IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
C.R.R. No. 1396 of 2011
(Ahok Kr. Todi vs. C.B.I.)
C.R.R. No. 1397 of 2011
(Pradip Kr. Todi vs. C.B.I)
C.R.R. No. 1549 of 2011
(Anil Saraogi vs. C.B.I.)
C.R.R. No. 1573 of 2011
(Ajoy Kumar vs. C.B.I)
C.R.R. No. 3512 of 2011
(C.B.I. vs. Ajoy Kumar Ors.)
C.R.R. No. 1494 of 2011
(Rukbanur Rahaman vs. C.B.I. Ors.)
C.R.R. 1499 of 2011
(S. M. Mohiuddin @ Pappu vs. C.B.I.)
Present : The Hon’ble Justice Siddhartha Chattopadhyay
For the Petitioner : Mr. Milon Mukjerjee, Sr. Adv.,
(in C.R.R. 1396 of 2011) Mr. Sandipan Ganguly, Sr. Adv.,
Mr. S.K. Kapoor, Sr. Adv.,
Mr. Ayan Bhattarcharjee,
Mr. Ayan Chakraborty.
For the Petitioner : Mr. Sekhar Basu, Sr. Adv.,
(in C.R.R. 1397 of 2011) Mr. Sandipan Ganguly, Sr. Adv,
Mr. Ayan Bhattarcharjee,
Mr. Ayan Chakraborty.
For the Petitioner : Mr. Tarique Quasimuddin,
(in C.R.R. 1499 of 2011) Ms. Sanchita Chowdhury,
Mr. A.I. Khan.
For the Petitioner
(in C.R.R. 1573 of 2011) : Mr. Milon Mukherjee, Sr. Adv.,
Mr. Biswajit Manna.
For the De facto Complainant : Mr. Moyukh Mukherjee.
For the C.B.I. Petitioner
(in C.R.R. 3512 of 2011) : Mr. Ashraf Ali.
For the Opposite Party 3 4
(in C.R.R. 1494 of 2011) : Mr. Rajdip Majumdar,
Mr. Kausik Gupta,
Mr. Soumya Roy Chowdhury,
Mr. Sanjiv Kr. Trivedi,
Mr. Sourav Bhagat.
Heard On : 10.04.2017, 11.04.2017,
C.A.V. On : 19.05.2017.
Judgment Delivered On : 12.06.2017.
Siddhartha Chattopadhyay, J.:
All these revisional applications arose from the Order No. 57 dated
21.04.2011 in S.C. 103 of 2008 and Order No. 1 dated 21.04.2011 in S.T. 2
(11) passed by the learned Court below. By the impugned orders, the
learned Court below dismissed, the applications under Section 227 of
Cr.P.C. of the present petitioners of C.R.R. 1396 of 2011 (Ashok Todi vs.
Saraogi vs. CBI), C.R.R. 1573 of 2011 (Ajay Kumar vs. CBI), C.R.R. 1499 of
2011 (S.M. Mohiuddin @ Pappu vs. CBI), C.R.R. 3512 of 2011 (Sukanti
Chakraborty, Krisnendu Das vs. CBI), and thereafter framed charges under
Kumar, Sukanti Chakraborty and Krisnendu Das. The C.B.I as well as
Rukbanur Rahaman also challenged the impugned order stating inter alia
that the police officials also ought to have been charged under Section 306
of I.P.C. By the consent of the parties, all these revisional applications be
disposed of by a common judgment.
2. By way of prefatory observations, I may be permitted to mention that even
nearly after 70 years of our independence a few narrow-minded people have
some superstitious beliefs. In spite of significant developments in modern
science and technology, we find a few conservative people still believe that
marriage must be within the same religion and of same financial status.
Such baseless and unfounded attitude sometimes may lead to family
disasters. The allegation, if proved, may be a glaring example of that. The
young couple dreamt of a rosy life but within a week that became a jinxed
matrimony. When the victim decided to take the help of police officials, the
protectors allegedly took the role of predators. When he wanted to take the
help of law enforcing agency, that agency turned a deaf ear to. As a result,
the said law enforcing agency became a teasing mirage to the victim.
3. Before adverting to the rival contentions of the respective parties, let me
unbox the prosecution case which contains the statements of about 116
charge-sheeted witnesses and many documents, most of which are of
4. The prosecution case in a capsulated form is such that the victim was
working in Arena Multimedia and Priyanka was a student of that Arena
Multimedia. The principal accused Ashok Todi is the owner of a well-known
company (‘Lux Cozy’). In course of working at Arena Multimedia, the victim
developed an intimacy with Priyanka, which ultimately led them to marry
each other under Special Marriage Act. Initially the victim did not disclose
about his marriage with Priyanka to his relatives. On 26th August, 2007 for
the first time he disclosed his elder brother that he had married Priyanka.
