Calcutta High Court (Appellete Side)

Udayan Majumdar vs The State Of West Bengal & Anr on 8 March, 2022

08.03.2022                IN THE HIGH COURT AT CALCUTTA
Item No.11                CRIMINAL REVISIONAL JURISDICTION
Ct.No.34
   dc.
                                   C.R.R. 2806 of 2019
                                          with
                                     CRAN 7 of 2022



                                   Udayan Majumdar
                                         versus
                            The State of West Bengal & Anr.


             In Re: An Application under Section 401 read with Section
             482 of the Code of Criminal Procedure, 1973 filed for
             quashing of the proceedings in connection with Hare Street
             Police Station/D.D. Case No. 321 dated 27.05.2014 under
             Sections 409/201/120B of the Indian Penal Code read with
             Sections 13(1)(b) and 13(1)(c) of the Prevention of Corruption
             Act, 1988 pending before the learned Judge, 4th Special
             Court, Bankshall Court, Calcutta.


             Mr. Biplab Mitra,
             Mr. Indranil Nandi,
             Mr. Sayak Konar                 ... For the Petitioner.

             Mr. Madhusudan Sur,
             Mr. Manoranjan Mahata           ... For the State.



                   The present revisional application has been preferred

             challenging the proceedings arising out of Hare Street Police

             Station/D.D. Case No. 321 dated 27.05.2014 under Sections

             409/201/120B of the Indian Penal Code read with Sections

             13(1)(b) and 13(1)(c) of the Prevention of Corruption Act

             pending before the learned Judge, 4th Special Court, Calcutta.

                   Mr. Mitra, learned advocate appearing for the petitioner

             submits that the present case had a chequered history in

             view of the fact that the criminal investigation commenced

             after the State of West Bengal lost the case in the Division

             Bench as well as before the Hon'ble Supreme Court. Learned

             advocate submits that the petitioner for a limited period of
                           2




time was engaged as Controller of Examinations and on

assessment of the allegations made in the charge-sheet,

hardly there are any materials collected against him in

relation to the offences which have been made the foundation

of the criminal case, more particularly in respect of the

successful candidates who were before the Hon'ble Division

Bench as well as before the Hon'ble Supreme Court.

According to the learned advocate, all the contentions

advanced in the charge-sheet which have been made the

foundation of the offences were agitated by the State before

the Hon'ble Division Bench and the same were considered

and dealt with and findings were arrived at. The present case

is a belated plea of the State being unable to satisfy their own

conduct and non-availability of the documents, which were

the foundation of the FIR and a ploy of vendetta to exhibit

victimization for the loss suffered in the litigation by the State

of West Bengal. Additionally, the learned advocate for the

petitioner has canvassed on the issue of sanction, as the

petitioner at the relevant point of time happened to be the

Controller of Examinations for a limited period. In support of

his contention, Mr. Mitra relies upon the following judgments

of the Hon'ble Supreme Court :


      (i)    N.K.    Ganguly     Vs.    Central     Bureau     of
             Investigation, New Delhi reported in (2016) 2
             Supreme Court Cases 143,


      (ii)   Matajog Dobey Vs. H.C. Bhari reported in AIR
             1956 SC 44 and
                              3




      (iii)   Central Bureau of Investigation, Hyderabad Vs. K.
              Narayana Rao reported in (2012) 9 Supreme
              Court Cases 512.


      By relying upon N.K. Ganguly (supra) and Matajog

Dobey (supra), the learned advocate emphasized that a

government employee is entitled to protection for the work

done in discharge of his official duty and as such, the same

having not been obtained in this case, it was not within the

domain of the learned Special Court to take cognizance of the

offences and proceed with the case. Attention of the Court

has been drawn to paragraphs 35 and 37 of the judgment in

N.K. Ganguly (supra) which are as follows :



      "35. From a perusal of the case law referred to supra, it
      becomes clear that for the purpose of obtaining previous
      sanction from the appropriate Government under Section 197
      CrPC, it is imperative that the alleged offence is committed in
      discharge of official duty by the accused. It is also important
      for the Court to examine the allegations contained in the final
      report against the appellants, to decide whether previous
      sanction is required to be obtained by the respondent from the
      appropriate Government before taking cognizance of the
      alleged offence by the learned Special Judge against the
      accused. In the instant case, since the allegations made
      against the appellants in the final report filed by the
      respondent that the alleged offences were committed by them
      in discharge of their official duty, therefore, it was essential
      for the learned Special Judge to correctly decide as to whether
      the previous sanction from the Central Government under
      Section 197 CrPC was required to be taken by the respondent,
      before taking cognizance and passing an order issuing
      summons to the appellants for their presence."


