Calcutta High Court (Appellete Side)
Harish Hirani And Anr vs The State Of West Bengal And Anr on 21 December, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRR 21 of 2022
Harish Hirani and Anr.
Vs.
The State of West Bengal and Anr.
For the Petitioners: Mr. Sekhar Kumar Basu, Sr. Adv.
Mr. Sudipto Moitra, Adv.,
Mr. Ayan Bhattacharya, Adv.,
Mr. Antarikshya Basu, Adv.,
Mr. Palash Mukherjee, Adv.
For the O.P No.2 :- Mr. Y. J. Dastoor, Sr. Adv.
Mr. Samrat Goswami, Adv.,
Ms. Samira Grewal, Adv.
For the State:- Mr. Imran Ali, Adv.,
Ms.Debjani Sahu, Adv
Heard on: 05, 06 & 08 September, 2022.
Judgment on: 21 December, 2022.
BIBEK CHAUDHURI, J. : -
1. The petitioner being the accused persons in connection with
Complaint Case No.CN-809 of 2021 under Sections
417/418/419/420/465/468/469/506/509 read with Section 120B of the
IPC presently pending before the learned Metropolitan Magistrate, 19th
Court at Calcutta have challenged the order dated 4th September, 2021 of
taking cognizance in respect of the above mentioned offences by the
learned Additional Chief Metropolitan Magistrate, Calcutta and order
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dated 22nd September, 2021 passed by the learned Metropolitan
Magistrate, 19th Court, Calcutta issuing process against the petitioners
under Section 204 of the IPC.
2. Indisputably, the petitioners are the functionaries of Central
Mechanical Engineering Research Institute (CMERI), an unit of Council
for Scientific and Industrial Research (CSIR). At the outset, it would be
prudent to mention that CSIR is a Society, registered under the Societies
Registration Act, 1860 having Administrative Control of the Department of
Scientific and Industrial Research (DSIR), Ministry of Science and
Technology, Government of India. The petitioner No.1 is the Director of
CSIR-CMERI, Durgapur and the petitioner No.2 is an ex-employee
working as Administrative Officer in the said institute at Durgapur.
3. The opposite party No.2 is a Senior Scientist posted at CSIR-
CMERI, Durgapur. The opposite party No.2 lodged a court compliant
before the learned Additional Chief Metropolitan Magistrate, Calcutta
which gave rise to Case No.CN-809 of 2021. Salient points of grievances
depicted in the complaint by the opposite party No.2 are as follows:-
i) Appointment of petitioner No.1 is disputed which is
already in public domain vide order dated 21st
February, 2019 in CRM 2101 of 2019.
ii) Both the accused with ill-motive started financial
corruption in the institute resulting in institution of one
criminal case and as many as 14 numbers of vigilance
cases against them.
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iii) To achieve wrongful gain, both the accused started
exploiting the employees by making illegitimate
demands and transferring them to other places if they
refused to accede to such unlawful demands.
iv) The accused persons made several derogatory
comments and sexist remarks against woman
employees.
v) The wife and daughter of accused No.1 sat on "Dharna
or protest" against accused No.1 for the habit of
outraging the modesty of woman.
vi) Accused No.1 used to call the complainant in his
chamber beyond the scheduled office time, weekends
and holidays alone without any work.
vii) He also directed the complainant to make tour with
male employees.
viii) The accused persons induced the complainant to make
false allegations against some of the employees who
lodged complaints against them.
ix) They threatened her to remove from the position as
head of the department, Surface and Field Robotics
Laboratory.
x) Finally the accused persons removed the complainant
and transferred her to a non-existent and imaginary
unit namely, Centre of Excellence on Mechatronics.
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xi) They tried to manipulate office records by preparing
fake Memorandum of Understanding and declared that
a Centre of Excellence on Mechatronics has been
developed.
xii) They hatched criminal conspiracy against the
complainant by fabricating a letter under the name of
Somnath Mahato seeking sensitive information.
xiii) They started issuing show cause notice based on that
pseudonymous letter by Somnath Mahato.
xiv) The accused persons made false allegation against the
complainant that she had collected cheques from the
Block Office.
xv) They fabricated another false document in the name of
Dr. S.R Debbarma against the complainant and
hatched criminal conspiracy against her by fabricating
the said letter.
xvi) They tried to collect cheques by sending some other
person in the Block Development Office.
xvii) The accused persons tried to implicate the complainant
in a criminal case being Durgapur P.S Case No.548 of
2018 in which it was found after investigation that the
complainant was not involved.
