Saikat Neogi vs The State Of West Bengal & Ors
2022 Latest Caselaw 761 Cal

23.02.2022                IN THE HIGH COURT AT CALCUTTA
Item No.70                CRIMINAL REVISIONAL JURISDICTION
Ct.No.34
   dc.
                                  C.R.R. 405 of 2020
                                 (Via Video Conference)

                                    Saikat Neogi
                                          versus
                             The State of West Bengal & Ors.

             In Re: An Application under Section 482 of the Code of
             Criminal Procedure, 1973 filed for challenging the orders
             dated 13.12.2019 and 10.01.2020 passed by learned Senior
             Municipal Magistrate, Kolkata in Case No. 1038 of 2019
             pending before the learned Senior Municipal Magistrate,
             Kolkata arising out of Sinthee Police Thana Case No. 3932 of
             2019 dated 12.12.2019 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 orders dated 13.12.2019 and 10.01.2020

             passed by learned Senior Municipal Magistrate, Kolkata in

             Case No. 1038 of 2019 arising out of Sinthee Police Thana

             Case No. 3932 of 2019 dated 12.12.2019 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 :
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            "Hence, the Deputy Commissioner of Police, North and

     North Suburban Division, Kolkata is directed take necessary

     disciplinary action against the concerned Officer-in-Charge,

     Sinthee 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, Sinthee 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, North and North Suburban Division,

Kolkata was directed to take necessary disciplinary action

against the concerned Officer-in-Charge, Sinthee PS and a

direction was also passed upon the concerned Officer-in-

Charge, Sinthee PS to appear in person before the Court and

file written show-cause as to why the necessary proceeding
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under penal provision of law shall not be initiated against

him.

         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, Sinthee Police

Station, petitioner herein, should be given an opportunity and

as such, the part of the order wherein the Deputy

Commissioner of Police, North and North Suburban Division,

Kolkata 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 405 of 2020 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.)