The fundamental right of access to justice for a victim of custodial violence and death at the hands of a police officer cannot be restricted by the retrospective operation of any amendment or change in law necessitating sanction for prosecution, particularly when such amendment had not come into force when the cognizance of the offence was taken and the proceeding was instituted against the accused.

Joymalya Bagchi, J.

Order dated 07.09.2016 passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Alipore, South 24-Parganas in S.C. No. 29(8)/2015 refusing to discharge the petitioner from the accusation of having caused the custodial death of an under trial, Md. Alam is the subject matter of challenge in this petition. The primary issue involved in the discharge petition is that the petitioner who was police officer attached to the police station could not have been proceeded in the instant case without requisite sanction granted by the State Government.

2. The prosecution case, as alleged, against the petitioner is to the effect that the victim Md. Alam had been abducted from his residence on 29.03.1995 at about 4 a.m. and had been kept in illegal detention at police Fari No. 28 at Kachhi Sudah with Garden Reach police station. The petitioner was the officer-in-charge of the said police station at the material point of time. It has been alleged in the petition of complaint by the mother of the victim, that is, Jubeda Khatun that she along with others went to the police station to meet her son but they were not allowed to do so by the petitioner. On the next day when the mother of the victim again visited the police station the petitioner demanded a sum of Rs. 4,000/- for releasing Md. Alam. As she was unable to pay the amount, Md. Alam was subjected to inhuman torture in the said police outpost. Her mother could hear the cries of her son while he was being subjected to such inhuman torture. The mother of the victim prayed to the petitioner to spare her son but such prayer fell into deaf ears. She was informed that until and unless she paid the bribe money, her son would not be released. Hearing this, she fell sick and remained indisposed. The inhuman torture on the detenue continued and finally on 8.4.1995 he was shown 'arrested' and thereafter a judicial remand was procured on 9.4.1995 remanding the victim to judicial custody.

3. Seeing the victim was in precarious health condition, the Superintendent of Jail refused to receive him and he was sent back to the Court which passed necessary order to admit him to jail hospital where he breathed his last on the next day i.e. on 10.4.1995.

4. Over the allegations of custodial torture resulting in death of Md. Alam, his mother, Jubeda khatoon instituted the criminal proceeding against the petitioner as the then Officer in Charge of Garden Reach Police Station and other Police Officers attached therein. By order dated 10.7.1996 learned Chief Judicial Magistrate, South 24 Parganas at Alipore took cognizance of the alleged offences and proceeded to hold enquiry under section 202 of the Cr.P.C., 1973.

5. At that stage, the petitioner assailed the proceeding before this court in CRR No. 2494 of 1996. Records were called for and the said revision petition was finally disposed of on 25.2.2000 directing the learned Magistrate to re-record statements of witnesses and re-examine the complainant and the doctor who held post mortem over of the body of the victim afresh as the lower court records which had been called for had gone missing from this Court.

6. Subsequent to such direction, enquiry under Section 202 Cr.P.C., 1973 was held afresh and the complainant and her witnesses including the post mortem doctor were examined. In conclusion of enquiry, process was issued against the petitioner and other accused persons who surrendered before the Magistrate and were enlarged on bail. Subsequently, the matter was committed to the Court of Sessions.

7. At this stage, the petitioner prayed for discharge primarily on the ground that the proceeding could not have been continued without a valid sanction issued by the State Government in view of the notification being 2103-PS dated 19.11.2010 extending the privilege of sanction under Section 197(2) Cr.P.C., 1973 to all subordinate ranks of Police Officers enrolled or appointed under the Police Act, 1866 charged with the maintenanc