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xviii) Some false documents were created by the accused
persons and used as a statement under Section 161 of
the Cr.P.C in connection with a criminal case.
xix) The accused persons have hatched up conspiracy to
deprive her from her promotion and remove her from
service.
xx) The accused persons have forged the
ACR/PMS/evolution report and removed the actual
marks obtained by the complainant from the ACR
report.
xxi) The accused persons spread rumours against her
insulting her modesty.
xxii) They started to harass her when the complainant filed
an appeal before the competent authority at the
Headquarter against them.
xxiii) They tried to steal the scientific knowhow of the
complainant's invention on "Amphibian Robot"
technology.
xxiv) The complainant received a threatening letter from the
accused persons when a piece of stone covered by a
paper containing threat of dire consequences was
thrown to her residence directing her to effect amicable
settlement with the accused persons and to work as per
the direction of the accused persons.
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4. It is submitted by Mr. Sudipto Moitra, learned Advocate for the
petitioner that the petition of complaint is a glaring instance of frivolity.
The allegations made by the complainant which have been summarised
hereinbefore does not contain any criminal offence and thus, is liable to
be quashed. Even assuming that the accused persons exploited the
employees by making legitimate demands and threatened them to transfer
if they refused to comply with their legitimate demands, the accused
persons are liable for departmental proceeding. The complainant made
some bald allegation to the effect that the accused persons used to make
derogatory and sexist remark against the woman employee. They are in
the habit of outraging modesty of women. The petitioner No.1 used to call
the opposite party No.2 in his chamber and made her to sit without any
work. On the basis of such general allegations without mentioning
specifically the date, time and manner of occurrence do not constitute any
criminal offence.
5. It is further submitted by Mr. Moitra that the complainant was
aggrieved by her transfer from one department to another department.
According to her the said department is a non-existent entity. If the
complainant was wrongfully transferred from one department to another
department by the petitioner No.1 in discharge of his official duties, no
criminal liability can be attributed to the accused. It is further submitted
by Mr. Moitra that indisputably all the incidents barring the incident of
throwing stone in the house of the uncle of the complainant, took place
within the jurisdiction of Durgapur. Only to create the jurisdiction of
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Calcutta, a story of throwing stone with a life threatening letter wrapped
on it was manufactured. It is submitted by Mr. Moitra that the incident
dated 26th August, 2021 was not even prima facie proved before the
learned Magistrate. The learned Magistrate did not think it proper to refer
the complaint for inquiry under Section 202 of the Cr.P.C by the police.
On the other hand, the learned Magistrate prima facie held that some
incident took place on 26th August, 2021 and took cognizance of offence
thereafter issued process against them. It is pointed out by the learned
Advocate for the petitioners that jurisdiction of a particular court cannot
be created in the manner by which the learned Additional Chief
Metropolitan Magistrate took cognizance of offence on the basis of a court
complaint under Section 190(1)(b) of the Cr.P.C and the order of issuing
process by the learned Metropolitan Magistrate without making an
enquiry as to the truthfulness of the allegation.
6. Mr. Moitra further submits that the complainant has alleged that
on 26th August, 2021 a stone wrapped with a paper was thrown to the
house of her uncle. The said paper contained dire threats to the
complainant. However, the uncle of the complainant in whose house the
stone was thrown did not come forward to lodge a complaint. The learned
Magistrate did not ask police to inquire into the veracity of such allegation
by recovery and seizure of the stone and threatening letter wrapped with
the stone. It has not been even prima facie brought to the record of the
case that the alleged threatening letter was thrown by the accused or by
any person employed by him.
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7. According to Mr. Moitra before issuance of process the Magistrate
must be satisfied that there exists prima facie ground that the accused
has committed the offence complaint of. Without such objective,
satisfaction that there exists strong suspicion against the accused and the
accused should be brought under trial, the learned Magistrate is not
entitled to issue process against the accused.
