ARUN BISWAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS revision arose out of order dated 20.9.2004 passed by the learned Sub -divisional Judicial Magistrate, Tehatta, Nadia in G.R. Case No. 1166 of 2004 which arose out of Thanarpara P.S. Case No. 46/2004 dated 1.7.2004 under sections 302/34 of the IPC and sections 25/27 of the Arms Act, allowing thereby the prayer of the Investigating Officer for showing the petitioner as arrested accused in connection with the aforesaid case.

(2.) IN the background of this case, the fact in a nutshell is as follows:

(3.) THE petitioner is a business man. Thanarpara P.S. Case No. 46/2004 dated 1.7.2004 had been registered for investigation on the basis of a complaint lodged by one Mirzad Mondal alleging commission of offences punishable under sections 302/34 of IPC and sections 25/27 of the Arms Act by some unknown miscreants. The said case has also been registered as G.R. Case No. 1166 of 2004 before the Court of the learned Sub -divisional Judicial Magistrate, Tehatta, Nadia. The allegations are that on 30.6.2004 at about 9 -00 p.m. the de facto complainant and his father were sitting at a tea stall situated at Fazil Nagar Ghat. At that point of time three unknown persons with their face covered with 'gamcha' proceeded towards the said tea stall through the darkness of night being armed with guns. Seeing the miscreants the de facto complainant and his father tried to flee away. The de facto complainant managed to run away but his father slipped over a bamboo stake beside the said tea stall and fell down. At that time the accused persons shot twice at the father of the de facto complainant and subsequently escaped towards Amtala Ghat. The de facto complainant saw his father lying dead. On 26.7.2004 the petitioner along with three others were arrested in connection with Kotwali P.S. Case No. 405 dated 26.7.2004 for their alleged involvement in commission of offences punishable under sections 342/323/506/307/34 of IPC and sections 25/27 of the Arms Act. The said case had also been registered as G.R. Case No. 1242/2004 before the Court of the learned SDJM, Krishnagar. After being arrested in connection with Kotwali P.S. Case No. 405 dated 26.7.2004 the petitioner was mercilessly assaulted by the police authorities. He was admitted to the District Hospital, Nadia. His condition was so serious that on 27.7.2004 the Superintendent of the said Hospital called upon the SDO, Krishnagar Sadar, Nadia for recording the dying declaration of the petitioner. Coming to know about the same, the police authorities in spite of his critical condition of health got him discharged from the said hospital on 29.7.2004 and produced him before the Court of the learned SDJM, Krishnagar and secured his remand for seven days. During his remand in police custody an improvised pipe gun and one live cartridge were allegedly recovered pursuant to the statement of the petitioner. In order to extend the period of detention of the petitioner the said seizure was not effected in connection with the Kotwali P.S. Case No. 405 dated 26.7.2004 but a separate case being Kotwali P.S. Case No. 415 of 2004 dated 26.7.2004 was registered for investigation under sections 25/27 of the Arms Act. Though the aforesaid seizure was effected on 30.7.2004 the petitioner was produced before the Court of the learned SDJM, Krishnagar in connection with the said Kotwali P.S. Case No. 415/2004 dated 30.7.2004 only on 5.8.2004 for the first time. In the interregnum on 3.8.2004 a prayer was made before the Court of the learned SDJM, Kalyani, Nadia to show the petitioner as arrested in connection with Kalyani P.S. Case No. 97/2004 dated 31.5.2004 under sections 324/325/304 of IPC. The petitioner was produced in connection with the aforesaid case before the learned SDJM, Kalyani, Nadia on 25.8.2004 when his prayer for bail was turned down by the learned SDJM, Kalyani. On 3.9.2004 three things happened. In the first session, of this Hon'ble Court, the petitioner was directed to be released on bail in connection with Kotwali P.S. Case No. 405 dated 26.7.2004 by Their Lordships in CRM No. 5255 of 2004. On the selfsame date the petitioner was also directed to be released on bail in connection with Kotwali P.S. Case No. 415 dated 30.7.2004 under sections 25/27 of the Arms Act by His Lordship by the order passed in CRM 5254 of 2004. Coming to know about such development an application was taken out before the Court of the learned SDJM, Kalyani, Nadia to show the petitioner as arrested in connection with the Chakdah P.S. Case No. 140 of 2004 dated 27.7.2004. On 