Calcutta High Court (Appellete Side)

Md. Ali & Ors vs The State Of West Bengal on 31 August, 2023

                                   1


              IN THE HIGH COURT AT CALCUTTA
                Criminal Revisional Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                      C.R.R. No. - 2233 of 2017
                       IN THE MATTER OF

                            Md. Ali & Ors.
                                Vs.
                       The State of West Bengal

For the Petitioners          : Mr. Rajendra Banerjee Adv.,




Judgment on                    :       31.08.2023



Subhendu Samanta, J.

The instant Criminal Revision is preferred u/s 397,401

read with section 482 of the Code of Criminal Procedure

against orders dated 20.04.2017 and 29.04.2017 passed by the

Learned Additional Chief Judicial Magistrate, Rampurhat

Birbhum, in connection with CR No. 332 of 2017 pending

before the Learned Additional Chief Judicial Magistrate,

Rampurhat, Birbhum.

The brief fact of the case is that the opposite party No. 2

has lodged a Criminal complaint u/s 200 of the Code of

Criminal Procedure before the Learned ACJM Rampurhat

alleging an offence committed by the present petitioner

punishable u/s 448/323/354 of IPC. It has been alleged in the

petition of complaint that on 09.04.2017 at about 10:30 A.M.

the petitioner no. 1 being the Officer in charge of the Nalhait

police station and petitioner No. 2 being the sub- inspector of

police of the said police station along with the force entered

into the village and directed the opposite party no. 2 to abide

by the direction passed by civil court in Title Suit no. 40 of

2017, it has been alleged they have been mercilessly beaten by

petitioners along with the police force. At the time the opposite

party no. 2 entered into his house but the petitioner no. 1 and

2 along with force bring out him from the house and on that

way they have also been outraged the modesty of the women of

their family. It has been alleged in the petition of complaint

that there was a previous grudge between the complainant and

the petitioners thus the incident was happened.

On receiving such complaint Learned Magistrate concern

examined the witnesses on SA including the complainant and

issued process against the present petitioners. Hence this

instant criminal revision.

Learned Advocate for the petitioner submitted before this

court that the present petitioner no. 1 and 2 are the police

personnel and they are discharging their duties. To maintain

piece and tranquillity of the locality the petitioner no. 1 and 2

reached the locality in obedience to the order of the Civil Court

passed in title suit No. 40 of 2017. The petitioner no. 1 and 2

reached there with two vehicles of force. The incident initially

happened when the plaintiff of title suit no. 40 of 2017 has

lodged GDE being no. 413 before the petitioner no 1

contending inter alia that the present opposite party no. 2 had

been violating order of Civil Court by constructing shed fitted

with tin. After observing the apprehension of serious breach of

piece at the locality, the petitioner no. 2 reached the spot with

the police personnel and he has been prevented to proceed by

unruly mob under the leadership of the present op no. 1. They

prevented police personnel for discharging there official duties.

Considering the furious mob petitioner no. 2 has informed the

petitioner no. 1 thorugh the mobile phone to rush to the spot

along with force. On such telephonic information Nalhati PS

case No. 99 of 2017 dated 09.04.2017 u/s

147/186/336/353/506 of IPC has been initiated against the

present opposite party No. 2 and others.

The present petitioners being the police officers to tackle

the entire situation used the force to disperse the mob. One

Apilot Mandal alias Badsah was arrested.

Learned Advocate for the appellant submitted that the

entire petition of complaint is an after-thought of the opposite

party no. 2. The police officer i.e. the petitioner no. 1 and 2 has

used the force to discharge their official duties. It is the further

submission of the Learned Advocate for the petitioner that the

instant complaint is barred by law. Petitioner no. 1 and 2 being

the public servant sanctioned by the State Government u/s

132 Cr.P.C is required to be obtained before initiation of the

prosecution. He prayed for discharge.

Learned Advocate for the State submitted before this

court that the Learned Magistrate after receiving the complaint

u/s 200 of Cr.P.C. has examined the complainant along with

other witnesses u/s 202 Cr.P.C and after finding the prima

facie materials, has issued the process. He submitted that

there are illegality in the impugned order. However he admits

that the sanction u/s 1321 Cr.P.C is required to be obtained

prior to initiation of prosecution against a police officer.

Heard, the Learned Advocate perused the materials on

record. The sole question involved in the instant of criminal

revision is that whether the petitioner no. 1 and 2 being the

public servants (police officer) were discharging their official

duties under Chapter IX of the Code of Criminal Procedure. If it

is true then the instant criminal proceeding pending against

the petitioners is liable to be quashed.

Hon'ble Supreme Court in that score in a decision of

Nagraj Vs. State of Mysore reported in AIR 1964 Supreme

Court 269 has held that the prosecution of police officers

discharging duties u/s 127,128 of Cr.P.C is required santion

u/s 132 of the Cr.P.C.

The whole issue therefore, upon the question whether the

occurrence took place as alleged by the complainant or

otherwise; that is to say, whether he sustained injuries in the

manner alleged by him or whether he sustained injuries when

the police used force in dispersing of an unlawful assembly.

To determine the question I have perused the petition of

complaint wherein present order of Civil Court passed in title

suit no. 40 of 2017 was mentioned. The complainant has

admitted that the petitioner no. 1 and 2 are the police

personnel. The FIR of Nalhait PS case no. 99 of 2017 is

perused. It appears from the FIR that on the date of incident

the police party reached the spot along with the petitioner no. 1

after telephonic information of petitioner no. 2; it has been

observed by the police personnel at the spot that the present

opposite party no. 2 along with one Apilot Mandal and 06

others were forcibly doing the construction work in the land in

question. They asked the complainant and others to abide by

the law; on such, mob became furious and start throwing brick

bats at the police and also using filthy languages. Thereby they

formed unlawful assembly and attacked upon the police on

duty to prevent them from discharging the lawful duty. Finding

no other alternative, the petitioner no.1 has declared them as

unlawful assembly and order them to be dispersed. The

violated mob disputed the direction of the police continued to

throw brick piece. They were chasted and managed to arrest

one Apilot Mandal Alias Badsah, others fled away. Apilot

Mandal Alias Badsah was arrested along with 06 others. the

injury sustained by the police personnel was mentioned in the

formal portion of the FIR.

So after perused the FIR Nalhati PS Case No. 99 of 2018

it appears to me that the petitioners no. 1 and 2 are actually

discharging their lawful duties under Chapter (ix) of the Code

of Criminal Procedure.

The question to discharge the police personnel from

criminal prosecution during a criminal proceeding is raised

before the Hon'ble Supreme Court in Nagraj (supra) Paragraph

18 of the Nagraj is set out to answer the question

The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government what should be the procedure to be followed by it, i.e whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal order of discharge

or acquittal as contemplated in the case of a prosecution under the Code. The High Court has said that when the Sessions Judge be satisfied that the facts proved bring the case within the mischief of S. 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If S. 132 applies the complaint could not have been instituted without the sanction of the government and the proceedings on a complaint so instituted would be void, the Court having no jurisdiction to take those proceedings. When the proceedings be void the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected.

After considering the entire facts and circumstances of

this case after perusing the provision of Section 132 of Cr.P.C.

It appears to me that public servant shall not to prosecute

without the sanction by the competent authority for any

offence alleged to have been committed by them while acting or

purporting to act in discharge of their official duties. The object

obviously is to protect responsible public servants against the

institution of possibly vexsesus criminal proceeding for offence

alleged to have been committed by them while they were acting

or purporting act as public servants. In this case the criminal

proceeding was initiated in violation of Section 132 of the Code

of Criminal Procedure.