Gauhati High Court
In Re: Md Fakrul Islam , Aps, Dsp Guwahati ... vs Xxxxxx on 4 May, 2012
Author: I A Ansari
Bench: I A Ansari
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR;
TRIPURA; MIZOAM AND ARUNACHAL PRADESH)
Criminal Petition (Suo Moto) No. 58 of 2007
(Vide order passed in Misc. Case No. 58 of 2007
In Bail Application No. 422 of 2007)
In Re :
1) Md. Fakhrul Islam, APS,
Deputy Superintendent of Police,
Guwahati City, Guwahati.
2. Sri Kandarpa Chamua,
Inspector of Police,
Officer-in-Charge, Paltan Bazar Police Station,
Guwahati.
3. Sri Kurkendra Mandal,
Investigating Officer,
Paltan Bazar Police Station, Guwahati.
4. Sri Mukunda Nath, Constable,
Paltan Bazar Police Station,
Guwahati.
- Respondents
BEFORE
THE HON'BLE MR. JUSTICE I A ANSARI
Advocates present:
For the Registry : Mr. B. C. Das, Senior counsel,
Amicus Curiae : Mr. N. Dutta, Senior counsel,
For the respondents : Mr. B. S. Sinha, Addl. Public
Prosecutor, Assam,
Mr. K. Munir, Senior counsel,
Mr. J.M. Choudhury, Senior counsel,
Ms. M. Hazarika, Senior counsel,
Mr. A. K. Purukayastha,
Mr. J. I. Borbhuiya,
Ms. F. Begum,
Ms. A. Ajitsaria,
Date of hearing : 01.03.2012, 29.03.2012 & 23.04.2012
Date of judgment & order : 04.05.2012
Page 2
JUDGMENT & ORDER
An apparent lapse of the State police machinery, in respect of
investigation of offences, and their failure to protect the Constitutional,
legal and human rights of those, against whom allegations of commission
of offences are made, have led to this Criminal Petition, which has been
registered under Section 482 CrPC.
2. I have heard Mr. JM Choudhury, learned Senior counsel, Ms. M.
Hazarika, learned Senior counsel, Mr. B. Purakayastha, learned counsel.
I have also heard Mr. A. Phukan, learned Advocate General, and Mr. N.
Dutta, learned Senior counsel, who has appeared as Amicus Curiae.
3. In order to appreciate the issues involved, and the directions to be
passed in this Criminal Petition, it is necessary to look into the chain of
events in their chronological order, which have led to this Criminal
Petition. The background facts, being of utmost necessity, are, therefore,
set out, in brief, as under:
Background facts:
A. EVENTS OF 09.02.2007 On 09-02-2007, interim direction for pre-arrest bail, in favour of the petitioner, namely, Shri Umesh Chandra Tiwari, in connection with Paltanbazar Police Station Case No. 68 of 2007, under Section 353 IPC, was granted by the High Court, in Bail Application No. 422 of 2007, fixing the bail application, for hearing, on 14-02-2007, and, in the meanwhile, the relevant case diary was called for. This interim direction for pre-arrest bail was subject to the condition that the petitioner shall make himself available for interrogation by police at all reasonable time. The FIR, lodged by an Executive Magistrate, which had given rise to the case aforementioned, alleged, inter alia, that on 13.02.2007, on being detailed by the District Magistrate, while she was discharging her duties, Page 3 as regards cleanliness drive of the city of Guwahati, the said Umesh Chandra Tiwari had obstructed them in discharging their duties and misbehaved with the informant and her group.
B. EVENTS OF 13.02.2007
(i) By making this miscellaneous application on 13-02-2007, it
was brought to the notice of the High Court that the bail applicant had gone, on 12-02-2007, at about 6:30 pm, to Paltanbazar Police Station, in order to make himself available for recording his statement by the police and, since then, he had been kept detained. On the basis of the instructions received, learned Public Prosecutor submitted to the Court that the petitioner had, indeed, been kept detained, at the said police station, on the instructions of the police authorities, superior in the rank of the Officer-in-Charge (in short, 'O/C'), Paltanbazar Police Station (in short, 'PBPS').
(ii) Considering the fact that the matter, in question, concerned the liberty of a citizen, and the conduct of the police machinery, if true, was a serious impediment in the administration of justice, the Court directed that the O/C, PBPS, shall appear, in person, within half-an- hour, along with the bail applicant and offer explanation as to why action shall not be taken against him, in accordance with law, for not carrying out the directions of the Court. The Registry was directed to communicate the said order, telephonically, to the O/C, PBPS, and also send a copy of the order by special messenger. This apart, even the Director General of Police, Assam, was directed to ensure appearance of the O/C, PBPS, within the time as mentioned hereinbefore.
(iii) The order, passed by the Court, on 13-02-2007, read as under:
Page 4 "By making this application, it has been brought to the notice of this Court that the petitioner, who was granted interim pre-arrest bail on 09.02.07, in Bail application No. 422/2007, in connection with Paltan Bazar Police Station Case No. 68/2007, under Section 353 IPC, went, on 12.02.07, at about 6-30 p.m., to the Paltan Bazar Police Station, in order to make himself available for recording of his statement by the police and since then, he has been kept detained.
When this application was moved by Mr. B. D. Konwar, learned counsel for the petitioner, Mr. B. S. Sinha, learned Additional Public Prosecutor, Assam, sought for time to obtain instructions in the matter and, now, after obtaining instructions, it has been submitted by Mr. Sinha that the petitioner has, indeed, been kept detained at the said police station on instructions from the authorities superior in rank to the Officer-in-Charge, Paltan Bazar Police Station.
As the matter, in question, relates to liberty of a citizen and the conduct of police is a serious impediment in the administration of justice, it is hereby directed that the Officer-in-Charge, Paltan Bazar Police Station, shall appear, in person, within half-an-hour from now, along with the petitioner and explain as to why action shall not be taken against him in accordance with law for not carrying out the directions of this Court.
The Registry is directed to communicate the order, as directed hereinbefore, to the Officer-in-Charge, Paltan Bazar Police Station, telephonically, and also send a copy of this order by a special messenger.
Let a copy of this order be also furnished to the learned Public Prosecutor, Assam, for doing the needful.
The Director General of Police, Assam, is hereby directed to ensure appearance of the Officer-in-Charge, Paltan Bazar Police Station, within the time as given hereinbefore.
Bring the above directions to the notice of the Deputy Registrar (Judicial)."
(iv) On 13-02-2007, the Court passed an order at 4:15 pm. The order, so passed, indicates that in compliance with the directions given in the forenoon, on 13-02-2007, the O/C, PBPS, presented himself, in the Court, along with the bail applicant. On his appearance before the Court, the bail applicant stated before the Court that on 12-02-2007, the Investigating Officer of the case, namely, K Mandal, a Sub-Inspector of Police, had visited the bail applicant's shop and asked him to come to the police station for obtaining bail and, in terms of the directions, so given to the bail applicant, the bail applicant had gone, with his brother, namely, Ramesh Chand Tiwari, to the police station and, since then, the Page 5 bail applicant had been kept detained there until 3:45 pm, when his bail bond was accepted.