8.9.2004 after being produced in connection with Chakdah P.S. Case No. 140 of 2004 dated 27.7.2004 the petitioner was remanded to judicial custody till 22.9.2004 and upon an application being moved for bail on behalf of the petitioner the same was directed to be fixed for hearing on 13.9.2004. On 9.9.2004 the petitioner was directed to be released on bail in connection with Kalyani P.S. Case No. 97 dated 31.5.2004 under sections 324/325/304 of IPC by Their Lordships through order passed in CRM No. 5377 of 2004. During the course of hearing of the application for bail before the Hon'ble Court it was not brought to the notice of the Hon'ble Court that the petitioner is being wanted in connection with the aforesaid case being Chakdah P.S. Case No. 140 dated 27.7.2004. On 13.9.2004 an application for bail on behalf of the petitioner was taken out for hearing by the learned SDJM, Kalyani, Nadia in connection with the said case. It was pointed out to the learned Magistrate that showing in connection with the aforesaid case squarely falls foul of the spirit of the judgment reported in 1983 SCC (Cri) 529. It was urged on behalf of the petitioner that although the petitioner was allegedly wanted in connection with the aforesaid case, no information whatsoever had been conveyed either to the Hon'ble Court or to the Court of the learned Magistrate at an earlier point of time but only when the petitioner furnished his bail bond the alleged complicity of the petitioner transpired and the petitioner was sought to be shown arrested in connection with the aforesaid case. It was urged on behalf of the petitioner that the practice adopted by the police administration is totally malicious and harassive in nature and high -handedness of the executive power. The learned Magistrate was however pleased to turn down the prayer of the petitioner. The police administration has now run short of First Information Reports registered against unknown accused persons though the petitioner was shown arrested in connection with the said case by the Investigating Officer who is a Sub Inspector of Police attached to Chakdah P.S. in connection with an offence which took place sometime in the morning of 27.7.2004 and/or in the night of 26.7.2004 totally being oblivious of the fact that the police personnel attached to Kotwali P.S. had already taken away the petitioner into custody in connection with Kotwali P.S. Case No. 405 of 2004 by that time. The petitioner thereafter preferred an application under section 439 of the Cr.P.C. in connection with the aforesaid case being Chakdah P.S. Case No. 140/2004 in CRM No. 5632 of 2004 before the Hon'ble Court and Their Lordships on 17.9.2004 after hearing the learned Counsel appearing for the respective parties, were pleased to allow the prayer for bail. Soon after coming to know about the order passed by the Hon'ble Court, an application was taken out before the learned SDJM, Tehatta on 19.9.2004 inter alia praying for showing the petitioner as arrested in connection with Thanarpara P.S. Case No. 46 of 2004 dated 1.7.2004 under sections 302/120B/34 of IPC and sections 25/27 of the Arms Act. The learned Magistrate upon receipt of such application was pleased by his order dated 20.9.2004 to allow such prayer. The petitioner however in the meantime had furnished his bail bond and had come out from jail. Being apprehensive of arrest in connection with the aforesaid case being Thanarpara P.S. Case No. 46 of 2004 dated 1.7.2004 the petitioner preferred an application under section 438 of Cr.P.C. before the learned Sessions Judge, Nadia and the same being registered as Criminal Misc. Case No. 2540 of 2004. On 27.9.2004 the learned Judge was pleased to turn down the prayer of the petitioner. During the course of hearing of such bail application before the learned Judge, it transpired that the petitioner was allegedly wanted in connection with the instant case since 9.7.2004. The order of the learned Court below however does not speak about the involvement of the present petitioner prior to 20.9.2004 which speaks for itself about the malicious conduct of the Investigating Agency. Therefore, the petitioner prayed for setting aside the impugned order dated 20.9.2004. In support of his contention, learned Counsel for the petitioner has argued that the police authorities have shown their extreme high -handedness to harass the present petitioner in cases one after another even after the petitioner got bail of particular case. In support of his contention, learned Counsel for the petitioner cited before me the following decisions and rules: