Sankaran Moitra vs Sadhna Das & Anr

2. The husband of Respondent No.1 herein, met with his end on 10.5.2001. On 12.5.2001, Respondent No.1 (hereinafter referred to as the 'complainant') filed a complaint before the Deputy Commissioner of Police that she had come to know from the members of the public that while her husband was coming from Beliaghata Subhas Sarobar he was beaten to death by the police. She stated that she wanted the post-mortem examination of her innocent husband Robindranath Das to be held in the presence of a Magistrate and video recording of the portions of the body of her husband whereon it had been hit by the police. She demanded stern punishment for the murderer of her husband. On 28.5.2001, she filed a complaint in the court of the Chief Judicial Magistrate, Alipore in respect of offences, punishable according to her under Sections 302, 201, 109 read with Section 120-B of the Indian Penal Code. In the complaint, she stated that she was a house-wife and, that her husband Robindranath Das, was a businessman and a social worker. The antecedents of her husband were above board and he always acted on the right side of the law. He was also an active supporter of a particular political party. On 10.5.2001, the General Election to the Assembly in West Bengal was held. Her husband was in-charge of giving food packets to the polling agents of a contesting political party in the booth in C.I.T. office situated at Subhas Sarobar (Beliaghata Lake). When her husband did not turn up for lunch, before she left for casting her vote, she asked her brother to summon her husband for lunch. She was returning at about 1415 hours after casting her vote. While she was returning, a Tata Sumo Car came along, being driven at speed and in that car she found a local resident Anath sitting. When she reached the vicinity of Vivekananada Club, she found there assembled, a crowd of local people. When she enquired what had happened, one of those assembled said that the police had severely assaulted her husband with lathi in the lake, her husband had became unconscious, and he had been taken to the doctor in a Tata Sumo Car. On further enquiry, she was told that her husband was assaulted for no reason by the police with lathis on his head near the C.I.T. office at the Lake instigated by the "Bara Babu" of Phoolbagan Thana and Moitra Babu, previous "Barababu" of Beliaghata Thana at about 1400 hrs. Subsequently, she came to learn from various persons of the locality including her brother and her brother-in-law that her husband was talking near the outer gate of the C.I.T. office area at Subhas Sarobar with Mr. S.K. Kundu, the 'Barababu' of Phoolbagan Police station at about 1400 hours. At that point of time, the previous officer-in- charge of Beliaghata Police Station, at the time of the complaint, the Assistant Commissioner of E.S.D.(Eastern Suburban Division), Calcutta came there by a police jeep and after talking with the Officer in charge, Phoolbagan Police Station ordered the beating up of her husband and accordingly the Officer in charge, Phoolbagan Police Station instigated the police constables who were accompanying them to beat her husband and to kill him. Thereupon, a constable, namely, Sudhir Sikdar assaulted her husband with a lathi and her husband tried to run away to save his life but the police personnel chased him. Her husband fell down in the water at the edge of the lake. He requested the chasing police personnel not to assault him and he told them that he did not know how to swim. In spite of repeated requests and begging for his life by her husband, the police constable Sudhir Sikdar struck successive blows on the head of her husband, and other different portions of his body with a lathi, as a result of which her husband became unconscious and fell in the lake. Then the police personnel left the place. Her brother and brother-in-law, with the help of others who were eye-witnesses to the incident pulled out her husband from the water. Thereafter, Anath a local person, with the help of others removed her husband in an unconscious state to the nearby Divine Nursing Home where the doctor declared him dead. The people seeing the atrocities of the police personnel in attacking an innocent person, became agitated. After a considerable lapse of time, the body of her husband was removed by the police from the Nursing Home. According the complainant, the accused persons had no legal authority to kill her husband, an innocent person, without any provocation from his end. Hence the accused, in collusion with each other and having a common intention and in pursuance of a conspiracy hatched up among themselves, have committed an offence punishable under Sections 302, 120-B, 109 read with Section 34 of the Indian Penal Code. They were guilty of violating of the provisions of law and they were liable for exemplary punishment. Accused Nos.1 and 2 further abetted the murderous assault on the victim by accused No.3 by instigating him openly to assault and kill her husband. The accused persons had taken advantage of their uniforms and had murdered her husband in a planned manner and hence were guilty of murder. She feels, from the available circumstances, that the death of her husband was the result of a deep rooted conspiracy and to fulfill the vested interest of some interested persons, which would be revealed at the time of trial. She therefore prayed that the learned Magistrate be pleased to take cognizance and issue process against the accused persons and after their appearance pass necessary orders in accordance with law. She arrayed the Assistant Commissioner Sankaran Moitra as Accused No.1, S.M. Kundu, Officer-in-charge, Phoolbagan Police Station, Calcutta as Accused No. 2 and Sudhir Sikdar, a police constable attached to Phoolbagan Police Station, Calcutta as Accused No.3.

