B M Kumar v. The Station House Officer And ANR

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** CRR/15/2024 B M Kumar Vs The Station House Officer and another Mr. Gopala Binnu Kumar Ms. Vinita Devi ... for the petitioner Mr. Sumit Karmakar ... for the respondent No.1 Mr. Ajay Kumar Mondal ... for the respondent No. 2 April 10, 2025 [AKB] Item No.3

1. Mr. Gopala Binnu Kumar, learned counsel appearing for the revisionist has contended that the petitioner B M Kumar an Assistant Sub Inspector of Police has been falsely implicated in a complaint case being No. CR Case No. 44 of 2023 of the learned Court of Judicial Magistrate, First Class, South Andaman District at Port Blair under Section 149/447/323/427/506 of the Indian Penal Code, 1860.

2. The petitioner being the Assistant Sub Inspector of Police was asked to investigate four FIRs lodged against the respondent No. 2, Gopesh Biswas by four different

complainants and he submitted charge-sheets in all the criminal cases initiated against the said respondent No. 2, Gopesh Biswas and as a fall out, the petitioner was entangled in the relevant complaint case on false allegations at the instance of the respondent No.2.

3. As per the said complaint on 20.02.2023 and on 21.02.2023 there were certain disputes over certain properties and at that time the petitioner went to the spot for pacifying the concerned agitated persons and the respondent No.2 at that relevant point of time threatened him and for which the petitioner initiated a case against him. However, Mr. Kumar has submitted that the respondent No.2 filed a complaint against four persons, on the basis of whose complaints the aforesaid FIRs were lodged against respondent No.2, along with the present petitioner and others. In that complaint the respondent No.2 deliberately suppressed the materials facts by contending that no case is pending against him. The respondent No.2 sent a written complaint to Director General of Police against the petitioner and after receiving such complaint, the Director General of Police directed the concerned officer to make an inquiry over the allegations against the present petitioner. After due inquiry, such

complaint lodged by the respondent No.2 was found to be frivolous.

4. Furthermore, before taking cognizance in the complaint case being CR case No. 44 of 2023 no sanction order was obtained by the concerned court against the petitioner.

5. The learned counsel Mr. Kumar has submitted several judicial decisions including Criminal Appeal No. 1759 of 2025 before the Hon'ble Apex Court in G.C. Manjunath & Others vs. Seetaram pronounced on April 3, 2025 in support of his contention that Section 197 of the Criminal Procedure Code clearly creates a bar on the court's jurisdiction to take cognizance of offences lodged against the public servant except without prior sanction of the appropriate government. In this regard he has also relied upon another decision of Hon'ble High Court of Karnataka in connection with Criminal Petition No. 72 of 2022 in Smt. D.Roopa vs Shri H.N.Sathyanarayana Rao pronounced on 6th June, 2022. The said case law has pointed out that sanction of the government to prosecute a police officer, for any act related to the discharge on an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. It is also laid down therein that if in doing an official duty a

policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of the government sanction for initiation of criminal action against him.

6. The learned counsel has also submitted a judicial decision of Brijendra Kumar Patel vs The State of Madhya Pradesh decided on 25.10.2024 by the Hon'ble High Court of Madhya Pradesh at Jabalpur authored by Hon'ble Justice Sanjay Dwivedi in support of his contention that a litigant should approach the court with all bona fide and without any ill motive.

7. The respondent No.2, Gopesh Biswas has violated the dignity of the judicial and legal forum by lodging a false complaint against the public servant and, as such, the suppression of materials fact that no case is pending against him is an attempt on the part of the respondent No. 2 to insist the court to make a wrong decision over the issue. According to the learned counsel that the initiation of CR case against the petitioner is a complete abuse of process of law. In this regard he has relied upon a judicial decision reported in (2017) 5 SCC 496.

8. The learned counsel has submitted that the CR Case being No. 44 of 2023 is a harassive and retaliatory litigation and as such the said criminal complaint against the petitioner should be quashed.

9. The learned Counsel Mr. Ajay Kumar Mondal appearing for the respondent No. 2 has raised strong objection against the prayer for quashing the complaint under Section 482 of the Criminal Procedure Code.

10.