(v) Apart from what the Court had been informed by the bail applicant, as indicated above, the O/C, PBPS, too, submitted to the Court that on appearance of the bail applicant, at the said police station, he (i.e., the O.C, PBPS) had directed the Investigating Officer (in short, 'I/O') to release the applicant on bail, but he was told by the I/O that he (I/O) had been instructed, by the Senior Superintendent of Police, Guwahati (City), not to let the bail applicant go on bail. The O/C, PBPS, also submitted to the Court that he had, over phone, personally, talked to the Senior Superintendent of Police, Guwahati (City), but he too was instructed by the Senior Superintendent of Police, Guwahati (City), not to release the bail applicant, on bail, on the ground that the bail applicant had violated the orders of the Court.
(vi) Considering the fact that no order(s), passed by the Court, appeared to have been violated by the bail applicant, the Court formed the view that the directions given by the Senior Superintendent of Police, Guwahati (City), and the conduct of the I/O had created serious impediments in the course of administration of justice and that such action would not only undermine the majesty of law, but also weaken the confidence of the people in the rule of law. The Court, therefore, directed the Senior Superintendent of Police, Guwahati (City), hereinafter referred to as 'the SSP(City)', and the I/O to appear, in person, in the Court, on 14-02-2007, at 10:30 am, and submit their explanations, in writing, as to why action, as permissible in law, shall not be taken against them in the light of the facts as stated above.
Page 6
(vii) The order, passed by the Court, at 4:15 pm, on 13-02-2007, reads as under:
"Later on at 4-15 p.m. In compliance with the directions, given hereinabove today, the Officer-in-Charge, Paltan Bazar Police Station, is present in the Court along with the petitioner, namely, Umesh Chand Tiwari. According to what the petitioner states before this Court is that on 12.02.07, the Investigating Officer of the case, namely, K. Mandal, a Sub-Inspector, had visited the petitioner‟s shop and asked him to come to the police station for obtaining bail and, in terms of the directions, so given, to the petitioner, the petitioner went with his brother, Ramesh Chand Tiwari, to the police station and since then, he had been kept detained there until 3-45 p.m. today, when his bail bond was accepted.
What the Officer-in-Charge, Paltan Bazar Police Station, submits before this Court is, to say the least, shocking, for, he states that upon appearance of the petitioner at the police station yesterday, he (i.e. the Officer-in-Charge) had directed the Investigating Officer to release the petitioner on bail, but he was told by the Investigating Officer that he (Investigating Officer) had been instructed by the Senior Superintendent of Police, Guwahati (City), not to let the petitioner go on bail. The Officer-in-Charge, Paltan Bazar Police Station, also submits that he had, over phone, personally talked to the Senior Superintendent of Police, Guwahati (City), but he was also instructed by the Senior Superintendent of Police, Guwahati (City), not to release the petitioner, on bail, on the ground that the petitioner had violated the orders of the Court.
As no order(s) of the Court appears to have been violated by the petitioner in the present case, the directions given by the Senior Superintendent of Police, Guwahati (City), and the conduct of the Investigating Officer have created serious impediments in the course of administration of justice. Such action will not only undermine the majesty of law, but also weaken the confidence of the people in the rule of law.
Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the Senior Superintendent of Police, Guwahati (City), and the Sub-Inspector of Police, Mr. K. Mandal, shall appear, in person, in this Court tomorrow, i.e. on 14.02.07 at 10-30 a.m. and submit their explanation, in writing, as to why action, as permissible in law, shall not be taken against them in the light of the facts as stated above.
The Officer-in-Charge, Paltan Bazar Police Station, is hereby directed to serve copies of this order on the Senior Superintendent of Police, Guwahati (City), and Sub-Inspector of Police Mr. K. Mandal. The Officer-in-Charge, Paltan Bazar Police Station, and the petitioner shall also remain present in this Court on the date and time as directed hereinbefore.
Let a copy of this order be also furnished to the Director General of Police, Assam, who shall ensure appearance of the officers aforementioned in the Court on the date and time as aforementioned. Let the Officer-in-Charge, Paltan Bazar Police Station, serve the copy of this order on the Director General of Police, Assam.
Page 7 Let a copy of this order be also furnished to the Public Prosecutor, Assam.
Bring the above directions to the notice of the Deputy Registrar (Judicial)."
C. EVENTS OF 14.02.2007
(i) On 14-02-2007, the SSP (City), the O/C, PBPS, and the I/O appeared, in person, in the case. The bail applicant too presented himself, in the Court, with his learned counsel. The Court noticed that the explanation, which the SSP, Guwahati (City), had offered, ran contrary to what had been submitted, in the Court, on 13-02-2007, by the bail applicant and the O/C, PBPS, inasmuch as the statement, made by the O/C, PBPS, was that it was the SSP, Guwahati (City), who had ordered him not to release the bail applicant on bail, whereas the SSP, Guwahati (City) contended that, on being informed, over phone, by the O/C, PBPS, that the bail applicant had been granted anticipatory bail in connection with the case aforementioned, he had instructed the O/C, PBPS, not to release the accused until and unless competent and satisfactory bailor was produced to get him released on bail and that there was no blanket direction given by him, i.e., SSP, Guwahati (City), to the O/C, PBPS, not to at all release the bail applicant. The relevant portion of the explanation, offered by the SSP, Guwahati (City), read as under:
"That the deponent begs top state that on 12.02.2007 the applicant/petitioner Shri Umesh Chand Tewari was brought to the Paltanbazar Police Station by s.I. Kukhendra Mandal in connection with Paltanbazar Police Station Case No. 68/2007 u/s 353 IPC and was arrested. After arrest the said Umesh Chand Tewari produced a Xerox copy of the order of the Hon‟ble High Court dated 09.02.2007 passed in B.A. 433/2007. At that time only it came to the knowledge of the police officer that he has been granted anticipatory bail in connection with aforesaid case. Thereafter, the said accused produced a Xerox copy of the said order before the Page 8 investigating officer and that too without producing any competent bailor upto the satisfaction of arresting officer. This matter was informed to the deponent over phone by the officer-in-charge of the Paltanbazar Police Station to which the deponent instructed him not to release the accused until and unless competent and satisfactory bailor is produced to get him release on bail.
In this connection it is to be stated that the informant of the Paltanbazar Police Station Case No. 68/2007 was Smti Madhuchandra Talukdar, ACS, Executive Magistrate, Kamrup (Metro) District who in her statement clearly stated that due to hindrance and obstacles created by cleanliness drive of the greater Guwahati City keeping in view of the national interest and the dignity of the people of Assam, who rather created some provocative actions which are disgraceful and may bring great wrath of the higher authority. As such the deponent asked the officer-in-Charge to be fully satisfied regarding the veracity and credibility of the bailor, and thereafter to release the accused on bail as ordered.
The deponent further begs to state that he never asked to the Investigating Officer not to release the accused/petitioner on bail rather asked the Officer-in-Charge, Paltanbazar Police Station not to release the accused without credible surety. The deponent never intended to undermine the majesty of law or the supremacy of the judiciary rather wanted that by producing a non credible bailor the accused can not get scot free which might go as a wrong message to the persons who are creating obstacle, and disturbing the public servants in executing their assigned duties in an appropriate manner so that the state do not suffer due to some ugly activities or the few persons like the accused/ petitioner."