On 30.08.2007 the victim told his uncles, who advised him to intimate
about the marriage to the parents of Priyanka. On 31.08.2007 the victim
informed Commissioner of Police, Calcutta regarding their marriage and also
sought for police protection. He has also informed the same to the S.P. North
24 Parganas, S.P. South 24 Parganas, D.C. South. He has also delivered a
letter to local police station (Karaya) stating that he has married Priyanka
lawfully. After getting the news of such marriage, father and uncles of
Priyanka (Ashok Todi, Pradip Todi and Anil Saraogi) reached their house and
they were talking with his uncles. Subsequently, the victim and Priyanka
came to the house of the victim and seeing them Ashok Todi became very
angry. Priyanka protested stating that she had married him. Ashok Todi and
Pradip Todi did not like to accept the marriage and asked Priyanka to go
back to her father’s place at Salt Lake, which Priyanka had refused. Despite
several requests when the couple did not accede to their request, Ashok Todi
wanted to have a discussion with Priyanka exclusively. Ashok Todi took the
Priyanka in an adjoining room, where both Priyanka and Ashok Todi held
discussion. Anil Saraogi also requested the de facto complainant to send
back Priyanka otherwise they would do the same forcibly. However, in the
meantime a telephonic call was received by Pradip Todi claiming that
Priyanka’s mother had fallen ill. In spite of that Priyanka did not want to go
back to her parents’ house. On that day at or about 11:30 P.M., Pradip Todi
again came and persuaded her to return to their house but Priyanka
refused. Not only that Pradip Todi also wanted to deliver a blank cheque to
the victim’s relations and asked them to fill up the amount as they wish, to
which all of them refused. At or about 12.30 night two police officials of
Karaya Police Station came and put pressure upon the family members to
send Priyanka to her parents’ house. When Priyanka refused to go to her
parents’ house, those police officials threatened them to send Priyanka back,
otherwise all of them would be arrested. After a few while Pradip Todi and
Anil Saraogi went away. Ashok Todi remained in their house for whole night
and put pressure upon Priyanka to go back to her parents’ house, but he
could not persuade Priyanka. On 01.09.2007 at or about 9:00 am, Ashok
Todi threatened them with a caution that if Priyanka would not return to her
parents’ house, then Rizwanur and his family members would face serious
consequences. On the same day in the afternoon the accused police officer
namely Krisnendu Das and one constable came to the house of the victim
and asked about marriage certificate of Rizwanur and Priyanka. After
checking the said marriage certificate, Krisnendu Das asked Rizwanur and
Priyanka to go to Lal Bazar, Police Headquarter and to make a statement in
writing before Sukanti Chakraborty and forced them to come along with
him. The victim’s elder brother called one ‘Pappu Bhaiyya’, who told him
that they need not go to police station and he would take care of. However,
they ultimately went there and found Ashok Todi, Pradip Todi, Anil Saraogi,
Umesh Kayal and Santosh Morarka waiting in the ‘Anti Rowdy Section’. The
accused Krisnendu Das persuaded Priyanka to go back to her parents’
house for few days but Priyanka refused. Thereafter, the victim was called
by Sukanti Chakraborty and she refused the request of Sukanti
Chakraborty. Being aggrieved at it, Sukanti threatened the victim that law
would be twisted against them. On 02.09.2007, one Hari, as driver of Ashok
Todi, came to the victim’s house and told him that Ashok Todi was ready to
give them any amount of money, flat, car to the uncles, if Priyanka goes
back to her parents’ house. The victim as well as his family members
refused the proposal. On that day at or about 7:00 pm one person (Mazid)
requested the uncle of the victim to send back Priyanka to her parents’
house otherwise they would be in danger. On 04.09.2007 the said ‘Pappu
Bhaiyya’ came to their house and told him that D.C. Headquarter wanted to
meet Rizwanur and Priyanka. They initially refused to go. Thereafter all of
them went to the office of Gyanwant Singh (D.C. Headquarter), where they
saw that Priyanka’s parents as well as Prodip Todi and his wife were present
in that chamber. Rizwanur was called by Gyanwant and he also threatened
and persuaded Rizwanur to send back Priyanka to her parents’ house.
Priyanka repeatedly refused their requests. On 07.09.2007 Priyanka was
told that her father had been admitted in Apollo Hospital due to serious
illness. At 1:30 pm Pradip Todi came and asked Priyanka to go to her
parents’ house but she refused. On that day at or about 2:30 pm Javed
Ahmed Khan, local M.L.A., came and made the same request. The said
M.L.A. rebuked Rizwanur as to why being a teacher he has married a
student. Thereafter the local M.L.A. left their house. At or about 6:30 pm,
Pappu Bhaiyya again came to their house and asked Priyanka and Rizwanur
to go to Apollo Hospital but Priyanka refused to go with him saying that they
may be kidnapped in that area, if they venture to go to hospital. On
08.09.2007 Krisnendu Das (a police personnel, one of the accused) again
came to their house stating that they have been summoned by Ajay Kumar
I.P.S. to meet him in his chamber. Pappu Bhaiyya also persuaded the victim
and Priyanka to go to Ajay Kumar but they refused. At that time Krisnendu
Das warned Priyanka and Rizwanur that Ajay Kumar had repeatedly given
him clear instructions that if they did not meet him, the consequences will
be serious and they will be forcibly taken in the evening. Being threatened,
Priyanka and Rizwanur became very afraid and thereafter agreed go to Lal
Bazar. At 3:30 pm again they met Sukanti Chakraborty, Krisnendu Das who
took them to Ajay Kumar. At that time Ajay Kumar wanted to arrest
Rizwanur on the charges of abduction and stealing of valuable articles. They
were not allowed to sit in visitors rooms. After a few while when they again
entered into the chamber of Ajay Kumar, he started shouting like anything
and told that Priyanka’s father had complained to him that Rizwanur had
abducted his daughter. Priyanka reacted saying that even if Rizwanur is
arrested on false charges, she would not go to her father’s house. Ajay
Kumar also told her that he would send her forcibly to her parents’ house, if
she did not agree. Ultimately after a long discussion it was held that
Priyanka would go to her parents’ house for seven days only and an
agreement was prepared. On behalf of Ashok Todi and Pradip Todi, one Anil
Sarogi (Meso) had drafted an agreement on a plain paper and when
Rizwanur tried to have a talk with his lawyer over phone, Sukanti became
angry and told his officers immediately to take Rizwanur into custody.
Ultimately on the basis of such agreement, Priyanka was taken to her
parents’ house on a stipulation given by Anil Sarogi that he would return
Priyanka after seven days and that was the last journey of Priyanka. Even
after seven days, there was no sign of returning of Priyanka. Rizwanur was
perplexed totally. He could not make any contact with Priyanka since then.
He then informed the matter to APDR and his close associates to help him.
