DIPU SINGH @ HULO Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application challenging a proceeding under Section 110 of the Code in NGR (S) Case No. 770/18 pending before the Learned Special Executive Magistrate, Serampore, Hooghly including the order dated 04.12.2018 passed therein.

(2.) Mr. Rajdeep Mazumder, learned counsel appearing on behalf of the petitioner, submitted as follows. The petitioner was an accused in a number of cases although he had not been convicted in any of the cases. Rather, he was acquitted in a few. The present proceeding under Section 110 of the Code was also drawn up against him. The initial order passed by the learned Special Executive Magistrate was relaxed to furnishing of one surety of a Gazetted Officer with a bond of Rs. 50,000/- for three years. Thereafter, a Gazetted Officer agreed to act as a surety. But, he withdrew after the Learned Executive Magistrate initiated an enquiry into his antecedents and consequently, a police officer visited him. Then the present application was moved before this Court. After hearing the parties, on 05.07.2019 this Court passed an interim order modifying the impugned order dated 05.02.2019 passed by the Special Executive Magistrate and directed the petitioner to furnish an interim bond for good behaviour with two local sureties of Rs. 1,00,000/- each, for three years. After some delay, this Court's order was ultimately given effect to. On merits, first, Section 110 could not be invoked in the instant as the petitioner was in custody at the relevant point. Section 112 of the Code contemplated a presence in Court while the proviso to Section 113 clarified a production from custody. Reference was made to Black's Law Dictionary on the definition of 'habitual offender'. There it was defined as one who had committed a crime, especially one who had been convicted of a crime. By this standard, the present petitioner could not be termed as a 'habitual offender'. In fact, the instant proceeding was initiated when the petitioner was on the verge of an acquittal in a case under the NDPS Act. On the question of 'habitual offender', reliance was further placed on (i) Lalookhan Haideralikhan Versus M.M. Kamble, Special Executive Magistrate, 1996 CrLJ 801 and (ii) Nepu Giri Versus State of West Bengal,2018 CRR 3249 of . In this regard, references were made to relevant portions of the Punjab Police Rules, 1934, the Tamil Nadu Restriction of Habitual Offenders Act, 1948, the Bombay Habitual Offenders Act, 1959 and the Kerala Habitual Offenders Act, 1960. On the question of scope of the inquiry under Section 116 of the Code, reliance was placed on (i) Madhu Limaye And Another Versus Ved Murti And Others, 1970 3 SCC 739 and (ii) Paresh Chandra Hathi And Another Versus Ahitosh Panda And Another, 1978 CrLJ 1171.

(3.) Mr. Kishore Datta, Learned Advocate General, submitted as follows. The present petitioner was arraigned as an accused in as many as 26 cases although it was true that no conviction could be obtained in any of these cases till date. In order to gauge the true import of Section 110 of the Code, the entire scheme of the Chapter had to be looked into. Section 106 of the Code related to convicted persons, Section 107 dealt with some other cases, Section 108 related to seditious matters and Section 109 was concerned with suspected criminals. Section 110 of the Code, on the other hand, dealt with a 'habitual offender'. Therefore, Section 110 would very much be applicable to the petitioner in the present case. Section 123 of the Code provided for an alteration of an order by the High Court and not for setting aside of the order. Therefore, the petitioner had to approach the concerned District Magistrate for setting aside the impugned order. On the issue of 'habitual offender', reliance was placed on (a) Dhanji Ram Sharma Versus Superintendent of Police, North District, Delhi Police And Others, 1966 AIR(SC) 1766, (b) R Kalavathi Versus State of T.N. And Others, 2006 6 SCC 14 and (c) Raichurmatham Prabhakar And Another Versus Rawatmal Dugar, 2004 4 SCC 766. A reference was also made to Rules 289, 290 and 401 of the Police Regulations, Bengal, 1943. As such, the impugned proceeding ought not be inferred with.