Brigadier Prabir Kumar Sanyal vs Mohsena Chowdhury

Ashim Kumar Banerjee, J.—The Petitioner Mohsena Chowdhury wife of Colonel M.H. Chowdhury was residing at Flat No. 6 F, Block ''Ripples'', Merlin River View, 15, Kabitirtha Sarani, Kolkata, a civil accommodation. She approached the Chief Judicial Magistrate, Alipore by filing complaint case No. 3643 of 2010 against Brigadier Prabir Kumar Sanyal (now retired) u/s 441/504/506/427/500 read with Section 114 of the Indian Penal Code. The learned Chief Judicial Magistrate Alipore vide order dated May 28,2010 took cognizance of the offence and transmitted the said case to the Court of 5th Judicial Magistrate Alipore for final adjudication. Perusal of the complaint would depict that Mohsena was residing at the civil accommodation as her husband was posted at Kalimpong, after being retired from service with effect from February 28, 2009 and re-employed on March 28, 2009. During last three years of his service Colonel Chowdhury was allotted an official accommodation at Tusf View Hastings Calcutta where he over stayed. The authority issued a notice u/s 7(3) of the Public Premises (Eviction of Unauthorized Occupants) Act 1971 issued by the Petitioner then acting as Estate Officer. It was alleged that the Petitioner directed the said notice to be affixed at the outer door of the Flat under occupation of Mohsena being her civil accommodation where she was residing with her son. According to her, language used in said notice to the effect that she was "unauthorized occupant", defamed her in the said complaint, Mohsena also contended that while her husband was at Kalimpong she was occupying her civil accommodation with her son, a school acting boy. She alleged that although the other officers were extended official accommodation, she had to leave the official accommodation and move to her private accommodation with effect from May 22, 2009. Such action on the part of the authority in not permitting her to over stay, was arbitrary discriminatory, humiliating and insulting. She also complained though her letter dated April 10, 2010 that Red Cross official, were allowed to enjoy the same privilege without any rent and she was not allowed to overstay. Her husband Colonel Chowdhury received the said notice u/s 7(3) of the said Act of 1971 at Kalimpong when he sought clarification and time to give detailed reply to the said notice.

On July 30, 2009, the Military Police came to her private accommodation as stated above. She requested the Military Police not to cause any damage to her civil accommodation. Then the officials mentioned the name of the Petitioner having directed them to affix the notice. They affixed the notice on the outer door of the Flat causing insult to her. Such insult could have provoked breach of peace in the area in and around the said premises. According to Mr. Chowdhury, her husband enjoyed considerable prestige, dignity and status in the locality which was lowered down in the estimation of right thinking people of the society in view of such act on the part of the Military Police. Hence the accused committed offence u/s 441/504/506/427/500 of the Indian Penal Code.

Being aggrieved by the order of taking cognizance by the learned Magistrate the Brigadier filed the instant application for quashing the complaint case which was heard by me on the above mentioned dates.

Mr Dipak Kumar Mukherjee learned Counsel appearing for the Petitioner contended that while the Petitioner acted in good faith by issuing the said notice in the usual course of business the complaint case was not maintainable in absence of proper sanction being given u/s 197(2) of the Criminal Procedure Code. According to Mr. Mukherjee, once the sanction was not granted the complainant was not entitled to maintain the said complaint and the learned Magistrate committed grave error in taking cognizance of the same.

Mr. Sandip Kumar Bhattacharjee learned Counsel also appearing for the Petitioner relied on Section 200 of the Code of Criminal Procedure to contend that the provision would require more than one witness to be examined apart from the complainant before the learned Magistrate could take cognizance. Since in the instant case the complainant only examined herself the learned Magistrate was not entitled to take cognizance.

