- (1.) The petitioner Mohsena Chowdhury wife of Colonel M.H. Chowdhury was residing at Flat No. 6 F, Block 'Ripples', Merlin River View, 15, Kabitirtha Sarani, Kolkata, a civil accommodation. She approached the Chief Judicial Magistrate, Alipore by filing complaint case No. 3643 of 2010 against Brigadier Prabir Kumar Sanyal (now retired) under Section 441/504/506/427/500 read with Section 114 of the Indian Penal Code. The learned Chief Judicial Magistrate Alipore vide order dated May 28,2010 took cognizance of the offence and transmitted the said case to the Court of 5th Judicial Magistrate Alipore for final adjudication. Perusal of the complaint would depict that Mohsena was residing at the civil accommodation as her husband was posted at Kalimpong, after being retired from service with effect from February 28, 2009 and re-employed on March 28, 2009. During last three years of his service Colonel Chowdhury was allotted an official accommodation at Tusf View Hastings Calcutta where he over stayed. The authority issued a notice under Section 7(3) of the Public Premises (Eviction of Unauthorized Occupants) Act 1971 issued by the petitioner then acting as Estate Officer. It was alleged that the petitioner directed the said notice to be affixed at the outer door of the Flat under occupation of Mohsena being her civil accommodation where she was residing with her son. According to her, language used in said notice to the effect that she was unauthorized occupant , defamed her in the said complaint, Mohsena also contended that while her husband was at Kalimpong she was occupying her civil accommodation with her son, a school acting boy. She alleged that although the other officers were extended official accommodation, she had to leave the official accommodation and move to her private accommodation with effect from May 22, 2009. Such action on the part of the authority in not permitting her to over stay, was arbitrary discriminatory, humiliating and insulting. She also complained though her letter dated April 10, 2010 that Red Cross official, were allowed to enjoy the same privilege without any rent and she was not allowed to overstay. Her husband Colonel Chowdhury received the said notice under Section 7(3) of the said Act of 1971 at Kalimpong when he sought clarification and time to give detailed reply to the said notice.
(2.) On July 30, 2009, the Military Police came to her private accommodation as stated above. She requested the Military Police not to cause any damage to her civil accommodation. Then the officials mentioned the name of the petitioner having directed them to affix the notice. They affixed the notice on the outer door of the Flat causing insult to her. Such insult could have provoked breach of peace in the area in and around the said premises. According to Mr. Chowdhury, her husband enjoyed considerable prestige, dignity and status in the locality which was lowered down in the estimation of right thinking people of the society in view of such act on the part of the Military Police. Hence the accused committed offence under Section 441/504/506/427/500 of the Indian Penal Code.
(3.) Being aggrieved by the order of taking cognizance by the learned Magistrate the Brigadier filed the instant application for quashing the complaint case which was heard by me on the above mentioned dates. Mr Dipak Kumar Mukherjee learned counsel appearing for the petitioner contended that while the petitioner acted in good faith by issuing the said notice in the usual course of business the complaint case was not maintainable in absence of proper sanction being given under Section 197(2) of the Criminal Procedure Code. According to Mr. Mukherjee, once the sanction was not granted the complainant was not entitled to maintain the said complaint and the learned Magistrate committed grave error in taking cognizance of the same. Mr. Sandip Kumar Bhattacharjee learned counsel also appearing for the petitioner relied on Section 200 of the Criminal Procedure Code to contend that the provision would require more than one witness to be examined apart from the complainant before the learned Magistrate could take cognizance. Since in the instant case the complainant only examined herself the learned Magistrate was not entitled to take cognizance. Mr. Bhattacharjee also relied upon the provision of Section 66 of the Criminal Procedure Code and contended that such provision was not followed by the learned Magistrate while taking cognizance. According to Mr. Bhattacharjee, the Brigadier discharged his official duty while issuing the notice. Under Rule 4 of the Public Premises Unauthorized Occupancy Rule notice could be affixed at the last known address of the accused since other mode failed as the notice came back unsured as would appear from the affidavit. Hence the Brigadier was within his power to direct affixation of the said notice at the recorded address of the complainant. Mr. Bhattacharjee also contended that Section 441 of the Indian Penal Code would denote the nature of the crime and was not the chargeing Section. Hence, the learned Magistrate could not have been taken cognizance under the said provision. He also referred to Section 114 of the Indian Penal Code and contended that Brigadier could not be termed as committal or as he was admittedly not present at the place of occurrence.;