SANJAY KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the State.

(2.) This writ petition has been filed for a direction to the respondents to suitably compensate the petitioner for his illegal arrest and detention in connection with R.P.F. Patna 2(9) 89 dated 09.09.1989 registered for the offence under Section 3 of the R.P.U.P. Act and G.R.P. Patna Case No. 428 of 2004 registered for the offence under Sections 379, 411 of the Penal Code. It is submitted that petitioner was initially taken in custody in connection with R.P.F. Patna 2(9)89 on 25.08.2003 by Sri Arjun Rai, Officer-in-Charge, Barn Police Station although it was submitted by the petitioner at the time of his arrest that he is not required in the said case as the said case was registered on 09.09.1989 when he was hardly three years old, his date of birth being 12.2.1986 could not have been accused in the said case and the warrant on the basis of which he is being arrested in the said case has been issued against Lallu Sao, son of late Munna Sao. It is submitted on behalf of the petitioner that aforesaid plea was not only raised by the petitioner but also by his mother and other family members present at the time of his arrest. Aforesaid plea was also raised before superior police officer(s) by his mother and others but the officers present at the time of the arrest as also the superior police officers before whom such plea was taken never took cognizance of such plea and produced the petitioner before Railway Judicial Magistrate for being remanded to jail custody. Aforesaid submission that petitioner is neither the accused in the said case nor warrantee Lallu Sao, son of late Munna Sao was also raised before the Railway Judicial Magistrate, Patna before whom petitioner was produced for being remanded to jail custody. In the light of the submission raised by the petitioner Railway Judicial Magistrate, Patna directed the superior police officers under letter dated 08.09.2003, 17.10.2003 to enquire into the matter. In the light of the direction of the Railway Judicial Magistrate, Patna Sub-Divisional Police Officer, Barn submitted report bearing Memo No. 2230 dated 22.10,2003 to Senior Superintendent of Police, Patna, Annexure-2. Close perusal of the report of the Dy. S.P. indicate that thereunder the Dy. S.P. fairly admitted that the officer arresting the petitioner (S.I. Arjun Rai) admitted before him that warrant of arrest on the basis of which petitioner was arrested was issued by the Railway Court for apprehending the son of deceased scrap dealer Munna Sao whose name is perhaps Lallu' Sao or Sanjay and petitioner was identified and arrested as Lallu Sao on the statement of the neighbours. Having arrested the petitioner S.I. Arjun Rai wrote on the back of the warrant that his father is alive. The report also indicate that A.S.I. Arjun Rai assessed the age of the petitioner at the time of his arrest around 20 years. The report further indicated that petitioner was 17-19 years old and at the time of occurrence his age was hardly 3-4 years old. Appreciating the contents of the report dated 22.10.2003. Annexure-2 and being satisfied that petitioner was not Lallu Sao, son of late Munna Sao for whose arrest the warrant was issued the Railway Judicial Magistrate directed for the release of the petitioner under orders dated 06.11.2003 on furnishing personal bond of Rs. 10,000/-. In the same case i.e. R.RF. Patna 2(9) 89 petitioner was again arrested by A.S.I. Ramchandra Prasad on 19.08.2005 again treating him to be Lallu Sao whereafter he filed Cr.W.J.C.No. 568 of 2005 praying, inter alia for issue of writ of habeas corpus and the Division Bench of this Court under orders dated 09.09.2005, Annexure-3 directed for his release in connection with R.P.F. Patna 2(9) 89 forthwith and further observed that petitioner is at liberty to raise the question of compensation before the appropriate forum. Inspite of the aforesaid order dated 09.09.2005, Annexure-3 petitioner was not released forthwith whereafter his Pairvikar made further enquiry and learnt that after the arrest of the petitioner in connection with R.P.F. Patna 2(9) 89 on 19.08.2005 he was also remanded in connection with G.R.P. Patna Case No. 428 of 2004 registered for the offence under Sections 379,411 of the Penal Code. Having come to learn about his remand in G.R.R Patna Case No. 428 of 2004 petitioner filed Cr.W.J.C.No. 644 of 2005 asserting that his remand in the said case is also on the basis of the mistaken identity as Lallu Sao, son of Munna Sao but such remand is wholly without jurisdiction as petitioner is son of Bishwanath Prasad and has no connection with Lallu Sao, son of Munna Sao, accused of G.R.R Patna Case No. 428 of 2004.

(3.) This Court having noticed the aforesaid submission under orders dated 05.10.2005 passed in Cr.W.J.C.No. 644 of 2005, Annexure-5 directed the petitioner to assert the fact before the learned Railway Judicial Magistrate, Patna that his arrest in G.R.P. Patna Case No. 428 of 2004 is on account of mistake of identity as the accused of the said case Lallu Sao, son of Munna Sao has no connection with the petitioner. In compliance of the order of the High Court dated 05.10.2005, Annexure-5 petitioner approached the Railway Judicial Magistrate, Patna who sought a report from the Sub-Divisional Police Officer, Barh about the identity of the petitioner and the accused of G.R.R Patna Case No. 428 of 2004. In the light of the instruction of the Railway Judicial Magistrate, Patna report bearing Memo No. 3489 dated 01.12.2005, Annexure-A to the counter affidavit was submitted by the Sub-Divisional Police Officer, Barh in which it was specifically stated that during the enquiry the Sub-Divisional Police Officer, Barh learnt that name of father of the petitioner is late Bishwanath Prasad @ Munna Sao @ Munna Prasad. None of the persons examined during the enquiry, however, confirmed that the alias name of the petitioner Sanjay Kumar is Lallu Sao. The report further disclosed that two years earlier also petitioner was arrested by the Railway Police as stolen articles were recovered from his scrap shop. In the concluding paragraph of the report clear finding has been recorded that petitioner was arrested in connection with G.R.R Patna Case No. 428 of 2004 and R.P.F. Patna 2(9) 89 by S.I. Ram Chandra Prasad of Barh RS. on the basis of warrant of arrest although the said warrant was issued in the name of Lallu Sao, son of Munna Sao, resident of Barh market. In the light of the report dated 01.12.2005 the Railway Judicial Magistrate considered the question of identity of the petitioner and his arrest in connection with the aforesaid two cases under orders dated 07.12.2005, Annexure-6 and after being satisfied that petitioner was erroneously taken in custody in the two cases on 19.08.2005 as also after observing that Munna Sao accused of the aforesaid two cases is aged over 30 years and petitioner is less than 20 years directed his release on furnishing personal bond of Rs. 10,000/-.