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Birendra Nath Mukherjee Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Criminal
CourtKolkata High Court
Decided On
Case NumberC.R. Nos. 2377 (W) and 2378 (W) of 1972
Judge
Reported inAIR1973Cal94
ActsConstitution of India - Article 226; ;Code of Criminal Procedure (CrPC) , 1898 - Section 197; ;Indian Penal Code (IPC) - Section 409; ;West Bengal Services (Classification Control and Appeal) Rules, 1971 - Rule 7(1)
AppellantBirendra Nath Mukherjee
RespondentState of West Bengal and ors.
Appellant AdvocateHari Prasanna Mukherjee and ;Dwijendra Nath Basu, Advs.
Respondent AdvocateBimal Chandra Basak and ;Paritosh Kumar Mukherjee, Advs.
DispositionPetition dismissed
Cases ReferredIn Bhagwan Prasad Srivastava v. N. P. Mishra
Excerpt:
- .....has been started against the petitioner in the said court. the petitioner contends that he is a public servant in the service of the state of west bengal and under the provisions of the west bengal criminal law amendment (special courts) act, 1949, hereinafter referred to as the said act, only a special court can try an offence under section 409 of the indian penal code, if committed by a public servant or by a person dealing with property belonging to government as an agent of government in respect of property with which he is entrusted or over which he has dominion as such public servant or agent. further under section 197 of the code of criminal procedure 1898, (hereinafter referred to as cri. p. c.) no court shall take cognisance of an offence alleged to have been committed by him.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. The petitioner in these rules holds a gazetted civil post in the department of Education, Government of West Bengal. Since May 10, 1966, he was the District Soeial Education Officer at Cooch Bchar till July 14, 1971 when he was transferred to Burdwan. The petitioner according to his case holds high academic qualifications and was appointed to his present office on selection by the Public Service Commission. Prior to his posting at Cooch Bchar, the petitioner was posted at Bankura as the District Social Education Officer from July 13, 1962 to July 9, 1964 and thereafter to Midnapore after making over charge to his successor Smt. Kana Sen Gupta. During his stay at Bankura the petitioner incurred the displeasure of Sukumar Sen Gupta, then the District Magistrate and Collector of Bankura respondent No. 3 over arrangement of stalls of book exhibits in the local exhibition in February 1964 made ultimately by him overriding the arrangement of the petitioner leading to damages by heavy rains. Sen Gupta who was the ex-officio President of the District Library Association was annoyed at this and he threatened the petitioner of dire action. Thereafter false charge of negligence of duty regarding the stall was made by him against the petitioner which he denied causing further irritation in Sen Gupta. At the instance of the librarian K. Biswas, whose unlawful activity in the library affairs were controlled by the petitioner, again baseless charges were made against the petitioner by Sen Gupta which were proved on enquiry to be without foundation. His further attempts to disgrace the petitioner also proved fruitless. Smt. Sen Gupta, his successor in office at Bankura, who is related to Sen Gupta, also complained against the petitioner to the Director of Public Instruction but matter was dropped on the statement filed by the petitioner. Even after his transfer to Midnapore a fruitless Enquiry Committee against the petitioner was set by Sen Gupta maliciously to feed his ancient grudge. Thereafter at the instance of the said persons, while the petitioner was at Cooch Behar, proceedings against him were started before the Vigilance Commissioner and as his prayer for assistance of a lawyer was disallowed, the petitioner obtained a rule in this Court being C. R. 6414 (W) of 1968 which is pending. The petitioner's case that the above proceeding was initiated at the instance of Sen Gupta was supported in the affidavit-in-opposition and the petitioner in his affidavit-in-reply affirmed on December 14, 1971 stated that the Education Secretary respondent No. 2 out of malice stopped increments to the petitioner since July 13, 1971.