(ii) As far as the I/O is concerned, his explanation, submitted, by way of affidavit, on 14-02-2004, read as under:
"On being produced the order dated 09.02.2007 passed by this Hon‟ble Court in B.A. 422/2007 granting pre-arrest bail in connection to the said P.S. Case.
On the other hand, I had, in the meantime, prepared the bail bond as per procedure. When I produced the bail bond prepared by me to the Officer-in-Charge, I was directed by the Officer-in-Charge Page 9 that the bail bond should not be executed until his further direction of the ground that the Officer-in-Charge had taken up the matter with the higher authorities, for obtaining clarification whether the photocopy of the certified copy of the bail order be accepted or not.
Thereafter, I had received the order/direction of the Officer-in- Charge at about 3.30 P.M. on 13.02.2007 to execute the bail bond which I had complied with immediately, after examining the certified copy of the bail order.
I beg most respectfully to submit that the accused, Sri Umesh Chandra Tewari was till then detained in the Police Station without putting him inside the lock-up and during this time I had recorded his statement under Section 161 I.P.C.
I beg further to submit mot respectfully that the detention of the accused, Shri Umesh Chandra Tewari from 07.00 P.M. on 12.02.2007 to 03.00 P.M. on 13.02.2007 had already been explained before this Hon‟ble Court on being physically presented by the Officer-in-Charge in compliance to your Honour‟s direction/order which explanation of him do wholly admit."
(iii) From the affidavit of the I/O, his version appears as under:
The I/O brought the bail applicant to the police station, on 12-02-2007, at about 8:30 pm. The bail applicant produced the order, dated 09-02-2007, granting pre-arrest bail to the bail applicant in connection with the said case. The I/O prepared bail bond as per the procedure and when he produced the bail bond to the O/C, he was directed by the O/C that the bail bond should not be executed until he gives further direction, for, according to the O/C, he had taken up the matter with higher authority for obtaining clarification whether the photocopy of the certified copy of the bail order be accepted or not and it was only on the following day, i.e., on 13-02-2007, at about 3:30 pm, that he received a direction from the O/C to execute the bail bond, which he accordingly complied with. By his report, the I/O prayed for being Page 10 excused for the lapse committed by him in not complying with the order of High Court.
(iv) Apart from the fact that the Court noticed, on 14.02.2007, that the explanation, offered by the two officers, namely, SSP (City) and the O/C, PBPS, were not tallying with each other, the Court, on query being made from the O/C, PBPS, also came to learn that the General Diary of the said police station had, admittedly, not been maintained since 08-02-2007 and, hence, no entry had been made with regard to the fact that the bail applicant had appeared, at the said police station, on 12-02-2007 and 13.02.2007.
(v) What was, however, not in dispute is that the bail applicant had, indeed, appeared, on 12.02.2007, at the said police station, on being directed by the I/O and he was kept detained there until the time he was directed by the Court, by its order, dated 13-02-2007, to be produced before the Court by the O/C, PBPS.
(vi) The Court further noticed that even the case diary had not been maintained inasmuch as the case diary did not even reflect as to what action was taken by the I/O since after 03-02-2007, though the petitioner had, admittedly, appeared, at the police station, on 12-02-
2007 and he had been, admittedly, kept there till he was produced before this Court as mentioned above. The case diary did not, in fact, indicate that the I/O had even recorded the presence of the bail applicant at the said police station or the fact as to whether the bail applicant had been interrogated or not. The case diary gave absolutely no indication that the bail applicant was not allowed to leave the police station for the reason that he had not furnished certified copy of the order, dated 09-02-2007, passed in Bail Application No. 422 of 2007, whereby the bail applicant had been granted interim pre-arrest bail. The case diary also did not Page 11 reveal that proper surety or bailor was not offered by the bail applicant and/or that it was due to the bail applicant's failure to offer proper and adequate surety that the bail applicant had been kept detained at the said police station.
(vii) The Court concluded, albeit tentatively, that the perusal of the case diary prima facie demonstrated perfunctory nature of investigation, if not wholly manipulative. The maintenance of the General Diary of PBPS, the relevant case diary and the manner of investigation, according to the Court, reflected complete lack of supervision.
(viii) The Court, therefore, directed the SSP (City), the O/C, PBPS, and the Investigating Officer, to submit, in writing, as to what had actually happened at the said police station and in what circumstances, the bail applicant was, eventually, released. The Court also directed that no punitive action against any of the officers, concerned with the affairs of the said case, shall be taken by the authorities concerned without obtaining leave of this Court, for, when this Court is in seisin of the matter, any act or omission, which may adversely affect progress of the enquiry being made by this Court, would not be in the interest of justice. The Court, on complaint being made, on behalf of the bail applicant, further directed that the bail applicant or anyone connected with him should not be intimidated or threatened by any of the police personnel so as to affect adversely further progress of the case. The bail applicant, namely, Umesh Chandra Tiwari, too was directed by the Court to submit, in writing, as to what had actually happened at the said Police Station and in what circumstances, he was, eventually, released. The conclusions drawn by the Court and the directions given, on 14-02-2007, read as under:
"In the backdrop of what have been indicated above, it will be unfair and unjust to come to a definite conclusion as regards the complicity or otherwise of the officers concerned without giving them any Page 12 effective opportunity to have their say in the matter. Situated thus, it is hereby directed as follows:
(a) The Officer-in-Charge, Paltan Bazar Police Station, shall submit, in writing, to this Court his version vis-à-vis the ones, which have been presented by the Investigating Officer and the Senior Superintendent of Police (City), Guwahati.
(b) The Senior Superintendent of Police (City), Guwahati, and S.I., K Mandal may also submit any further or additional explanation to this Court, if they so wish.
(c) The petitioner, namely, Umesh Chandra Tiwari, is also directed to submit, in writing, as to what had actually happened at the said Police Station and in what circumstances, he was, eventually, released."
D. EVENTS OF 22.02.2007
(i) When the matter came up on 22-02-2007, further disturbing
facts were brought to the notice of the Court inasmuch as what the bail applicant alleged before the Court was that the Deputy Superintendent of Police (in short, 'the DSP'), Guwahati City, had asked the bailor of the bail applicant to leave PBPS and the DSP, Guwahati City, had further told the bail applicant and his bailor that no bail would be granted to the bail applicant.
