MRINAL ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application praying for declaring an arrest illegal, claiming compensation and taking action against the erring personnel.

(2.) Mr. Ghosh, learned Counsel for the petitioner, submits as follows. The petitioner was posted at Block Youth Office Coochbehar-2 as Block Youth Officer. He was arrested in connection with Mathabhanga Police Station Case no.460/13 dtd. 15/11/2013 under Ss. 3, 4, W.B.G & P/C Act along with others. The petitioner along with other accused were produced before the Learned Additional Chief Judicial Magistrate, Mathabhanga on 16/11/2013. He along with others prayed for bail. The police prayed for their judicial custody. Their application for bail was rejected on 16/11/2013. The petitioner along with others again moved an application for bail. But, on the strong objection raised on behalf of the police authority their application of bail was again rejected on 18/11/2013. After rejection of the bail, the petitioner along with others moved for their bail before the Learned Session Judge, Coochbehar vide Cr. Misc No. 1993 of 2013. The bail application came up for hearing on 25/11/2013 and the Learned Court was pleased to allow the application for bail. The illegal detention of the petitioner by the police authority had caused grave injustice and prejudice to the petitioner and hence, the petitioner through his learned Advocate issued a letter 23/12/2013 and prayed for compensation. Under Gambling and Prize Competition Act, nowhere it was stated that the Sec. 3 and Sec. 4 of the said Act were non bailable. Ss. 3 and 4 were bailable. But, the petitioner was made to suffer for 10 days of judicial custody without any fault of his own. The police authority never sought for any police custody, rather prayed for judicial custody. The illegal custody caused defamation of the petitioner and his family. The police authorities were under an obligation to compensate for the damage caused to the petitioner. The notice under Sec. 41A of Code was introduced on 1/11/2010. Hence, police did not have jurisdiction to arrest him where punishment was up to three years even if the same was found to be non-bailable. Inspite of several orders for filing affidavit-in-opposition, for the last 10 years no affidavit in opposition was filed. Hence, doctrine of non-traverse would apply. Hence, compensation, disciplinary action against Police and Magistrate ought to be initiated.

(3.) Mr. Galib, learned Counsel appearing on behalf of the State, submitted as follows. After completion of the investigation, a charge sheet was submitted against all the accused including the owner of the godown vide Charge Sheet No. 10/14 dtd. 31/11/2014 under Sec. 3 and 4 by the Act of 1957 read with Sec. 120B of Indian Penal Code. The case was pending trial before the Learned jurisdictional Magistrate being Trial No. 604 of 2014. Cross examination of the charge sheeted witnesses Sl. Nos. 1, 2, 3, 4 and 8 had been completed. The next date before the Learned Trial Court was fixed on 19/7/2023 for cross examination of the charge sheet witnesses Sl. Nos. 6, 7 and 9, respectively. In essence, Sec. 3 of the Act of 1957 prescribed rigorous imprisonment for a maximum term which "may extend" to 3 years with a minimum fixed as not "less than" 6 months. In essence, the Sec. 4 prescribed a maximum term of rigorous imprisonment which "may extend" to 3 years with a minimum pegged at "less than"3 months. The punishments as envisaged under Sec. 3 and 4 of the Act of 1957 were squarely covered under Part II of the First Schedule to the Code of Criminal Procedure, 1973. From the combined reading of Sec. 3 and 4 of the Act of 1957 it was amply clear that being the maximum punishment which might "extend to"3 years as contemplated under Sec. 3 and 4 of the Act of 1957, the offences were "cognizable" and "non-bailable" as was envisaged in the second entry of the Part II, First Schedule to the Code. The aforesaid proposition was settled by the Hon'ble Supreme Court by the Judgement reported at (2022) 10 SCC 221. In the said Judgement the Hon'ble Supreme Court, while dealing with Sec. 63 of the Copyright Act that prescribed punishment with imprisonment for a term which shall not be "less than" 6 months, but may "extend to" 3 years, was pleased to hold that it was crystal clear that Part II of the First Schedule to the Code was applicable. A Co-ordinate Bench of this Hon'ble Court in a Judgement reported at (2008) 1 CHN 148 while dealing with similar provision of Sec. 135 (theft of electricity) of the Electricity Act, 2003, it had been held that Part II of the First Schedule of the Code was squarely applicable. It would be pertinent to submit that in a judgement of this Hon'ble Court reported at (1997) 1 CHN 262 it was seen that an accused of an offences under Sec. 3 and 4 of the Act of 1957 obtained an anticipatory bail from a Jurisdictional Court. Anticipatory bail under Sec. 438 of the Code came into question only when any person had reason to believe that he might be arrested on accusation of having committed a non- bailable offence and not otherwise. In essence, Sec. 5 of the Act of 1957 contemplated power of Police to take into custody who, in turn, should be produced before the nearest Magistrate within a period of 24 hours i.e., in consonance with the constitutional mandate of Article 22 (2). In essence, Sec. 14 of the Act of 1957 was in pari materia with the concept of Triable Magistrate as postulated in the second entry of Part II of the First Schedule to the Code. As regards the decision in Arnesh Kumar reported at (2014) 8 SCC 273, the judgement was delivered by the Hon'ble Apex Court and 2/7/2014 whereas the Mathabhanga Police Station Case No. 460 was registered on 15/11/2013. Moreover, the detention of the Writ Petitioner was by the order of the Learned Jurisdictional Magistrate. There was no issue of any dereliction of duty on the part of the Police/Respondent Authorities. The detention of the Petitioner was by dint of Judicial Orders passed by the Learned Jurisdictional Magistrate on being lawfully forwarded by the Investigating Agency. In view of the above, it was crystal clear that the offences contemplated under Sec. 3 and 4 of the Act of 1957 were non-bailable and cognizable in nature. Hence, the relief for compensation was not sustainable in law.