In lieu of order-sheet

Present
Shri. P. P. Paul
Chief Judicial Magistrate
West Tripura, Agartala

Case No. CR 37 of 2021

09.08.2021
Ld. Counsel Mr. D. Dutta Choudhury led by
Ld. Senior Advocate Mr. P. Roy Barman have entered
appearance on behalf of the complainant Sri. Biswajit
Banik by filing memo of appearance.
Perused the case record.
Today is the date fixed for order.
On perusal of the case record it appears that
on 15.02.2021 the complainant Sri. Biswajit Banik has
filed a complaint against-(i) Sri. Manik Das,
Superintendent of Police, West Tripura, (ii) Sri. Jayanta
Karmakar, Officer-in-Charge, West Agartala PS, (iii)
Sri. Suman Majumder, SDPO, Jirania, (iv) Sri. Anirban
Das, SDPO, Amtali, (v) Sri. Pradeep Saha, SDM, Sadar
& (vi) Sri. Ashis Biswas, DCM, Sadar, all of whom
have been arraigned as accused persons in the
complaint petition, alleging commission of offences
punishable u/ss.341/ 342/ 325/ 326/ 307/ 350/ 354/ 380/
390/425/120B/34 of IPC and praying for taking
cognizance of the alleged offences.
Along with the complaint petition
photocopies of some documents, viz., photocopy of the
written complaint dated 29.01.2021, photocopy of the
letter dated 30.01.2021 addressed to the S.P, West
Tripura and photocopy of the letter dated 02.02.2021 of
the O/C, West Agartala P.S, marked as Annexure-1,
Annexure-2 & Annexure-3 respectively, are submitted
by a separate firisti.
Perused the complaint petition and the
documents submitted therewith.
In the complaint petition it is alleged that
the 10,323 teachers who had been terminated from
government services have formed Joint Movement
Committee (JMC) of which the complainant is a
member and said JMC had been observing continuous
peaceful ‘sit-in demonstration’ in front of Agartala City
Centre, Paradise Chowmuhani, Agartala from
07.12.2020. That, on 27.01.2021 in the early morning
at about 05:00 AM while the members of JMC, i.e., the
terminated teachers (male and female) were sleeping at
the site of ‘sit-in demonstration’ at that time huge
contingent of TSR & CRPF personnel with arms and
ammunitions in a fleet of vehicles under the command
of the aforenamed accused persons arrived thereat and
in furtherance of the command of the accused persons
the CRPF & TSR personnel started assaulting the said
teachers with fist and blows and also kicked them up
and thereafter they were forcibly dumped into the
standing vehicles and the tents under which ‘sit-in
demonstration’ was being held were also dismantled.
It is also alleged that in the site of ‘sit-in
demonstration’ there were food items, groceries, sound
box, amplifiers, micro phones and cash-boxes
containing over Rs.2,50,000/- which the afore-named
accused persons and their companions (CRPF & TSR
Personnel) have looted in front of camera and many
people.
It is also alleged that consequent to brutal
indiscriminate assault upon the members of JMC, i.e.,
the terminated teachers, by the afore-named accused
persons and their companions (CRPF & TSR
Personnel) many teachers namely Kamala Begam,
Gouri Sankar, Amulya Debbarma, Chandra Singh
Malshan, Ali Sidique, Kishore Chakraborty, Sajal Deb,
Jayanta Banik, Swapan Debnath, Liton Deb and others
had sustained grievous bleeding injuries on their
persons and underwent treatment of their injuries at the
IGM Hospital, Agartala.
It is also alleged that after forcibly
dumping the said teachers inside police vehicle by the
accused persons and their companions (TSR and CRPF
Personnel) they took them to R. K. Pur TSR Camp
where they wrongfully/illegally detained the said
teachers there for hours together and thereafter they
were compelled to put signatures in blank papers to
ensure their release from illegal detention.
It is also alleged that the accused persons
committed state terror by subjecting the said teachers
to physical torture and violence and by robbing &
looting cash and other valuable items from the
possession of the said helpless teachers devoid of any
sanction of law. It is also alleged that such illegal acts
on the part of the accused persons was blatant violation
of teachers’ right to assembly, peaceful protest and
expression of free speech, guaranteed under Article-
19(1)(b) of the Constitution of India.
It is also alleged that the offence committed
by the accused persons has no nexus with the discharge
of their official duties.
It is also alleged that on 29.01.2021 the
complainant, a member of JMC, accompanied by
fellow teachers and some members of electronic media
went to the West Agartala P.S to lodge a written
complaint (FIR) against the afore-named accused
persons but the Duty Officer of West Agartala P.S, most
illegally, did not accept the written ejahar (FIR) despite
being the fact that the written complaint (FIR) discloses
commission of cognizable offences. Thereafter, the
complainant by written letter dated 01.02.2021
informed the SP, West Tripura for taking necessary
steps for registration of FIR and on 30.01.2021 also had
emailed the said letter to the website of SP, West
Tripura i.e., spwest@tripurapolice.nic.in. but that has
yielded no result and that the Officer-in-Charge of West
Agartala P.S by letter dated 02.02.2021 informed the
complainant that FIR cannot be registered.
Ld. Senior Advocate Mr. P. Roy Barman, in
course of hearing, had submitted that the illegal acts
and deeds of the accused persons, public servants, have
no nexus with the discharge of their official duties as it
is not part of their duty to wrongfully confine, assault
and rob the helpless teachers who have participated in
peaceful ‘sit-in-demonstration’ demanding restoration
of their jobs.
Ld. Senior Advocate also submitted that the
accused persons who are public servants are not entitled
to protection u/s. 197 of Cr.P.C as their illegal acts have
no nexus with the discharge of their official duties
rather the accused persons have performed such acts
using the office as a mere cloak for unlawful gains.
Ld. Senior Advocate also submitted that the
question relating to the need of sanction u/s. 197 of the
Cr.P.C is not necessarily to be considered at the stage of
taking cognizance on complaint and it can be
considered after recording of evidence.
Ld. Senior Advocate, in support of his
submissions, has relied on the judgment of the Hon’ble
Kerala High Court in the case of C. R. Raju Vs. State of
Kerala & Another (Crl. Rev. Pet. No. 3368 of 2007) and
also relied on the judgments of the Hon’ble Supreme
Court in the following cases:-
(i) P. K. Pradhan Vs. State of Sikkim,
reported in (2001) 6 SCC 704.
(ii) Prakash Singh Badal Vs. State of
Punjab, reported in (2007) 1 SCC 1.
(iii) State of Maharashtra Vs. Devahari
Devasingh Pawar & Others, reported in (2008) 2 SCC
540.
Ld. Senior Advocate submitted that the
accused persons had indulged in illegal acts using the
office as a mere cloak for unlawful gains. Ld. Senior
Advocate had prayed for taking cognizance of the
alleged offences and to proceed against the afore-
named accused persons in accordance with law.
In the case of C. R. Raju Vs. State of
Kerala & Another (Crl. Rev. Pet. No. 3368 of 2007)
the Hon’ble Kerala High Court held that in order to
attract Section 197 of CrPC the offence has to be so
connected to form part of the same transaction as if it is
inseparable from it. The Court further held that the
protection granted under the section cannot be extended
in respect of an accusation which tends to show that the
act had absolutely no nexus with his official duties. The
Court further held that it is not part of the duty of the
accused, actual or purported, to assault, abuse or
wrongfully restraint the complainant in connection with
a petition matter and it is not part of his official duty to
commit criminal offence and never can be.

