Subhojit Sen vs The State Of West Bengal & Ors
2022 Latest Caselaw 767 Cal

23.02.2022                IN THE HIGH COURT AT CALCUTTA
Item No.63                CRIMINAL REVISIONAL JURISDICTION
Ct.No.34
   dc.
                                  C.R.R. 89 of 2020
                                (Via Video Conference)

                                    Subhojit Sen
                                          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 order dated
             18.12.2019 passed by learned Senior Municipal Magistrate,
             Kolkata in Case No. 1041 of 2019 pending before the learned
             Senior Municipal Magistrate, Kolkata arising out of
             Narkeldanga Police Thana Case No. 3777 of 2019 dated
             15.12.2019 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 order dated 18.12.2019 passed by learned

             Senior Municipal Magistrate, Kolkata in Case No. 1041 of

             2019 arising out of Narkeldanga Police Thana Case No. 3777

             of 2019 dated 15.12.2019 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 :

                          "Hence, the Deputy Commissioner of Police, Eastern

                   Suburban Division, Kolkata is directed take necessary

                   disciplinary action against the concerned Officer-in-Charge,
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      Narkeldanga 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, Narkeldanga 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, Narkeldanga PS and a direction

was also passed upon the concerned Officer-in-Charge,

Narkeldanga 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.

      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
                              3




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, Narkeldanga

Police Station, petitioner herein, should be given an

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

Deputy Commissioner of Police, Eastern 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 89 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.)