KAJAL DEY Vs. STATE OF ASSAM

JUDGEMENT

(1.) By this petition the petitioners who have been kept in the jail custody since 14-1-89 during the pendency of investigation have approached this Court for enlargement on bail after their applications for bail were rejected by the learned Chief Judicial Magistrate, Gauhati one after another.

(2.) FIR of the case discloses that on 13-1-89 around 10-30 p.m. some miscreants numbering 15/20 attacked deceased Robin Patowari and two other persons of Mahadebpur road of Rehabari with lathi, rod and other weapons and caused grievous injuries on Robin Patowari who ultimately succumbed to the injuries. In the FIR the informant named one Atul and another Gopal who are alleged to be members of the miscreants. After receipt of FIR Paltanbazar P.S. Case No. 24/89 under Sections 148/302/325 IPC was registered and thereafter the police arrested the petitioners in connection with the case. The petitioners were produced before the learned Chief Judicial Magistrate, Gauhati on 15-1-89 and GR Case No. 37/89 was registered in the Court of the learned Chief Judicial Magistrate, Gauhati. It appears from the order sheet of the said case that on 15-1-89 an application for bail was filed on behalf of the petitioners; but the same was rejected by the learned Chief Judicial Magistrate on the ground that the offence appears to be serious one. The learned Magistrate remanded the petitioners to jail custody till 27-1-89. On 16-1-89 another bail petition was also moved; but the same was rejected on the same ground. On 18-1-89 police made a prayer for holding TIP and Mr. B.J. Mahanta, Magistrate (J) was asked to conduct the TIP by the learned Chief Judicial Magistrate. On 27-1-89 another bail petition for bail was moved in the meantime but the same was rejected on the ground that the TIP was not yet over. On 27-1-89 a prayer was made to defer the holding of TIP and the learned Chief Judicial Magistrate fixed 28-1-89 for TIP and remanded the accused petitioners to custody. On 28-1-89 another prayer was made by the police for deferring TIP date. The learned Magistrate allowed the prayer and fixed 30-1-89 for holding TIP and the petitioners were remanded to custody for holding TIP. On 4-2-89 the learned Magistrate again remanded the accused petitioners to jail hajot till 17-2-89.

(3.) Heard Mr. A.M. Mazumdar, learned Counsel for the petitioners and Mr. B.B. Narzary, learned Public Prosecutor, Assam. It is stated in the petition that the petitioner No. 1 is 15 years and a student while the petitioners Nos. 2, 3 and 4 are aged 19, 20 and 24 years respectively. These facts are not disputed by the prosecution. I find that there is no specific allegation against the accused petitioners in the FIR. On 21-2-89 the date on which the petition was moved after hearing the learned counsel for the petitioners as well as the learned Public Prosecutor for sometime I felt it necessary to peruse the case diary and I fixed next day for production of case diary and further hearing. The learned Public Prosecutor has produced the case diary today. The learned Public Prosecutor submits that under Section 41 Cr. P.C. Police is empowered to arrest any person without warrant or order of Magistrate. No doubt police is empowered under Section 41 Cr. P.C. but exercise of that power is governed by certain conditions enumerated in the Section 41 Cr. P.C. On perusal of the case diary I find that there is no in criminating materials for which police felt it was necessary to arrest the petitioners soon after the receipt of the FIR. A serious crime no doubt took place in the night of 13-1-89 at Rehabari which resulted in the unfortunate death of one Architect/Engineer and all efforts must be made to apprehend the culprits involved in the crime. But that does not entitle the police to exercise the power under Section 41 Cr. P.C. arbitrarily and to trample the dignity and liberty of the citizens safeguard of which is guaranteed under our Constitution. On mere suspicion police must not arrest a person unless suspicion is well founded. On perusal of the case diary I do not find the existence of the conditions precedent for arrest of the petitioners in the exercise of power under Section 41 Cr. P.C. by the police, on 14-1-1989.