On 21.09.2007 when the de facto complainant tried to contact with
Rizwanur continuously on his mobile, he could not get Rizwanur although
the cell phone of victim was continuously ringing. At or about 2:30 pm he
received call in his mobile by which de facto complainant was asked to reach
Dum Dum Police Station immediately, for identification of a dead body. They
proceeded to GRP Sealdah and identified the dead body of the victim. After
the cremation of the dead body they came back. Disclosing all these facts in
detail the de facto complainant lodged the F.I.R. and set the law into motion.
5. After a thorough scrutiny of all these revisional applications it seems to
me that this court is called upon to answer the following issues viz :-
(a) “What should be the basis of taking cognizance under Section 190
(b) If the supplementary charge-sheet is filed, whether the Court is
bound to take cognizance only in respect of the offences as mentioned
in supplementary charge-sheet ignoring the first charge-sheet or not.
(c) If the Sessions Judge is bound to take cognizance only in respect
of the offences, which has been mentioned by the committal court?”
(d) What are the factors to be considered by the court at the time of
disposal of an application under Section 227 of Cr.P.C.
(e) When the court shall frame charges?
(f) Whether a direct/remote mental pressure associated with serious
criminal intimidation be treated as an abetment to commit suicide? When
and why a person commits suicide?
Cr.P.C. for quashing of a proceeding?
Therefore, at first, I want to decide issue no. (a), (b), (c):
6. Learned Counsel Mr. Milan Mukherjee, Senior Advocate, at the very
outset submitted that the cognizance taken by the learned Courts below are
bad in law and only on this score the accused Ajay Kumar and Pradip Todi
should be discharged. He has also referred to several decisions of Hon’ble
Apex Court and contended that in view of the decisions of the Apex Court
the proceeding does not lie. The learned Counsel Mr. Mukherjee (C.R.R.
1573 of 2011) argued emphatically that the Magistrate concerned has
initially taken cognizance under Section 190(1)(a) of Cr.P.C. When such
cognizance was taken, requisite sanction under Section 197 Cr.P.C was not
there in respect of three police officers. According to him, Sanction was given
therefore, initial cognizance taken by the magistrate is bad in law. He
further argued that since sanction has been given excluding Section 306
IPC, so the learned Trial Court cannot take cognizance of the offence under
7. Now, I am to describe what is ‘Cognizance’. The word ‘Cognizance’
has not been defined in the Code itself. On the basis of catena of decisions of
Hon’ble Apex Court as well as High Courts, it is held that the cognizance
means application of mind by the Magistrate for the purpose of initiation of
a proceeding. It is to be kept in mind that the cognizance is taken in respect
of the offences and not against offender. In a case under Section 190(1)(b),
the Magistrate has to consider the police report. The word used in Section
190 Cr.P.C. bear the words ‘may take cognizance of any offence’. Therefore,
the power of the magistrate is not restricted to the extent of police report
only. The magistrate has the power to take cognizance in respect of other
offences, even if the same is not described in the charge-sheet. But before
coming into such conclusion, the Magistrate has to apply it’s judicial mind.
It may be noted that the word cognizance is not esoteric or mystic
significance in criminal procedure code. A case can be said to be instituted
in a court only when the court takes cognizance in respect of the offence
alleged therein. Once cognizance is taken, it is the duty of the magistrate to
proceed against those offenders. The Section 190(1)(b) does not lay down
that the Magistrate can take cognizance of an offence only on the
Investigating Officer’s report if the investigation has made out a case against
the accused, the Magistrate can even ignore the observation the
investigating officer and can independently apply his mind on perusal of
case diary to ascertain if any offence is made out and then take cognizance
of the case, under Section 190(1)(b) Cr.P.C. and shall pass an order for
issuing process against the accused.
8. From the above discussion it is crystal clear that the magistrate has
the right to act independently without being biased by the report of the
police. In the instant case, initially CBI submitted charge-sheet under
police officials. At the time of filing of such charge-sheet CBI had mentioned
that they opted for a sanction from the State and since that was not granted
at that time, they reserved the right to file the supplementary charge-sheet.
When the first charge-sheet was submitted, the Magistrate has applied his
judicial mind and issued the process against the police officials holding
specifically that the alleged offences committed by the police officers do not
come within the purview of their official duties including dereliction of their
duties. On the basis of such findings, he had issued the process. Therefore,
it seems to me that there is no error committed by the learned Magistrate.
Whether the act done by the police officers are purported to have been done
in their official capacity or not is a debatable issue. However, subsequently
supplementary charge-sheet has been submitted. The State Government has
against the police officials but did not accord sanction under Section 306
IPC. At the time of granting such sanction, the Governor has considered the
materials available on record and has come to a finding that the police
197(4) Cr.P.C. specifically speaks that the State Government may determine
the person by whom, the manner in which, and the offence and offences for
which, the prosecution of such Judge, Magistrate or public servant is to be
conducted and may specify the court before which the trial is to be held.
9. We cannot keep our conscience into a cold storage that quite often it is
not possible at the initial stage of the proceeding to correctly determine
whether the acts complained of has any nexus with the official duties of the
accused. This question can be determined only after recording evidence. It
has been well settled position of law that there must be a reasonable
connection between the act complained of and the discharge of official duty
including dereliction of duty, if any, the act must bear such a relation to the
duty that the accused could lay a reasonable, but not a pretended or
fanciful claim that he did it in the course of the performance of the duty. On
perusal of the first charge-sheet, the learned Magistrate has taken the view
that it does not come prima facie within the ambit of ‘official duties’.
Whether the magistrate is correct in arriving at such conclusion is a
question to be gone into at the time of trial. Therefore, in my view, the said
order of the learned Magistrate passed in connection with the first charge-
sheet cannot be said to be illegal. There is no jurisdictional error. The
getting police report. When supplementary charge-sheet has been filed, the
learned Magistrate again took cognizance on the basis of the supplementary
charge-sheet, which cannot be thrown out as it is a part and parcel of the
former charge-sheet. The Section 190(1)(b) of the Code does not say that the
magistrate is debarred from taking cognizance in respect of the other
offences, when supplementary charge-sheet is filed.
