

As there is no dispute that when cognizance of the alleged offence  was  taken,  the  appellants  were  subordinate  rank  officers not falling in the  category of those officers who could be removed from service only with the sanction of the Government, in our view, there was no requirement of sanction as envisaged under Section 197 (1) of Cr.P.C. Hence, the benefit of the decision in Sankaran Moitra  (supra)  is  not  available  to  the  appellants.  Issue  No.(1)  is answered accordingly.

ISSUE No. (2)

Sub-sections (1) and (2) of  Section 197 of Cr.P.C.  provides protection to different categories of persons. We have already held above  that  protection  of  sub-section  (1)  was  not  available  to  the appellants. Now, we shall consider whether protection of sub- section (2) of Section 197 is available. According to sub-section (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. Sub- section (3) of Section 197 of Cr.P.C. empowers the State Government to direct, by notification, that the protection envisaged under sub-section (2) shall apply to such class or category of members of the Forces charged with the maintenance of public order as may be specified therein. In light of the provisions  of  sub-section  (3),  even  though  the  appellants do  not fall in the category of officers not removable from service save by or with the sanction of the Government, they seek protectionunder sub-section  (2)  on  the  basis  of  the  notification  dated  19.11.2010 issued by the Government under sub-section (3) of Section 197 of Cr.P.C.

In fact, twin notifications dated 19.11.2010 have been placed on record. The first relates to subordinate ranks in police force constituted under the Calcutta Police Act, 1866 and Calcutta Sub- Urban Police Act, 1866 whereas the second relates to subordinate ranks  in  police  force,  enrolled  or  appointed  under  the  Police  Act, 1861. These twin notifications are reproduced below:

Part I

Order by the Governor of West Bengal

2149

GOVERNMENT OF WEST BENGAL

Home (Political) Department

Secret Section

NOTIFICATION

No. 2103-P.S.

Dated Kolkata, the 19th November, 2010

In exercise of the power conferred by sub-section (3) of Section  197  of  the  Code  of  Criminal  Procedure,  1973  (2  of 1974) (hereinafter referred to as the Code), the Governor is pleased  hereby  to  direct  that  the  provisions  of  sub-section (2) of Section 197 of the Code shall apply to all sub-ordinate ranks of Police force, appointed constituted and administered under the Calcutta Police Act, 1866 (Ben. Act IV  of  1866)  and  Calcutta  Suburban  Police  Act,  1866  (Ben. Act. II of 1866) charged with the maintenance of public order.

By order of the Governor,

Sd/- A.G. GHOSH

OSD & Ex-officio

Spl. Secy. to the Govt. of West Bengal

No. 2103/1(1)-P.S.

Copy forwarded to the Commissioner of Police, Kolkata for information and necessary action.

Sd/-

OSD & Ex-officio

Jt. Secy. to the Govt. of West Bengal

2150

GOVERNMENT OF WEST BENGAL

Home (Political) Department

Secret Section

NOTIFICATION

No. 2104-P.S.

Dated Kolkata, the 19th November, 2010

In exercise of the power conferred by sub-section (3) of Section  197  of  the  Code  of  Criminal  Procedure,  1973  (2  of 1974) (hereinafter referred to as the Code), the Governor is pleased  hereby  to  direct  that  the  provisions  of  sub-section (2) of Section 197 of the Code shall apply to all sub-ordinate ranks of Police force, enrolled or appointed under the Police Act, 1861 (5 of 1861) charged with the maintenance of public order.

By order of the Governor,

Sd/- A.G. GHOSH

OSD & Ex-officio

Spl. Secy. to the Govt. of

West Bengal

Apparently the aforesaid notifications were issued in exercise of the power conferred upon the State Government by sub-section (3) of Section 197. As a result, we will have to examine whether the appellants’ case would come under the protective umbrella of sub- section  (2)  of  Section  197  in  view  of  the  notification  issued  under sub-section (3). Before we dwell on the applicability of the provisions of sub-section (2), we must understand the stage at which the bar envisaged under Section 197 applies.

The bar of sub-sections (1) and (2) of Section 197 is on Court’s power  to  take  cognizance  of  an  offence  allegedly  committed  by  a public servant or member of a Force while acting or purporting to act in the discharge of official duty save with the previous sanction of the Government. If the bar applies, the Court cannot take cognizance of the offence and therefore, it cannot proceed to try the same.  In  other  words,  the  court  cannot  try  an  offence  of  which  it cannot take cognizance. In Baijnath v. State of M.P. AIR 1966 SC 220: (1966) 1 SCR 210: 1965 SCC OnLine SC 294  it was held that a post-cognizance sanction will not save the proceedings. Reason is simple, when cognizance was taken the bar applied. Conversely,  if  there  is  no  bar  on  the  date  when  cognizance  of  the offence  is  taken,  the  court  can  proceed  to  try  the  offence.  This  is so, because the bar applies at the stage of cognizance. Therefore, in  our  view,  a subsequent  bar  on  the  power  of  the court  to  take cognizance of an offence is of no consequence to those proceedings where cognizance was taken when there was no such bar. As a sequitur, the notification(s) would not affect those proceedings where cognizance was not barred when taken. Besides, there is nothing  in  the  notification(s)  or  Cr.P.C.  which  may  nullify  a valid cognizance order.

In  the  instant  case,  cognizance  was  taken  in  the  year  2001, that is, much before the notification. Therefore, in our considered view, the benefit  of Section 197  is not available to the appellants. As a result, the appeal lacks merit and is, accordingly, dismissed. The interim order, if any, stands discharged. Pending application(s), if any, shall also stand disposed of.

We, however, clarify that we have not expressed any opinion on the merits of the allegations made against the appellants.