Mr. Bhattacharjee also relied upon the provision of Section 66 of the Code of Criminal Procedure and contended that such provision was not followed by the learned Magistrate while taking cognizance. According to Mr. Bhattacharjee, the Brigadier discharged his official duty while issuing the notice. Under Rule 4 of the Public Premises Unauthorized Occupancy Rule notice could be affixed at the last known address of the accused since other mode failed as the notice came back ensured as would appear from the affidavit. Hence the Brigadier was within his power to direct affixation of the said notice at the recorded address of the complainant.

Mr. Bhattacharjee also contended that Section 441 of the Indian Penal Code would denote the nature of the crime and was not the charging Section. Hence, the learned Magistrate could not have been taken cognizance under the said provision. He also referred to Section 114 of the Indian Penal Code and contended that Brigadier could not be termed as committal or as he was admittedly not present at the place of occurrence.

He relied on the following decisions:

i) State of Bihar Vs. Kamla Prasad Singh and Others,

ii N.K. Ogle Vs. Sanwaldas @ Sanwalmal Ahuja,

iii) Gauri Shankar Prasad Vs. State of Bihar and Another,

iv) Abdul Wahab Ansari Vs. State of Bihar Another,

v)AIR 2000 SC 3564 (Ramji Prasad v. Rattan Kumar Jaiswal and Anr.)

vi) State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew,

vi Jayasingh Vs. K.K. Velayutham and Another,

viii)AIR 2008 SC 2870 (Anjani Kumar -Vs- State of Bihar)

ix) AIR 2008 SC 2197 (P.K. Choudhury -Vs- Commander. 48 BRTF (GREF)

Opposing the application, Mr Sudipta Moitra learned Counsel appearing for the de-facto complainant contended that the offence committed u/s 500 was personal in nature and did not require any sanction u/s 197. Mr Moitra further contended that the other offences were non cognizable and were personal in nature and would not require any sanction as contemplated u/s 197. In any event the stage did not come to decide whether the offence would be tried by regular Criminal Court or through the process of Court Marsal. Hence the proceeding could not be said to be not tenable. According to Mr Moitra, whether Brigadier discharged his duty in his official capacity or stepped out of his limit, was a question to be decided at the time of trial and stage did not come to discharge the accused by rejecting the complaint. He relied on a decision of this Court reported in All India Reporter (Volume-37) 1950 Calcutta Page-339 (Lalmohan Singh -Vs- The King)

Mr. Kasem Ali Ahmed learned Counsel appearing for the State adopted the argument made by Mr Moitra and contended that the stage did not come to predetermine as to innocence of the accused. According to Mr. Ali, once the cognizance was taken and process was issued this Court should be slow to interfere. He relied on the following decisions:

i)1996 Volume-VIII Supreme Court Cases Page-164 (State of Bihar v. Rajendra Agrawalla)

ii)1999 Criminal Law Journal Page-1833 (Rajesh Bajaj v. NCT of Delhi)

iii)2009 I Crimes 226 (SC) (M. Viswanathan v. M/s. S.K. Tiles & Potteries Pvt. Ltd. and Ors.)

iv)2009 I Crimes 216 (SC) (Uttar Pradesh Pollution Control Board v. Dr. Bhupandra Kumar Modi and Anr.)

To decide the application for quashing of a criminal proceeding one has to take the petition of complaint on its face value. If we look to the complaint we would find that the Petitioner was aggrieved as the Estate Officer caused a notice u/s 7 of the said Act of 1971 affixed on the outer door of the flat where Petitioner was residing along with her minor son. According to her, her husband enjoyed prestige, dignity and status in the locality which was lowered down by such wrongful act. The Petitioner charged the Estate Officer being the Brigadier u/s 441/504/506/427/500 of the Indian Penal code. If we look to the notice we would find that same was issued asking the Petitioner''s husband to show cause why he would not be charged for damages for the period of September 1, 2008 to May 22 of 2009 when he was in unauthorized occupation of the public premises. The notice was issued by the Brigadier who was legally empowered to issue such notice. The notice was issued in his official capacity. Such notice was issued by giving opportunity to the person said to be in unauthorized occupation to defend himself as against the damage proposed to be imposed by the authority. It was rather an opportunity given to the concerned person to defend the proceeding. I am unable to find out as to how this could be termed as a criminal defamation within the meaning of Section 499 attracting punishment u/s 500. It is an admitted position that the Petitioner''s husband overstayed the official accommodation. Whether such overstay was authorized or not, was a subject matter of the dispute which was to be resolved in the said proceeding initiated u/s 7 of the said Act of 1971. Whether such notice was rightly given or not, was to be determined in the said proceeding. If the Petitioner or her husband felt that notice was wrongfully given they could have approached appropriate forum for quashing of the said notice. I am unable to find out any element of criminality being involved herein.

