S.C. Majumdar, J. - (1.) This is an application under Section 401 and 482 of the Code of Criminal Procedure, 1973 for quashing the charge framed against the accused petitioner under Sections 217 and 218 of the Indian Penal Code read with Section 34 of the Penal Code and Section 13B(c) of the Calcutta Police Act 1866 along with Section 34 of the Penal Code in case No. C/96 of 1970 by Metropolitan Magistrate's 6th Court, Calcutta. The facts of the case are that Jugal Kishore Dhandhania filed a petition of complaint to the effect that on 7.11.1969 at about 9.30 p.m. about 25 men came to his premises at No. 203, Chittaranjan Avenue and hurled bombs which exploded with loud bang but he escaped injury. He rang up Lall Bazar Police Station seeking for police help and also informed Jorasanko police station about this. Forty-five minutes after the incident S.I., P. Chakraborty of Jorasanko police station came to the place of occurrence and took away some bombs and the remnants of the exploded bomb. On the following day i.e. on 8.11.69, the complainant wrote a letter to the accused No. 1 Ajit Kumar Chatterjee narrating the incident and asking him to take up the case. On 9. 11.69 at about 11.15 p.m. one of the offenders who threw bomb on the complainant, was arrested by S.I.S. Ghosh who was accused No. 3 in the case before the Metropolitan Magistrate. The accused No. 3 took the said person on arrest to the accused No. 1. Thereafter the complainant wanted to get information regarding the said case and about the persons on arrest, but without any success. The complainant was suspicious that proper investigation was not being done in the case and he moved the Joint Commissioner of Police and even the then Deputy Chief Minister. Again on 14.12.69 there was another incident of bomb throwing at the premises No. 138, Ramdulal Sarkar Street, Calcutta but nothing was done against the offenders. Again on 2.1.70 the complainant moved a petition before the Additional Chief Presidency Magistrate, Calcutta praying for an order on D.C., D.D. for investigation and under Section 156(3) of the Code of Criminal Procedure the matter was intimated to D.C., D.D. Thereafter the complainant came to know that one person was arrested by accused No. 3 on 9.11.69 and he was taken to the accused No. 1 but the accused No. 1 without taking any bond for appearance of the arrested person released him in violation of his statutory duties under Section 76 of the Calcutta Police Act, 1866 which lays down that "every person taken into custody without a warrant by a police officer shall be taken to the Police Station in order that such person may be detained until he can be brought before a Magistrate, or until he shall enter into recognisances, with or without sureties, for his appearance before a Magistrate". The corresponding provision of the Indian Penal Code also casts a duty on a Police officer to take cognizance of an offence when an offender is arrested and when an arrest is made by a Police officer under Section 46 of the Code of Criminal Procedure, he should not be released except in accordance with law. It was also the case of the petitioner that there was violation of the statutory duties of the police in this case under Section 13B(c) of the Calcutta Police Act, 1866. Thus in this case, there was a dereliction of duty of the police officer who is the petitioner in this case. In the case started before the Metropolitan Magistrate's court, the complainant examined eleven witnesses and on scrutiny of the evidence the learned Metropolitan Magistrate framed charges against the present petitioner and others. The charge framed against the accused No. 1 was under Section 217, 218/34 of the Indian Penal Code and under Section 13B(c) of the Calcutta Polica Act, 1866, read with Section 34 of the Penal Code. Against accused No. 2 charge was framed under Section 218 of the Indian Penal Code and Section 13B(c) of the Calcutta Police Act, read with Section 34 of the Indian Penal Cade and against accused No.3 under Section 217 of the Indian Penal Code and under Section 13B(c) of the Calcutta Police Act read with Section 34 of the Indian Penal Code.
(2.) It is against the charge that was framed in this case that the present petitioner has moved the court for quashing the charge. The only point for consideration is whether on the basis of the facts, evidence and circumstance on record the charge as framed can stand.
(3.) It is well settled that the principle of quashing a proceeding after a charge has been framed rests upon the proposition that if on the face of the record and on the basis of the available evidence, if unrebutted, no case is made out then the prosecution should not be allowed to continue in a fruitless way. In the case of R.P. Kapoor v. State of Panjab reported in 1960 SC 866 this proposition has been laid down which has been widely followed in subsequent decisions. Now the learned Magistrate has held that in this particular case the G.D. entry No. 138 dated 7.11.69 was made, but long after that the First Information Report was recorded which is marked Ext. 15. This recording of the First Information Report long after the G.D. entry is ipso facto an act of negligence on the part of the Police Officer. Secondly, the finding of the learned Magistrate is this that the man who was arrested by the accused No. 3 was produced before the accused No. 1 and the accused No. 1 without taking any bond for recognisances and without any reason whatsoever, released him and thirdly, the reasoning of the learned Magistrate was that the accused person had a duty to perform to the State and to the public in question under the provisions of the Police Act, 1866 and that duty having been departed from, the charges were framed. Now let us see what Sections 217 and 218 lay down: Section 217 : Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save any person from legal punishment, or subject him to a less punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with line, or with both. Section 218 : Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both.;