10. The learned First Revisional Court has dealt with the issues
elaborately and came to a finding that the learned Magistrate had not
committed any mistake. In fine, I do not find any reason to take a different
11. Learned Counsel appearing on behalf of the accused Ajay Kumar further
contended that without sanction, the learned Magistrate has taken
cognizance and it is bad in law. Sanction is a pre-condition for initiation of
proceeding against a public servant. At the very outset, he has also referred
to an unreported decision of WP 30684 (W) of 2008.
12. In that writ petition, the writ petitioner Kiswar Jahan and
another challenged that no sanction is required since the act complained of
does not come within the ambit of Section 197 Cr.P.C. In spite of that CBI
sought for sanction and Government of West Bengal accorded sanction
under Section 120B/506 I.P.C, although charge-sheet has been submitted
of offence under Section 306 I.P.C also. According to Mr. Mukherjee,
learned Chief Metropolitan Magistrate initially has taken cognizance under
Court cannot take cognizance under Section 306 I.P.C since it has not been
accorded by the State Government. He added that when Government did
not accord sanction under Section 306 I.P.C, the Court cannot take
cognizance of that Section.
13. He also relied on the decision of writ petition as mentioned above.
On perusal of the said decision of Writ Court it appears that the said Court
did not come to any finding which has any relevance in this issue. The Writ
Court held following the decision of 1999 Cr.L.J. 3500 “23. The question of
necessity of sanction need be considered by the Sessions Judge if and
when raised by the accused. We have no doubt that the High Court
should not have embarked upon a discussion regarding sanction at
such a premature stage, that too in the writ petition filed by the
Samity. If the finding of the High Court is that no sanction is required
such finding has to be treated as bad mainly because that question has
to be decided after taking into account various considerations
including the fact situation in each case.” Therefore, the said decision is
not helpful for the present accused petitioner.
14. He has also relied on a decision reported in 2008(2) ECRN page
cognizance. What is cognizance? The word cognizance means “jurisdiction”
or “the exercise of jurisdiction” or “power to try and determine causes”. The
Court, therefore, is precluded from entertaining a complaint or taking of
notice of it or exercising jurisdiction if it is in respect of a public servant,
who is accused of an offence alleged to have been committed during the
discharge of his official duty.
15. In that case the petitioner, a political entity, supported a call of
“Bangla Bandh” and he was proceeding towards district collectorate office
along with others, and then the police restrained him and assaulted.
Maintenance of law, order and peace is the first and foremost duty of police.
When there was chance of violation of law and order, certainly the police has
to interfere. If there was any excess done by the police authority that is to
be considered only after taking evidence. But since it was in course of
discharging official duty so sanction was very much required.
16. The learned Counsel appearing on behalf of the petitioner has
also referred to a decision reported in AIR (32) 1945 Federal Court on page
16. The said decision, it appears to me is not much relevant for
adjudication of this case. The learned Counsel has also referred to a
decision reported in AIR 1955 SC 287 (Ramayya vs. State of Bombay)
factual aspect of that case is such that the accused was in charge of
Government stores and the materials were disposed of dishonestly. The said
accused was in charge of the materials. The Hon’ble Apex Court decided the
issue on a premise that an official act can be done in the discharge of official
duty as well as in dereliction of it. If an act of a public servant is to be done
in a particular manner and if that is not done in that particular manner in
that case it is a dereliction of duty. But in this case that aspect is missing.
In this case, the police official prima facie exceeded their jurisdiction. It was
not at all their duty to call the young married couple in their chambers and
to ask them with red eyes for dissolution of the marriage and they made a
negotiation for handing over Priyanka to her parents’ custody.
17. A judgment reported in AIR 1966 Supreme Court 220 (Baijnath
Vs. State of Madhya Pradesh) was also referred. Divergent views were
taken by the Hon’ble Judges. But the ratio is: what is important is the
quality of the act complained of and the protection as contemplated under
official duty as such or it may be committed within the scope of the official
duty. If it is unconnected with the official duty there can be no protection.
Judgment in connection with P.Balakrishna Pillai Vs. State of Kerala
reported in 1996 SCC Criminal 128 was also cited. The Hon’ble Apex
Court has decided the issue holding that the ratio would be if the act
complained of has a direct nexus or relation with the official duties of a
public servant depends on the particular facts of the case. The learned
Counsel Mr. Mukherjee also drew the attention of this Court in regard to the
decision reported in 1996 Criminal 489 (Costao Fernanades vs. State
D.S.P. CBI, Bombay). After going through the factual aspect it seems to me
that the said judgment is totally irrelevant. In that case the Custom Officer
on the strength of the provision under Section 106 of Customs Act tried to
stop the vehicle by which smuggled goods were being carried. The driver of
the said vehicle resisted the public officer on duty and stabbed him for
which he sustained 22 injuries. Then the Customs Officer retaliated and as
a consequence the said driver died. The act of the Customs Officer to stop
the vehicle was well within his official work and the rest part he did was to
18. He has also referred to a decision reported in 1997 SCC
(Criminal) 1120 (Mansukhlal Vithaldas Chauhan vs. State of Gujarat).