According to him on the basis of his complaint the Director General of Police, Andaman & Nicobar Islands had directed to initiate an inquiry against the petitioner. But during such inquiry no opportunity was given to the respondent No. 2 and, as such, any finding in such inquiry is not binding upon the respondent No. 2.

11.

It is also contended that information is the basis for setting the criminal law in motion. It is not clear on the basis of which information the petitioner visited the relevant properties on 20.02.2023 and 21.02.2023. It is also submitted that it is the law of the land that whenever a police on duty receives any information, he should reduce the same into writing. There is no material on record to show that such alleged information received by the petitioner was reduced into writing by the petitioner himself

or any other police officer on the relevant dates and time. There is a civil suit at the instance of the respondent No. 2 and when there is an injunction order over the properties the petitioner cannot enter into such property without obtaining an order from the Civil Court.

12.

Mr. Mondal has also contended that the petitioner had made criminal trespass into his property and further incited the local people to assemble unlawfully and to do criminal offences against him.

13.

Mr. Mondal has vehemently submitted that the petitioner being a police officer had exceeded his jurisdiction and all his activities on those days were beyond the scope of his official duty and, as such, sanction under Section 197 of Criminal Procedure Code is not required. 14.

The present revisional application was filed belatedly since he had already participated in the present proceeding being CR 44 of 2023 by obtaining an order of bail from the concerned court.

15.

Mr. Sumit Karmakar, the learned counsel for the State opposes the prayer for quashing the CR Case No. 44 of 2023 under Section 482 of Criminal Procedure Code on the ground that when a police exceeds his jurisdiction by performing such acts which are not covered under the

scope of his official duty, the protective umbrella of Section 197 of Criminal Procedure Code is not available to such erring public servant.

16.

In this case according to Mr. Karmakar, learned counsel for the State, the petitioner being the Assistant Sub Inspector of police had exceeded his jurisdiction and, as such, there is no need for obtaining sanction under Section 197 of Criminal Procedure Code. Furthermore, according to him, the term 'cognizance' signifies a preliminary action on the part of the court concerned to ascertain whether ingredients of any offence or offences have been made out or not.

17.

I have considered the materials on record. On the basis of complaint of respondent No. 2, CR case No. 44 0f 2023 has been initiated against the present petitioner along with other accused persons. On 15.03.2023 the learned Chief Judicial Magistrate, Port Blair had taken cognizance. Admittedly, the petitioner Mr. B M Kumar being the accused No. 10 in the complaint case is a public servant. By virtue of Section 197 Criminal Procedure Code it is incumbent upon the concerned Court taking cognizance against such public servant is to record that cognizance is taken after obtaining sanction against such public servant.

18.

From the order dated 15.03.2023 I do not find that cognizance against Mr. B M Kumar has been taken after obtaining sanction from the appropriate government. 19.

It is true that when a public servant exceeded his jurisdiction in discharge of his official duties and when his actions are not covered within the scope of his official duties, no sanction under Section 197 of Criminal Procedure Code may be required. But the learned Court has to record the reasons as to why such sanction is not necessary before cognizance is taken by him. He has to specify the grounds as to why provisions of Section 197 of Criminal Procedure Code in respect of such public servant are not applicable. In other words, the court can take cognizance against public servant without obtaining sanction, but before doing so he has to record that the alleged action do not come under the coverage of Section 197 of Criminal Procedure Code.

20.

In this case it appears no efforts were taken by the learned Chief Judicial Magistrate, Port Blair in taking cognizance against Mr. B M Kumar, who is an Assistant Sub Inspector of Police to disclose that the alleged action of Mr. B M Kumar were not covered under the scope of official duties and therefore he was taking cognizance against him.

As the said factor was not taken care of by learned Chief Judicial Magistrate, I find that the cognizance taken against Mr. B M Kumar being the petitioner herein is bad in law and, therefore, the complaint case being CR No. 44 of 2023 against the petitioner Mr. B M Kumar only is hereby quashed. The order dated 15.03.2023 is bad in law to the extent as indicated above.

21.

The revisional application being CRR/15/2024 is allowed on contest. No costs.

22.

Let a copy of this order sheet be sent to the learned Chief Judicial Magistrate, Port Blair.

23.

Urgent Photostat certified copy of this order if applied for, the same be supplied to the parties upon compliance of necessary formalities.

(Apurba Sinha Ray, J.)