2. After the service of this affidavit, a criminal case has been started at Cooch Bchar after his transfer therefrom under Section 409/109 in respect of three incidents viz.-- (1) Over payment of Rs. 2,000/- to M/s. Orient Book Co. (II) Payment of Rs. 85.12 to M/s. Kaluram Scthea twice and (III) Payment for motor parts on October 17, 1970 to fictitious firm on the basis of an Enquiry Report by respondent No. 5. The petitioner contends that there was no misappropriation regarding items (I) and (III) while he had no responsibility regarding (II). The said report which was hasty and motivated one made on the directions of other respondents was submitted in the Court of the Sub-Divisional Judicial Magistrate Sadar of Cooch Behar, as the first information of a cognisable crime by the petitioner and another, under Section 409/109 and a prosecution has been started against the petitioner in the said Court. The petitioner contends that he is a public servant in the Service of the State of West Bengal and under the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, hereinafter referred to as the said Act, only a Special Court can try an offence under Section 409 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government in respect of property with which he is entrusted or over which he has dominion as such public servant or agent. Further under Section 197 of the Code of Criminal Procedure 1898, (hereinafter referred to as Cri. P. C.) no Court shall take cognisance of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the appropriate Government which in the present case is the State Government. The said Court at Cooch Behar is proceeding in the matter without sanction from appropriate Government. For the above reasons, the said Court has no jurisdiction to entertain and try the warrant case being G. R. No. 37/72 Cooch Behar P. S. Case No. 40 dated 15-1-72.

3. Soon after the institution of the proceeding and cognizance of the alleged criminal acts taken by the said Court, an order Was issued on March 20, 1972 by the Governor placing the petitioner on suspension with immediate effect. The suspension was ordered in terms of clause (c) of sub-rule (1) of Rule 7 of the West Bengal Services (Classification, Control and Appeal) Rules 1971, hereinafter referred to as WBS (CCA) Rules 1971, on the ground that the above criminal case had been started and the petitioner was under trial in respect of the said criminal case. The said proceeding, for grounds referred to above, are void and the suspension following and based on the criminal case are mala fide and void.

4. On the above allegations and contentions, the petitioner moved two applications in this Court in Constitutional Writ Jurisdiction. In the first application, giving rise to Civil Rule No. 2377 (W) of 1972, the petitioner prayed for a writ in the nature of mandamus commanding the respondents to cancel, rescind and recall the G. R. Case No. 37 of 1972 referred to above and also a writ in the nature of certiorari commanding the respondents to produce the records of the proceedings, obviously for quashing the same. In the other rule being C. R. No. 2378 (W) of 1972 directions and orders have been prayed for commanding the respondents to cancel, rescind and recall the above order of suspension and also production of relevant records. Interim orders were also prayed for stay of the criminal proceeding and for restraining the respondents from giving any further effect to the order of suspension.

5. On the said applications two rules were issued on April 12, 1972 and subsequently on hearing the party, a stay of the criminal proceeding was directed while no order was made in respect of the suspension order.

6. The respondents opposed the rules filing an affidavit-in-opposition in both rules affrmed by Lakhmi Kanta Chatterjee, Assistant Secretary of the Education Department of the Government of West Bengal on June 27, 1972. In regard to the material allegations made in the petition which were the same as in the petition of C. R. No. 6414 of 1968, the respondents relied on the ailida-vit-in-opposition in the said rule. The allegations rnade in the petition, and particularly those against Sukumar Sen Gupta were denied. In regard to the criminal proceeding, it was stated that no charge sheet was yet frained therein. It was denied that the enquiry or investigation was motivated or mala fide while the contentions of the petitioner were disputed. An affidavit-in-opposition has been filed by Sukumar Sen Gupta in both rules denying ail personal allegations of malice and mala fides made against him. The petitioner filed an affidavit-in-reply in both rules reiterating his statements made in the petition.

