Calcutta High Court (Appellete Side)
In Re : Jitendra Kumar Tiwari vs State Of Punjab on 21 February, 2014
Author: Indira Banerjee
Bench: Indira Banerjee
1 21-02-2014
Sh/56 C.R.M. 746 OF 2014
In Re : Jitendra Kumar Tiwari ... Petitioners.
Re:- An application under Section 438 of the Code of Criminal Procedure filed on 13-01-2014 in connection with Howrah P.S. Case No.16/2014 dated 08-01-2014 under Sections 448/186/353/34 of the Indian Penal Code.
Mr. Sudipto Moitra,
Mr. Biplab Das ... For the petitioner.
Mr. Saibal Bapuli,
Mr. Soumik Ganguly ... For the State.
This application under Section 438 of the Cr. PC has been filed by a night guard attached to the New Collectorate, Howrah who has been in forcible and illegal occupation of the kitchen, hall and certain other parts of the Circuit House at Howrah, along with numerous members of his extended family including mother in law, nephew etc. The charges against the petitioner are serious. The petitioner has been charged under Section 353 of using criminal force to deter a public servant ie. the District Magistrate, Howrah from discharge of his duty and also under Section 448 of house trespass. It is true that the First Information Report is cryptic. However, the FIR prima facie has the ingredients of offence under Section 353 and even Section 448 of the IPC. Ofcourse, offence under Section 448 is bailable.
Considering the materials in the Case Diary produced before us and in particular, the Statements under Section 161 of 2 the Cr. P.C at pages 6, 13, 14 and 17 of the Case diary including in particular, the incriminating statements made by Bikash Raut, the caretaker of the Circuit House, Shri Dipak Ruidas, Security of the District Magistrate, Seikh Md. Guddu, Driver of the District Magistrate, Howrah and two constables on sentry duty at the Circuit House. I am not inclined to allow the prayer of the petitioner under Section 438 of the Code of Criminal Procedure.
From the statements, it transpires that the District Magistrate went to inspect the Circuit House at Howrah on 8th January, 2014 at about 7 A.M and found some men and women in occupation of the hall and the kitchen of the Circuit House. The District Magistrate asked the caretaker who those people were and under what authority they were in occupation of the Circuit House. He was informed that they were the family members of Jitendra Tewari, Night Guard attached to the New Collectorate, Howrah.
The District Magistrate sent for Jitendra. When Jitendra came, the District Magistrate asked him whether he had any order on the basis of which he was in occupation. Jitendra could not produce any order or any other paper to justify his occupation, but on the other hand challenged the authority of 3 the District Magistrate when the District Magistrate asked him to vacate the Circuit House.
Jitendra along with the members of his immediate family and extended family challenged the authority of the District Magistrate, abused and insulted the District Magistrate, threatened the District Magistrate and prevented him from discharging his duty, using foul, dirty, abusive language.
"Galigalaj koren" to quote the Caretaker. The District Magistrate was rescued from the clutches of the petitioner and his family members by his security and the police personnel on sentry duty at the circuit house.
At this stage, we are not concerned with the correctness of the statements under Section 161 of the Cr.P.C.. The statements are incriminating. There is consistency in the statements. All the above persons have stated that Jitendra along with the members of his family threatened the District Magistrate, obstructed the District Magistrate from discharging his duty, abused and insulted the District Magistrate using foul language and the District Magistrate had to be rescued by the Police personnel present at the spot. The alleged conduct of Jitendra, in my view, assumes greater importance having regard to the fact that the petitioner is a Night Guard, attached to the New Collectorate and thus responsible for safety of the property 4 of the Collectorate as also the safety of officials attached to the Collectorate including the District Magistrate.
The materials in the Case Diary reveal that the petitioner is desperate, adamant, totally reckless and has scant regard, if not total disregard for authority. The petitioner's behaviour, as alleged in the statements gives rise to serious apprehension that unless taken into custody he will not hesitate to threaten witnesses and tamper with evidence.
His custodial detention is, in my view, necessary for the safety of the officials and employees of the Collectorate who might be called upon to depose as witnesses, having regard to his desperate nature. I am of the view that the possibility of his tampering with evidence and threatening witnesses cannot be ruled out.
Mr. Maitra referred to a GD Entry no. 926 dated 8th January, 2014 alleging that on 8th January, 2014 at about 5 A.M the petitioner had been called by the District Magistrate to his residence and had been manhandled by the District Magistrate. In the GD Entry, it is alleged that the petitioner's wife was also abused.
