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2001 Supreme(Cal) 382
High Court Of Calcutta
Amit Talukdar
DIPAK GHOSH DASTIDAR - Appellant
Versus
SANAT KUMAR MUKHERJEE, STATE OF CALCUTTA - Respondent
Cr. R. 2249 Of 2000
Decided On : 07/03/2001
ASHOKA BERA, DIPALI SINHA, Himangshu De, SAMIR CHATTERJEE, SEKHAR BASU, Subhendu Sekhar Roy
Non-examination of the complainant before the issuance of process is an irregularity curable under Section 465(1) of the Code of Criminal Procedure.
Headnote:
CRIMINAL PROCEDURE - COGNIZANCE - EXAMINATION OF COMPLAINANT - SECTION 200, CODE OF CRIMINAL PROCEDURE - PRIVATE COMPLAINT - SECTION 190(1)(A), CODE OF CRIMINAL PROCEDURE - WANT OF SANCTION - SECTION 5(2), PREVENTION OF CORRUPTION ACT, 1988 - SECTION 19, PREVENTION OF CORRUPTION ACT, 1988 - SECTION 201, CODE OF CRIMINAL PROCEDURE - IRREGULARITY - SECTION 465(1), CODE OF CRIMINAL PROCEDURE - PUBLIC SERVANT - ACTING OR PURPORTING TO ACT IN DISCHARGE OF OFFICIAL DUTY - OFFENCES UNDER SECTIONS 403, 404, 409, 420, 120B, 34 OF THE INDIAN PENAL CODE AND SECTION 5(2) OF THE PREVENTION OF CORRUPTION ACT, 1988 - NON-EXAMINATION OF COMPLAINANT - WHETHER FATAL TO COGNIZANCE - WHETHER IRREGULARITY CURABLE UNDER SECTION 465(1), CODE OF CRIMINAL PROCEDURE - WANT OF SANCTION - WHETHER A BAR TO COGNIZANCE - WHETHER QUESTION OF SANCTION CAN BE RAISED AT ANY POINT OF TIME - WHETHER OFFENCES COMMITTED BY PUBLIC SERVANTS WHILE ACTING OR PURPORTING TO ACT IN DISCHARGE OF OFFICIAL DUTY - WHETHER PREVIOUS SANCTION FOR PROSECUTION NECESSARY - WHETHER LEARNED TRIAL JUDGE CAN DIRECT CASE FOR PRESENTATION TO JURISDICTIONAL COURT WITH ENDORSEMENT.
Fact of the Case:
The petitioner, a Senior Bank Manager of the Central Bank of India, Purulia Branch, and Parameswar Tudu, Deputy Post-Master of the Head Post Office, Purulia, were accused of offences under Sections 403, 404, 409, 420, 120b, 34 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act (the said Act). The cognizance was taken by the learned Judge on the basis of a Petition of Complaint filed by the opposite party No. 1 without examining the complainant. The petitioner challenged the cognizance on the grounds that the learned Judge took cognizance without examining the complainant who was not a public servant and in the absence of any sanction, the petitioner and the said Parameswar Tudu could not be proceeded against as both of them were public servants.
Finding of the Court:
The Court held that the non-examination of the complainant before the issuance of process was an irregularity curable under Section 465(1) of the Code of Criminal Procedure (the said Code). The Court further held that the question of sanction could be raised at any point of time, even at the initial stage, but in the present case, the offences committed by the accused persons were not committed while acting or purporting to act in the discharge of their official duty, and therefore, the question of sanction was not required.
Issues: 1. Whether the cognizance taken by the learned Judge without examining the complainant was valid? 2. Whether the absence of sanction barred the cognizance taken by the learned Judge? 3. Whether the offences committed by the accused persons were committed while acting or purporting to act in the discharge of their official duty?
