Sankaran Moitra vs Smt. Sadhna Das & Anr

I have had the benefit of going through the judgment prepared by my learned brother P.K. Balasubramanyan, J. I express my inability to agree with the reasons recorded and conclusions arrived at by him. I, therefore, consider it appropriate to deal with the matter independently. The relevant facts as stated in the judgment of the High Court of Calcutta impugned in the present appeal are that on May 10, 2001 general election of the State Assembly of the West Bengal was held. One Rabindra Nath Das @ Topi Das ('deceased' for short), husband of Mrs. Sadhna Das ('complainant' for short) was supporting a particular political party. He was engaged in distributing food packets to the polling agents at Subhas Sarobar (Baliaghata Lake) constituency. It was the case of the complainant that when her husband left the home on May 10, 2001, he stated that he would be coming for taking lunch. According to the complainant, however, her husband did not come. When she was returning after casting her vote, she saw a Tata Sumo vehicle and one Anath Das of the locality inside the vehicle. When she asked the people who gathered over there as to what had happened, she was informed that Topi Das had become unconscious due to beating by police on his head and he was taken to hospital. The complainant, therefore, immediately proceeded to hospital. She found her younger brother-in-law Laxman Das amongst the crowd. On being asked, she was told that her husband had died. She learnt that her husband was supplying food packets at the polling booth. At that time, some police officers came there and they beat her husband. When her husband left the place, police men chased him towards the lake side. Her husband was not knowing swimming and he stated to the police personnel that he did not know swimming and requested them not to beat him. But the police officers did not pay any heed to the request and continued beating. The husband of the complainant fell down, became unconscious, was taken to the hospital but was declared dead there. She, therefore, informed the Deputy Commissioner of Police on May 11, 2001 that her husband was beaten to death by police and demanded "stern punishment" to persons responsible for killing him. On the next day, i.e. on May 12, 2001, the Deputy Commissioner of Police, registered Phoolbagan P.S. Case No.112, for an offence punishable under Section 304 Indian Penal Code (IPC) against unknown police officers. It appears that for a considerable long period, nothing was done in the matter and no action was taken on the basis of complaint made by the complainant. She, therefore, filed a private complaint in the Court of Chief Judicial Magistrate, Alipore, Kolkata on May 28, 2001 being case No.C-1107 of 2001 against the appellant and two other police officers for offences punishable under Sections 302, 201, 109 and 120B of IPC. It was stated in the said complaint that the husband of the complainant was assaulted and severely beaten by police personnel which resulted in his death and thereby the accused had committed the offences as mentioned in the complaint and prayed for taking cognizance, to issue process against the accused and to pass appropriate orders in accordance with law. She had also submitted a list of witnesses.

Between May 31, and June 16, 2001, the learned Magistrate, following the provisions of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') recorded statements of the complainant and the witnesses produced by her. On the basis of the said material, the learned Magistrate took cognizance of the offences. On June 16, 2001, the learned Magistrate issued non-bailable warrant against the accused persons including the appellant herein and fixed July 10, 2001 as returnable date. Meanwhile, on June 30, 2001, the accused preferred an application under Section 210 of the Code stating therein that a complaint was filed by the complainant on May 12, 2001 which had been registered as PS Case No.112 of 2001 for an offence punishable under Section 304 IPC by Phoolbagan Police Station and proceedings were initiated. It was also stated that thereafter Fax-message was sent to the Joint Commissioner of Police to investigate the case under Section 302 which was treated as FIR. It was, therefore, prayed that the complaint dated May 28, 2001 be stayed.

The accused then filed a petition under Section 482 of the Code for quashing of proceedings, inter alia, contending that the alleged offence had been committed by them "while acting or purporting to act" in the discharge of their official duties and no cognizance could be taken by the Court except with the previous sanction of the State Government. Since no such sanction was obtained before filing the complaint, the complaint was not maintainable at law and was liable to be dismissed only on that ground. The High Court, by the impugned order, dismissed the petition observing that it was a case of 'merciless beating' by police officer causing death of a person which could not be said to be an act in the discharge of official duty. Several injuries were found on the person of the deceased and according to the medical opinion, those injuries were ante mortem and homicidal in nature. The postmortem report clearly indicated the nature and extent of the injuries inflicted by the accused on the victim and the witnesses had given vivid description of the offence committed by the accused. In the facts and circumstances, therefore, it could not be said to be a case covered by Section 197 of the Code and hence the application was liable to be dismissed. Accordingly, the application was dismissed on July 7, 2003. The said order is challenged by the appellant. On August 22, 2003, notice was issued and "stay of further proceedings pending before the Chief Judicial Magistrate, Alipore, Calcutta" was granted by this Court in the meanwhile. Affidavits and counter affidavits were thereafter filed.

We have heard learned counsel for the parties. Mr. K.T.S. Tulsi, Senior Advocate, appearing for the appellant, contended that the High Court has committed an error of law in holding that the provisions of Section 197 of the Code were not attracted. According to him, the appellant was a police officer and he was on duty on May 10, 2001. At about 2 p.m., a message was received from Assistant Commissioner of Police regarding disturbance and rioting between two rival political parties at Subhash Sarobar and the case was registered as Case No. 111 of 2001 for offences punishable under Sections 148, 149 and 336 IPC read with Sections 3 & 5 of Explosive Substances Act, 1908 against the deceased and others and investigation started. The appellant, along with other police officers, rushed to the spot in order to disperse the rioting mob and restore law and order situation. During the said incident of dispersing mob and preventing rioting, the deceased was injured and fell into water, drowned in the lake and declared dead on being taken to the hospital. According to Mr. Tulsi, all acts were committed by the appellant while exercising powers, discharging duties and performing functions as police officer and as such the provisions of Section 197 of the Code were clearly attracted. It was submitted by Mr. Tulsi that admittedly, no sanction was obtained from the Government before instituting proceedings against the appellant. The proceedings were, therefore, not tenable. The learned Magistrate, therefore, was wrong in taking cognizance, in issuing non-bailable warrant and proceeding with the case. Mr. Tulsi submitted that absence of sanction as required by Section 197 goes to the root of the matter and no proceedings could be initiated in absence of such sanction and the proceedings are required to be dropped. Mr. Tulsi also submitted that as is clear, the complainant had filed a complaint on May 11, 2001 and in the said complaint it was expressly stated that her husband had met with death due to beating by police officers. An entry was made to that effect and a case was registered as PS Case No.112 of 2001 for an offence punishable under Section 304 IPC by Phoolbagan Police Station on May 12, 2001. Subsequently, even Section 302 IPC was added. Considering that fact also, a private complaint instituted by the complainant in the Court of the Chief Judicial Magistrate on May 28, 2001 for offences punishable under Sections 302, 201, 109 and 120B IPC was required to be stayed under Section 210 of the Code which provides for procedure to be followed in such cases.

On internal examination, he noticed the following injuries:

Bare reading of the above provision makes it clear that during an inquiry or trial relating to a complaint case, if it is brought to the notice of the Magistrate that an investigation by the police is in progress in respect of the same offence, he shall stay the proceedings of the complaint case and call for the record of the police officer conducting the investigation.

For the foregoing reasons, in my opinion, the order passed by the High Court is in consonance with well settled principles of law and does not deserve interference under Article 136 of the Constitution. The appeal, therefore, deserves to be dismissed and accordingly dismissed. Interim stay granted earlier stands vacated. It may be stated at this stage that the incident is of May, 2001 and about five years have passed. It is, therefore, necessary that the proceedings must be concluded as expeditiously as possible. The learned Chief Judicial Magistrate, Alipore is, therefore, directed to proceed with the case with utmost expedition as directed by the High Court.

For the foregoing reasons, the appeal deserves to be dismissed and it is accordingly dismissed.