3. On 31.5.2001, the Chief Judicial Magistrate, Alipore took the statements of the complainant and the witnesses produced by her which included her brother and her brother-in-law and issued process to the accused. The Chief Judicial Magistrate thus took cognizance of the offence. On 16.6.2001, the Chief Judicial Magistrate issued a warrant for the arrest of accused no.1. On 30.6.2001, accused no.1, the then Assistant Commissioner of Police, moved an application under Section 210 of the Code of Criminal Procedure. Therein, after referring to the complaint filed by the complainant, he submitted that on the self same matter on the written complaint of the complainant made on 12.5.2001, a case had been registered in the Phoolbagan Police Station as Case No. 112 of 2001 under Section 304 of the India Penal Code. The complainant had filed the said complaint addressed to the Deputy Commissioner of Police, Eastern Division, Calcutta on 11.5.2001 basing upon which the case was registered on 12.5.2001. Thereafter, one Fax message was sent addressed to the Joint Commissioner of Police, Calcutta concerning the death of Robindranath Das, wherein the place of occurrence was mentioned as Beliaghata Lake and himself and two other persons above mentioned as the assailants with a prayer that a case be registered under Section 302, 506(II) and 114 of the India Penal Code, with a further prayer that the Fax message be treated as "First Information Report". That Fax was sent by a brother of the deceased. On the self-same incident under an order of Superiors, a case has been registered on 12.5.2001. The complaint was filed before the Magistrate on 28.5.2001 by the informant in the Phoolbagan Police Station case. An investigation by Police was in progress in relation to the offence which is the subject matter of the enquiry held by the Chief Judicial Magistrate. In view of this, he prayed that the proceedings in the enquiry held by the Chief Judicial Magistrate be stayed and a report on the matter from the Officer-in-charge of Phoolbagan Police Station be called for. By a separate application, he also prayed that the application under Section 210 of the Code of Criminal Procedure may be directed to be put up immediately for orders. The Chief Judicial Magistrate ordered that the application under Section 210 of the Code of Criminal Procedure be put up on 10.7.2001.

4. Meanwhile, accused No. 1 had filed an application for anticipatory bail before the High Court of Calcutta. On 20.6.2003, the High Court refused anticipatory bail. Accused No. 1 approached this Court challenging the order refusing anticipatory bail. This Court by order dated 28.7.2003 rejected the Petition for Special Leave to Appeal stating that there was no merit in it.

The Court stated that since from the statement of the doctor who conducted the post-mortem examination it appeared that the victim had suffered as many as six serious injuries and in the opinion of the doctor, the death was due to the injuries to the head inflicted on the deceased, it was justified in the view it had taken. The learned Judge wound up by stating that it was not a fit case for interference by the High Court and if the Court interferes with the proceedings on any of the grounds urged by the accused, people will lose their confidence in the administration of justice. The High Court directed the Magistrate to proceed with the matter with utmost expedition and in accordance with law.

15. Coming to the facts of this case, the question is whether the appellant was acting in his official capacity while the alleged offence was committed or was performing a duty in his capacity as a police officer which led to the offence complained of. That it was the day of election to the State Assembly, that the appellant was in uniform; that the appellant traveled in an official jeep to the spot, near a polling booth and the offence was committed while he was on the spot, may not by themselves attract Section 197 (1) of the Code. But, as can be seen from the facts disclosed in the counter affidavit filed on behalf of the State based on the entries in the General Diary of the Phoolbagan Police Station, it emerges that on the election day information was received in the Police Station at 1400 hours of some disturbance at a polling booth, that it took a violent turn and clashes between the supporters of two political parties was imminent. It was then that the appellant reached the site of the incident in his official vehicle. It is seen that a case had been registered on the basis of the incidents that took place and a report in this behalf had also been sent to the superiors by the Station House Officer. It is also seen and it is supported by the witnesses examined by the Chief Judicial Magistrate while taking cognizance of the offence that the appellant on reaching the spot had a discussion with the Officer-in-charge who was stationed at the spot and thereafter a lathi charge took place or there was an attack on the husband of the complainant and he met with his death. Obviously, it was part of the duty of the appellant to prevent any breach of law and maintain order on the polling day or to prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore emerges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also to be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for illtreatment and he was beaten up by a police constable at the instance of the appellant and the Officer-in- charge of the Phoolbagan Police Station and at their behest. If that complaint were true it will certainly make the action, an offence, leading to further consequences. It is also true as pointed out by the learned counsel for the complainant that the entries in the General Diary remain to be proved. But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract Section 197 of the Code. Going by the principle, stated by the Constitution Bench in Matajog Dobey (supra), it has to be held that a sanction under Section 197 (1) of the Code of Criminal Procedure is necessary in this case.

We have therefore first to concentrate on the word "offence".

18. We thus allow this appeal and setting 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.