STATE Vs. SAMAR DUTTA

JUDGEMENT

(1.) This reference has been made by the learned Additional Sessions Judge, 6th Court, Alipore by passing order No. 5 dated 1.4.2000 in SC 22 (3) of 2000.

(2.) The fact, that led to the said reference by the learned Additional Sessions Judge, is that a writ petition in the nature Habeas Corpus bearing No. CO-15487 (W) of 1993 was filed before this High Court under Article 226 of the Constitution of India by one Lakkhi Chand Paswan and Smt, Lalti Debi wherein they alleged that Bhikari Paswan, the husband of the petitioner No. 2 was illegally detained by the Police Authority and as such by filing the writ petition they prayed for production of said Bhikari Paswan before the Magistrate. The Division Bench, consisting of the then Chief Justice and another learned Judge, heard the said writ application extensively and in the process report was called for from the Central Bureau of Investigation. Evidence of the parties was also taken before the said Writ Court and ultimately while disposing of the said Writ Application the Division Bench directed that the said Writ Petition and all the materials-on-record which were filed on behalf of the petitioners shall be forwarded to the Court of the learned Chief Judicial Magistrate, Alipore who will register a complaint under Section 200 of the Code of Criminal Procedure on the basis of the allegations as made in the Writ Petition and also directed that the Chief Judicial Magistrate, Alipore shall be the 'competent Court' for deciding the case in question. It was further directed that the said Magistrate will examine the petitioners and other witnesses on solemn affirmation and also take into consideration the statement of the witnesses, except in cross-examination, recorded before the Writ Court. It was further directed that the Enquiry Report, conducted by the C.B.I., Officer, be forwarded to the learned Magistrate for consideration. At the time of enquiry, the Chief Judicial Magistrate, Alipore may appoint Shri Nazrul Islam, D.C.D.D., Calcutta Police to investigate and submit report as quickly as possible. Liberty was also given to the petitioners to inform the District Magistrate, 24-Parganas (South) about their choice of an Advocate as the prosecutor. It has clearly been laid down by the Writ Court, while passing such directions, that the Chief Judicial Magistrate, Alipore 24-Parganas (South) shall be the 'Court of competent jurisdiction'.

