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HIGH COURT OF CALCUTTA
SYAMAL KANTI CHAKRABARTI, J.
Dr. Prabir Sur - Appellants
Vs
Dr. Subhas Chandra Pratihar - Respondents
C.R.R. No. 4233 of 2007 C.R.R. No. 285 of 2008
Decided on: Feb 28, 2011
CRIMINAL LAW - Public servants - Sanction for prosecution - Disciplinary proceedings - Termination of services - Whether prior sanction of the Government is required - Whether the addition of Section 409, IPC to the alleged offences after taking cognizance by the learned Chief Judicial Magistrate is valid - Whether there are prima facie materials against the petitioners for commission of the offence punishable under Sections 109, 120B, 166, 191, 219, 406, 409 and 420, IPC in view of the ex parte judgment and decree dated 05.05.2003 passed by the learned City Civil Court in Title Suit No. 1134 of 2002 exonerating the opposite party No. 1 from all the charges.
Fact of the Case:
The petitioners, who were senior personnel in the service of the State of West Bengal under the Department of Health and Family Welfare, were accused of offences punishable under Sections 109/120B/166/191/219/406/409/420 of the Indian Penal Code (IPC) by the opposite party No. 1, who was placed under suspension and subsequently compulsorily retired from service on charges of receiving Rs. 100/- from a patient while holding a non-practicing post and for distributing leaflets. The petitioners challenged the legality and propriety of the criminal proceedings, contending that they were public servants and prior sanction of the Government was required for their prosecution under Section 197, Cr.P.C. They also contended that the addition of Section 409, IPC to the alleged offences after taking cognizance by the learned Chief Judicial Magistrate was without jurisdiction and not sustainable in law.
Finding of the Court:
The Court held that the petitioners were public servants and prior sanction of the Government was required for their prosecution under Section 197, Cr.P.C. The Court also held that the addition of Section 409, IPC to the alleged offences after taking cognizance by the learned Chief Judicial Magistrate was without jurisdiction and not sustainable in law. The Court further held that there were no prima facie materials against the petitioners for commission of the offence punishable under Sections 109, 120B, 166, 191, 219, 406, 409 and 420, IPC in view of the ex parte judgment and decree dated 05.05.2003 passed by the learned City Civil Court in Title Suit No. 1134 of 2002 exonerating the opposite party No. 1 from all the charges.
Issues: 1. Whether prior sanction of the Government is required for the prosecution of public servants under Section 197, Cr.P.C.? 2. Whether the addition of Section 409, IPC to the alleged offences after taking cognizance by the learned Chief Judicial Magistrate is valid? 3. Whether there are prima facie materials against the petitioners for commission of the offence punishable under Sections 109, 120B, 166, 191, 219, 406, 409 and 420, IPC in view of the ex parte judgment and decree dated 05.05.2003 passed by the learned City Civil Court in Title Suit No. 1134 of 2002 exonerating the opposite party No. 1 from all the charges?
Ratio Decidendi: 1. Prior sanction of the Government is required for the prosecution of public servants under Section 197, Cr.P.C., when the alleged offence is committed by them in the discharge of their official duties. 2. The addition of Section 409, IPC to the alleged offences after taking cognizance by the learned Chief Judicial Magistrate is without jurisdiction and not sustainable in law, as the offences specified in the Schedule to the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, including Section 409, IPC, are triable by Special Courts only. 3. There are no prima facie materials against the petitioners for commission of the offence punishable under Sections 109, 120B, 166, 191, 219, 406, 409 and 420, IPC in view of the ex parte judgment and decree dated 05.05.2003 passed by the learned City Civil Court in Title Suit No. 1134 of 2002 exonerating the opposite party No. 1 from all the charges.
Final Decision: The revisional application was allowed, the criminal proceedings being Case No. T.R. 410/06 and all orders passed in connection with the complaint made by the opposite party now pending before the Court of learned Judicial Magistrate, 2nd Court at Alipore were quashed, and all the petitioners in both the revisional applications were discharged and those on bail were released from their respective bail bonds.
