Subrata Kumar Pal vs The State Of West Bengal & Anr
2022 Latest Caselaw 756 Cal

23.02.2022                IN THE HIGH COURT AT CALCUTTA
Item No.60                CRIMINAL REVISIONAL JURISDICTION
Ct.No.34
   dc.
                                 C.R.R. 3646 of 2019
                                 (Via Video Conference)


                                  Subrata Kumar Pal
                                          versus
                             The State of West Bengal & Anr.

             In Re: An Application under Section 482 of the Code of
             Criminal Procedure, 1973 filed for challenging the order
             dated 19.11.2019 passed by learned Senior Municipal
             Magistrate, Kolkata in Case No. 991 of 2019 pending before
             the learned Senior Municipal Magistrate, Kolkata arising out
             of Manicktala Police Thana Case No. 661 of 2019 dated
             17.11.2019 under Section 618 of the Kolkata Municipal
             Corporation Act.

             Mr. Sekhar Basu, Sr. Adv.,
             Mr. Sourav Chatterjee,
             Ms. Sayanti Santra                       ... For the Petitioner.

             Mr. S. N. Mookherjee, Ld. Advocate General,
             Mr. S. G. Mukherjee, Ld. P.P.,
             Ms. Sreyashee Biswas                  ... For the State.

             Mr. Raj Dip Ray,
             Mr. Anindya Sundar Chatterjee,
             Mr. Goutam Dinda                         ... For the K.M.C.



                   The present revisional application has been preferred

             challenging the order dated 19.11.2019 passed by learned

             Senior Municipal Magistrate, Kolkata in Case No. 991 of

             2019 arising out of Manicktala Police Thana Case No. 661 of

             2019 dated 17.11.2019 under Section 618 of the Kolkata

             Municipal Corporation Act.

                   The subject matter of grievance in respect of the order

             complained of is the following observations made by the

             learned Magistrate :

                          "Action must be taken against erring officers who do

                   not register the FIR if information received by him discloses a

                   cognizable offence.
                           2




             Hence, the Deputy Commissioner of Police, Eastern

      Suburban Division, Kolkata is directed take necessary

      disciplinary action against the concerned Officer-in-Charge,

      Manicktala PS responsible for non-registration of FIR in spite

      of receiving an information disclosing commission of a

      cognizable offence in compliance with the solemn mandates

      of the Hon'ble Apex Court and the Court shall be informed of

      the action so taken by him.

             The concerned Officer-in-Charge, Manicktala PS is

      directed to appear in person before the Court and to file

      written show-cause why the necessary proceeding under

      penal provision of law shall not be initiated against him for

      his     dereliction/avoidance/neglect     of    duty      and

      disobey/violation/breach of law as mandated by the

      Hon'ble Court."


      The learned Magistrate amongst others relied upon a

judgement of the Hon'ble Supreme Court in Lalita Kumari

Vs. Govt. of U.P. reported in AIR 2014 Supreme Court 187.

Paragraph 111 of the said judgment was referred by the

learned     Magistrate    and       consequently     the     Deputy

Commissioner of Police, Eastern Suburban Division, Kolkata

was directed to take necessary disciplinary action against

the concerned Officer-in-Charge, Manicktala PS and a

direction was also passed upon the concerned Officer-in-

Charge, Manicktala PS to appear in person before the Court

and file written show-cause as to why the necessary

proceeding under penal provision of law shall not be

initiated against him.
                            3




         At the relevant point of time when the information was

received by the police station regarding unauthorized

construction, there was no specific guidelines or procedures

laid down for the police officers to take action in co-

ordination with the Municipal authorities responsible for

deciding unauthorized construction.

         Pursuant to the direction passed by this Court on

04.10.2021

, a Standard Of Procedure has been prepared in

consultation with the police authorities represented by

Deputy Commissioner of Police, Cyber Crime, Lalbazar,

Kolkata and also the DYCE (C)/BLDG/South West Building

Dept., Kolkata Municipal Corporation and both the

government departments have agreed amongst themselves

to adhere to the Procedures which are as follows :

"i. On an information of an unauthorized construction

by a private person before an Officer-in-Charge of a

Police Station, the concerned Officer-in-Charge, either

by himself or by a Sub-Inspector of Police, who has

been endorsed with the complaint, without any delay,

will write to Executive Engineer (Civil), KMC of local

borough having jurisdiction to let the police know if

the construction alleged is unauthorized or not, as

mentioned in section 588 (2) (i) KMC Act.

ii. The KMC authority, after receipt of information as

mentioned in Sl. (i), will inspect said construction site

without delay and submit a report to concerned Officer-

in-Charge of the Police Station within 07 (seven)

working days, stating if the construction is authorized

or not.

iii. On getting a report from KMC authority that said

construction is unauthorized, the Officer-in-Charge will

direct a Sub-Inspector of the Police Station to register a

case under provisions of KMC Act, treating the

information alongwith KMC report as FIR and

investigate the case.

iv. If the report of KMC authority does not reveal any

unauthorized construction, then the information may

be filed and diarised and private informant should be

informed of the result within 07 (seven) working days."

In view of the settled Procedures to be adopted and the

fact that the police authorities are not the proper authorities

to address on the issue of unauthorized construction which

is within the domain of experts of the field and is to be

decided by engineers associated with the Municipal

authorities, I am of the opinion that the police authorities

should not be saddled in the midst of a litigation for inaction

for which they are not expert to decide. Henceforth, if the

Procedures laid down above, are not followed, the concerned

Officer would be held responsible for dereliction of duty.

Having regard to the steps taken and the Procedures

so adopted, I am of the opinion that the police authorities

particularly in this case the Officer-in-Charge, Manicktala

Police Station, petitioner herein, should be given an

opportunity and as such, the part of the order wherein the

Deputy Commissioner of Police was asked to take

disciplinary action against the petitioner herein and also the

part of the order which directed the petitioner to file written

show-cause explaining as to why necessary proceeding

under penal provision of law shall not be initiated against

him for his dereliction/avoidance/neglect of duty and

disobey/violation/breach of law is hereby set aside.

So far as the trial of the case is concerned, the same

would proceed in accordance with law. The learned Senior

Municipal Magistrate, Kolkata is directed to take the same to

its logical conclusion and not to insist on appearance and

filing written show cause by the petitioner.

With the aforesaid observations, the revisional

application being CRR 3646 of 2019 is allowed to the limited

extent as stated above.

Interim order, if any, is hereby vacated.

All pending connected applications, if any, are

consequently disposed of.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

Urgent photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

(Tirthankar Ghosh, J.)