      "37. For the aforesaid reasons, we set aside the impugned
      judgment and order of the High Court dated 27-5-2013
      passed      in Prof.       N.K.   Ganguly v. CBI [Prof.    N.K.
                             4




      Ganguly v. CBI, 2013 SCC OnLine All 13774 : (2013) 6 All LJ
      706] and order dated 7-10-2014 passed in Application No.
      277KH of 2014 in Special Case No. 18 of 2012 and quash the
      proceedings taking cognizance and issuing summons to the
      appellants in Special Case No. 18 of 2012 by the Special
      Judge, Anti-Corruption (CBI), Ghaziabad, U.P. in absence of
      previous sanction obtained from the Central Government to
      prosecute the appellants as required under Section 197 CrPC.
      The appeals are allowed. All the applications are disposed
      of."


      Reference has been made to paragraphs 18 and 19 of

Matajog Dobey (supra) which are as follows :


      "18. There are two cases of this Court to which reference may
      be made here. In Shreekantiah Ramayya Munipalli v. The
      State of Bombay [(1955) 1 SCR 1177, 1186] , Bose, J.

observes as follows: "Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning". The question of previous sanction also arose in Amrik Singh v. State of Pepsu [(1955) 1 SCR 1302, 1307, 1308] . A fairly lengthy discussion of the authorities is followed up with this summary: "If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required."

"19. The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended

or fanciful claim, that he did it in the course of the performance of his duty."

Learned advocate for the petitioner draws the attention

of this Court to paragraphs 20, 22 and 24 of Central Bureau

of Investigation, Hyderabad Vs. K. Narayana Rao (supra) which

are as follows :

"20. We have already extracted the relevant allegations and the role of the respondent herein (A-6). The only allegation against the respondent is that he submitted false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the properties. As rightly pointed out by Mr Venkataramani, learned Senior Counsel for the respondent, the respondent was not named in the FIR. The allegations in the FIR are that A-1 to A-4 conspired together and cheated Vijaya Bank, Narayanaguda, Hyderabad to the tune of Rs 1.27 crores. It is further seen that the offences alleged against A-1 to A-4 are the offences punishable under Sections 120-B, 419, 420, 467, 468 and 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. It is not in dispute that the respondent is a practising advocate and according to Mr Venkataramani, he has experience in giving legal opinion and has conducted several cases for the banks including Vijaya Bank. As stated earlier, the only allegation against him is that he submitted false legal opinion about the genuineness of the properties in question. It is the definite stand of the respondent herein that he has rendered legal scrutiny reports in all the cases after perusing the documents submitted by the Bank. It is also his claim that rendition of legal opinion cannot be construed as an offence.

He further pointed out that it is not possible for the panel advocate to investigate the genuineness of the documents and in the present case, he only perused the contents and concluded whether the title was conveyed through a document or not. It is also brought to our notice that LW 5 (listed witness), who is the Law Officer of Vijaya Bank, has given a statement regarding flaw in respect of title of several

properties. It is the claim of the respondent that in his statement, LW 5 has not even made a single comment as to the veracity of the legal opinion rendered by the respondent herein. In other words, it is the claim of the respondent that none of the witnesses have spoken to any overt act on his part or his involvement in the alleged conspiracy. The learned Senior Counsel for the respondent has also pointed out that out of 78 witnesses no one has made any relevant comment or statement about the alleged involvement of the respondent herein in the matter in question."

"22. We have already mentioned that it is an admitted case of the prosecution that his name was not mentioned in the FIR. Only in the charge-sheet, the respondent has been shown as Accused 6 stating that he submitted false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the properties in question."

"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and

surmises or inference which are not supported by cogent and acceptable evidence."

According to the learned advocate for the petitioner, the

Hon'ble Supreme Court in the aforesaid decision held that

even if some of the acts are proved to have been committed

there must be an agreement between the accused persons

who were parties to the alleged conspiracy and the offences

must have been committed pursuant to such agreement.

Drawing the analogy from the said case, the learned advocate

points out that in the present case, the prosecution by relying

upon the documents under Section 207 of the Code of

Criminal Procedure has failed to make out any case so far as

the present petitioner is concerned and there are no

documents to show that the petitioner has been a beneficiary

of any farthing or any of the relations of the petitioner has

received any employment in respect of the exercise made by

the Department of Agriculture for employment relating to

Lower Division Clerks.