8. Referring to a Full Bench decision in the case of Pradeep Kumar
Biswas vs. Indian Institute of Chemical Biology & Ors. reported in
(2002) 5 SCC 111, it is submitted by Mr. Moitra, learned Counsel on
behalf of the petitioners that CSIR is an organization well within the range
of article 12 of the Constitution of India and therefore is an organ of the
State. It is submitted by Mr. Moitra that Section 197 of the Cr.P.C affords
protection to a public servant, not removable from his office save by or
with the sanction of the government against any offence alleged to have
been committed by him while anything is done or purported to be done in
the discharge of his official duty. The allegation made by the complainant
that the accused persons threatened her to remove from the position of
Head of the Department, Surface and Field Robotics Laboratory or that
she was illegally transferred to a non-existent and imaginary unit,
namely, Centre of Excellence of Mechatronics of that the petitioners
manufactured and fabricated some documents to use them against the
complainant or that they tried to receive the cheques from Block
Development Officer or that they deleted the marks obtained by the
complainant in her annual confidential report etc are all acts purportedly
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done by the petitioner in discharge of their official duties. Even assuming
that the said incidents constitute offence under any of the penal
provisions of the IPC or other statute, it was necessary for the
complainant to take prior sanction against the petitioners before lodging
complaint against them.
9. Mr. Moitra further submits that in view of the judgment by the
Hon'ble Supreme Court in Visakha's case and subsequent promulgation
of Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013 the complainant could have lodge a complaint
before the Sexual Harassment Committee of her office. But she never
made any such complaint against the petitioners. On the contrary she
has lodged complaint against them without specifying any incident in
support of her allegation with regard to the offence of outraging modesty.
10. Reference has been made by Mr. Moitra to a Supreme Court
decision in the case of GHCL Employees Stock Option Trust vs. Kranti
Sinha reported in (2013) 4 SCC 505, to submit that criminal law cannot
be set in to motion as a matter of course. The order of the Magistrate
summoning the accused must reflect that he has applied his mind to the
facts of the case and the law applicable thereto. The Magistrate has to
record his satisfaction with regard to the existence of a prima facie case
on the basis of specific allegations made in the complaint supported by
satisfactory evidence and other materials on record. Coming to the instant
case it is pointed out by Mr. Moitra that the complainant examined herself
under Section 200 of the Cr.P.C with two other witnesses. Besides the
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complainant one Prabir Kr. Dutta who was examined under Section 200
Cr.P.C is the uncle of the complainant. He does not know anything except
the alleged incident dated 26th August, 2021. The third witness who was
examined under Section 200 Cr.P.C is one Ruddro Prasad Chatterjee who
happens to be an employee of CSIR-CMERI, Durgapur. The complainant
is his office colleague. Mr. Moitra placed initial statement of the
complainant and the said Ruddro Prasad Chatterjee. All such allegations
made against the petitioners referred to some incidents which they
allegedly did in discharge of their official duties.
11. The petitioners have annexed an order passed in CRR 2972 of 2012
by a Coordinate Bench on 4th March, 2020 wherein a Coordinate Bench of
this Court was pleased to hold that before issuance of process, the
learned Magistrate should have taken note of Section 195 and 197 of the
Code of Criminal Procedure so far as the allegations relating to some of
the offences are concerned, those are directly connected with the official
act of the present petitioner. Therefore, this Court in the above mentioned
report was pleased to set aside the order of issuance process against the
petitioners and directed the learned Magistrate to apply his mind with
regard to applicability of Sections 197 of the Code of Criminal Procedure.
12. Mr. Moitra next refers to another decision of the Hon'ble Supreme
Court in Krishna Lal Chawla & Anr. vs. State of Uttar Pradesh & Anr.
reported in AIR 2021 SC 1381. Paragraphs 15-23 of the aforesaid report
are absolutely relevant and quoted below:-
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"15. It is said that every trial is a voyage of
discovery in which the truth is the quest. In India,
typically, the Judge is not actively involved in 'fact-
finding' owing to the adversarial nature of our justice
system. However, Section 165 of the Indian Evidence
Act, 1872 by providing the Judge with the power to
order production of material and put forth questions
of any form at any time, marks the influence of
inquisitorial processes in our legal system. This wide-
ranging power further demonstrates the central role
played by the Magistrate in the quest for justice and
truth in criminal proceedings, and must be judiciously
employed to stem the flow of frivolous litigation.
16. All of this leads to one inescapable conclusion.
That the Trial Judge has a duty under the
Constitution and the CrPC, to identify and dispose of
frivolous litigation at an early stage by exercising,
substantially and to the fullest extent, the powers
conferred on him. This Court has earlier emphasised
on the high degree of responsibility shouldered by the
trial Judges in All India Judges' Association v. Union
of India, (1992) 1 SCC: (AIR 1992 SC 165).