7. Mr. Bimal Chandra Basak, learned Advocate appearing for the respondents, has raised a preliminary objection. He has contended that a writ of certiorari is not available without making the Court or Tribunal a party to rule as in its absence no record could be produced before the Court for the purpose of quashing the proceedings. Mr. Hari Prasanna Mukherjee, learned Advocate for the petitioner has contended that the necessary parties, the prosecutor and the State are before this Court and the trying Magistrate is not a necessary party. It is however well settled that a, writ of certiorari lies only against judicial or quasi judicial authorities or tribunals and records need be produced in this Court for quashing the proceedings if held necessary as was observed in Udit Na-rain Singh v. Addl. Member Board of Revenue, Bihar, : AIR1963SC786 . Such records can he produced only by the tribunal, authority or Court and not by the prosecutor or State. Quashing criminal proceedings by this Court under the Code of Criminal Procedure boars no analogy to writ proceedings. It must accordingly be held in this case that the Court whose jurisdiction for trial is challenged is not merely a proper party but a necessary party as well.

8. I however propose to deal with the questions involved on merits. The first bone of contention is whether the sanction under Section 197 of Cr. P. C. is pre-requisite for prosecution before the Magistrate at Cooch Behar of public servant like the petitioner in the facts of the case. Mr. Mukherjee has contended that it is a necessary and essential condition for taking cognizance by a Court when the public servant has been accused of offence under Section 409/109 while acting or purporting to act in discharge of official duly. Reliance was placed on the decision in Ajit Kumar Palit v. State of West Bengal, : AIR1963SC765 in which the following observation was approved '......... talcing cognizance ............ occurs as soon as Magistrate, as such, applies his mind to the suspected commission of an offence'. It was held

'Where the statute prescribes the materials on which alone the judicial mind shall operate before arty step is taken obviously statutory requirement must be fulfilled'.

Applying the principles to the present case it-has been contended that in view of allegations against the petitioner, and the cognizance taken by the Magistrate by initiating proceeding before him without sanction of the State Government, the impugned proceeding is without jurisdiction and void.

9. Mr. Basak has disputed the above contention and submitted that the sanction may not be necessary in the facts of the case and further such question cannot be raised at this stage or in this forum. The alleged commission of offence is in respect of library funds not connected with discharge of official duty by the petitioner. Sanction accordingly is not necessary as such offence was not committed by the public servant in discharge of his official duty but as ex-officio officer of the library. Alternatively this alleged commission is a disputed question of fact to be decided in appropriate forum when charge, if at all, is framed for commission of the offence in discharge of official duty. The applications are accordingly premature as the petitioner can have no grievance on this ground till it is decided on investigation that the public servant is protected under Section 197. Such questions involved are mixed question of law and fact and have to be decided after investigation as was held in Sakuntala Bai v. Venkatakrishna Reddi, : AIR1952Mad667 . In Amrik Singh v. State of Pepsu, : 1955CriLJ865 it was held that only in respect of acts complained of which are directly concerned or integrally connected with the official duties, the sanction would be necessary. In Matajog Dobey v. H. C. Bhari, : [1955]28ITR941(SC) , it was observed:

'What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs, and requirements of the situation .............................. There must be a reasonable connection between the act and the discharge of official duty: the act must bear such relation to the duty that the accused could lay a reasonable claim, not a pretented or fanciful claim, that he did it in the performance of his duty.'

In Om Parakash Gupta v. State of U. P. : 1957CriLJ575 it was observed that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant. In Baijnath v. State of Madhya Pradesh, : 1966CriLJ179 it was observed in agreement with earlier decisions that if the offence is unconnected with the official duty there can be no protection and only when it is either within the scope of and directly connected with the official duty or in excess of it that the protection is claimable. The same view was taken in Prabhakar V. Sinari, : 1969CriLJ1057 and it was observed that the act and the official duty are to be so interrelated that one could postulate reasonably that it was done by flie accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation.

10. In Bhagwan Prasad Srivastava v. N. P. Mishra, : 1970CriLJ1401 , the Court observed that the section should not be construed too narrowly or too widely and it was laid down that

'The narrow and pedantic construction may render it otiose for it is not part of an official duty -- and never can be - to commit an offence. In our view it is not the 'duty' which requires examination so much as the 'act' because the official act can be performed both in discharge of the official duty as well as in dereliction of it.'

