IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
C.R.R. No. 1396 of 2011
Ahok Kr. Todi
Present : The Hon’ble Justice Siddhartha Chattopadhyay
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.
CBI), C.R.R. 1397 of 2011 (Pradip Todi vs. CBI), C.R.R. 1549 of 2011 (Anil
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
Sections 306/120B/506 of I.P.C. against Ashok Todi, Pradip Todi, S.M.
Mohiuddin @ Pappu and under Sections 506/120B I.P.C. against Ajay
Kumar, Sukanti Chakraborty and Krisnendu Das.
The C.B.I as well asRukbanur 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 foreignsic importance.
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 marryeach 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 tothe 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 AshokTodi, 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 KrisnenduDas 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 withRizwanur 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
(1)(b) of Cr.P.C. read with Section 197 of Cr.P.C.?
(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?(g) When High Court can exercise its power under Section 482/401 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 by the competent authority only under Section 120B/506 IPC and, 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 Section 306 IPC against the police officers.
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 Section190 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 Section 120B/506/306 IPC against all the accused persons including the 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 holdingspecifically 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 accorded sanction in respect of the offences under Section 120B/506 IPC 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 officer can be prosecuted only under Section 120B/506 IPC. The Section 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 viewthat 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 chargesheet cannot be said to be illegal. There is no jurisdictional error. The Section 190(1)(b) specifies that the Magistrate may take cognizance after 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 view.
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 sanctionunder Section 120B/506 I.P.C, although charge-sheet has been submitted under Section 306 I.P.C also. The learned Trial Court has taken cognizance of offence under Section 306 I.P.C also. According to Mr. Mukherjee, learned Chief Metropolitan Magistrate initially has taken cognizance under Section 190 Cr.P.C. Thereafter, sanction was given in respect of Sections 120B/506 IPC, in terms of Section 197 Cr.P.C. Therefore, subsequently the 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 927 (Krishnendu Narayan Chowdhury vs. State of West Bengal) whiledealing with the said case, Hon’ble Judge has considered the definition of 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 donein 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 Section 197 Cr.P.C. The offence may be entirely unconnected with the 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 forwhich 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 save himself.
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 4631 (Abdul Wahab Ansari vs. State of Bihar & Anr.). Factual aspect of 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 theprotection 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 169 (Anjani Kumar vs. State of Bihar). After a threadbare discussion, 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 (S.Ramachandran Nair vs. Deputy Superintendent Vigilance). In my 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 Section 190(1)(b) read with Section 173 (5) of Cr.P.C., because 190(1)(b) can 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. Otherwise Section 173(5) of Cr.P.C. shall remain in the statute only without 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 Section 161 of Cr.P.C. the learned trial court ought to have discharged the 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 issue it would be profitable to refer to under Sections 227 and 228 of Cr.P.C. Section 227. If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that thereis not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 228.
(1) If, after such consideration and hearing as aforesaid, 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 police report;
(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 tried.
22. It is needless to say that Section 227 and Section 228 Cr.P.C. can be termed as a precious safeguard i.e. pre-battle protection conferred upon the accused by the statute.
23. In Section 227 Cr.P.C. the legislature in its wisdom used the 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 offence.’
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.
25. On a conjoint reading of section 227 and Section 228 it appears to 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 application Section 227 Cr.P.C. because without affording any opportunity 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. Itpostulates 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 met them.
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?
(g) When High Court can exercise its power under Section 482/401
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 (Sanju @ Sanjay Singh Sengar vs. State of Madhya Pradesh). The factual 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 under Section 498A IPC. After the marriage there was a long standing 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 Section 107 IPC came to the finding that the suicide note was not the direct 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 438. (Swami Prahlad Das vs. State of M.P.) Ratio of the said judgment is 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 toordinary 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 Section 482 can be invoked even after framing of charge. Factual aspects of 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 commendableor 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 thefather 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 selfawareness. The cessation can be visualized as offering a solution to life’s problems.
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 ofabduction. 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 suchsituation 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 things.’
Issue No. (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 Section 401 Cr.P.C. the High Court may in its discretion exercise any of the powers conferred on a Court of appeal under Sections 386, 389, 390 and 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. isvery 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.
47. In Lata Singh vs. State of U.P. & Anr., (2006) 5 SCC 475, Hon’ble Apex 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 intercaste
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 invoke power under Section 401 Cr.P.C. or 482 Cr.P.C. in this case. 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 (filed by Anil Saraogi vs. CBI), C.R.R. 1573 of 2011 (filed by Ajay Kumar vs. 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 Section 197(4) of Cr.P.C. and Section 216(5) of Cr.P.C. One may raise a 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. shall overlap Section 216(5) of Cr.P.C. or not? The 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 that of the Section 197(4) of Cr.P.C. In the interest of academic discussion I want to amplify the Section 216(5) of Cr.P.C. The Section 216(5) Cr.P.C. 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.”
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 Section 197(4) of Cr.P.C. Therefore, if there is already a sanction given by 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 this instant case, the sanction was obtained for Section 306/120B/506 of I.P.C. The governor has granted sanction in respect of Section 506/120B of I.P.C. but did not grant sanction in connection with the alleged offence under Section 306 of I.P.C. If one considers both the sections in its proper perspectives, then the logical conclusion would be that fresh sanction under Section 306 of I.P.C. is not required at the time of addition and alteration of charge under Section 216(5) of Cr.P.C. if situation so warrants, because sanction has been already obtained for a prosecution on the same facts. Since Section 216(5) of Cr.P.C. comes into play during trial so Section 197(4) 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.)