Ranganath Misra CJ (as he was then) writing for
himself and two others stated:
"42. The trial Judge is the kingpin in the
hierarchical system of administration of justice. He
directly comes in contact with the litigant during the
proceedings in Court. On him lies the responsibility of
building up of the case appropriately and on his
understanding of the matter the cause of justice is
first answered. The personality, knowledge, judicial
restraint, capacity to maintain dignity are the
additional aspects which go into making the Court's
functioning successful."
17. Frivolous litigation should not become the
order of the day in India. From misusing the Public
Interest Litigation jurisdiction of the Indian courts to
abusing the criminal procedure for harassing their
adversaries, the justice delivery system should not be
used as a tool to fulfil personal vendetta. The Indian
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judiciary has taken cognizance of this issue. In 2014,
this Court elucidated as follows, the plight of a litigant
caught in the cobweb of frivolous proceedings
in Subrata Roy Sahara v. Union of India, (2014) 8
SCC 470: (AIR 2014 SC 3241)
"191...One needs to keep in mind, that in the
process of litigation, there is an innocent sufferer on
the other side, of every irresponsible and senseless
claim. He suffers long drawn anxious periods of
nervousness and restlessness, whilst the litigation is
pending, without any fault on his part. He pays for
the litigation, from out of his savings (or out of his
borrowings), worrying that the other side may trick
him into defeat, for no fault of his. He spends
invaluable time briefing counsel and preparing them
for his claim. Time which he should have spent at
work, or with his family, is lost, for no fault of his..."
While the Court's ruling pertained to civil
proceedings, these observations ring true for the
criminal justice machinery as well.
We note, with regret, that 7 years hence, and there
has still been no reduction in such plight. A falsely
accused person not only suffers monetary damages
but is exposed to disrepute and stigma from society.
While running from pillar to post to find a lawyer to
represent his case and arranging finances to defend
himself before the court of law, he loses a part of
himself.
18. As aforesaid, the trial courts and the
Magistrates have an important role in curbing this
injustice. They are the first lines of defence for both
the integrity of the criminal justice system, and the
harassed and distraught litigant. We are of the
considered opinion that the trial courts have the
power to not merely decide on acquittal or conviction
of the accused person after the trial, but also the duty
to nip frivolous litigations in the bud even before they
reach the stage of trial by discharging the accused in
fit cases. This would not only save judicial time that
comes at the cost of public money, but would also
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protect the right to liberty that every person is entitled
to under Article 21 of the Constitution. In this context,
the trial Judges have as much, if not more,
responsibility in safeguarding the fundamental rights
of the citizens of India as the highest court of this
land.
19. As recorded by us above, the present
controversy poses a typical example of frivolous
litigants abusing court process to achieve their
mischievous ends. In the case before us,
the Magistrate was aware of the significant delay in
the filing of private complaint by Respondent No. 2,
and of the material improvements from the earlier
NCR No. 158/2012 which were made in the private
complaint. It was incumbent on the Magistrate to
examine any possibility of abuse of process of the
court, make further enquiries, and dismiss the
frivolous complaint at the outset after judicial
application of mind.
20. However, this was not done - the Magistrate
issued process against the Appellants by order dated
4.04.2019, and this controversy has now reached
this Court for disposal.
21. It is a settled canon of law that this Court has
inherent powers to prevent the abuse of its own
processes, that this Court shall not suffer a litigant
utilising the institution of justice for unjust means.
Thus, it would be only proper for this Court to deny
any relief to a litigant who attempts to pollute the
stream of justice by coming to it with his unclean
hands. Similarly, a litigant pursuing frivolous and
vexatious proceedings cannot claim unlimited right
upon court time and public money to achieve his
ends.
22. This Court's inherent powers under Article
142 of the Constitution to do 'complete justice'
empowers us to give preference to equity and a
justice-oriented approach over the strict rigours of
procedural law (State of Punjab v. Rafiq Masih
(Whitewasher), (2014) 8 SCC 883: (AIR 2015 SC
1267). This Court has used this inherent power to
quash criminal proceedings where the proceedings
are instituted with an oblique motive, or on
manufactured evidence (Monica Kumar (Dr.) & anr. v.
