Biswajit Goswami vs State Of West Bengal & Ors
2021 Latest Caselaw 550 Cal

In the High Court at Calcutta Criminal Revisional Jurisdiction Appellate Side Present:

The Hon'ble Justice Subhasis Dasgupta.

CRR No. 1487 of 2020

Biswajit Goswami Vs.

State of West Bengal & Ors.

For the Petitioner       :Mr. Tapas Dutta, Adv.
                         Mr. Mritunjoy Halder, Adv.


For Opposite Party       :Mr. Kallol Mondal, Adv.
Nos. 2 & 3               Mr. Krishan Ray, Adv.
                         Ms. Amrital Chel, Adv.
                         Mr. Souvik Das, Adv.


For the State            :Ms. Sukanya Bhattacharya, Adv.
                         Md. Kutubuddin, Adv.


Heard on                 : 13.01.2021

Judgment on              : 27.01.2021



Subhasis Dasgupta, J:-

The impugned order dated 17th August, 2020, passed by learned Chief

Metropolitan Magistrate, Kolkata in complaint case no. C-44 of 2020, rejecting

the application under Section 156(3) Cr.P.C. is subject of challenge in this

revisional application.

Learned advocate for the petitioner, Mr. Dutta, submitted that private

opposite parties no. 2 to 3 had misused their official position with culpable

intention by manufacturing fictitious record of right i.e. by creating new

khatian in the name of petitioner in connection with mutation proceeding

before the Block Land & Land Reforms Officer, Bardhaman-II, Barsul, and

Revenue Officer, Bardhman-II, Barsul, Purba Bardhaman, respectively, which

ultimately turned out to be fictitious, false, fabricated causing huge financial

loss and prejudice to the petitioner.

Assailing the impugned order, learned advocate for the petitioner

contended that since the victim/petitioner had his office situated within the

territorial jurisdiction of learned Chief Metropolitan Magistrate, Kolkata,

petitioner could very well institute a case seeking redressal under Section

156(3) Cr.P.C. being a victim of circumstances.

It was also strenuously submitted by the learned advocate for the

petitioner that no sanction under Section 197 Cr.P.C. was required to be

obtained so as to prosecute the private opposite parties no. 2 and 3, who

might be public officials, on the score that the alleged commission of offence

was not necessarily connected with the discharge of official duties of the

opposite party nos. 2 and 3. And the observation made by the learned

Magistrate, while declining to refer the application under Section 156(3)

Cr.P.C. to the concerned police station for investigation, that the offence

attempted to be made out, at best might constitute offence under Section 166

I.P.C., amounted to prejudging the fate of investigation, which was highly

illegal.

Upon taking such grounds, learned advocate for the petitioner sought

for interference by this court, so that there can be effective investigation in

terms of the application under Section 156 (3) Cr.P.C. filed by the de-facto

complainant/petitioner.

Ms. Sukanya Bhattacharya, learned advocate representing State replied

that there left nothing to be interfered with, as the court below had already

provided sufficient reasons including the absence of territorial jurisdiction of

learned Magistrate to take care of the offence complained of. More so, there

left no materials suggestive of transpiring any criminal animosity against

petitioner by the private opposite party nos. 2 and 3, and therefore the

prosecution sought to be instituted was a product of suspicion, not supported

by any tangible materials.

Mr. Mondal, learned advocate representing private opposite party nos. 2

and 3 reacted to the contention raised submitting that in view of the statutory

protection, granted under Section 58 (2) of the West Bengal Land Reforms Act,

1955 to public officials, attached with the Land Reforms Department for the

due discharge of the function under the said Act, there could not be any

criminal prosecution instituted against the public officials in respect of the

acts done or performed in good faith or intended to be done, while discharging

official duties.

The prohibition clause engrafted in Section 58(2) of the Act referred

above, according to Mr. Mondal, would not justify instant prosecution, what

was sought to be instituted by the petitioner. Mr. Mondal further submitted

that petitioner not being a victim of cheating, nor criminal misappropriation,

nor criminal breach of trust, the territorial jurisdiction of the court, before

whom the case was instituted, would not be available, referring Section 181

Cr.P.C.

Raising such challenges, learned advocate for the opposite party nos. 2

and 3 proposed for dismissal of the revisional application.

The crux of the allegation, as raised in the instant case is that private

opposite party nos. 2 and 3 being public officials under Land Reforms

Department misused their position in connection with a mutation proceeding,

and thereby manufactured, fabricated records of rights creating new khatians,

which ultimately turned out to be false and fake. The petitioner had to incur

harassment to get the record of rights corrected.

Before the points raised by the learned advocate for the petitioner

referred to above are dealt with, the pertinent point raised by the opposite

parties challenging the maintainability of the criminal prosecution, and that

too before a learned Magistrate of Kolkata, needs to be addressed and

answered first.

Mr. Mondal, for the opposite party nos. 2 and 3 referring Section 58(2)

of the West Bengal Land Reforms Act, 1955, contended that in view of the

statutory protection, granted to the public officials attached to L.R.

Department, while discharging official duties, thereby ousting jurisdiction of

Court, there could not be any legal proceeding instituted simply by taking out

a petition under Section 156(3) Cr.P.C. before learned Chief Metropolitan

Magistrate, which was highly illegal.

Mr. Dutta, learned advocate for the petitioner proceeded to reply against

the point raised by Mr. Mondal submittting that the non-obstante clause

engrafted therein ousting the jurisdiction of court should not have been

precedence to the alleged misuse of official position by public officials attached

to the L.R. Department for their culpable intention and such culpability of O.P

No. 2 and 3 should have been taken in view for the seriousness of the

complaint, before making rejection of a complaint under Section 156(3)

Cr.P.C.