In the case of P. K. Pradhan Vs. State of

Sikkim, reported in (2001) 6 SCC 704, the Hon’ble
Supreme Court held as follows:-
“Thus, from a conspectus of the aforesaid
decisions, it will be clear that for claiming protection
under Section 197 of the Code, it has to be shown by
the accused that there is reasonable connection
between the act complained of and the discharge of
official duty. An official act can be performed in the
discharge of official duty as well as in dereliction of it.
For invoking protection under Section 197 of the Code,
the acts of the accused complained of must be such that
the same cannot be separated from the discharge of
official duty, but if there was no reasonable connection
between them and the performance of those duties, the
official status furnishes only the occasion or
opportunity for the acts, then no sanction would be
required. If the case as put forward by the prosecution
fails or the defence establishes that the act purported to
be done is in discharge of duty, the proceedings will
have to be dropped. It is well settled that question of
sanction under Section 197 of the Code can be raised
any time after the cognizance; may be immediately
after cognizance or framing of charge or even at the
time of conclusion of trial and after conviction as well.
But there may be certain cases where it may not be
possible to decide the question effectively without
giving opportunity to the defence to establish that what
he did was in discharge of official duty. In order to
come to the conclusion whether claim of the accused
that the act that he did was in course of the
performance of his duty was a reasonable one and
neither pretended nor fanciful, can be examined during
the course of trial by giving opportunity to the defence
to establish it. In such an eventuality, the question of
sanction should be left open to be decided in the main
judgment which may be delivered upon conclusion of
the trial.”
In the case of Prakash Singh Badal Vs.
State of Punjab, reported in (2007) 1 SCC 1, the
Hon’ble Supreme Court held in Para 20 as follows:-
“The principle of immunity protects all acts
which the public servant has to perform in the exercises
of the functions of the Government. The purpose for
which they are performed protects these acts from
criminal prosecution. However, there is an exception.
Where a criminal act is performed under the colour of
authority but which in reality is for the public servant’s
own pleasure or benefit then such acts shall not be
protected under the doctrine of State immunity.”