1. THE Judgment of the Court was as follows : Since some common issues are involved in both the revisional applications, the same are taken up together for consideration.
2. IN CRR 4233 of 2007 six petitioners namely,--
i) Dr. Prabir Sur, Director, INstitute of Post Graduate Medical Education Research,
ii) Dr. Pradip Kumar Saha, Joint Director of Medical Education,
iii) Dr. Chittaranjan Maity, Ex-Director of Medical Education and Ex-Officio Secretary,
iv) Dr. Basanta Kumar Khan, Ex-Deputy Director of Medical Education, at present Vice Principal and Superintendent, Nilratan Sarkar Medical College Hospital,
v) Dr. Kalyan Kumar Bagchi, Principal Secretary, Department of Health and Family Welfare and
vi) Sri Asim Barman, Ex-Principal Secretary, Department of Health and Family Welfare, now posted as Chairman, Damodar Valley Corporation,
have challenged the legality and propriety of the criminal proceeding being T. R. No. 410 of 2006 including orders dated 03.09.2007 and 21.11.2007 arising out of case No. C-2153 of 2006 under Sections 120B, 166, 219, 191, 406, 409, 420 and 109 of the INdian Penal Code pending before the 2nd Court of learned Judicial Magistrate, Alipore, South 24-Parganas.
The petitioners herein have contended that they are senior personnel in the service of the State of West Bengal under the Department of Health and Family Welfare and some of them belonged to the cadre of Indian Administrative Service. The opposite party No. 1 Dr. Subhas Chandra Pratihar also joined the Department of Health and Family Welfare, Government of West Bengal. On 31st March, 1995, he was placed under suspension on charge of receiving Rs, 100/-'from a patient while holding a non-practicing post and for distributing leaflets. A departmental proceeding was initiated against him and concluded on 24th August, 1995. The finding of the enquiring authority was ratified by the Public Service Commission, West Bengal who had intimated on 8th July, 1996 that the opposite party No. 1 was found guilty of charge No. 1 in full, charge No. 2 in part and he was not found guilty of the charge no. 3 and recommended that "Dr. Subhas Chandra Pratihar be compulsorily retired from service". Being aggrieved by and dissatisfied with such finding the opposite party No. 1 filed T. A. No. 5 of 1996 before the West Bengal State Administrative Tribunal. On 13th November, 1998 learned Tribunal dismissed the application with the observation that there is no perversity of evidence and that the exemplary punishment awarded to the opposite party was not disproportionate. Subsequently, the opposite party No. 1 moved another application before the West Bengal Administrative Tribunal being O.A. No. 1040 of 2002. The same was disposed of by the learned Tribunal by order dated 27.09.2002 directing the Director of Medical Education to hear the opposite party personally and to pass a reasoned order. In obedience of such order of the learned Tribunal the opposite party was given hearing and a reasoned order was passed on 12.12.2002 rejecting his prayer.
3. CHALLENGING the entire matter the opposite party No. 1 then moved the learned City Civil Court in T. S. No, 1134 of 2002. By ex parte order dated 5th May, 2003 the learned City Civil Court exonerated the opposite party No. 1 of all the charges and passed certain directions. Therefore, the opposite party filed Title Execution case No. 195 of 2003 and claimed a sum of Rs. 17,97,656/- which was paid to him.
4. THEREAFTER, on 20th May, 2006 the opposite party filed a petition of complaint against the aforesaid six petitioners in the Court of the learned Chief Judicial Magistrate, South 24-Parganags at Alipore alleging commission of offences punishable under Sections 109/120B/166/191/219/ 406/420 of the Indian Penal Code. By order dated 19th June, 2006 the learned Chief Judicial Magistrate, South 24-Parganas was pleased to hold that in the instant case sanction of the Government is not necessary and so took cognizance of the offence an
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