State of Uttar Pradesh, (2008) 8 SCC 781). Other
decisions have held that inherent powers of High
Courts provided in Section 482, Cr.P.C may be
utilised to quash criminal proceedings instituted after
great delay, or with vengeful or malafide motives.
(Sirajul & ors. v. State of Uttar Pradesh, (2015) 9 SCC
201; State of Haryana v. Bhajan Lal, AIR 1992 SCC
604). Thus, it is the constitutional duty of this Court to
quash criminal proceedings that were instituted by
misleading the court and abusing its processes of
law, only with a view to harass the hapless litigants.
23. In this Court's quest for complete justice, and
to bring peace between the parties, who are fighting
various litigations since 2006, we exercise our powers
under Article 142 to quash all the litigations between
the parties arising out of this incident.''
13. That in view of the above observation of the Hon'ble Supreme Court
was pleased to quash criminal proceedings instituted against the
appellant under Article 142 of the Constitution.
14. Mr. Moitra, thus, concludes that the petition of complaint
predominantly contains allegations against the accused persons that the
complainant is the victim of vengeance by the accused persons. She was
not given due recognition of her work. She was illegally transferred to a
non-existent department. Her annual confidential reports were forged.
She was compelled to make statement against her colleagues under the
compulsion of the accused persons. The accused persons allegedly
admitted to receive government money from the office of the Block
Development Officer which was granted to the complainant for her
project. All such so called illegal acts, if at all done by the accused
persons, were done in discharge of their official duty. Therefore, sanction
under Section 197 of the Cr.P.C was absolutely necessary. Secondly, the
allegations against the accused No.1 that he used to make sexist remark
to the women employees or that the wife of the accused No.1 protested
against him for his sexist remarks have no leg to stand. Except general
allegations, complainant failed to narrate any specific incident when they
allegedly indulge in such illegal acts. It is also submitted by Mr. Moitra
that the incident date 6th August, 2021 of throwing stone wrapped with
paper containing threatening letter against the complainant has also not
been prima facie established. Therefore, the petition of complaint is liable
to be quashed.
15. Mr. Y.J Dastoor, learned Senior Counsel on behalf of the
complainant submits that CSIR is a society registered under the Societies
Registration Act. It is governed by the rules and regulations and by laws
contained in the memorandum of association. Rule 15 of the said Rules
clearly states that the society shall be domain organisation and its
functions shall include the following:
i) Review the progress and performance of CSIR.
ii) Give the police direction to the governing body.
iii) Approve the annual report and the yearly account of
CSIR.
16. It is submitted by Mr. Dastoor that the protection by way of
sanction under Section 197 of the Cr.P.C is not applicable to the officers
of government companies or the public undertakings, even when such
public undertakings are "State" within the meaning of Article 12 of the
Constitution on account of deep and pervasive control of the government.
It is further submitted by Mr. Dustor referring to a decision of the Hon'ble
Supreme Court in Md. Hadi Raja vs. State of Bihar & Anr. reported in
(1998) 5 SCC 91 that "public servant" has not been defined in the Cr.P.C,
but the term "public servant" is defined in Section 21 of the IPC which will
have the same meaning in Criminal Procedure Code. The justification for
the protection under Section 197 of the Code of Criminal Procedure lies in
the public policy to ensure that official acts performed by a public servant
do not lead to needless and vexatious prosecution of such public servant
and it is desirable that it should be left to the government to determine
the question as to whether a public servant should under particular facts
and circumstance be prosecuted. With regard to the status of a
corporation, it is held by the Apex Court in Md. Hadi Raja's case (supra)
that the instrumentality and the agency of a corporate veil, for all intents
and purposes may be held to be a third arm of the government and such
instrumentality discharges the duties and functions which the
Government intends to do. Such instrumentality or agency is none the
less juridical person having a separate legal entity. Therefore, such
instrumentality must be held to have an independent status distinct from
the State and cannot be treated as a government department for all
purposes.