It would not be proper for us to take cognizance of a GD Entry when there is nothing with regard to the same in the Case Diary. Moreover, the GD Entry is also dated 8th January, 2014 - 5 the same date on which the District Magistrate inspected the circuit house, was obstructed by criminal force and lodged an FIR. It is also not understood why the petitioner would have to visit the District Magistrate's residence at an unearthly hour (5 A.M) and, in any event, why he should have to be accompanied by his wife.
The application is dismissed.
(INDIRA BANERJEE, J.) 6 C.R.M. No. 746 of 2014 I have perused the order passed by the Learned Sister Judge but with respect I differ with her as to the order of rejection of this anticipatory bail application as filed by the present petitioner, who is one Group-D employee of the District Magistrate, Howrah.
I do not like to go into the details of the factual matrix of this police case which has been discussed in details by my Learned Sister Judge. The only non- bailable offence is Section 353 of the Indian Penal Code. I like to reiterate that the de facto complainant of this case is the District Magistrate of Howrah, the highest Administrative Officer of the district and the petitioner is the lowest ranked public servant (Night Guard) under the same District Magistrate. Thus the battle is uneven.
I like to reiterate that this application under Section 438 of the Criminal Procedure Code (henceforth called as the said Code) is in respect of the release of this accused petitioner on anticipatory bail in respect of Howrah, P.S. case No. 16/14 dated 08.01.2014.
"Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without Liberty, no happiness can be enjoyed by society."
Thus spoke Bolingbroke.
7Keeping the cherished idea of liberty in mind, the fathers of our Constitution engrafted in its Preamble: "Liberty of thought, expression, belief, faith and worship," After a lot of debate in the Constituent Assembly, Article 21 of the Constitution came into existence in the present form laying down in categorical terms that no person shall be deprived of his life and personal liberty except according to the procedure established by law. I have not forgot that the liberty is not an absolute abstract concept. True it is, individual liberty is a very significant aspect of human existence but it has to be guided and governed by law. It is needless to mention that power conferred under Section 438 of the said Code is of an extraordinary character and it is to be exercised with due care and circumspection.
The constitutional Bench in Gurbaksh Singh Sibbia etc. Vs. State of Punjab as reported in AIR 1980 SC 1632 the Constitutional Bench observed that in regard to anticipatory bail if the proposed accusation appears to that in regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made.
On this legal premises I am to say that the offence complaint of is not one heinous offence for which this public servant must go behind the bar which may also result in his suspension. There is also no chance of his absconsion he being one government employee. I cannot shut my eyes to the G.D. Entry No. 926 dated 08.01.2014 as lodged by the present petitioner against the District Magistrate in which he alleged something against the District Magistrate. There is also a medical report in support of his claim. Without touching the merit I can say that a Group- D employee will think more than thousand times to attack a superior officer and that too in the rank of the District Magistrate, who is his appointing authority and also the head of the office. Regarding that G.D. Entry no action has since been 8 taken by the police by seeking an order from the Magistrate having jurisdiction to enquire into the matter under Section 155(2) of the said Code as the offence alleged is no doubt non-cognizable in nature. Any counter complaint is to be considered by the court vis-a-vis the FIR giving rise to the application under Section 438 of the said Code.
Without touching the merit of this case I can say that admittedly this accused petitioner is one Caretaker of the Old Circuit House of Howrah. In the petition as filed by the present accused under Section 438 has claimed that he is in occupation of that portion of that Old Circuit House since long and his predecessor was also in occupation of that portion. It is true that the Investigating Officer of this case has recorded the statements of some witnesses implicating the present accused but naturally those witnesses are all man in the camp of the District Magistrate. It is better not to elaborate the matter further as they may hamper the investigation.
The question now is whether such person who is one government employee is to be taken into custody simply on some apprehension that this accused will not hesitate to give threat to the witness and tamper with evidence particularly when all the witnesses are higher in rank to him. I am of the considered view that no custodial detention is necessary in this case and the purpose of the investigating agency may be served if I direct that the present petitioner must meet the I.O. twice a week for the next 2 months, if the investigation is not completed by that time and that the arresting authority on his apprehension must release the present petitioner/accused on bail of Rs. 2,000/- with one surety to the satisfaction of the arresting authority.
Be it noted that the observations made by me are prima facie in nature and should not influence the investigating agency or the Court below. 9
(Indrajit Chatterjee, J.) Later:
Since we are of the dissenting view the matter needs to be placed before the Hon'ble the Chief Justice for appropriate orders.
(Indira Banerjee, J.) (Indrajit Chatterjee, J.)