Ratio Decidendi: 1. The Court held that the non-examination of the complainant before the issuance of process was an irregularity curable under Section 465(1) of the said Code. The Court reasoned that the Petition of Complaint made out a clear case against the accused person and that the non-examination of the complainant did not cause any prejudice to the accused. 2. The Court held that the question of sanction could be raised at any point of time, even at the initial stage, but in the present case, the offences committed by the accused persons were not committed while acting or purporting to act in the discharge of their official duty, and therefore, the question of sanction was not required. 3. The Court held that the offences committed by the accused persons were not committed while acting or purporting to act in the discharge of their official duty. The Court reasoned that the commission of the offence had no direct connection or inseparable link with their duties as public servants.
Final Decision: The Court dismissed the revisional applications filed by the petitioner.
( 1 ) WHAT has been sought to be described as an oasis is nothing else but a teasing mirage; otherwise subtle point has been dangled before this Court, which, however, appealing at the first blush appears to be suffering from basic hollowness.
( 2 ) WITH this signature tune, let me cast the symphony of the legal proposition sought to have been harped on behalf of the petitioners before this Court. The basic task for this Court in this revisional application is whether a cognizance taken by the learned Magistrate on the basis of a Petition of Complaint without examining the complainant can be sustained in the event he is not a public servant.
( 3 ) LET me now proceed to find out as to whether the edifice of the argument of the learned Counsel of the petitioner is based on a solid grounds or simply on quick sand. Since the confection of both the revisional applications are analogous this common judgment would govern the fate of the same.
( 4 ) A Petition of Complaint was lodged by the opposite party No. 1 in the Court of the learned Judge, 1st Special Court, Purulia. It was registered as Special Case No. 5 of 2000. In the said Petition of Complaint the opposite party No. 1 alleging commission of the offence punishable under Sections 403/404/409/420/120b/34 of the Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act (herein after referred to as the said Act) prayed for issuing Warrant of Arrest against the aforesaid petitioner and one Parameswar Tudu (the Petitioner in C. R. R. No. 2249 of 2000 ). The Petitioner was stated to be a Senior Bank Manager of the Central Bank of India, Purulia Branch while Parameswar Tudu (the Petitioner in C. R. R. No. 2249 of 2000) was stated to be Deputy Post-Master of the Head Post Office, Purulia. As the details of the complaint case have been enumerated in the Petition of Complaint, I need not repeat the same here.
( 5 ) THE learned Judge by his Order No. 1 dated 25/8/2000 took cognizance on the basis of the said Petition of Complaint after perusing the same and fixed 28/8/2000 for production of the relevant original documents relied upon by the Opposite Party No. 1.
( 6 ) BY the Order No. 2, dated 28/8/2000 the learned Judge further took cognizance under Sections 403, 404, 409, 420, 120b and 34 of the Indian Penal Code and Section 5 (2) of the said Act against the Petitioner and the said Parameswar Tudu and issued Warrant of Arrest fixing 20/9/2000 for execution, return and appearance. This prompted the petitioner to move this Court.
( 7 ) ON behalf of the petitioner it was submitted that the cognizance taken by the learned Judge and subsequent order for issuance of Warrant of Arrest should be set-aside on the premises that the learned Judge took cognizance without examining the complainant who was not a public servant and in the absence of any sanction the petitioner and the said Parameswar Tudu could not be proceeded against as both of them were public servants. Developing his argument in this regard, the learned lawyer for the petitioner quoted from Section 200 of the Code of Criminal Procedure (for short the said Code) and submitted that as the opposite party No. 1 in his personal capacity had preferred the Petition of Complaint and he was not a public servant it was incumbent upon the learned Judge to have examined him in accordance with Section 200 of the said Code. He further submitted that the cognizance taken by the learned Judge was not proper as the Petition of Complaint did not fall within the purview of the first proviso of Section 200 of the said Code. He has relied on the decision of the Supreme Court in the case of AR. Antulay v. Ramdas Sriniwas Nayak and Anr. Laying emphasis in paragraph 31 of the said judgment he has submitted that although there was no bar on a private person to file a complaint before a Court of special Judge but yet his examination is necessary and as the learned Judge in the instant case has failed to do so he pra