(ii) As had been directed on 14-02-2007, the bail applicant, namely, Umesh Chandra Tiwari, filed, on 22.02.2007, a detailed affidavit narrating, in a sequence, the events, which, according to the bail applicant, had taken place since after his appearance at the PBPS, till his release from police custody. Broadly speaking, what transpired from the affidavit, so filed by the bail applicant, were as under:
(a) An application seeking to obtain certified copy of the interim directions for pre-arrest bail, passed, on 09-02-2007, in the said case, was made on 09-02-2007 itself; but, as 10-02-2007 and 11-02-2007 were declared holidays, the certified copy had been handed over to the bail applicant on 12-02-2007 at about 11:00 am and when the bail applicant came to his office, he was Page 13 informed by his office staff that Sub-Inspector, namely, Shri K Mandal, had come in the afternoon and taken the bail applicant's mobile number and, thereafter, at about 6 pm, on that day, i.e., 12-02-2007, the said Sub-Inspector called the bail applicant, on mobile phone, and, on coming to know that the bail applicant was in his office, Sub-Inspector, Shri K Mandal, asked the bail applicant to stay there and, within about 5 minutes, the said police officer reached the office of the bail applicant and told the bail applicant that he (bail applicant) stood arrested, whereupon the bail applicant showed, to the said police officer, the certified copy of the order, passed by the Court, granting interim directions for pre-arrest bail in favour of the bail applicant and the bail applicant, then, requested the said police officer to release him (i.e., the bail applicant) on bail.
(b) According to this affidavit, filed by the bail applicant, the bail applicant's brother, namely, Shri Ramesh Ch. Tiwari, stood as bailor, but the said police officer, namely, the Investigating Officer, told him to come to the police station, where he would be granted bail. It is in the affidavit of the bail applicant that accompanied by his brother, the bail applicant went to the police station and reached there at about 6:30 pm and, on reaching the police station, Sub-Inspector, Shri K Mandal, (i.e, the Investigating Officer) started the process of releasing the bail applicant on bail and also started recording the events of 03-02-
2007, which had given rise to the case against the bail applicant, and when the bail applicant was narrating the events of 03-02- 2007, the O/C, PBPS, came to his office chamber, at the said police station, whereupon Sub-Inspector, Shri K Mandal, took the bail applicant, along with the papers, which the bail applicant and Page 14 his bailor had produced, to the office chamber of the O/C, PBPS, and also informed the O/C, PBPS, that the bail applicant had brought the order of the High Court along with bailor and asked the O/C, PBPS, as to what he(Investigating Officer) should do.
(c) The bail applicant's said affidavit also discloses that after thinking for about five minutes, the O/C, PBPS, talked with someone on his office phone and told, on phone, the person, on the other side, that Sub-inspector, Shri K Mandal, had arrested the accused, Umesh Chandra Tiwari, who is having interim bail from the High Court, and further disclosed, over the phone, that the bail applicant had come to the said police station with his bailor and asked, on his phone, as to what he should do.
(d) In fact, what the bail applicant further averred, in his said affidavit, reveals, if true, a shocking state of affairs. The remaining portion of this affidavit is, therefore, reproduced hereinbelow:
"After thinking about 5 minutes, the Officer-in- Charge by his official phone was talking about me with somebody and told that S.I. K. Mandal has arrested the accused Umesh Chandra Tiwari who has an order of interim bail of the High Court. The O/C further disclosed over phone that I had come alongwith the bailor and the necessary documents and now what he should do. For about 5 minutes I only heard the O/C time and again saying „yes sir‟ - „yes sir‟.......... But looking at the face of the O/C I could see that he has been asked to do something which he does not want to do. After hanging up the phone he started doing other works. S.I. K. Mandal went to his room. I was kept standing there at the O/C‟s chamber. After about half an hour, the O/C again by his official phone started talking about me to somebody and I heard him saying that Sir if we do not release the accused we may face contempt of Court proceedings. After that I do not know what was said over phone to the O/C that he started sweating in his face Page 15 and he kept the phone and was holding his head with his hand. The O/C then told me that you go to the chamber of S.I. K. Mandal and sit over there. I went to the chamber of S.I. K. Mandal and sat over there in a chair. My bailor/brother was asked to go out of the room. After realizing that there is some obstructions for my release from custody. I rang up Sri C.S. Tiwari who is an officer in C.I.D. and told him to enquire as to why I have not been released from custody inspite of there being an order of the Hon‟ble Court. C.S. Tiwari told me that he would talk to the Officer -in - Charge. After about 10.00 P.M. a police officer with three stars alongwith the O/C and S.I. Mandal came to the room where I was there. Later on I came to know that the three star police officer was D.S.P. Fakrul Islam. D.S.P. looked at my bailor and asked who is that person. When he was told that he is my bailor, the D.S.P. asked my bailor to go away and told that no bail can be granted to him. Then my bailor left the place where he was standing. I was kept sitting in the chamber of S.I. K. Mandal. At about 11.00 P.M. all the police personnel who were with me left the police station. I did not go to the police station by making any arrangement because of S.I. K. Mandal had told me that I would be released at the police station within one hour. For the whole night I sat in the police station shivering in the cold with mosquito bites. There was no question of me sleeping over there. From 6.30. P.M. in the evening of 12.02.2007 I sat in the police station without any food or water till 3.45 P.M. of 13.02.2007. I am also a patient of high blood pressure and every morning and night I had to take medicines of high blood pressure. Lastly, on 11.12.2006 I had returned after getting myself examined at Apollo Hospitals, Chennai. The attending doctors had kept me in the high risk zone. If required I can furnish the medical documents during the hearing of the case.
That on 13.02.2007 at about 9.00 A.M. in the morning my advocate Sri Rajib Kalita visited me at Paltan Bazar Police Station and enquired about me. I narrated him about my detention and the refusal by the police to release me from custody. At that time the aforesaid police officers was not Page 16 present at the police station. I heard the police personnel staying there with me saying that they are helpless. Sri Rajib Kalita told me that an application on my behalf would be filed before the Hon‟ble High Court regarding my detention at Paltan Bazar Police Station today itself.
That about 11.00 P.M. a police personnel came and snatched away my mobile phone and told me that he was instructed by the D.S.P. over telephone. My mobile was switched off and he kept the same with him. Till 12.00 noon of 13.02.2007 neither I could see S.I. Mandal or the Officer - in - Charge of the Paltan Bazar Police Station. I overheard the conversation of the other police personnel that they would keep me at the police station for the whole night of 13.02.2007 and on 14.02.2007 they would show my arrest from a different place and would produce me before the Court. Then they would tear the certified copy of the interim order of the Court and tell that the same was never produced by me. I could not disclose this conversation to any body and I was getting more nervous. My blood pressure was rising as I could not take the medicines and I have been kept starving without food. At about 2.30. P.M. of 13.02.2007, S.I. K. Mandal came to his chamber and I enquired what is happening about me. S.I. Mandal told that I cannot disclose to you anything about it. At about 3.30. P.M. the whole atmosphere in the police station changed. S.I. K. Mandal hurriedly came and told me that you have been granted bail and you may call your bailor immediately. I then told him that my mobile has been taken away by a police personnel at the instruction of the D.S.P. S.I. Mandal then went and brought my mobile phone and asked me to bring the bailor. I called my bailor over my phone and asked him to come to the police station immediately. But the police officers who was standing there was getting restless and was looking at their watches time and again. At about 3.45. P.M. of 13.02.2007 my signature was taken at the bail papers at the police station and asked me to call my bailor to the High Court directly. I then again asked my bailor to come to the High Court forthwith who by then was proceeding towards the police station. S.I. Mandal and O/C Paltan Bazar Page 17 took me in their police gypsy and entered the premises of the High Court at about 4.00 o‟clock in the evening. At about 5.00 in the evening I was allowed to leave the premises of the Hon‟ble Court.
That after my release from custody I was mentally and physically exhausted and I was feeling that my blood pressure has increased substantially. I got my blood pressure examined and it was found to be 110/170. I immediately took the medicines and slept there in my friend‟s place.
That in the morning of 14.02.2007 when I went to my home I came to know that the police personnel came to my house and told that if anything is disclosed against them then they would arrest me in a different case and put me inside the jail. I will be always indebted before this Hon‟ble Court that the Hon‟ble Court by its rapid action has facilitated my release from the custody of the police. Otherwise, if I had been kept at the police station without food and medicines I would have suffered brain haemorrhage due to my high blood pressure. At the police station I also came to know that the husband of the complainant of Paltan Bazar P.S. Case No. 68/2007 is a Superintendent of Police and therefore the police officers are after me. During my twenty hours of detention of Paltan Bazar Police Station I came to realise that the said Police Station is not controlled by the Officer - in - Charge but my some other senior police personnel and it is a per his dictation all acts are being done.
That on 09.02.2007 itself, the certified copy of the aforesaid order granting anticipatory bail was applied by the Advocate‟s Clerk. Since 10.02.2007 and 11.02.2007 was declared holidays of the Hon‟ble Gauhati High Court, the certified copy of the said order was handed over to me by the Advocate‟s Clerk on Monday i.e. 12.02.2007 at about 11.00 A.M. Thereafter, I went to the market for official works and reached my office chamber at 4 o‟clock in the evening located at Sarab Bhatti, A.K. Azad Road, Guwahati. Immediately, thereafter, I was informed by my office staff that S.I. K. Mandal came to my office at about 2 o‟clock in the afternoon and took my mobile phone number. At 6.00 P.M., S.I. K. Page 18 Mandal called me up in my mobile and asked about my whereabouts. When I replied that I was in my office, S.I. K. Mandal asked me to stay there and he is coming over. After about 5 minutes S.I. K. Mandal reached my office and told me that he has arrested me. I then showed him the original certified copy of the order granting anticipatory bail by the Hon‟ble Court and requested him to grant me bail. I also called by brother Sri Ramesh Chand Tiwari to stand as bailor for me to my office. S.I. K. Mandal told me that you have to go to the police Station and there you would be granted bail. Thereafter, I along with my bailor followed SI, K Mandal‟s motor cycle to Paltan Bazar Police Station and reached there at about 6:30 pm. SI, K Mandal, then, went and set in his chair at Paltan Bazar Police Station and started doing the official formalities to release me on bail. SI, K Mandal perused the original certified copy of the order passed by the Hon‟ble Court and also the land documents and the NSC (National Saving Certificate) of Rs. 5,000/- in the name of my brother, Shri Ramesh Chand Tiwari, who stood bailor for me. SI, K Mandal, completed the entire formalities for granting me bail except taking the signatures of my brother and mine. At that time, the Officer-in-Charge, Paltan Bazar Police Station, was not present at the Police Station. SI, Mandal, then, started reporting the events that had taken place on 03-02-2007, as narrated by me. When half of the events as narrated by me was recorded by SI, Mandal, at that time, the Officer-in- Charge, entered his official chamber. Immediately, SI, K Mandal, along with all the papers took me to the official chamber of the Officer-in-Charge, and told him that he had brought the accused. SI, Mandal, also told the Officer-in- Charge, that I have brought the order of the Hon‟ble Court along with the bailor and he has perused it and asked him as to what he should do now. After thinking about five minutes, Officer-in-Charge, by his official phone was talking about me with somebody and told that SI, K Mandal, has arrested the accused, Umesh Chandra Tiwari, who has an order of interim bail of the High Court. The Officer-in-Charge, further disclosed over phone that I had come along with the bailor and the Page 19 necessary documents and, now, what he should do. For about five minutes I only heard the Officer-in-Charge, time and again saying "yes sir" - "yes sir"......... but looking at the face of the Officer-in-Charge, I could see that he has been asked to do something, which he does not want to do. After hanging up the phone, he started doing other works. SI, K Mandal, went to his room. I was kept standing there at the O/C‟s chamber. After about half an hour, the O/C again, by his official phone started talking about me with somebody and I heard him saying that Sir if we do not release the accused, we may face contempt of Court proceedings. After that, I do not know what was said over phone to the O/C that he started sweating in his face and he kept the phone and was holding his head with his hand. The O/C, then, told me that you go to the chamber of SI, K Mandal, and sit over there. I went to the chamber of SI, K Mandal, and set over there in a chair. My bailor/brother was asked to go out of the room. After realizing that there is some obstructions for my release from custody, I rang up Shri CS Tiwari, who is an officer in CID and told him to enquire as to why I have not been released from custody in spite of there being an order of the Hon‟ble Court. CS Tiwari, told me that he would talk to the O/C. At about 10 pm, a police officer with three stars along with the O/C and SI, Mandal, came to the room, where I was there. Later on, I came to know that the three star police officer was DSP, Fakrul Islam. DSP looked at my bailor and asked who is that person. When he was told that he is my bailor, the DSP asked my bailor to go away and told him that no bail can be granted to him. Then, my bailor left the place, where he was standing. I was kept sitting in the Chamber of SI, K Mandal. At about 11 pm, all the police personnel, who were with me, left the police station. I did not go to the police station by making any arrangement because SI, K Mandal told me that I would be released at the police station within an hour. For the whole night, I sat in the police station shivering in the cold with mosquito bites. There was no question of me sleeping over there. From 6:30 pm, in the evening of 12-02-2007, I sat in the police station without any food or water till 3:45 pm of 13-02-2007. I am also a patient of Page 20 high Blood Pressure and every morning and night, I had to take medicines of high Blood Pressure. Lastly, on 11-12-2006, I had returned after getting myself examined at Apollo Hospital, Chennai. The attending doctors had kept me in the high risk zone. If required, I can furnish the medical documents during the hearing of the case."
(iii) From the averments made in the affidavit of the bail applicant, what transpires is that the I/O, on his visit to the bail applicant's office, on 12-02-2007, in the evening, had been shown a certified copy of the order, whereby the Court had granted interim directions for pre-arrest bail in favour of the bail applicant. Though the bail applicant's affidavit also shows that the I/O could have released the bail applicant on bail, at the bail applicant's office itself, the I/O asked the bail applicant to go to PBPS and, accompanied by his brother, who was to stand as surety, the bail applicant did reach the police station, where the I/O started preparing the process for releasing the bail applicant on bail. According to the bail applicant's affidavit, it was at the time, when he (bail applicant) was narrating the events, which had led to the registration of the case against him (bail applicant), that the O/C, PBPS, appeared there and it is the O/C, who stopped the I/O from releasing the bail applicant. In fact, the bail applicant's affidavit further shows, in tune with the version of the O/C, PBPS, that it was some superior authority, who had directed the O/C, PBPS, not to release the bail applicant despite the fact that the authority, who had issued such a direction, knew that the bail applicant had been granted interim pre- arrest bail by the High Court.
(iv) In view of the fact that the bail applicant's said affidavit had also alleged that the then DSP, Guwahati City, had asked the bailor of the bail applicant to leave PBPS and had also told the bail applicant and his bailor that bail would not be granted to the bail applicant, the Court Page 21 formed the view that in the face of the said materials, the said DSP should be allowed to have his say in the matter, for, what had been alleged by the bail applicant would, if true, expose the DSP, Guwahati (City), to penal action. The Court accordingly directed the DSP, Guwahati (City), to appear, in the Court, on 23-02-2007 and submit his explanation as to why action shall not be taken against him in accordance with law.
E. EVENTS OF 23.02.2007 On the following day, i.e., on 23-02-2007, the DSP, Guwahati (City), along with his learned counsel, appeared and, on that day, the O/C, PBPS, filed his affidavit and also produced a draft/rough copy of the General Diary, maintained at the said police station. The General Diary was directed by the Court to be kept, in sealed cover, in the custody of the Deputy Registrar (Judicial). As the DSP, Guwahati (City), asked for time to submit his explanation, the case was directed to be listed on 27-02-2007. Similarly, the case diaries of PBPS Case Nos. 68/2007 and 69/2007, which had been produced by the learned Public Prosecutor, were also directed to be kept, in sealed cover, in the custody of the Deputy Registrar (Judicial).
F. EVENTS OF 28.02.2007
(i) The affidavit filed by the DSP, Guwahati (City), on 28.02.2007, read as under:
"Thereafter I went to my office at Panbazar Police Station and was there till 11.00 pm. At about 11.05. pm I left for Paltan Bazar Police Station to brief the staff. I stayed there for about 10 minutes and instructed the staff regarding the maintenance of law and order during the National Games as two of the stadia falls under the Paltan Bazar Police Station, after which I left for field duty. During my brief visit to the Paltan Bazar Police Station I had also met the Officer -in- charge in the Paltan Bazar Police Station. The Officer-in-
Page 22 charge did not tell me anything about Umesh Chandra Tiwari and I had no knowledge of the same. I came to know about the incident only in the second half of the following day, that is, on 13.02.2007.
That on 13.02.2007 I reported for duty at the Panbazar Police Station in the morning. At about 11.00 A.M. I went to the All Women Police station for interrogation of the aforementioned extremist. I returned to my office at 12 noon. At 3.00 P.M. I along with sub- Inspector of Police, J.N. Deka and others went to the Court of the Learned Chief Judicial Magistrate, Kamrup were the said accused was to be produced. As the case was a sensitive one and having apprehended the accused person myself, I deemed it appropriate to be personally present in the Court as the Learned Chief Judicial Magistrate may enquire and / or require the presence of the officer apprehending the accused person. I considered it appropriate that I should be present in the Court of the Chief Judicial Magistrate more so because of the fact that the investigating officer, Sri J.C. Nath of the said case had left for Silchar on some official duty. At about 6.00 P.M. I left for my office from the Court of Learned Chief Judicial Magistrate, Guwahati.
That I humbly stated that in view of the facts and circumstances stated herein above, the question of going to the Paltan Bazar Police Station at 3.20 P.M. and enquiring about the fate of the instant case does not arise. I humbly stated that I was not aware about the incident of not granting of bail to Umesh Chandra Tiwari till the second half of 13.02.2007.
That I crave leave of this Hon‟ble Court to place before this Hon‟ble Court that I, as a Deputy superintendent of Police have always insisted upon the Officer-in-Charge of the Police stations under me that they maintained the General Diary properly and without any delay and or default. In fact on 14.02.2007 I checked the General Diary of Paltan Bazar Police Station at 10. 30 P.M. and I found that the General Diary was pending since 12. 10 A.M. of 09.02.2007. I instructed the Officer-in-Charge not to keep the General diary pending. I also reported the matter to the Senior Superintendent of Police, City Guwahati on 15.02.2007. There is a General Diary Entry to this effect.
On 22.02.2007, I was directed by the Senior Superintendent of Police, City, to report to him on the G.D Entries of the Paltan Page 23 Bazar Police Station. Accordingly, I went to the Paltan Bazar Police Station on 22.02.2007 and enquired about the General Diary Entries from 6.2.2007 to 15.2.2007 but I came to know from U.B.C- 4126 Mukunda Nath (Constable) that the officer-in-Charge had taken the General Diary to his residence on 19.2.2007. in the circumstances I recorded the statement of Constable Mukunda Nath in that connection. Accordingly, I reported the fact to the Senior Superintendent of Police in writing under Memo No. DSP/PNB/DIV/07/35 dated 23.2.2007. A copy of the said statement was also enclosed in my report to the Senior superintendent of Police. An extract of the General Diary of my visit to the Paltan Bazar Police Station was also enclosed."
(ii) In support of his affidavit, the DSP produced a copy of a statement made by Constable, Mukunda Nath, which read as under:
"I Sri UBC/4126 Mukunda Nath I.C of Paltan Bazar PS. Normally I maintain the general diary entry as directed by O/C Paltan Bazar PS. On 19-02-2007, I have been instructed by O/C Kandarpa Chamua to hand over the GDE in respect of GDE from 6-2-07 to 15- 2-07 at 8PM and it was since then under the custody of OC. I do not know the reason why the particulars of GDE was kept with O/C. Today on 22-02-2007 at 5:15 PM Dy. SP Paltan Bazar Division visited the police station and enquired about the GDE, on his enquiry I told him that as instructed by the O/C Paltan Bazar PS the said GDE has been kept with the O/C. Entry which was already been made that has been modified as directed and dictated by O/C himself at Investigating Officer‟s room. There was none at that moment in that room. The aforesee change and/or modification has been made on 18/02/2007 around 1:30 PM. This is my statement."
(iii) The report, which the said Constable is claimed to have given to the DSP, Guwahati (City), showed (if the report were true) that the General Diary was taken away by the O/C, PBPS, and that entries, which had been earlier made, were, subsequently, modified as directed and dictated by the O/C himself at the I/O's room and that the Page 24 modification was made on 18-02-2007 at around 1:30 pm.
(iv) According to the affidavit filed by the DSP, Guwahati, (City) he went to PBPS, on 12-02-2007, at about 11.05 pm, to brief the staff with regard to maintenance of law and order during the National Games as two of the stadia fall under PBPS and he remained there for about 10(ten) minutes and, then, he left for field duty and though, during his brief visit to the said police station, he had met the O/C, PBPS, the O/C, PBPS, never told him about the bail applicant nor did the O/C, PBPS, ask him to talk to the SSP, Guwahati, (City), and he, i.e., DSP Guwahati, (City), came to know about the incident, as regards the factum of non- release of the bail applicant, only in the second half of the following day, i.e., on 13-02-2007. The DSP Guwahati, (City) also denied that he had visited PBPS on 13-02-2007 at about 3:20 pm.
(v) As regards poor performance of the said police station, the DSP, Guwahati, (City) averred, in his affidavit, that he always insisted upon the O/C of all police stations, under him, to maintain the General Diary without any delay or default and that he had found that the General Diary was pending since 12:10 am of 09-02-2007 and he, therefore, called for an explanation, in this regard, from the O/C, PBPS, and that, in the explanation given by the O/C of the said police station, it was admitted that sometimes, a rough General Diary was maintained due to work load and law and order duties, shortage of staff/personnel and that entries made, in the rough diaries, are, thereafter, entered into the original General Diary.
(vi) In the affidavit, the DSP, Guwahati, further averred that on 22-02-2007, he was directed by the SSP, Guwahati, (City), to report to him about the General Diary entries of PBPS and he, accordingly, went to Page 25 the said police station on 22-02-2007 itself and enquired about the entries from 06-02-2007 to 15-02-2007, but he came to know from Constable Mukunda Nath that the O/C had taken away the General Diary to his residence on 19-02-2007, whereupon he, i.e., DSP, Guwahati, (City), recorded the statement of the said Constable and reported the matter to the SSP, Guwahati (City).
G. EVENTS OF 13.03.2007 By, however, filing an affidavit, on 12-03-2007, the said Constable, Mukunda Nath, denied, contrary to what the DSP had averred on 23.02.2007, that the General Diary entries were modified or altered at the direction or dictation of the O/C on 18-02-2007 or on any other date. The Constable further alleged that the DSP, Guwahati, had put pressure on him and had forced him to put signature on a hand-written paper, whereby it was made to appear as if the General Diary had been altered or modified by the O/C. H. EVENTS OF 22.03.2007 The DSP, Guwahati, then, filed, on 22.03.2007, another affidavit, wherein he denied and disputed the correctness and veracity of Constable Mukunda Nath's affidavit, whereunder the said Constable had averred that he had been forced to give statement as indicated above, In support of his plea that the earlier statement was given by the said Constable without duress, the DSP, Guwahati, relied upon the Second Officer of the said police station, who too filed an affidavit, wherein he supported the stand of the DSP, Guwahati (City), and contended, in tune, with the DSP, Guwahati (City), belying the averments of the said Constable, that the said Constable had been put to duress and/or that his statement was forcibly obtained. The affidavit-in-reply was, Page 26 thereafter, filed by the said Constable denying and disputing the fact that he had voluntarily given the statement, which had been filed in the Court by the DSP, Guwahati.
5. From the chronology of facts, as narrated above, it becomes apparent that if not the other police station, Paltanbazar Police Station has, at least, the unique system of maintaining rough General Diary. Maintenance of General Diary is, we must bear in mind, not a mere formality. It has certain object, the object being that General Diary reflects the entire record of events, which may take place and/or reported to during 24 hours of every day within the area of the concerned police station.
6. Rule 53 of Part V of Assam Police Manual provides that the Officer- in-Charge of a Police Station is under obligation to ensure proper and punctual maintenance of General Diary. Rule 53 (c) provides that every occurrence, which may be brought to the knowledge of the police officials, be entered in the General Diary at the time at which the matter was communicated. Rule 53 (d) provides that in the General Diary will be recorded, as concisely as is compatible with clearness, all information lodged and charge preferred whether cognizable or not, the names of the informants, the names of all persons arrested, the offences charged against them, the weapons and property of which police have taken possession and the names of the witnesses who have been examined.
7. In the present case, as already indicted above, there is no record as to what had happened between 08.02.2007 and 13.02.2007; how many offences were reported to the police station; what actions were taken by the police station; how may persons came to the police station with their grievances, or had come to the police station on being directed by the Page 27 police or how many persons had appeared at the police station voluntarily or involuntarily; how many of them were detained, and for how long, at the said police station. There is absolutely no authentic record in the police station in respect of the facts stated hereinbefore. The situation not only makes one worried, but also extremely upset and, if the situation is not arrested and improved, the lives and properties of the persons, who may happen to be present within the territorial limits and jurisdiction of the said police station, would be wholly unsafe and uncontrolled by law. The situation, if not arrested or restricted, will simply mean negation of the rule of law, for, anyone will do anything with impunity, be it the police or public, and no authentic record of any kind, as to what had happened at the said police station, would ever be available, as has happened in the present case.
8. By making provisions of exercise of inherent powers, under Section 482 CrPC, by the High Court, the legislature has not merely conferred powers on the High Court, but has also put a duty on the High Court to ensure that all such orders, as may be necessary, be given. This apart, Section 482 CrPC vests in the High Court the inherent power and, at the same time, makes it the duty of the High Court to issue all such directions as may be required and to give effect to all such orders, which may be passed in the Court, or to prevent abuse of process of court and/ or to secure the ends of justice.
9. Section 482 CrPC, thus, specifies three distinct inherent powers of the Court, namely, (i) its power to give effect to any order, which may be passed by the court, (ii) power to prevent abuse of process of court and
(iii) to secure the ends of justice. Section 482 is, therefore, not ornamental. If it has to be given a meaning and substance, it has to be made effective by injecting life into it. There can be no more serious Page 28 question than the present one, which gives the High Court the power to do whatever is permissible within the ambits of law to prevent abuse of the process of courts and to secure the ends of justice.
10. The present one is a case, wherein interim directions for pre-arrest bail were granted in favour of a citizen of this country. Despite the directions, however, the man was kept detained by the police on one pretext or the other until the time the High Court, as mentioned above, directed the Officer-in-Charge of the concerned Police Station to appear, in person, along with the petitioner, who had been granted the interim directions for pre-arrest bail. Rule 190 of the Assam Police Manual requires that in respect of every case, which is registered at a police station, the Investigating Officer is required to keep the proceeding in a case diary. The case diary, under Rule 188, is required to be issued in bound books of 100 forms each. Each form has a separate printed number running consecutively throughout the book so that no two forms will bear the same number. Moreover, the Code of Criminal Procedure (Amendment) Act, 2008, effective from 31.12.2009, has introduced the following amendments in Section 172 CrPC.
(1A) The statements of witnesses, recorded during the course of investigation under Section 161, shall be inserted in the case diary.
(1B) The diary, referred to in sub-Section (1), shall be a volume and duly paginated.
11. Thus, every action, which an Investigating Officer takes in respect of a case, which has been registered and in respect whereof the case diary has been issued, shall be diligently, honestly and faithfully recorded in the case diary so that a complete and contemporaneous record of every step, taken by the Investigating Officer, in the conduct of Page 29 the investigation of an offence, may be available for a fair, just and proper trial.
12. In the present case, the case diary was not maintained, as is required under Rule 188, 189, 190, 191, 192 and 193 of the Assam Police Manual or as per the mandate of the amended provision of Code of Criminal Procedure as quoted above. It contained several loose sheets, where the statements are supposed to be recorded. This not only shows violation of the Rules of the Assam Police Manual, it also gives an indication that the way, in which the case diary was being maintained, provided ample room to freely manipulate the case diary, if so desired.
13. Thus, the loose sheets of the General Diary point towards a very dangerous possibility; and the possibility is that any offender or criminal can be shown to be innocent by simply changing the statement of the offender at a later stage and, on the contrary, an innocent person can be made an offender in the same way. It also indicates to another equally dismal state of affairs inasmuch as the State is seen to be not only a silent spectator to such glaring and flagrant violation of the law, which it had chosen to make, but also a beneficiary of such a system. There is no other reason as to why the State has not been supplying case diaries to the police stations in terms of the Rules, which it has chosen to make in order to safeguard the lives and properties of its citizens and to ensure a free, fair and just trial of every alleged offender.
14. The situation is frightening inasmuch as the case diary, in the present case, does not give the faintest of indication as to when the petitioner had appeared at the said police station, what happened after his appearance and what did he inform the Investigating Officer as regards the accusations, which had been levelled against him. The police Page 30 machinery appears to be more interested in finding out as to whether he (the petitioner) had suitable bailor or not rather than investigating the offence(s). There is not a trace of even a word, in the present proceeding, which can be shown to have been uttered by the senior police officers, directing their subordinate officers, who are entrusted with the investigation, to carry out their work honestly, diligently and in accordance with law. Accusation of commission of offence can be hurled by anyone against anyone. If a mere accusation, levelled against a person, by another person, can result to the humiliation and harassment of the accused person, one may shudder to think as to where the State is heading.
15. When called upon to explain, neither the officials of the said police station nor even the learned Advocate General could satisfy this Court as to how such collapse of criminal justice system was being ignored with impunity until the time this Court took note of the actual state of affairs and put to the notice of the higher authorities of the said police machinery the facts, which this case reveals. Nobody appeared to be aware of the fact that a system of maintaining a rough General Diary and/or a system of not recording, in the General Diary, the steps, which are relevant and contemporaneously taken by the Investigating Officer.
16. It must, however, go to the credit of the learned Advocate General that, on his instructions, a comprehensive list of guidelines, in this regard, is, now, sought to be formulated by the State. The State has also made provisions, in this respect, by enacting the Assam Police Act, 2007. It was, in such circumstance not only desirable but was also necessary to know, from the State, as to what step(s) it wants to take in order to ensure an effective, efficient and impartial investigation into every offence reported to, or brought to the notice of, a police station. In the light of the Page 31 submissions, which have been made by the learned Advocate General, and with the able assistance of the learned amicus curiae, this Court directs that the State shall act as directed hereinbelow in the matters of Case Diary, General Diary, FIR, Court Order, Arrest and Detention.
a) Case Diary:
(i) The Case Diary shall invariably be bound and paginated containing a specific number of pages.
(ii) It shall be the duty of every Senior Police Officials to inspect the case diary and to certify his satisfaction/dissatisfaction about the manner in which the case diary is maintained.
(iii) The Magistrates, too, shall inspect as to whether the provisions of Sub-Section 1A and 1B of Section 172 CrPC have been complied with or not, whenever a case diary is called for by the Magistrate. Any lapse, in this regard, shall be immediately reported to the Superintendent of Police of the district concerned so that corrective measures can be taken.
(iv) The Superintendent of Police of each district shall ensure that the case diary is, henceforth, maintained in bound book, i.e., volume as per the mandate of the amendment made to Section 172 CrPC.
(v) The blank and bounded case diaries shall be in the custody of the Officer-in-Charge of the police station and he shall be responsible for any damage or loss to case diaries, while in his possession.
(vi) The Investigating Officers shall be handed over a blank case diary only when he is entrusted with a case for investigation.
(vii) Each Investigating Officer shall be handed over as many case diaries as the number of cases he is investigating at any given point of time.
(viii) The practice of recording statements of witnesses or accused in loose sheets shall be discontinued and the statements of shall be Page 32 recorded only in the case diary. Loose sheets shall not, in any circumstance, be attached to the case diary.
(ix) If the pages of a case diary are exhausted in investigating a particular case, then, another case diary shall be issued to that officer, and the Investigating Officer shall, thereafter, record his further investigation in the other case diary.
(x) If any page, in a case diary, is damaged or there is any error in recording something in a page, that particular page shall not be torn out, but the damaged page or otherwise shall remain in the case diary and form part of the same.
(xi) Whenever the police opens the case diary, the time shall be specifically mentioned and, thereafter, everything that the officer does in furtherance of the investigation and the names of the persons whom he meets for investigation, etc., shall be mentioned alongwith the time. The diary shall be updated as soon as practicable.
(xii) The Investigating Officer shall be responsible for the loss of any page in a case diary or the diary itself and shall be accountable for the same.
(xiii) Each case diary shall have serial number assigned to it and there shall be a register which should contain the details of the case number and the name of the Investigating Officer, who was issued the case diary of the particular serial number.
(xiv) The case diary shall invariably be produced before the Magistrate in case any person is arrested and his remand is sought for.
(xv) The information technology should be used to maintain case diary, wherever it is possible.
(xvi) If the Police Officer visits or raids the house of an accused, the date and time of such visit or raid shall be maintained in the case diary Page 33 alongwith the name(s) of the persons(s), who may be present on the occasion of such visit or raid.
(b) General Diary:
(i) The General Diary shall be maintained strictly in accordance with the rules prescribed by Assam Police Manual.
(ii) The Superintendent of Police shall undertake periodical inspection, preferably, at every fortnight, of all the Police Stations and Out Posts, and shall ensure that the General Diaries are maintained properly and shall take corrective statutory measures, if required, and in case of necessity, by recommending proceedings against the erring Police personnel. The Superintendent of Police shall keep the Chief Judicial Magistrate abreast of such inspections and his findings in this regard.
(b) F.I.R:
(i) The police shall not refuse to register FIR if the complaint discloses cognizable offence. Any refusal shall be treated as misconduct on the part of the police officer.
(ii) The copy (Photostat or otherwise) of the FIR shall be given at once to the complainant and the said copy shall be endorsed by the officer accepting the FIR and shall contain the General Diary Entry number, the date, place and time of receipt of the FIR.
(iii) The substance of the information, so received, shall invariably be written in the General Diary.
(d) Court Order Register:
(i) It is directed that henceforth, every Police Station shall maintain a separate Register called the Court Order Register, which shall contain particulars, such as, serial number, nature of the Court's order, date and Page 34 time of receipt thereof, name of the Court issuing the order, date of order and the remarks regarding carrying out/implementation of the order.
(e) Arrest and Detention:
(i) The State Home Secretary and the Director General of Police shall issue instructions to all the Superintendent of Police of districts and Officer-in-Charge of every Police Station and in-Charge of every police outpost to ensure that provisions of Section 41A to 41D CrPC are strictly followed.
(ii) The CJM/Elaka Magistrate of each district shall ensure proper compliance of the statutory provisions, whenever an arrested person is produced before it.
(iii) The Officials of District Administration shall, in their periodical inspection, ensure that the duties, imposed on the Police personnel by Section 41A to 41D of the CrPC, have been followed and to make necessary notes in case of any dereliction in this regard. Any dereliction shall be, immediately, brought to the notice of the Chief Judicial Magistrate of the concerned district.
17. With the above observations and directions, this Criminal Petition shall stand disposed of.
18. The Registry is directed to send a copy of this order to the Home Secretary, Assam, the Director General of Police, the Superintendent of Police of each district and all subordinates courts under the jurisdiction of this Court for ensuring compliance.
JUDGE rk