17. Mr. Dastoor also refers to a decision in the case of Bharat Sanchar
Nigam Limited & Anr. vs. Pramod V. Sawant & Anr. reported in (2019)
16 SCC 63. In paragraph 8 of the said report the Hon'ble Supreme Court
observed as hereunder:-
"8. At the very outset, we are of the opinion that the question
for grant of sanction for prosecution under Section 197, Cr.P.C.
on the ground of being a 'public servant' is not available to
appellants nos.3 and 4 on account of their ceasing to be
employees of the Indian Telecommunication Service after their
absorption in the appellant Corporation on 01.10.2000, prior to
the complaint. The fact that their past service may count for
purposes of pension in case of removal or dismissal by the
Corporation or that administrative approval of the concerned
ministry may be formally required before any punitive action
will not confer on them the status of 'public servant' under the
Cr.P.C."
18. Placing reliance on Md. Hadi Raja's case, it is submitted by Mr.
Dastoor that the Hon'ble Supreme Court held that the appellant No.3 and
4 being the employees of the corporation, the question of sanction under
Section 197 of the Code of Criminal Procedure treating them to be "public
servant" does not arise because of their absorption in the corporation. In
fine, it was held by the Hon'ble Supreme Court that an employee of a
government undertakings or a corporation are not public servants and
protection under Section 197 of the Cr.P.C is not available to them.
Accordingly, it is submitted by Mr. Dastoor that the ratio laid down in
Pradeep Kr. Biswas (supra) is not at all relevant in view of the subsequent
decision in BSNL's Case (supra).
19. Therefore, the learned Magistrate was well satisfied that protection
under Section 197 of the Cr.P.C is not available to the accused. It is
submitted by Mr. Dastoor that after issuance of process against the
accused persons, they appeared before the trial court and filed an
application for recalling of the order of issuance of bailable warrant of
arrest against them. The said application was rejected by the learned
Magistrate vide order dated 17th December, 2021. Therefore, it is
contended by Mr. Dastoor that the accused persons submitted to the
jurisdiction of the trial court. They did not challenge the order dated 22nd
December, 2021 in view of which, bailable warrant was issued against the
accused persons and the order dated 27th December, 2021 when the
learned Magistrate rejected their prayer for recalling of the order of
issuance of bailable warrant against them. Therefore, the instant revision
challenging the order of taking cognizance and issuance of process
against the accused persons is bad in law.
20. Mr. Dastoor next refers to the decision in N.K. Sharma vs.
Abhimanyu reported in (2005) 13 SCC 213. In the aforesaid report, the
issue that fails for consideration before the Hon'ble Supreme Court is
whether a class-1 officer of the State Government (Haryana) deputed to
work as Managing Director of Cooperative Society is entitled to protection
under Section 197 of the Cr.P.C. It was held by the Hon'ble Supreme
Court in paragraph 12 of the N.K. Sharma (supra) underlying object in
enacting Section 197 Cr.P.C is to protect a public servant from a frivolous
prosecution. The said provision, however, although may not be construed
too narrowly, as was held in Shreekantiah Ramayya Munipalli vs. State
of Bombay : 1955 (1) SCR 1177, whereupon the learned counsel for the
Appellant placed reliance, cannot be interpreted liberally so as to bring
within its purview other officers who are not so protected. In order to avail
protection under Section 197 of the Code of Criminal Procedure a person
must come within the definition of public servants as defined in Section
21 of the IPC. Thus, when service of a member of Indian Administrative
Service is placed at the disposal of cooperative Stores Limited, a society
registered under the Bombay Cooperative Societies Act, he was held not to
be entitled to protection under Section 197 of the Cr.P.C. It is pointed out
by Mr. Dastoor that N.K Sharma (supra) considered the Seven Judges'
Bench decision in Pradeep Kr. Biswas (supra) and held that the appellant
who was posted as Managing Director of a Cooperative Society, was not
entitled to protection under Section 197 of the Cr.P.C. Mr. Dastoor also
refers to the decision in K.N. Shukla vs. Navnit Lal Manilal Bhatt &
Anr. reported in AIR 1967 SC 1331 and submits that if once the Central
Government has delegated its power to another authority with regard to
appointment and removal of public servant, then for the purpose of
Section 197 of the Criminal Procedure Code the public servant concerned
will not be treated to be a public servant "not removable from his office
except by or with the sanction of Central Government." It is contended by
Mr. Dastoor that in the instant case the petitioners are not public
servants within the meaning of Section 21 of the IPC. They are employees
of an organization registered under the Societies Registration Act.
Therefore, the petitioners are not entitled to get protection under Section
197 of the Cr.P.C.
21. Learned Senior Counsel on behalf of the petitioner further submits
that the court of the learned Metropolitan Magistrate, Calcutta has no
jurisdiction to try the case instituted on the complaint filed by the
opposite party No.2. The incident dated 26th August, 2021 is part of the
same transaction of several offences allegedly committed by the accused
persons. The complainant was threatened with dire consequences if she
failed to act under the direction of the petitioners. In order to prove the
said incident the uncle of the complainant came to the court and deposed.
This is not the stage to challenge the veracity of the statement of the uncle
of the complainant. Veracity of the witness cannot be assailed in revision.
Thus, the learned Magistrate correctly decided that the court had
jurisdiction to try the offence complained of.
22. On the issue of the scope of inherent power of the High Court
provided under Section 482 of the Code of Criminal Procedure, the
learned Senior Counsel on behalf of the opposite party No.2 first refers to
a decision in the case of R.P Kapur vs. State of Punjab reported in AIR
1960 SC 866. In the aforesaid report, the Hon'ble Supreme Court had the
occasion to consider the scope of the inherent power of the High Court
under Section 561(A) of the old Code of Criminal Procedure. It is held by
the Hon'ble Supreme Court that the aforesaid Section states the inherent
power of the High Court to make such orders as may be necessary to give
effect to any order under this Code or to prevent abuse of process of any
court or otherwise to secure the ends of justice. The inherent power
cannot be exercised in regard to matters specifically covered by the other
provisions of the Code. It is submitted by the learned Senior Counsel that
the learned Magistrate on due consideration of the petition of complaint
filed by the opposite party No.2 and the statement of the complainant and
the witnesses on solemn affirmation issued process against the accused
persons. The act of the learned Magistrate is well within the scope of his
jurisdiction. By invoking Section 482 of the Code of Criminal Procedure,
Magisterial act cannot be questioned.
23. On the same issue he also refers to another decision of the Hon'ble
Supreme Court in the case of Amit Kapoor vs. Ramesh Chander & Anr.
reported in (2012) 9 SCC 460. In the above report also it is observed by
the Hon'ble Supreme Court that inherent power under Section 482 of the
Cr.P.C being an extraordinary and residuary power, it is inapplicable in
regard to matters which are specifically provided for under other
provisions of the Cr.P.C. Normally, the court may not invoke its power
under Section 482 of the Cr.P.C where a party could have availed of the
remedy. In the instant case the accused persons should surrender before
the court of the learned Magistrate and ventilate their grievances at the
time of consideration of charge. At the very inception of criminal
proceeding the petitioners are not permitted to invoke Section 482 of the
Code of Criminal Procedure.
24. On the similar issue the learned Senior Counsel refers to the
decision in the case of Iridium India Telecom Ltd. Vs. Motorola
Incorporated & Ors : (2011) 1 SCC 74, State of Karnataka vs. M.
Devendrappa & Anr : (2002) 3 SCC 89, State of M.P vs. Surendra Kori
: (2012) 10 SCC 155 and Padal Venkata Rama Reddy vs. Kovvuri
Satyanarayana Reddy & ors. : (2011) 12 SCC 437.
25. I have heard the leaned Counsels for the parties. I have also
carefully perused the materials on record as well as the decisions referred
to by the learned Senior Counsels for the parties. Indisputably, the
Council for Scientific and Industrial Research (CSIR) is autonomous
society whose President is the Prime Minister of India. CSIR today is
amongst the foremost and largest publicly funded scientific and industrial
research organization in the World. Rules & Regulations and Bye-Laws of
the CSIR states that the Prime Minister of India shall be the Ex-Officio
President of the Society. The Director General shall be the Ex-officio
Secretary of the society. The Director General and Members of the society
are appointed by the President of India. Rule 12 specifically states that
the Central Civil Services (Classification Control and Appeal) Rules and
the Central Civil Services (Conduct) Rules, for the time being in force,
shall apply, so far as it may be to the Officers and Establishment in the
service of society subject to the following modifications that:-
(a) reference to the "President" & "Government Servant" in the
Central Civil Services (Classification, Control and Appeal)
shall be as reference to the "President of the Society" and
"Officers & Establishment in service of the society"
respectively;
(b) reference to "Government" & "Government Servant" in
Central Civil Services (Conduct) Rules, shall be construed
as reference to the "Society" & "Officer and establishments
in the service of the Society" respectively.
