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Section 107 in The Indian Penal Code
Section 494 in The Indian Penal Code
The Indian Penal Code
Section 118 in The Indian Penal Code
Section 117 in The Indian Penal Code

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Calcutta High Court
Satyendra Nath Mitra vs Superintendent Of Police 24 ... on 26 February, 1962
Equivalent citations: AIR 1963 Cal 336, 1963 CriLJ 754
Author: Sen
Bench: S Sen, A Roy

JUDGMENT

Sen, J.

1. This application for proceeding against the opposite parties in contempt arises in the following circumstances:

2. The petitioner Satyendra Nath Mitra filed an application in the court of the Police Magistrate, Calcutta for binding down one Samir Kumar Aich under Section 10/ of the Code of Criminal Procedure. The petitioner is an officer of a company described as National Instrument Factory. Samir Kumar Aich who is a sister's son of the petitioner Is also a subordinate employee of the same factory. For certain conduct of Samir Kumar Aich against the rules of factory discipline, the petitioner submitted a report against him; and according to the petitioner, Samir Kumar Aich thereafter threatened and abused the petitioner on several occasions. Accordingly the prayer was made for binding down Samir Kumar Aich. This application was sent to the Officer-in-charge, Tollygunj Police Station for enquiry, and after considering the police report the learned Magistrate on 11th August, 1961 drew up proceedings under Section 107 of the Code of Criminal Procedure against Samir Kumar Alch. While the proceeding was pending but before any witness was examined In court, the Court Inspector filed an application before the Court on 2nd January, 1962 stating that one Dr. S. C. Mitra closely related to the parties had undertaken to see that no breach of peace would take place, and that the District authorities after considering the matter were of opinion that the proceeding may be dropped and, therefore, under a communication received by him from the Superintendent of Police, 24 Parganas, he prayed that the proceeding might be dropped. The learned Magistrate heard the parties on this petition, but before he had passed any final order, the petitioner came up to this court on 5th February 1962 with the present application for proceeding against the

opposite parties in contempt, opposite party No. 1 being the Superintendent of Police, 24 Parganas, opposite party No. 2, Dr. S. C. Mitra, and opposite party No. 3, the Court Inspector of Alipore.

3. The question is whether in the circumstances the filing of such an application by the Court Inspector under the instruction of the Superintendent of police, 24 Parganas and at the instance of Dr. S. C. Mitra amounted to contempt of court. The Superintendent of Police in his affidavit has stated that he acted in good faith under rule 66 of the Police Regulations, Bengal, which provides that no Court Inspector should file an application under sec. 494 Cr. P. C. for withdrawal of a case without the order of the Police Superintendent. In other words, the explanation of the Police Superintendent is that he made only a sort of enquiry for deciding whether the case should be withdrawn under Section 494 Cr. P. C. and gave a direction to the Inspector of Police for such withdrawal and that he did not commit any contempt of court.

4. Mr. Ajit Kumar Dutta appearing for the petitioner has pointed out that Section 494 Cr. P. C. has no application, because that section only applies to withdrawal from prosecution for a criminal offence which may end in discharge or acquittal or conviction and it does not apply to security proceedings. There are certain authorities in support of the proposition that Section 494 Cr. P. C. does not apply to security proceedings, e.g. In re, Muthia Moopan, ILR 36 Mad 315 and King v. Bakhin, AIR 1940, Rang 189. A careful consideration of the wording of the Section 494 Cr. P. C. also confirms the view that Section 494 Cr. P. C. does not apply to security proceedings under Sections 107 to 110 Cr. P. C. it must be conceded, therefore, that the Superintendent of Police was wrong in thinking that he could give a direction for the withdrawal of the proceedings under Section 107 Cr. P. C. In the present case. He should property have directed Dr. S. C. Mitra, who approached him, to appear in court and tell the Magistrate in seisin of the case that he was willing to keep his nephew under control and see that no breach of the peace took place. But a cursory reading of sec. 494 Cr. P. C. might give the impression to a police officer who is not an experienced lawyer that even proceedings under Section 107 Cr. P. C. may be withdrawn under sec. 494 Cr. P. C. If the police officer, namely, the Superintendent of Police and the Court Inspector, acted under that mistaken Impression of law, It cannot be said that they committed contempt of court. So far as Dr. S. C. Mitra is concerned, his approaching the Superintendent of Police with the undertaking that he would keep his nephew under order, cannot also be deemed to be a contempt of court because a layman cannot be deemed to know the law. It was for the Superintendent of Police to Instruct Dr. S. C. Mitra to appear direct in court.

5. In the circumstances we are not satisfied that there is any just ground for proceeding against the opposite parties in contempt. We must observe that the action of the Superintendent of Police in the present case

was not justified by law, and that It is the duty of the Magistrate to be satisfied on evidence whether or not there is sufficient material for binding down Samir Kumar Aich under Section 107 Cr. P. C. and the proceedings will go on in accordance with the law.

6. Subject to the above observations this Rule is discharged.

Amaresh Roy, J.

7. I agree that the Rule be discharged. But I will only add that on the facts of the present case the act of Dr. S. C. Mitra in approaching the Superintendent of Police to give assurance of controlling the person against whom the proceedings under Section 107 Cr. P. C. was pending before the learned Magistrate did not by itself amount to contempt because by that act alone there could not be any effect of interference with due course of justice. So far as the Police Superintendent, 24 Parganas is concerned in his affidavit filed in this Court he has stated that he purported to act under rule 66 of the Police Regulation.

8. I agree with my learned brother that Section 494 Cr. P. C. does not apply to proceedings under Section 107 Cr. P. C. and, therefore, rule 66 of the Police Regulation could not apply In the present case. The Police Superintendent has said that he acted in good faith. If his acts had tended to interfere with due course of justice the despite good faith that would make him liable for con-tempt. That is settled law. On the facts of the present case In view of the particular nature of the proceedings, that is, under Section 107 Cr. P. C., I am of the view that an application made by the Court Inspector at the instance of the Police Superintendent stating that the police during the pendency of the proceedings had come upon certain material which, in their view, would not necessitate execution of a bond by the person proceeded against for keeping the peace does not interfere with due course of justice. That during the pendency of such a proceeding further materials may be brought before the learned Magistrate by the Police is envisaged by Section 117(3) Cr. P. C. That, of course, are materials against the person proceeded against. At the same time under Sections 118 and 119 Cr. P. C. whether or not a bond shall be ordered to be executed depends on the necessity for keeping the pence and it any material having bearing on that point does come within the knowledge of the police officers I do not see how communication of such material to the Magistrate would tend to interfere with due course of Justice. As my learned brother has pointed out, the learned Magistrate will have to take evidence and decide for himself whether or not he would make that particular order. The manner in which this petition was made was not as it should be. But l am satisfied that filing of that petition has not amounted to contempt because of the reasons I have stated above.

9. I, therefore, agree that the Rule be discharged.