Let me now come to the other provisions. Section 427 imposes a punishment for any mischief or loss or damage caused to the complainant. Section 441 inter alia provides for punishment in case of trespass into any one''s property with intent to commit an offence or intimidate or insult of annoy the complainant. Section 504 relates to insult of provocation causing break in public peace and Section 506 relates to criminal intimidation. I have repeatedly read the complaint. I do not find any assertion by the complainant which could remotely connect the said provisions. The Brigadier being the Estate Officer issued the notice. It is not the case of the Petitioner that he himself went to the premises in question. The process server might have gone there and affixed the notice as her husband was not present. The Petitioner contended that the husband already received a copy of the said notice at his Kalingpong address where he was posted after being re-employed. Such affixation might be wrong. The decision to affix the said notice might be an error of judgment. It can at best be said that it was wrongfully or purposely done. How criminality was involved, is a question which answer I search in vain from the pleadings.

Mr. Moitra contended that since the offence was personal in nature the sanction to prosecution u/s 197(2) of Code of Criminal Procedure was not required. If Mr. Moitra submitted that the Petitioner issued the said notice without any authority his argument could have been justified. No attempt was made by the Petitioner to show that he was not the Estate Officer at that time or that he was not authorized to issue such notice. On a close reading of the petition it would appear that the involvement of Brigadier was issuance of the said notice and obviously with a direction to serve it upon the addressee. If we look to the Army Rules we find that there is a provision for service of such notice by affixation. In course of hearing Petitioner filed a supplementary affidavit enclosing xerox copies of the undelivered packets which came back unserved. Hence, there was nothing wrong in directing the notice to be served by affixation. If the process server did any mischief at the locale or committed any crime under the aforesaid provisions he could be prosecuted for such offence. Significantly to note that the process server and/or the Military Police who went to the house of the Petitioner were not made accused.

In my view, the Petitioner of complaint was nothing but an attempt in desperation to vindicate personal grudge of the complainant as against the Petitioner. The proceeding, in my view, was manifestly attended with malafide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused and is liable to be quashed.

Mr. Moitra contended that the offence was personal in nature. If we give credence to such submission we would have to hold that the offence said to have been committed u/s 427, 504, 506, 500 was committed by the Petitioner in his personal capacity meaning thereby the notice was issued in his personal capacity and without any authority from his organization. I am constrained to observe that such case was never made out in the petition of complaint. If we take it that the complainant was aggrieved by virtue of issuance of the said notice and affixation of the same on the outer door of her civil accommodation we have to observe that such notice was issued in his personal capacity as Estate Officer. Such observation is made by me giving full credence to the petition of complaint treating the same on its face value. If that be so, sanction to prosecution u/s 197(2) was a must as it protects the lawful authorities from any anticipated onslaught while discharging any official duty.

The application thus succeeds. The complaint case No. 3643 of 2010 pending before the 5th Judicial Magistrate, Alipure initiated by the defacto complainant against the Petitioner u/s 500/427/504/506 of the Indian Penal Code is quashed and set aside along with all orders passed from time to time thereunder.

The Revisional application is disposed of accordingly.

Urgent photostat copy will be given to the parties, if applied for.