In the said decision, the Hon’ble Apex Court held that proper application of
mind by the authority concerned is required when question of sanction is
placed before them. High Court cannot direct the authority to accord
sanction. The petitioner also referred to a decision reported in 2000 CRLJ
that case is such that there was a dispute regarding a mosque between two
sects of Mohamedan residents. To control the volatile situation, 144 Cr.P.C.
was promulgated. In spite of that commotion continued. The appellant of
that case obviously acted in discharge of his official duties. Therefore,
sanction in such type of cases are required as a precondition. So the Apex
Court held that question of sanction can be raised even after the cognizance
was taken and need not wait till the Court reaches the stage of framing of
charge. Another judgment was also referred to, which is reported in (2014)
13 SCC 705 (Ashoke Meheta Anr. vs. Ramashray Singh Ors.). On
perusal of the said judgment it appears to me that the Hon’ble Apex Court
held that at the preliminary stage, the Court is to examine the same to
determine whether there is any need for sanction at all. These factors
depend on whether the alleged act done by the public servant is reasonably
connected with the discharge of his official duty, in which case the
protection of sanction under Section 197 Cr.P.C. is available; and if it is not
so reasonably connected, the protection of Section 197 is not available. The
learned Counsel appearing on behalf of the petitioner highlighted the
decision reported in (2006) 4 SCC 584 (Sankarsan Moitra vs. Sadhana
Das). On a close scrutiny of the said judgment, I find that when a general
election was going on, the police received information that some persons
were creating disturbance near the polling booth. To work out the said
information, the police went there to disperse the unruly people. Therefore,
the police made lathi charge. The Hon’ble Apex Court held that it was within
his official duty.
19. It was also submitted by the learned Counsel appearing on behalf
of the petitioner referring the judgment reported in 2008(3) AICLR page
the Hon’ble Apex Court implies the word “official duty”. It means act or
omission must have been done by the public officer in the course of his
service and that it should have been in discharge of his duty. The section
does not extend its protective cover to every act or omission done by a public
servant but restricts its scope of operation to only those acts or omission
which was done by a public servant in course of his official duty. Other two
judgments were referred, namely, 2008(2) ECRN page 1544 (Paresh
Chandra Kar vs. State and 2011(2) SCC (Criminal) 251
view those judgments are not applicable in this case. Now, I am to consider
if the learned Magistrate is debarred from taking cognizance twice.
20. When police submits supplementary charge-sheet disclosing in
addition/alteration and deletion of any offence mentioned in charge-sheet at
the first instance, the magistrate can take further cognizance in terms of
be invoked only in respect of a police report. Therefore, magistrate may
consider any further report given in supplementary charge-sheet, because it
is also a police report. Section 190(1)(b) does not say that magistrate cannot
take cognizance further on the basis of supplementary charge-sheet.
any application. Therefore, issue no (a), (b), (c) are decided accordingly, in
favour of the prosecution.
Issue Nos. (d) and (e):-
(d) “What are the factors to be considered by the court at the
time of disposal of an application under Section 227 of Cr.P.C.
(e) When the court shall frame charges?”
21. Learned Counsel appearing on behalf of the respective parties have
submitted that there being no material in the statements recorded under
accused persons. They also contended that since there is no material to go
for a trial, charges ought not to have been framed. Prior to delving into the
documents submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers that there
is not sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.
the Judge is of opinion that there is ground for presuming that the accused
has committed an offence which-
(a) Is not exclusively triable by the Court of Session, he may, frame a
charge against the accused and, by order, transfer the case for trial to the
Chief Judicial Magistrate, [ or any other Judicial Magistrate of the first class
and direct the accused to appear before the Chief Judicial Magistrate, or as
the case may be, the Judicial Magistrate of the first class, on such date as
he deems fit, and thereupon such Magistrate] shall try the offence in
accordance with the procedure for the trial of warrant-cases instituted on a
(b) is exclusively triable by the Court, he shall frame in writing a charge
against the accused.
(2)Where the Judge frames any charge under clause (b) of sub-section (1),
the charge shall be read and explained to the accused and the accused shall
be asked whether he pleads guilty of the offence charged or claims to be
be termed as a precious safeguard i.e. pre-battle protection conferred upon
the accused by the statute.
words ‘there is a sufficient ground for proceeding against the accused’
whereas in Section 228(1) Cr.P.C. the legislature very consciously used the
words ‘there is ground for presuming that the accused has committed an
24. If we consider the said Section 227 Cr.P.C. very meticulously we
would find that discharge is possible if there is no sufficient ground
(emphasis supplied). In Section 228 Cr.P.C., the Court is empowered to see
if there is ground for presuming that the accused has committed an offence.
For the purpose of discharge sufficient ground is required but in case of
framing of charge only ground is required. The legislature very
conscientiously omitted the word ‘sufficient’ in Section 228 Cr.P.C.
me that the Court is to be satisfied itself only to the extent that the
allegation raised against the accused is either grossly frivolous or there is
any suspicion/presumption that the offence has been committed. Be it
mentioned, that the Court should be very cautious in allowing an
to the prosecution to substantiate the allegation through witness, the
accused gets an escape from the net of law. The Court is to see if any
material for presumption is there or not. If the answer is affirmative, charge
has to be framed.
26. While dealing with such situation, the Court is not supposed to
make an in depth study about the evidence to be carried by the prosecution
during the trial. It is not the duty of the Court to consider every nitty-gritty
of the case and to sift and weigh the materials of case diary by making a
roving enquiry, to find out the probative value of evidence to be led. It
postulates just exercise of judicial mind of the Judge concerned. The test
that can be adopted by the Court is to consider if the statements and
documents collected during investigation are taken to be true would be
sufficient to uphold the charge or not.