The Hon’ble Supreme Court in Prakash

Singh Badal’s case (supra) in Para 38 further held as
follows:-
“The question relating to the need of
sanction under Section 197 of the Code is not
necessarily to be considered as soon as the complaint is
lodged and on the allegations contained therein. This
question may arise at any stage of the proceeding. The
question whether sanction is necessary or not may have
to be determined from stage to stage.”

In the case of State of Maharashtra Vs.

Devahari Devasingh Pawar & Others, reported in
(2008) 2 SCC 540, the Hon’ble Supreme Court in Para
14 observed as follows:-
“14. In Romesh Lal Jain Vs. Naginder
Singh Rana this Court held and observed as under:
(SCC p.312, para 33)
“33. The upshot of the aforementioned
discussions is that whereas an order of sanction in
terms of Section 197 CrPC is required to be obtained
when the offence complained of against the public
servant is attributable to the discharge of his public
duty or has a direct nexus therewith, but the same
would not be necessary when the offence complained of
has nothing to do with the same. A plea relating to want
of sanction although desirably should be considered at
an early stage of the proceedings, but the same would
not mean that the accused cannot take the said plea or
the court cannot consider the same at a later stage.
Each case has to be considered on its own facts.
Furthermore, there may be cases where the question as
to whether the sanction was required to be obtained or
not would not be possible to be determined unless some
evidence is taken, and in such an event, the said
question may have to be considered even after the
witnesses are examined.”
The Hon’ble Supreme Court in Devahari
Devasingh Pawar’s case (supra) in Para 16 further
observed as follows:-
“16. As shown above, a substantial part of
cases against the accused does not require any sanction
for their prosecution. The facts of the case do not
warrant any piecemeal quashing or discharge of the
accused. We, therefore, consider it appropriate and just
that the trial of the accused should be allowed to
proceed without any hindrance. After the evidence of
the two sides are led, the trial court will be in a better
position to judge whether or not any offences are made
out under the Drugs Act and; whether or not any
offences, if are made out, could be said to have been
committed by the accused in discharge of their official
duties and whether or not any sanction of the State
Government was required for their prosecution for
those offences and what would be the effect of non-
production of sanction by the prosecution. The question
of sanction for prosecution under the Drugs Act is thus
left open to be decided by the trial court at the end of
the trial………………….”
From the judgment of the Hon’ble Supreme
Court in the aforementioned cases it is quite evident
that the question of sanction under Section 197 of
Cr.P.C need not necessarily to be considered as soon as
the complaint is lodged but it can be raised any time
after the cognizance or framing of charge or even at the
time of conclusion of trial.
In the present case, the allegations made in
the complaint petition prima-facie shows that the afore-
named accused persons had indulged in illegal acts
which cannot be considered as purporting to have done
in the performance of their official duties. Lawlessness
has no connection with the duty. Crime cannot be
defended by taking the plea that it was committed
during the performance or discharge of their official
duty. Nobody can be permitted to indulge in crime
while discharging his official duty. The facts and
circumstances disclosed in the complaint petition shows
alleged commission of offences punishable u/ss.341/
342/ 325/ 392/ 427/ 120B/34 of IPC.
Hence, cognizance of offences punishable
u/ss.341/342/325/392/427/120B/34 of IPC is hereby
taken.
The instant case is withdrawn from my file
and is transferred to the Court of Ld. Judicial
Magistrate First Class, Court No.7, Agartala, West
Tripura for disposal in accordance with law.
Send the instant case record to the Court of
Ld. Judicial Magistrate First Class, Court No.7,
 Agartala, West Tripura on or before 16.08.2021
observing all legal formalities.
Fix 16.08.2021 for Order.
As dictated.