Mr. Mitra submits that having regard to the materials

so collected and available before the court, no case has been

made out so far as the present petitioner is concerned and as

such, the proceedings against him should be quashed.

Mr. Sur, learned advocate appearing for the State

vehemently opposes the contentions of Mr. Mitra and submits

that there are glaring materials and clinching evidence so far

as this case is concerned. However, the foundation of the case

is based on not making available materials of the concerned

department for effectively conducting the litigations before the

courts. Learned advocate further adds that although in such

perspective the case was initiated, but the case has reached a

different complexion and the materials now available with the

investigating agency, leaves no room for escape of the present

petitioner.

I have perused the charge-sheet which has been relied

upon by the petitioner and which was the basis of argument

of the learned advocate appearing for the petitioner. I find

from the charge-sheet certain materials which have been

collected by the investigating agency are very serious. 34

candidates who have been successful are all relations of the

employees of the Agriculture Department. Daughter of one of

the accused viz., Kalyan Sur, stood first in the examination.

The said Kalyan Sur was thickly connected with the process

of examination. The investigating officer of the case had to

search for records as most of the files were kept in places

which ordinarily could not have been accessed by an ordinary

official without the consent/knowledge of the persons who

had the intention of hiding the records. One of the most

serious allegations, which the investigating officer in course

of investigation found out, is regarding the answer scripts

which were available at Alipore Treasury Building. The

investigating officer could on effective search, lay his hands

on the answer scripts of 15 successful candidates and it was

found that the answer scripts first of all had overwritten

marks which mismatched. This is a serious allegation as in

government job, a competent person has been deprived by

manipulating the answer scripts which is primarily the

contention of the investigating officer and which is referred to

as serial number 15 in the list of documents so relied upon

by the investigating agency to prove its case. The learned

advocate for the petitioner was repeatedly confronted over

this issue as to whether the Hon'ble Division Bench and the

Hon'ble Supreme Court had the occasion to deal with the

aforesaid manipulated answer scripts which contained

overwritten marks which were mismatching. Although the

learned advocate for the petitioner tried with his best efforts

to justify that this was not a very important issue, but to the

best of the understanding of this Court as it reveals from the

documents placed in this revisional application, the aforesaid

issue of manipulated answer scripts was neither before the

Hon'ble Division Bench nor before the Hon'ble Supreme Court

which creates a separate cause of action.

At this stage when the Special Court is in seisin of the

matter for consideration of charges, the primary issue is

whether a case has been made out for continuation of trial or

not. The materials which have been collected by the

investigating officer primarily reveal that in the process of

examination, the petitioner was for a considerable period of

time in the helm of affairs and therefore his responsibility

cannot be ignored. The successful candidates, their relations

being in the department and the manipulated answer scripts

are chain of circumstances which cannot be designed without

the persons responsible for conducting examination are either

facilitating them for doing the illegality or are adding them by

illegal means as successful candidates.

So far as the merits of this case is concerned, this

Court is of the opinion that prima facie the complicity of the

petitioner cannot be brushed aside so far as the issue of

sanction is concerned. The judgments referred to by the

learned advocate for the petitioner are definitely issues on the

authorities in the background of the facts which have been

decided. In this case, the nature of allegations are such that

it cannot by any stretch of imagination be held that an

examination process has been corrupted and manipulated for

ensuring success of targeted candidates who are relations of

the department. The said act complained of cannot be by any

stretch of imagination said to be in course of discharge of

official duty.

The Hon'ble Supreme Court in the case of P.K. Pradhan

Vs. State of Sikkim represented by the Central Bureau of

Investigation reported in (2001) 6 Supreme Court Cases 704

after referring to a catena of judgments in paragraph 15

observed as follows :

"15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act

purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial."

In view of the observations made therein, the issue of

sanction is open as the same can be obtained in course of the

trial, if so required.

Having regard to the observations made above, I am of

the opinion that there is no scope for interference in the

proceedings pending before the learned Special Court,

Calcutta arising out of Hare Street Police Station/D.D. Case

No. 321 dated 27.05.2014.

Thus, the revisional application being CRR 2806 of

2019 is dismissed.

Interim order, if any, is hereby vacated.

All pending connected applications, if any, are