27. On a microscopic examination of the statements made under Section
161 of Cr.P.C. by the charge-sheeted witnesses and the huge documents
specially call details report, polygraph test, CCTV footage, so far collected as
mentioned in the charge-sheet, I find that from the date of knowledge of the
marriage, the parents and relatives of Priyanka tried their level best to
dissolve the marriage. They took the help of top brass police officers and
politically influential person (Javed Ahmed Khan, local M.L.A.) and had also
offered to pay a handsome money to one Pappu Bhaiyya so that their lawful
marriage can be dissolved. From 01.09.2007 to 08.09.2007 there was
consistently consistent interference by the police officials of Lal Bazar. There
was persistent and serious mental torture from the said police personnel so
that Rizwanur disowns his wife. When the ice was not melted, those police
officers began to threat the victim that they would twist penal laws against
him and his family members. Days in and days out they called the victim
and his wife to report to the D.C. Office, Anti Rowdy Section and ACP office
and initially persuaded but when they found that those persuasion would
not click, they adopted the theory of threat. This apart, they engaged Pappu
(one of the petitioner) to dissolve the said marriage and in exchange of that
Pappu Bhaiyya was given a lucrative amount at I.T.C. Sonar Hotel, EM
Bypass. Video footage of that hotel reveals that Todi’s were there and Pappu
28. Here one important factor which deserves notice is that the cumulative
effect of the circumstances should be considered in determining the alleged
involvement of the respective accused persons rather than considering the
same on a solitary isolation.
29. The question as to whether the Court should proceed on the basis as to
whether the materials brought on record, even if taken on face value, to be
correct in their entirety, disclose commission of offence or not. It has to be
determined having regard to the entirety of materials brought on record by
the prosecution and not on a part of it.
Issue Nos. (f) (g):-
(f) “Whether a direct/remote mental pressure associated with
serious criminal intimidation be treated as an abetment to commit
suicide? When and why a person commits suicide?
Cr.P.C. for quashing of a proceeding?”
30. Mr. Sekhar Basu, Sr. Advocate, argued on behalf of the accused
petitioner Pradip Todi and Anil Saraogi. After defining the term abetment he
contended that in the present case there is no such investigation not any
incitement to commit suicide. He further argued that in the suicidal note the
victim let off his father-in-law. He has forgiven his father-in-law. The very
suicidal note does not suggest that there was any kind of abetment or
incitement. Suicidal note does not disclose any kind of depression for which
the presence petitioners are liable.
31. Learned Counsel appearing on behalf of the petitioners, in
support of his case referred to a decision reported in 2002(5) SCC 371
aspect of that case was such that the appellant hurled abusive languages
upon the victim and also threatened him from entangling him in a case
dispute between the parties. On 25.07.1998 when the victim went to his
matrimonial home for bringing back of his wife, he was humiliated like
anything. After two days i.e. to say on 27.07.1998 he left a suicidal note
and committed suicide by hanging. The Hon’ble Apex Court after defining
result of the quarrel. While coming to the finding Hon’ble Court relied on
the finding of Ramesh Kumar Vs. State of Chattisgore reported in (2001)
9 SCC 618. The Hon’ble Court held a word uttered in a fit of anger or
emotion without intending the consequences to actually follow cannot be
said to be an instigation.
32. He has also relied on a decision reported in 1995 Suppl. (3) SCC
the appellant said to have uttered for the deceased to “go and die”. Those
words are casual in nature which are often employed in the heat of the
moment between quarrelling people. Noting serious is expected to follow
thereafter. The said act does not reflect the requisite mens rea on the
assumption that those words would be carried out in all events. He has also
drawn my attention to the decision reported in (2010) 12 SCC 190
(S.S.Cheena Vs. Vijay Kumar Mahajan Ors.). There the Hon’ble Apex
Court observed that the deceased was undoubtedly hypersensitive to
ordinary petulance, discord and differences which happen in our day to day
life. Human sensitivity of each individual differs from the other. Different
people behave differently in the same situation. Abatement involves a
mental process of investigating a person or intentionally aiding a person in
doing of a thing without a positive act on the part of the accused to
investigate or aid in committing suicide, conviction cannot be sustained.
The intention of the legislature and the ratio of the cases decided by the
Supreme Court is clear that in order to convict a person under Section 306
IPC there has to be clear mens rea to commit the offence.
33. He has also referred to a decision reported in (2012) 13 SCC 614
(Satish Mehera Vs. State (NCT of Delhi) Anr.) and submitted that
that case is such that one of appellants was the Chief Manager of the bank
and other was the Senior Manager. What role did they play in the payment
of fixed deposit or cancelling fixed deposit was not disclosed either in FIR or
in the course of investigation. Considering the said fact of that case, Hon’ble
Apex Court came to a finding that it is not permissible in law to permit a
prosecution to linger, limp and continue on the basis of a mere hope and
expectation that in the trial some material may be found to implicate the
accused. Such a course of action is not contemplated in the system of
criminal administration of justice.
34. Mr. Basu in his usual eloquence made an erudite submission that
sometimes in a society which consists of different communities, norms,
practices and even prejudices entertained by the members of a community
largely control their social attitude. Such attitude may not be commendable
or accepted by the other communities, yet practices/prejudices continue the
signature tune in the life of particular community.
35. I find there is no reason to differ with his views about the social
customs, usage and mind set of different communities. But the menace of
the custom should be axed. It would not be prudent to allow that mind set,
which has a detrimental effect, to go on. Now, we are in 21st Century and
not in 18th Century, when “Sati daha” system was prevalent. Our social
reformers like Raja Rammohon Roy, others rose to the occasion and as a
result, “Satidaha” system was abolished and at the instance of Vidyasagar,
Hindu Widow’s remarriage had seen the light of the day. Simply that
custom was there so it may be seen from that angle is not an acceptable
argument. It is true that a decade ago “Sati daha” (Roop Kanowar) took
place and recently “Khap Panchayat” came to the news. These are mere
exceptions. Indian culture does not permit it.
36. A poor Muslim boy, who is educated enough, fell in love with
Hindu girl and married legally to which that adult Hindu girl had full
consent. They led their conjugal life for some days. The parents-in-law,
who are business magnets, raised stiff opposition. They knew that they
could not dissolve the marital tie legally. So, they have taken the help of
Lalbazar i.e. High Officials of Calcutta Police Headquarter. Only by
encashing their business charisma, they got full support of the highly placed
top brass police officials and negotiated the issues so that the parents could
get back their daughter. Days together, there were meetings after meetings.
