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IN THE HIGH COURT OF CALCUTTA
Tirthankar Ghosh, J.
Kingsuk Biswas And Another - Appellant
Versus
State Of West Bengal - Respondent
CRR 2941 of 2019
Decided On : 02-09-2022
CUSTODIAL DEATH - Indian Penal Code - Section 34, 304A, 324, 342, 218 - The court discussed the applicability of Section 197 of the Code of Criminal Procedure in the context of custodial death and the discharge of official duties by police officers. The court emphasized the need for a reasonable nexus between the alleged act and the discharge of official duty, and the limitations of the protection under Section 197. The court held that the requirement of sanction may arise at any stage of the proceedings and that the accused has the right to lead evidence in support of their case on merits. The court dismissed the revisional application and stated that there is no requirement for sanction for proceeding with the trial at the present stage, but allowed the petitioners to raise the issue of sanction at a later stage if the factual circumstances demand.
Fact of the Case:
The petitioners, Assistant Sub-Inspectors of Police, were implicated in connection with the custodial death of an individual. They challenged the proceedings, including the charge-sheet filed by the CBI, and emphasized the continuance of the proceedings in the absence of an order of sanction under Section 197 of the Code of Criminal Procedure.
Finding of the Court:
The court dismissed the revisional application, stating that there is no requirement for sanction for proceeding with the trial at the present stage, but allowed the petitioners to raise the issue of sanction at a later stage if the factual circumstances demand.
Issues: The main issue was the applicability of Section 197 of the Code of Criminal Procedure in the context of custodial death and the discharge of official duties by police officers.
Ratio Decidendi: The court emphasized the need for a reasonable nexus between the alleged act and the discharge of official duty, and the limitations of the protection under Section 197. The court held that the requirement of sanction may arise at any stage of the proceedings and that the accused has the right to lead evidence in support of their case on merits.
Final Decision: The court dismissed the revisional application and stated that there is no requirement for sanction for proceeding with the trial at the present stage, but allowed the petitioners to raise the issue of sanction at a later stage if the factual circumstances demand.
JUDGMENT
Tirthankar Ghosh, J. - The present petitioners namely, Kingsuk Biswas and Prabhat Chatterjee @ Pravat Kumar Chattopadhyay are Assistant Sub-Inspector of Police who were implicated as accused persons in connection with custodial death of Kazi Nasiruddin in the charge-sheet submitted by the CBI in its charge-sheet no. 2 of 2014 arising out of CBI case no. RC2(S)/SCU.V/SC-II/CBI/New Delhi dated 22.05.2013.
2. The challenge of the petitioners in this revisional application are four- fold:
(a) Quashing of the proceeding including the charge-sheet no. 2 of 2014 filed by the CBI under Section 34 read with Section 304A/324/342/218 of the Indian Penal Code.
(b) Quashing or setting aside the order dated 22.12.2015 passed by the learned Magistrate wherein the prayer of the petitioners were rejected for dismissing the charge-sheet for non-compliance of Section 197 of the Code of Criminal Procedure.
(c) Quashing and or setting aside the order dated 02.08.2017 passed by the learned CJM, Hooghly, thereby framing charges under Sections 342/324/304A read with Section 34 of the Indian Penal Code.
(d) Quashing of the charge-sheet, FIR which was registered pursuant to direction passed by the Hon'ble High Court in W.P. No. 3800(W) 2013.
3. The petitioners in course of hearing of the present revisional application, canvassed on several points including the merits of the charge-sheet filed by the Investigating Agency but mainly emphasized on the continuance of the proceedings in the absence of an order of sanction under Section 197 of Code of Criminal Procedure. Such contentions would be evident in paragraph 5(xix) which is set out as follows:
'5(xix). The petitioners states that subsequently the petitioners and other had also moved an application stating that in the event of absence of sanction under Section 197 of the Code of Criminal Procedure the petitioners being public servant and sub-Inspector /Asst. Sub-Inspector of Police attached to Dhoniakhali Police Station and the alleged occurrence having taken place during the duty hours of the petitioners and other co-accused, Learned Court ought to have taken sanction from the appropriate authority before taking cognizance of the impugned charge sheet filed against the petitioners.'
4. The same contention is reiterated in ground XIX of the submission of the petitioners which is also set out as follows:
'XIX. FOR THAT it is trite law that any offence, it at all is alleged to have been committed in the custody of a police authority the same is always within the purview of discharge of duty of a police official and as such sanction is warranted in terms of Section 197 of the Code of Criminal Procedure.'
5. Records of the revisional application reflected that such point was initially canvassed before the learned Magistrate on 22.12.2015 which was a date fixed by the learned Magistrate after cognizance of the offence was taken and the learned Magistrate after considering the series of judgments relied upon by the petitioners was pleased to hold as follows:
'On that matrix, if we consider prior sanction as to determination of official discharge as a right for the public servant, therefore such right has also a duty to obey. Duty always flow from the higher laws, in our case it is the Constitution of India, where right to life has got a higher value; which has been allegedly violated in the instant case. Therefore, the provisions under sec.197 of the Code cannot supersede the principles of the Constitution. As a student of law this court has not hesitation to hold that rights are of two types, basic and non-basic rights. Right to life under Constitution of India is a basic right whereas provision under sec.197 of the Code is a non-basic right; so when there is a debate between these two rights as to which one shall earn supremacy, it is needless to answer that the basic right shall stand. The definition or scope of official duty of public servants cannot in any situation warrant the cause of death of any citi
The main legal point established in the judgment is the need for a reasonable nexus between the alleged act and the discharge of official duty, and the limitations of the protection under Section 197....
The protection under Section 197 Cr.P.C. is not available to public servants who commit offenses that are not connected with the discharge of their official duties or who act in excess of their autho....
Protection under Section 197 of Cr.P.C. applies to public servants for acts done in discharge of official duties, barring prosecution without prior sanction.
(1) Sanction for prosecution of public servant – The provision must not be abused by public servants to camouflage commission of a crime under supposed colour of public office – While deciding issue ....
Public servants are protected under Section 197 of the Cr.P.C. from prosecution for acts done in discharge of official duties, requiring prior sanction for prosecution even if the acts involve excess....
Sanction under Section 197 of the Cr.P.C. is mandatory for prosecuting public servants for actions taken while performing official duties, preventing misuse of legal proceedings.
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