Nilanjan Biswas vs The State Of West Bengal
2022 Latest Caselaw 757 Cal

23.02.2022                IN THE HIGH COURT AT CALCUTTA
Item No.62                CRIMINAL REVISIONAL JURISDICTION
Ct.No.34
   dc.
                                 C.R.R. 3731 of 2019
                                 (Via Video Conference)

                                   Nilanjan Biswas
                                          versus
                                The State of West Bengal

             In Re: An Application under Section 482 of the Code of
             Criminal Procedure, 1973 filed for challenging the order dated
             22.11.2019 passed by learned Senior Municipal Magistrate,
             Kolkata in connection with Parnashree Police Station Case
             No. 14 of 2019 dated 25.01.2019 under Section 401A of the
             Kolkata Municipal Corporation Act.

             Mr. Sekhar Basu, Sr. Adv.,
             Mr. Sabyasachi Banerjee,
             Mr. Avik Ghatak                         ... 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 22.11.2019 passed by learned

             Senior Municipal Magistrate, Kolkata in connection with

             Parnashree Police Station Case No. 14 of 2019 dated

             25.01.2019 under Section 401A 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 :

                          "In the above circumstances the Deputy Commissioner

                   of Police, South West Division (Behala), Kolkata is directed to

                   submit report through his authorized representative regarding
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      the progress of departmental proceeding against Sri Uttam

      Kumar Bhattacharya, SI of Police, Parnashree PS (now retired)

      and Inspector of Police, Sri Manoj Kumar Jha, the concerned

      Officer-in-Charge, Parnashree PS in compliance with the

      direction of this Court dated 05/02/2019 and further

      direction dated 08/03/2019 given in compliance with the

      solemn mandate of the Hon'ble Apex Court.

            Let a copy of this order be sent to the Deputy

      Commissioner of Police, South West Division (Behala), Kolkata

      for compliance."


      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, South West Division (Behala),

Kolkata was directed to submit report through his authorized

representative    regarding     the    progress   of   departmental

proceeding against Sri Uttam Kumar Bhattacharya, SI of

Police, Parnashree PS (now retired) and Inspector of Police,

Sri Manoj Kumar Jha, the concerned Officer-in-Charge,

Parnashree PS in compliance with the direction of this Court

dated 05/02/2019 and further direction dated 08/03/2019.

      At the relevant point of time when the information was

received   by    the   police   station   regarding    unauthorized

construction i.e. on 25.01.2019, there was no specific

guidelines or procedures laid down for the police officers to
                              3




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 Deputy Commissioner of Police,

South West Division (Behala), Kolkata, petitioner herein,

should be given an opportunity and as such, the part of the

order wherein the Deputy Commissioner of Police, South

West Division (Behala), Kolkata was directed to submit report

through his authorized representative regarding the progress

of departmental proceeding against Sri Uttam Kumar

Bhattacharya, SI of Police, Parnashree PS (now retired) and

Inspector of Police, Sri Manoj Kumar Jha, the concerned

Officer-in-Charge, Parnashree PS in compliance with the

direction of the Court dated 05/02/2019 and further

direction dated 08/03/2019 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 3731 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.)