When the father and uncle failed to convince Priyanka to come back, they
took the help of police officer again. They have taken the plea that the
father of the girl was ailing and he desired to meet his daughter. On that
pretext, after giving an undertaking by one of the relations, (Anil Saraogi)
Priyanka was taken back to her parents’ house on the ground of seeing her
ailing parents. Curiously enough, within two days, so-called ailing father
took Priyanka to Tirupati so that the victim Rizwanur could not keep any
contact with Priyanka. It is anybody’s guess, as to what type of serious
illness the father of Priyanka had.
37. When and why a person commits suicide? It depends on the mind
set of an individual. In similar circumstances, one may not commit suicide
but other does. But it is axiomatic truth that out of pleasure and joy nobody
commits suicide. Nobody commits suicide when he passes through his own
normal life. People take such stern decisions under certain circumstances.
No prediction is possible. Psycho-analysists and researchers of this field
have identified some factors, which drives a person to commit suicide.
38. These factors are sense of unbearable psychological pain, a sense
of isolation from others and a perception that death is the only solution,
when the said individual is temporarily unable to think candidly being
blinded by overwhelming pain. The researchers pointed out that negative
emotions, shame, anger, fear, sense of guilt and extreme sadness may be
the foundation for self-destructive behaviour.
39. There are many other prime factors such as recent extreme
stresses, social pressure, chronic pain, physical disease, social stigma, any
kind of trauma of permanent nature and severe depression, which are
considered as one of the reasons of suicide.
40. More often than not suicide stems from blocked or unfulfilled
psychological needs. This tends to be what causes the pain that the suicidal
act seeks to end. A pervasive sense of hopelessness, defined in terms of
pessimistic expectations about the future, is even more important than
other form of negative emotions, such as anger and depression, in predicting
suicidal behaviour. In such a situation, the person who commits suicide is
fully convinced that nothing can be done to improve his situation.
Sometimes some people contemplate suicide. They have ambivalent feelings
about this decision. Therefore, the suicide provides a distinctive way to
escape from intolerable circumstances, which includes painful self-
awareness. The cessation can be visualized as offering a solution to life’s
41. A person’s mind and body may react to trauma over a period time,
perhaps days, weeks or months so the people suffering from a trauma react
in different ways, suicide is the result of ‘psychotic’. An unbearable
psychological pain arising largely from frustrated psychological needs. It is
said there is a great deal of psychological pain in the world without suicide
but there is no suicide without a great deal of psychological pain.
42. In this instant case from the day of getting the news of marriage of
Priyanka with Rizwanur, the parents and relations of Priyanka tried tooth
and nail to dissolve the marriage. Initially they persuaded but failed.
Thereafter, offered bribe by placing a blank cheque. Again Rizwanur and
Priyanka refused. The parents took the help of police personnels of high
rank. This also initially did not click. Being induced by the parents, top
brass police officials began to threat Rizwanur to arrest on the ground of
abduction. At the behest of police an agreement was entered into by which
Priyanka was taken back to her parents’ house of seven days. She was
supposed to come back on 15.09.2007/16.09.2007. But she did not come
back. She was not kept in West Bengal. She was taken to Tirupati, Rizwanur
could not contact with his wife. Priyanka however made contact through
other’s phone on conference. Why conference call? When Priyanaka has cell
phone of her own. This indicates Priyanka’s mobile was not with Priyanka.
Conference call was there so that another person could hear their
conversation. Human Rights Commission was informed. A human right
organisation (APDR) also interfered. The victim was contemplating to take
legal action and out of fear he even could not remain in his house. He had to
take shelter in the house of his friends. During that period he could not
keep contact with his lady love. All these factors appear from the statement
recorded under Section 161 Cr.P.C. This apart, a huge money was given to
Pappu by Todi at ITC Sonar Hotel. Priyanka also corroborated that her
parents, relations and police personnels, constantly persuaded as well as
threatened Rizwanur for entangling him in a criminal case.
43. If one considers these facts, then it can be prima facie held such
activities are the clear indications to put Rizwanur in extreme depressed
condition. He could not fight with his parents’ in law, who are moneyed
men. Police did not give him any assistance rather they were hostile. Local
M.L.A. also turned hostile. Therefore, he had faced hindrances from four P’s
i.e. ‘Power of money’ (of Todi’s) ‘Police’, ‘Politician’, and ‘Poverty’, (his own).
He had no ventilator in his life, from where he could get oxygen to breathe.
These are the surrounding circumstances as appeared from the
investigation. Therefore, it appears prima facie that creation of such
situation is the cause of suicide. Such acts as described above are prima
facie the glaring examples of instigation and incitement.
44. Therefore, if we consider the cumulative effect of mental pressure put by
the accused persons associated with criminal intimidation and the factors
(as mentioned above) which leads person to commit suicide are taken
together then it prima facie comes within the purview of ‘abetment’.
45. In the words of Bertrand Russel ‘To feel tragedy, a man must be aware of
the world in which he lives, not only with his mind but with his blood and
sinews. ‘(Conquest of happiness)’. The victim’s note discloses all these
Issue No. (g)
(g) “When High Court can exercise its power under Section 401
Cr.P.C./482 Cr.P.C. for quashing of a proceeding?”
46. Now, this Court is to consider the scope of application of powers of
revision as enshrined in the Code itself. By virtue of power given under
391. The revisional jurisdiction of the High Court is very extensive and it has
given power to the High Court to consider the legality, regularity or propriety
of any proceeding. Although power is wide but are purely discretionary,
which is to be fairly exercised, according to the exigencies of each case. It is
axiomatic truth that unless there is a glaring defect in the procedure or
there is a manifest error on point of law or any flagrant miscarriage of
justice, High Court shall not interfere. The power of Section 482 Cr.P.C. is
very limited. Only in case of ‘abuse of process of the Court’ or ‘otherwise to
secure the ends of justice’, the High Court may rise to the occasion. Its
statutory recognition only indicates that there is a power to make such order
as may be necessary for the ends of justice. If we consider the section itself,
we would find that only under extreme circumstances this inherent
jurisdiction can be exercised viz. (a) to give effect to an order under the
Code, (b) to prevent abuse of the process of the Court, (c) to otherwise secure
the ends of justice.
