- (1.) The challenge in this revisional application is to the order dated 28th December, 2007 passed by the learned Chief Judicial Magistrate, Alipore, South 24-Parganas in Case No. C-1107 of 2001. The relevant portion of the said order is set out below:- "After giving anxious consideration to the facts and circumstances of the case I find that the instant complaint has been quashed by the Hon'ble Supreme Court only on the ground for want of sanction. It is true that only the accused No. 1 moved the petition before the Hon'ble Supreme Court and he obtained such order in his favour. It is settled law the observation and decision of the Hon'ble Supreme Court is the law of the land. Therefore, if the Hon'ble Supreme Court on the basis of prayer of the accused No. 1 has been pleased to observe that the relevant complaint is bad in law for lack of sanction there is no other option but to hold that the said findings of the Hon'ble Supreme Court is also applicable in respect of the other two accused persons namely S.M. Kundu and Sudhir Sikdar @ Sudhangsu Kr. Sikdar though they did not move the Hon'ble Supreme Court in this regard. It is also to be mentioned that the accused No. 1 was the Assistant Commissioner of Police attached to Eastern Suburban Division, Calcutta Police where as the accused No. 2 S.M. Kundu was the Officer Incharge of Phoolbagan Police Station, Calcutta and the accused No. 3 Sudhir Sikdar @ Sudhangsu Kr. Sikdar was a police constable attached to Phoolbagan Police Station, Calcutta. The allegation against the three accused persons, were that they murdered the husband of the complainant on the day of General Election of Assembly. In dealing with the case the Hon'ble Supreme Court on the basis of the petition of the accused No. 1 has been pleased to observe specifically that after considering the allegation they opined that lack of sanction is fatal for the instant complaint and the Hon'ble Supreme Court has been pleased to give the complainant a liberty to the effect that the decision of the Hon'ble Supreme Court shall not prejudice the rights of the complainant in any prosecution after the requirements of section 197(1) of the Cr.P.C. are complied with. Therefore, if on the self-same incident a public servant is given immunity for the lack of sanction, there is no reason to give same immunity to 2 other public servants against whom similar allegations were made by the complainant in the same course of transaction. Therefore, in my considered opinion as there is lack of sanction in respect of other two accused persons namely S.M. Kundu and Sudhir Sikdar @ Sudhangsu Kr. Sikdar as per observation of the Hon'ble Supreme Court, I do think that the order dated 24.3.2006 passed by the Hon'ble Supreme Court in connection with the accused No. 1 is still applicable in respect of other two accused persons. In other words as the complaint has been quashed by the Hon'ble Supreme Court for want of sanction, the same observation is also applicable in respect of other two accused persons. However, as per observation of the Hon'ble Supreme Court, the complainant is given liberty to the effect that if the complainant obtains sanction in respect of other two accused persons, the complaint can certainly proceed with the said prosecution. I do not find any reason to implement the order dated 16.6.01. The petition dated 4.12.07 stands rejected."
(2.) Smt. Sadhana Das filed a petition of complaint, being case No. C-1107 of 2001, in the Court of the learned Chief Judicial Magistrate, South 24-Parganas at Alipore against the opposite party nos. 2 and 3 as well as Sankaran Moitra alleging therein that on 10th May, 2001, i.e., the date of Assembly Election in West Bengal, her husband Rabindra Nath Das was murdered by the opposite party nos. 2 and 3 at the instance of Sankaran Moitra. Sankaran Moitra was the Assistant Commissioner of Police attached to Eastern Suburban Division, Calcutta Police, at that relevant period of time whereas the opposite party No. 2, S.M. Kundu, was the Officer-in-Charge of the Phoolbagan Police Station, Calcutta and the opposite party No. 3, Sudhir Sikdar @ Sudhangsu Kr. Sikdar, was a Police constable attached to Phoolbagan Police Station, Calcutta at the relevant period of time. The learned Chief Judicial Magistrate, Alipore, recorded the statement of the complainant and the witnesses under Section 200 of the Code of Criminal Procedure and, thereafter, had taken cognizance of the offence against the three accused persons under Sections 302/201/109 read with Section 120B of the Indian Penal Code. One First Information Report was also lodged with the Foolbagan Police Station, being Foolbagan Police Station Case No. 112 of 2001, under Section 304 of the Indian Penal Code. Smt. Sadhana Das reported the matter to various higher authorities of the police. Sankaran Moitra, accused no. 1, filed an application for anticipatory bail, which was refused by this Court on 20.06.2003. Sankaran Moitra challenged that order in the Hon'ble Apex Court and his prayer for Special Leave to Appeal was rejected by the Hon'ble Apex Court on 28.07.2003. Sankaran Moitra, in the meanwhile, filed an application under Section 482 of the Code of Criminal Procedure before this Court praying for quashing of the proceedings on the ground that the learned Chief Judicial Magistrate had no jurisdiction to entertain the complaint since the condition precedent for entertaining complaint, a sanction under Section 197(1) of the Code of Criminal Procedure was required which had not been obtained.
(3.) This Court by an order dated 11.07.2003 dismissed the application and observed: "In its considered view Section 197 Cr.P.C. has got no manner of application in the present case. Under Section 197 Cr.P.C. sanction is required only if the public servant was, at the time of commission of offence, employed in connection with the affairs of the Union or of a State' and he was not removable from his office save by or with the sanction of the Government'. The bar under Section 197 Cr.P.C. cannot be raised by a public servant if he is removable by some authority without the sanction of the Government. Committing an offence can never be a part of an official duty. Where there is no necessary connection between the act and the performance of the duties of a public servant, section 197 Cr.P.C. will not be attracted. Beating a person to death by a police officer cannot be regarded as having been committed by a public servant within the scope of his official duties. .. .. Committing of an offence of murder can never be a part of an official duty. Where there is no necessary connection between the act and the performance of the duties of a public servant, Section 197 of the Code will not be attracted. Merciless beating by a police officer causing death of a person can never be said to be an act in discharge of his official duty.";