Nilanjan Biswas v. State Of West Bengal
23.02.2022
IN THE HIGH COURT AT CALCUTTA
Item No.62 CRIMINAL REVISIONAL JURISDICTION Ct.No.34 dc.
C.R.R. 3731 of 2019 (Via Video Conference) Nilanjan Biswas versus The State of West Bengal In Re: An Application under Section 482 of the Code of Criminal Procedure, 1973 filed for challenging the order dated 22.11.2019 passed by learned Senior Municipal Magistrate, Kolkata in connection with Parnashree Police Station Case No. 14 of 2019 dated 25.01.2019 under Section 401A of the Kolkata Municipal Corporation Act.
Mr. Sekhar Basu, Sr. Adv., Mr. Sabyasachi Banerjee, Mr. Avik Ghatak ... For the Petitioner.
Mr. S. N. Mookherjee, Ld. Advocate General, Mr. S. G. Mukherjee, Ld. P.P., Ms. Sreyashee Biswas ... For the State.
Mr. Raj Dip Ray, Mr. Anindya Sundar Chatterjee, Mr. Goutam Dinda ... For the K.M.C.
The present revisional application has been preferred challenging the order dated 22.11.2019 passed by learned Senior Municipal Magistrate, Kolkata in connection with Parnashree Police Station Case No. 14 of 2019 dated 25.01.2019 under Section 401A of the Kolkata Municipal Corporation Act.
The subject matter of grievance in respect of the order complained of is the following observations made by the learned Magistrate :
"In the above circumstances the Deputy Commissioner of Police, South West Division (Behala), Kolkata is directed to submit report through his authorized representative regarding
the progress of departmental proceeding against Sri Uttam Kumar Bhattacharya, SI of Police, Parnashree PS (now retired) and Inspector of Police, Sri Manoj Kumar Jha, the concerned Officer-in-Charge, Parnashree PS in compliance with the direction of this Court dated 05/02/2019 and further direction dated 08/03/2019 given in compliance with the solemn mandate of the Hon'ble Apex Court.
Let a copy of this order be sent to the Deputy Commissioner of Police, South West Division (Behala), Kolkata for compliance."
The learned Magistrate amongst others relied upon a judgement of the Hon'ble Supreme Court in Lalita Kumari Vs. Govt. of U.P. reported in AIR 2014 Supreme Court 187. Paragraph 111 of the said judgment was referred by the learned Magistrate consequently Deputy Commissioner of Police, South West Division (Behala), Kolkata was directed to submit report through his authorized representative regarding progress of departmental proceeding against Sri Uttam Kumar Bhattacharya, SI of Police, Parnashree PS (now retired) and Inspector of Police, Sri Manoj Kumar Jha, the concerned Officer-in-Charge, Parnashree PS in compliance with the direction of this Court dated 05/02/2019 and further direction dated 08/03/2019. At the relevant point of time when the information was received by the police station regarding unauthorized construction i.e. on 25.01.2019, there was no specific guidelines or procedures laid down for the police officers to
take action in co-ordination with the Municipal authorities responsible for deciding unauthorized construction. Pursuant to the direction passed by this Court on 04.10.2021, a Standard Of Procedure has been prepared in consultation with the police authorities represented by Deputy Commissioner of Police, Cyber Crime, Lalbazar, Kolkata and also the DYCE (C)/BLDG/South West Building Dept., Kolkata Municipal Corporation both government departments have agreed amongst themselves to adhere to the Procedures which are as follows : "i. On an information of an unauthorized construction by a private person before an Officer-in-Charge of a Police Station, the concerned Officer-in-Charge, either by himself or by a Sub-Inspector of Police, who has been endorsed with the complaint, without any delay, will write to Executive Engineer (Civil), KMC of local borough having jurisdiction to let the police know if the construction alleged is unauthorized or not, as mentioned in section 588 (2) (i) KMC Act.
ii. The KMC authority, after receipt of information as mentioned in Sl. (i), will inspect said construction site without delay and submit a report to concerned Officerin-Charge of the Police Station within 07 (seven) working days, stating if the construction is authorized or not. iii. On getting a report from KMC authority that said construction is unauthorized, the Officer-in-Charge will direct a Sub-Inspector of the Police Station to register a
case under provisions of KMC Act, treating the information alongwith KMC report as FIR investigate the case.
iv. If the report of KMC authority does not reveal any unauthorized construction, then the information may be filed and diarised and private informant should be informed of the result within 07 (seven) working days." In view of the settled Procedures to be adopted and the fact that the police authorities are not the proper authorities to address on the issue of unauthorized construction which is within the domain of experts of the field and is to be decided by engineers associated with the Municipal authorities, I am of the opinion that the police authorities should not be saddled in the midst of a litigation for inaction for which they are not expert to decide. Henceforth, if the Procedures laid down above, are not followed, the concerned Officer would be held responsible for dereliction of duty.
Having regard to the steps taken and the Procedures so adopted, I am of the opinion that the police authorities particularly in this case the Deputy Commissioner of Police, South West Division (Behala), Kolkata, petitioner herein, should be given an opportunity and as such, the part of the order wherein the Deputy Commissioner of Police, South West Division (Behala), Kolkata was directed to submit report through his authorized representative regarding the progress of departmental proceeding against Sri Uttam Kumar
Bhattacharya, SI of Police, Parnashree PS (now retired) and Inspector of Police, Sri Manoj Kumar Jha, the concerned Officer-in-Charge, Parnashree PS in compliance with the direction of the Court dated 05/02/2019 and further direction dated 08/03/2019 is hereby set aside. So far as the trial of the case is concerned, the same would proceed in accordance with law. The learned Senior Municipal Magistrate, Kolkata is directed to take the same to its logical conclusion and not to insist on appearance and filing written show cause by the petitioner.
With aforesaid observations, revisional application being CRR 3731 of 2019 is allowed to the limited extent as stated above.
Interim order, if any, is hereby vacated.
All pending connected applications, if any, are consequently disposed of.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Tirthankar Ghosh, J.)