SAMPATMALL JAIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) By this common judgment and order I propose to dispose of two petitions filed under S. 401/482, Cr. P. C. read with Art.227 of the Constitution. The said petitions have been registered as Criminal Revisions Nos. 155 and 157 of 1991.

(2.) Briefly stated the facts are as follows:- Facts of Criminal Revision No. 155 of 1991: This petition has been filedby the accused in connection with Goalpara Police Station Case No. 260 of 1990 (G. R. Case No. 764 of 1990) registered under S. 3651343, IPC read with Ss. 3 and 4 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (for short the Act). It has been alleged that one son of the accused, namely Nawartanmall had gone to Southern India on 24-11-90 in connection with his business trip and during his absence, on 30-11-90 State Police personnel went to the house of the petitioner and enquired about the above son of the petitioner and also made a search of the house, but nothing was recovered. Police did not disclose why the presence of the said son was required. Again on 10-12-90 in the midnight another search was conducted by the State Police and on that date also nothing could be recovered. Police, however, took the younger son of the petitioner Monoj and also his Manager and an employee to the police station. The employee was released on the next day, but other two persons were detained till 13-12-90, and it is stated, without any reason or material. Thereafter, again on 12-1-91 some Army Personnel went to the house of the petitioner and enquired about the said son Nawartanmall, made a thorough search of the house, but nothing was found. However, the Army Personnel asked the petitioner to produce his son on or before 20-1-91 and also gave threat. Petitioner made several attempts to find out as to whether any specific case was registered against his son, but could not get any information. Under the above circumstances, a petition was filed before this court under S. 438, Cr.P.C. read with S. 482 for anticipatory hail which was, registered as Criminal Original Application No. 34 of 91 and finally the petition was rejected as the petitioner could not furnish specific case number and other informations. The court directed to collect further information both by the petitioner and the learned Govt. Advocate of the State of Assam. Another petition was filed stating that the information could not be collected. However, on 14-2-91, the Goalpara Police arrested the petitioner Sampatmall in connection with Goalpara case and forwarded him to District Magistrate on 15-2-91. Copy of the forwarding report is at Annexure-'A' to the petition. On enquiry the petitioner came to know that an FIR was filed on 6-11-90 by the Officer-in-charge of Goalpara Police Station before the Chief Judicial Magistrate, Goalpara, which was registered as Case No. 764 of 90 under S. 365 / 343, IPC. In the FIR it was disclosed, inter alia, that it was reliably learnt that in the evening of 31-10-90 at about 7 p.m. two unidentified young persons went to the Paul Pharmacy, Goalpara and asked the owner Shri Chittaranjan Paul to come out for holding some discussions. Accordingly Shri Paul came out and became untraced. It was suspected that two young persons kidnapped Shri Paul in a white Ambassador Car and he was untraceable and accordingly the said FIR was filed. The case record reveals that one S.I. of Goalpara Police Station on 13-2-91 prayed before the learned Chief Judicial Magistrate to add Ss. 3 and 4 of the Act in the above case which was allowed on the same day. The said order has been assailed. The prayer is at Annexure 'C' to the petition and the impugned order passed by the learned Chief Judicial Magistrate is at Annexure 'D'. Hence the present petition praying also for quashing the entire proceeding and also for bail.

(3.) Facts of Criminal Revision No. 157/ 91:- This petition is against the order dated 26- 3-91 passed by the learned Chief Judicial Magistrate, Goalpara in G. R. Case No. 209/91 (Goalpara P.S. Case No. 52/91) under Secs. 143/336/506/338/448/353/427, IPC. According to petitioner he is a well-to-do person and is a contractor under the Public Works Department, Assam State Electricity Board and Railways. He is also a partner in respect of the Cinema Hall namely M/s. Kalpana Cinema situated at Goalpara. The estimated value at present for execution of the works as a contractor is more than Rs. 11 lacs. Petitioner has stated that his presence is necessary for execution of the contract works. According to petitioner on 23-3-91 a serious fire broke out in the night in a locality of Goalpara just opposite side of the petitioner's house. Petitioner and other persons of the locality tried to extinghish the fire. The fire fighting staff was immediately contacted over phone but the telephone was not lifted by the officials and nobody came to the place even after an hour. Then the fire was almost extinghished the fire fighting people arrived at the spot. As the fire brigade people did not arrive, at the request of the public the petitioner went to the fire brigade station along with four persons in his own car and found that no attempt was made by the fire fighting men to proceed to the spot. Accordingly, petitioner made a representation by filing a petition, which was drafted by an advocate and the petition was filed in the police station on 23-3-91. On 26-3-91 petitioner came to know that an FIR was lodged against him and 3/4 persons alleging offence under the sections mentioned above and it was lodged by Brojen Sarkar, Station Officer, Fire Station, Goalpara on 24-3-91. In the FIR Section 3/4 of the Act was not added and the FIR also did not disclose any offence under the Act. According to petitioner as the petitioner lodged a complaint against the fire brigade personnel, as a counter-blast, the aforesaid FIR was filed. Petitioner has come to know that on 25-3-91 the Town S.I. of Police, respondent No. 3 made an application before the Court that Section 3/ 4 of the Act is required to be added and the said application is at Annexure-S to the petition. It is alleged that the learned Chief Judicial Magistrate without application of mind and without affording any chance to the petitioner, in a most mechanical way passed the impugned order on 25-3-91 allowing the prayer to add the aforesaid Sections 3 and 4 of the Act along with other sections under the IPC. Hence, the present petition for setting aside the said order dated 25-3-91.