(3.) The said order of the Writ Court was communicated to the learned Chief Judicial Magistrate, Alipore along with all the relevant papers and complaint case C-1046/98 was registered. It was stated in the petition of complaint before the learned Magistrate that Bhikari Paswan, husband of the complainant Smt. Lalti Devi was a worker of M/s. Victoria Jute Mill, Telinipara within the District of Hooghly. There was a dispute in between the management and the workers over non-payment of the wages/salaries for a long period. On 21.10.93 there was a demonstration by the workers and in order to disperse them, Police had to use force. However, on 30.10.93 at the intervention of the District Magistrate Hooghly some payments were made to the workers including Bhikari Paswan. On that night Bhikari was sleeping in his room when some persons knocked the door from outside. The complainant opened the door and found that S.I. Samar Dutta and other Police Officers of Telinipara out post were standing in uniform out side the premises. The Police personnel caught hold of Bhikari Paswan and started assaulting him ruthlessly in presence of the complainant and other members of the family and as a result of that Bhikari started bleeding from his mouth and nose. They then took away Bhikari Paswan forcibly with them. Subsequently, father of Bhikari went to Telinipara out post and found him lying injured on the floor. The father of Bhikari then approached Mr. H.P.Singh, the then Additional Superintendent of Police, Hooghly, who was at that time present in the out post, to allow him to talk with Bhikari. But Mr. Singh ruthlessly asked the father of Bhikari to leave the out post and threatened him. However, he was asked to come to the out post in the morning. When in the next morning the father of Bhikari had been to that out post, he was told by a constable that senior Police Officials took away Bhikari from the said out post. The father of Bhikari then contacted his lawyer of Chandannagore Court in order to secure bail for his son. But he was informed that Bhikari was not produced in the Court. As such, he searched for his son in the Bhadreswar Police Station as well as in the Srirampore Police Station. As he could not find out his son, he approached the O.C., Bhadreswar Police Station and requested him to record a diary regarding kidnapping of Bhikari Paswan by the Police Officers. But when the O.C., Bhadreswar Police Station refused to receive any diary he then met the Additional Superintendent of Police, Hooghly. Said Officer also refused to entertain the complaint of the father of Bhikari and instead asked him to write on a plain blank paper that his son was missing. As the father of Bhikari did not get any assistance whatsoever from the Police Officers, so he submitted a written complaint to the Chief Minister, West Bengal with a copy to the Home Secretary and S.P. Hooghly. In the said complaint, the father of Bhikari clearly stated that Police Officers underthe leadership of Additional Superintendent of Police, Hooghly kidnapped his son, Bhikari from his residence on the night of 30.10.93 illegally. The complainant alleged that the Police Officers abducted her husband Bhikari Paswan and subsequently, in all probability, have murdered him. As such, by filing the said petition of complaint, the complainant prayed for issuing process against the accused persons, who are all Police Officers. Proceeding on the basis of the direction in the Division Bench Judgment of this Court and on the basis of the aforesaid complaint the learned Magistrate took cognizance of the matter and thereafter recorded statements of the witnesses on solemn affirmation.Subsequently, from the materials-on-record the learned Chief Judicial Magistrate was of the opinion that there was a strong prima facie case for proceeding under Sections 364/120B I.P.C. against all the four accused persons and as the offence was triable exclusively by the Court of Sessions, so he, by his order dated 14.02.2000 committed the case to the Court of learned Sessions Judge, South 24-Parganas, Alipore. The learned Sessions Judge, Alipore, aftertaking cognizance under Section 193 Cr. P.C., transferred the case to the Court of learned Additional Sessions Judge, 6th Court, Alipore for disposal. It appears from order No. 5 dated 01.04.2000 that the learned Additional Sessions Judge, pointed out that offence in question took place within the Sessions Divisions of Hooghly and as per provisions of Sections 177 to 185 Cr. P.C. the Court of the Additional Sessions Judge, Alipore is not empowered to take cognizance of such offence ordinarily. He also pointed out that he did not receive any order under Section 407(1) Cr.P.C. transferring the case in question from Hooghly Sessions Division to the Sessions Division of South 24-Parganas. Secondly, he further pointed out that one of the accused H.P. Singh is a public servant not removable from his office save by or with the sanction of the Government and the offence alleged against him was apparently committed while acting or purporting to act in the discharge of his official duty as Additional S.P. Hooghly. According to the learned Court below, under such circumstances, sanction of the State Government is necessary for proceeding against that accused as per provisions of Section 197 Cr. P.C. In order to avoid future legal complications over these two matters, the learned Additional Sessions Judge felt it necessary to refer the matter to the High Court under Section 395 (2) Cr. P.C. for decision before the trial is under taken. Two questions were referred to this Court for decision as per provisions of. Section of 395 (2) Cr. P.C. and they are as follows : 1. Whether the cognizance and subsequent trial of the case in a different Sessions Division is maintainable in law. 2. and whether the Sessions case is maintainable against accused H.P.Singh who happens to be a public servant against whom no sanction as contemplated under Section 197 of the Code of Criminal Procedure has been obtained. Said order of the learned Additional Session Judge referring those two questions before the High Court for decision, was placed before the Hon'ble Chief Justice who was pleased to constitute a Division Bench for answering the reference. It appears that several Division Benches were entrusted with the matter from time to time and ultimately the matter was taken up by the Division Bench oif Hon'ble Justice Nure Alam Chowdhury and Hon'ble Justice Prodyot Kumar Sen. The said Division Bench, by its order dated 19.07.2000 was of the opinion that the Writ Court did not make any reference with regard to the provisions of Section 407 (1) Cr. P.C. while directing that the Court of the learned Chief Judicial Magistrate, Alipore will be the competent Court for disposing of the matter. So, the Division Bench observed "Thus, we had every doubt as to whether the Sessions Judge of South 24-Parganas was competent to take cognizance and to transfer this case to different Court for trial when there is no specific order made under Section 407(1) of the Code of Criminal Procedure.