26. Thus, it is absolutely clear that the Officers of the CSIR and its
society organisations are appointed by the President and Central Civil
Services (Classification, Control and Appeal) Rules and the Central Civil
Services (Conduct) Rules are applicable to the officers and employees of
the CSIR and its sister organisations.
27. Section 197 of the Cr.P.C offers protection to a public servant not
removable from his office save by or with the sanction of the Government
from being an accused of any offence alleged to have been committed by
him while acting or purporting to act in the discharge of his official duty.
However, if he commits an offence not connected with his official duty, he
has no privilege.
28. In Parkash Singh Badal & Anr. vs. State Of Punjab & Ors.
reported in (2007) 1 SCC 1, it is observed by the Hon'ble Supreme Court
that the principle of immunity protects all acts which the public servant
has to perform in the exercise of the functions of the Government. The
purpose for which they are performed protects these acts from criminal
prosecution. However, there is an exception. Where a criminal act is
performed under the colour of authority but which in reality is for the
public servant's own pleasure or benefit then such acts shall not be
protected under the doctrine of State immunity under Section 197 of the
Code of Criminal Procedure. It is not in dispute that the petitioner No.1 is
the Director of Central Mechanical Engineering Research Institute
(CMERI), a sister concern of CSIR. The petitioner No.2 is also an employee
of CMERI, at Durgapur. They are appointed by the President of India.
They are removable by the appointing authority. They are governed by the
Central Civil Services (Classification and Control) Rules. From the Rules
and Regulation of CSIR, the dominant role played by the Government of
India in the Governing Body of CSIR is evident. The Director General who
is ex-officio Secretary of the Society is appointed by the Government of
India. [Rule 2 (iii)]. Furthermore, the members of the Governing Body who
are not there ex-officio are nominated by the President and their
membership can also be terminated by him and the Prime Minister is the
ex-officio President of CSIR. By virtue of his office the Prime Minister is
the President of the Society. Therefore, this Court does not have any scope
to hold otherwise in derogation of the decision of the Hon'ble Supreme
Court in Pradip Kumar Biswas (supra). It is also respectfully submitted
that in view of peculiar composition of CSIR, decision of the Hon'ble
Supreme Court in Bharat Sanchar Nigam Limited (supra) is not
applicable in the instant case because CSIR is a corporation like that of
BSNL.
29. In paragraph 3 of the instant judgment, I have clearly stated the
allegations made out by the opposite party No.2 against the petitioners.
Almost all the allegations except the allegation of throwing a threatening
letter wrapped with a stone in the house of the uncle of the complainant
constitute specific acts allegedly done by the petitioners in discharge of
their official duties. Therefore, they are protected against such acts under
Section 197 of the Code of Criminal Procedure.
30. The learned Magistrate failed to consider such aspect of the matter
that prior sanction is necessary before lodging complaint against the
petitioners. The learned Magistrate also failed to consider that the
allegations of purported offence under Section
417/418/419/420/465/469 of the IPC read with Section 120B of the IPC
were committed within the jurisdiction of the learned Additional Chief
Judicial Magistrate at Durgapur. When the accused persons reside at a
place beyond the area in which the Magistrate exercises his jurisdiction,
it is mandatory to hold inquiry or investigation for the purpose of deciding
whether or not there is sufficient ground for proceeding before issuance of
process under Section 202 of the Cr.P.C. The decisions in the cases of
Vijay Dhanuka & Ors. vs. Najima Mamtaj & Ors. reported in (2014) 14
SCC 638 and Abhijit Pawar vs. Hemant Madhukar Nimbalkar & Anr.
reported in (2017) 3 SCC 528 may be relied on in this regard.
31. In the instant case the learned Magistrate issued process without
holding any inquiry under Section 202 of the Cr.P.C. Even if the case of
the opposite party No.2 with regard to throwing of a stone in the house of
her uncle with a threatening letter wrapped thereon is taken on its face
value it is ascertained that there is absolutely no evidence connecting the
petitioners with the said allegation.
32. For the reasons stated above, Criminal Proceeding being No.CN-809
of 2021 is liable to be quashed.
33. Accordingly, the instant revisional application is allowed on contest.
34. The Criminal Proceeding No.CN-809 of 2021 pending the learned
Additional Chief Metropolitan Magistrate, Bankshall Court be quashed.
(Bibek Chaudhuri, J.)