Court came down heavily on caste issue. “Castes system is a curse on the
nation and the sooner it is destroyed the better. In fact, it is dividing the
nation at a time when we have to be united to face the challenges before the
nation unitedly. Hence, inter-caste marriages are in fact in the national
interest as they will result in destroying the caste system. However,
disturbing news are coming from several parts of the country that young
men and women who undergo inter-caste marriage, are threatened with
violence, or violence is actually committed on them. ….. ….. …. We,
therefore, direct that the administration/police authorities throughout the
country will see to it that if any boy or girl who is a major undergoes inter-
caste or inter-religious marriage with a woman or man who is a major, the
couple is not harassed by anyone nor subjected to threats or acts of
violence, and anyone who gives such threats or harasses or commits acts of
violence either himself or at his instigation, is taken to task by instituting
criminal proceedings by the police against such persons and further stern
action is taken against such persons as provided by law.” But the activities
of police personnel in this case is as good as a sailor on a horse back.
48. From the detail discussion as made above I do not find any reason to
Therefore, this issue is also decided in favour of the prosecution.
49. Learned Senior Counsels Mr. Sekhar Basu, Mr. Milan Mukherjee, Mr.
Sadipan Ganguly, Mr. Asraf Ali, Mr. Tarique Quasimuddin, Mr. Rajdip
Majumdar practically vigorously advocated their respective cases and this
Court had listened to them with great patience for about ten hours so that
their studious preparation may not remain unaddressed in this judgment. I
may be permitted to make it clear that the law applicable is not in much
dispute but the facts and circumstances of the case as mentioned in detail
may differ when the application of law is called for. Essence of a judicial
approach is objectivity, and exclusion of extraneous materials. In evaluating
the statements recorded under Section 161 Cr.P.C. and the documents
collected in course of investigation, at the time of consideration of charge,
the trial court should not glibly swallow that these statements and
documents may not be proved strictly in accordance with Evidence Act.
50. Therefore, the omega is: – C.R.R. 1396 of 2011 (filed by Ashok Todi vs.
CBI), C.R.R. 1397 of 2011 (filed by Pradip Todi vs. CBI), C.R.R. 1549 of 2011
CBI), C.R.R. 1499 of 2011 (filed by S. M. Mohiuddin vs. CBI) are dismissed.
51. In regard to C.R.R. 3512 of 2011 with C.R.R. 1494 of 2011 this Court is
of the view that Section 197(4) of Cr.P.C. gives power to the sanctioning
authority to specify the offences for prosecution. Therefore, there is no
apparent error committed by the learned trial court. Naturally the trial
would proceed against the police officials under Sections 506/120B of IPC.
One may be confused that there is an apparent conflict in between the
question, if any Court wants to add or alter the charge in respect of a
specific offence for which no sanction was granted but sanction was granted
in respect of other offences on the same facts, whether Section 197(4) of
Cr.P.C. is as good as a passport to go on for a trial. So it is to be considered
only up to pre-trial stage. The Section 216(5) of Cr.P.C. comes into picture
only after the pre-trial stage and that can be applied any time before delivery
of judgment. So scope of the Section 216(5) of Cr.P.C. is wide enough than
speaks “if the offence stated in the altered or added charge is one for
the prosecution of which previous sanction is necessary, the case
shall not be proceeded with until such sanction is obtained, unless
sanction has been already obtained for a prosecution on the same
facts as those on which the altered or added charge is founded.”
(Emphasis supplied) In the aforesaid section it has been specified by the
legislature “…..unless sanction has been already obtained for a
prosecution on the same facts…..” For application of Section 216(5) of
Cr.P.C. the necessary requirement of law is a sanction to prosecute on same
facts and here legislature did not specify the term ‘offence’ as mentioned in
the competent authority and the amended charge is based on the same
facts, no fresh sanction is necessary for the addition and alteration of
charge. Giving of sanction confers a jurisdiction to try but the court can
proceed with the altered or added charge without fresh sanction on the same
facts, which were already been considered by the sanctioning authority. In
I.P.C. but did not grant sanction in connection with the alleged offence
perspectives, then the logical conclusion would be that fresh sanction under
sanction has been already obtained for a prosecution on the same facts.
of Cr.P.C. has no manner of application after the trial commences.
Therefore, if any sanction has been granted for prosecution on the same
facts, the Court has the power to add or alter the charge in respect of a
specific offence despite no specific sanction, was there in respect of the
offence for which charge is contemplated to be added/altered. It can be
summarised in this way that at the time of dealing with the Section 216(5) of
Cr.P.C. the court is to see if any sanction has been given on same facts or
not, irrespective of any offence.
52. Accordingly, C.R.R. 3512 of 2011 and C.R.R. 1494 of 2011 are disposed
of on the basis of above observations. Lastly, I want to conclude by saying
that learned trial court shall proceed with trial without being influenced by
any of the observation made above because observation made by this Court
is only for disposal of these revisional applications.
53. Let a copy of the judgment be sent to the learned trial court with a
request to dispose of S.T. 2(11) as early as possible without granting any
adjournment to either side.
54. Urgent certified photocopy of this Judgment and order, if applied
for, be supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.)
After the judgment is delivered, learned Counsel Mr. Milon Mukherjee
prayed for stay of the operation of the order. Considered the submission.
From the date of alleged offence to this day, nearly 10 years have been
elapsed. The trial has not yet commenced. Considering the circumstances,
prayer for stay of the operation of the above judgment is refused.
(SIDDHARTHA CHATTOPADHYAY, J.)