It is also obvious as was observed in this case, that the question whether a particular act is done by a public servant in the dis charge of his official duty is substantially one of fact to be determined on the circumstances of each case.

In Matajog Dobey's case, : [1955]28ITR941(SC) (supra), the question for consideration was whether the need for sanction is to be considered as soon as the complaint is lodged and on the allegation contained. It was held

'The question may arise at any stage of proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial enquiry op even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.'

We shall have first to consider whether the relevant facts in this case as disclosed so far require the sanction under Section 197.

11. It appears obvious, in this case that the Magistrate had taken cognizance of the offences upon the report of the Police Officer whereon a criminal case had been started against the petitioner and a warrant for his arrest had been issued which in view of the order passed by this Court has since been recalled. If the sanction as required under Section 197 of the Code is necessary on the facts of the case so far disclosed, clearly the proceeding before the Magistrate, in absence of sanction, is without jurisdiction. The allegations are that the petitioner committed offences under Section 409/109 of the Penal Code in that while entrusted with the cash of the District Library, Cooch Behar, (at present North Bengal State Library), with the authority to disburse the cash to the payees, he purportedly made payments of an amount of Rs. 4656.59 to M/s. Orient Book Co. though he actually paid Rs. 2656.59 thereby misappropriating Rs. 2000/- with connivance of a library assistant Smt. Bandana Telikar. The second offence is about a payment of Rs. 85.12 to M/s. Kali Ram Sethea against its Bill No. P54 dated 26-3-1969. Cash book entries show that this bill was paid twice indicating that the petitioner while in charge of library cash had misappropriated the amount of Rs. 85.12 in connivance with the said Assistant. The third offence alleged to have been committed by the petitioner relates to the sum of Rupees 1536.00, shown in the cash book of the library as having been paid by the petitioner to M/s. A. S. Trading Co., a fictitious firm and the petitioner thereby misappropriated the said amount also. The case was thus one for misappropriation of Government money to the tune of Rs. 3621.12.

12. In the petition the petitioner has given his explanation denying any act of misappropriation on his part, alleging further that there was no occasion for misappropriation at all. We are not concerned with his defence at the moment. The question at issue, even assuming that the alleged offences did take place, is that for protection under sanction the petitioner must establish prima facie that such offences were connected with the discharge of his official duty or in dereliction of it. The petitioner was the District Social Education Officer of Cooch Behar and the alleged offences, as it appears, have nothing to do with his office or with cash money if any entrusted to him in respect of his said office. The prosecution case is that the petitioner was entrusted with the cash money of the District Library and on facts appearing and disclosed so far we do not find that entrustment of the cash of the said library is integrally connected with the office of the petitioner or in dealing with such money he was discharging his official duty as such officer or committing any act in dereliction of it. In this state of affairs it cannot be said, as at present advised, that the alleged offences are connected with or arose out of the discharge or performance of his official duty even if in excefis of the needs and requirements of the situation. Accordingly it is not possible to hold, as contended by the petitioner, that sanction under Section 197 was a precondition of the initiation of the impugned proceeding, absence whereof renders the proceeding as without jurisdiction and void. If, however, at any subsequent stage of the proceeding it comes to light that the offences alleged arose in discharge of official duty or were integrally connected with it, the sanction may be considered a necessity. Till that stage is reached it cannot be said that the proceeding before the Magistrate is without jurisdiction.

13. The next contention of Mr. Mukherjee is that the alleged offence is triable only by a Special Court as may be constituted under Section 3(1) of the West Bengal Criminal Law Amendment (Special Courts) Act 1949. Section 4(1) and the Schedule of the Act in extracts provide as follows:

'4 (1). Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable by Special Courts only; ............

4 (2). The distribution amongst Special Courts of cases involving offences specified in the Schedule to be tried by them, shall be made by the State Government ......The Schedule (see Section 4(2)) Offences triable by Special Judges ..................

