IPS Nazrul Islam's appeal against Mamata Banerjee and others rejected, sanction required for probe against public servant- Calcutta High Court

Justice Tirthankar Ghosh of the Calcutta High Court in a recent decision has held that a valid sanction would be required in a proceeding where the provisions of Section 156(3) Cr.P.C. are invoked against public servants.

The Court was hearing an appeal filed by Dr. Nazrul Islam, a former IPS officer against an order of Chief Metropolitan Magistrate which dismissed his allegation of depriving him of promotion by Mamata Banerjee, Basudeb Banerjee, Home Secretary, A. Sengupta, WBCS (Exe), Joint Secretary, Sanjay Mitra, Chief Secretary, S.N. Haque, Additional Chief Secretary, ARD Department, Govt. Of West Bengal; and Naparajit Mukherjee, DG&IGP WB Police Directorate. He has alleged that, parts of his book were forged-excerpts taken from different portions to

The Magistrate had observed that no offences were committed by these accused, and even if its assumed that they have committed such offence a sanction would be required under Section 197 of the Code of Criminal Procedure (CrPC) to prosecute public servants like the accused. The petitioner has preferred this appeal against the decision of the Magistrate.

Contention of Petition

According to Islam, for the purpose of investigation no sanction is required. He alleged that the accused entered into criminal conspiracy, prepared incorrect documents, prepared incorrect translation, forged the contents of his book, forged the Supreme Court judgment and used them as genuine for injuring and framing charges against him.

He further submitted that sanction is required at the time of taking cognizance and not at the time when the Magistrate considers an application on the issue of requirement of investigation under Section 156(3) of the Code of Criminal Procedure. Islam also tried to establish that the actions of the public servants were not in furtherance of their official duty, hence they are not cloaked with immunity.

Order

The Court observed that Islam has not posed any materials to show that the public servants who have been named in the application under Section 156(3) Cr.P.C. authored such forged documents.

On the issue of sanction, the Court noted that, "the facts of the case itself reflect that the public servants were working in discharge of their official duties as such they are entitled to the benefit of Section 197 of the Code of Criminal Procedure." Further, the Court relied on the in Anil Kumar and Others v. M. K. Aiyappa and Another an order directing further investigation under Section 156(3) of Cr.P.C. cannot be passed in the absence of valid. sanction.”

Thus, the Court observed,

"...this Court is of the opinion that as the provision of Section 197 of the Code of Criminal Procedure has been incorporated in the statute, the same has been for a meaningful purpose of allowing the public servants to discharge their duties without fear or favour or without any anticipation of being harassed because of the rigours of law. Therefore, ordinarily a valid sanction would be required in a proceeding where the provisions of Section 156(3) Cr.P.C. are invoked against public servants. However, in this case substantive offences as alleged have not been made out, so the issue of sanction is an additional consideration."

Dr. Nazrul Islam -vs.- Basudeb Banerjee & Ors