It would be profitable here to refer the relevant Section of W.B.L.R. Act

1955, which may be mentioned as hereunder:

"58. Protection of action taken under this Act.-- (1) No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.

(2) No suit or other legal proceeding shall lie against the State Government for any damage caused or likely to be caused or for any injury suffered or likely to be suffered by virtue of any provisions of this Act or by anything in good faith done of intended to be done in pursuance of' this Act or any rules made thereunder."

Upon reading the non-obstante clause, engrafted in Section 58 of the

West Bengal Land Reforms Act, 1955, thereby providing immunity to the

public officers like O.P. No.2 and O.P No.2 from legal proceedings, against the

discharge of public functions in good faith under the Act referred to above,

there is strong force in the submission of Mr. Mondal. The Court is not

persuaded by the submission of Mr. Dutta that prohibition clause of Section

58 of the Act conferring immunity from prosecution attached to officials of L.R.

Department is without any significance.

Learned Magistrate was thus statutorily prohibited to proceed with a

complaint, alleging illegality therein in the official discharge of the duties,

entrusted to O.P. No.1 and O.P. No.2 under the W.B.L.R. Act, 1955.

As regards the points raised surfacing over the lack of territorial

jurisdiction, as observed by the learned Magistrate in the impugned order, Mr.

Dutta had challenged the same referring a decision reported in (2020) 10 SCC

92 rendered in the case of Kaushik Chatterjee Vs. State of Haryana &

Ors., in order to establish that the ratio laid down in such case would be

applied over this case so as to confer territorial jurisdiction to learned court

below. The complainant instituted a criminal prosecution claiming himself to

be a victim of circumstances.

Learned advocate for both the opposite parties reacted to such decision

submitting that it would hardly find any application in the given context of

this case, as the same might be applicable in a case based on the allegation of

criminal breach of trust, cheating and criminal misappropriation under

Section 181 Cr.P.C.

Upon perusal of such judgment, it appears that three loans were

sanctioned in connection with such loan transactions, where there was

allegation of having committed offence under Section 406/420 Cr.P.C. etc. An

attempt was made to transfer all such cases arising out of three loans

transactions already sanctioned, leading to submission of three charge-sheets,

and in connection therewith, the Apex Court proceeded to decide the ratio on

the question of territorial jurisdiction of court, both in civil and criminal cases,

the reference of which may be found in Para-17 of such decision. It would be

profitable here to refer Para-17 of such judgment, which is mentioned as

hereunder:

"17. As seen from the pleadings and the rival contentions, the petitioner seeks transfer, primarily on the ground of lack of territorial jurisdiction. While the question of territorial jurisdiction in civil cases, revolves mainly around (i) cause of action; or (ii) location of the subject-matter of the suit or (iii) the residence of the defendant, etc., according as the case may be, the question of territorial jurisdiction in criminal cases revolves around (i) place of commission of the offence or (ii) place where the consequence of an act, both of which constitute an offence, ensues or (iii) place where the accused was found or (iv) place where the victim was found or (v) place where the property in respect of which the offence was committed, was found or (vi) place where the property forming the subject-matter of an offence was required to be returned or accounted for, etc., according as the case may be."

The jurisdiction of the criminal courts in inquiries and trials has been

covered in Chapter-XIII of the Code of Criminal Procedure. Since the instant

case was never founded on the allegation of having committed criminal breach

of trust, nor criminal misappropriation, nor cheating, the ratio of judgment, so

referred above, would be without any significance.

As regards the point raised by the petitioner pertaining to the non-

requirement of the sanction, so as to prosecute private opposite party nos. 2

and 3, reliance was placed on a decision reported in (2019) 6 SCC 111

rendered in the case of S.K. Miglani Vs. State (NCT of Delhi).

The point so raised, needs only to be answered in a case when the

criminal prosecution itself is very much maintainable in a criminal court

having its territorial jurisdiction therefor. But upon sensing presence of

prohibition clause ousting the jurisdiction of a criminal court, as mentioned

above, this court desists from answering the issue being irrelevant one, even

at the cost of academic exercise.

Reliance was further made by Mr. Dutta to a constitutional Bench

judgment delivered in the case of Lalita Kumari Vs. Government of Uttar

Pradesh & Ors. reported in (2014) 2 SCC 1, so as to establish that the

learned court below made some gross illegality, while refusing the prayer for

Section 156 Cr.P.C.

When the magisterial discretion appears to have been appropriately

exercised judiciously, reasonably and rationally supplying reasons therefor

behind the rejection of petition under Section 156(3) Cr.P.C., such discretion

of the learned Magistrate can hardly be doubted any more. By the order

impugned the Magisterial Authority has been rightly discharged adhering to

the established principle of law requiring no interference, as proposed by

petitioner.

More so, the petition previously filed addressed to the Officer-in-Charge

of the concerned police station expressing the self same grievance has already

been forwarded to the Superintendent of Police, Purba Bardhaman on the

point of jurisdiction, what is found available from a report, submitted by

Officer-in-Charge, Hare Street Police Station on 21.12.2020, through learned

advocate representing the State.

Having considered the rival submission of the parties, as mentioned in

the discussion hereinabove, the instant revisional application is without any

merits.

The impugned order will, thus go uninterfered with.

The criminal revisional application accordingly stands dismissed.

Office is directed to communicate this order to the concerned Court

below without making any delay.

Urgent photostat certified copy of this judgment, if applied for, be given

to the appearing parties as expeditiously as possible upon compliance with all

necessary formalities.

(Subhasis Dasgupta, J.)