2. An offence punishable under Section 409 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government in respect of property-with which he is entrusted, or over which he has dominion in his capacity of a public servant or inthe way of bis business as such agent.'

* * * * * *

According to Mr. Mukherjee, the offences alleged to have been committed by the petitioner are those mentioned in Item 2 of the Schedule quoted above. The only Court, it is contended, which can try such offence* is the Special Court set up under the provisions of the said Act and the trying Magistrate has no jurisdition to try the offence even assuming but not admitting that such offence has been committed by the petitioner.

14. Mr. Basak has disputed the above contentions and has submitted that the offences committed by the petitioner are not those included in item No. 2 of the Schedule. The ingredients of the said offence are (i) offence must be one punishable under Section 409 ,(ii) it must be committed by a public servant or by a person dealing with Government property as its agent, (iii) there must be an entrustment of the property on him or he must have dominion over it and lastly (iv) the offence has been committed by the public servant in the capacity of a public servant or by the person, as such Government agent. It has been contended that on the materials so far disclosed these ingredients have not been satisfied as the Library or its cash is not the property of the Government nor is it admitted that the petitioner in handling the cash of the library was acting in the discharge of his official duty as the District Social Education Officer.

15. It is accordingly contended that on facts disclosed so far it could not be said that the petitioner has been guilty of commission of offence of item No. 2 of the Act and that the proceeding pending before the Magistrate is without jurisdiction. Further this Court in this jurisdiction is not the proper forum to decide these questions of disputed facts. In any event, the application is premature and even if it is found that the petitioner did commit offence of item No. 2, it is competent for the State Government to constitute a Special Court to which the records could be transmitted for trial under the said Act.

16. On consideration of the respective contentions, it appears to me that on facts disclosed, it does not appear obvious or conclusive that the ingredients of offence of item No. 2 of the Schedule of the Act are present in the offences alleged to have been committed by the petitioner. There is no material so far to hold that the District Library or its cash was the property of the Government at the material time or that the petitioner was having control over the same as a public servant. Further it is not possible or proper in this proceeding or at this stage to embark into a consideration of the facts relating thereto over which there is serious dispute. For these reasons it is not possible to hold that the proceeding before the learned Magistrate, on facts disclosed so far, is without jurisdiction.

17. The other point, about the order placing the petitioner on suspension, impugned in the other rule, need not detain us for long. There is no dispute that the West Bengal Services (Classification, Control and Appeal) Rules, 1971 apply to the petitioner. The relevant rule is Rule 7 (1), which is as follows:

'7 (1). The appointing authority or any authority to which it is subordinate or any authority empowered by the Governor in that behalf may place a Government jeryant under suspension / (a) ............

(b) ............

(c) where a case against him in respect of any criminal offence is under investigation or trial.'

The impugned order of suspension recites Rule 7 (1), clause (c) of the said Rules by which the petitioner has been placed on suspension. Mr. Mukherjee has contended that as the trial before the Magistrate is one without jurisdiction and thus void, the petitioner cannot be placed under suspension as there is no trial in eye of law.

18. We have seen for reasons recorded above that it could not be said at this stage that the impugned trial is without jurisdiction. The petitioner is under trial before the Magistrate in connection with the alleged commission by him of offences under Sections 409/109 and the trial is in progress. There is thus no illegality in the impugned order of the Governor dated March 20, 1972 placing the petitioner under suspension as long as the trial is in progress in accordance with law in Case G. R. Nos. 37/72 before the Sub-Divisional Judicial Magistrate, Cooch Behar.

19. As all contentions urged before me fail the rules are discharged without however any order as to costs. All interim orders passed in the rules are vacated.

20. As prayed for by Mr. Hari Praianna Mukherjee, learned Advocate for the petitioner, there will be a stay of operation of this order for a period of three weeks. Office will take steps to supply copy of the judgment to the petitioner, if applied for.


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