Calcutta High Court (Appellete Side)
Sri Bhagirath Ghosh & Anr vs The State Of West Bengal on 8 July, 2014
Author: Asim Kumar Mondal
Bench: Asim Kumar Mondal
1 C.R.R. 2046 OF 2014 08.07.2014 Sri Bhagirath Ghosh & Anr.
Vs. The State of West Bengal.
Mr. Tapas Kumar Ghosh Ms. Somsubhra Ganguly ...... for the petitioners.
Mr. Manjit Singh, Ld. P.P. Mr. Amarta Ghosh Mr. Anand Keswari ......... for the State.
This application has been filed under Section 401 read with Section 482 of the Criminal Procedure Code challenging the order dated May 21, 2014 and June 3rd, 2014 passed by learned Chief Judicial Magistrate, Birbhum rejecting thereby the petitioners prayer for making confessional statement under Section 164(4) of the Code of Criminal Procedure in connection with G.R. Case No. 638 of 2013 arises out of Panrui Police Station Case No. 79 of 2013 dated July 22nd, 2013 under Sections 448/326/307/34 and subsequently added Sections 147/148/149/302 of the Indian Penal Code read with Section 25/27 of the Arms Act.
Mr. Tapas Kumar Ghosh with Ms. Somsubhra Ganguly appears on behalf of the petitioners. Mr. Ghosh submits that the petitioner No. 1 Sri Bhagirath Ghosh and 2 petitioner No. 2 Sri Subrata Roy @ Sajal Kanti Roy @ Shuvo Roy accused persons in the case as referred above. Both of them made a prayer before the learned court below for recording their statements under Sections 164 of the Code of Criminal procedure along with prayer for bail. The prayer of the petitioners was rejected. It is also submitted that since the inception of the instant case there are various anomalies with regard to the genuineness of the First Information Report lodged by the widow of late Sagar Ghosh, as a result accused Nepal Krishna Roy, Naba Krishna Roy and Manas Roy have been bailed out by this Hon'ble Court.
The petitioners wanted to record their confessional statement before the court of learned Judicial Magistrate for bringing the truth in public. But the learned Chief Judicial magistrate rejected such prayer of the petitioners on two occasions in spite of citing the decision of Hon'ble Apex Court in this regard.
Being aggrieved by and dissatisfied with the orders dated May 21, 2014 and June 3rd, 2014 the present revisional application has been filed mainly on the ground that learned Magistrate is duty bound to allow such prayer for the purpose of proper adjudication of the case and 3 learned magistrate cannot decline any accused persons to make his statement before the Court under Section 164 of the Criminal Procedure Code.
Mr. Ghosh in course of his submission submits that the observation made by the learned Chief Judicial Magistrate, Birbhum at Seuri in rejecting the prayer of the present petitioners are absolutely illegal and unsustainable in law and liable to be set aside. Mr. Ghosh relied upon a decision of Hon'ble Apex Court reported in (2001) Supreme Court Cases 272 and submits that learned Magistrate cannot decline any accused persons to make his statement before the Court under Section 164 of the code of Criminal Procedure and such type of prayer should be allowed by the learned Magistrate for the purpose of proper justice. It is up to the accused persons whether he wants to make statement before the learned Magistrate under Section 164 of the Code of Criminal Procedure or not. If such prayer is made by an accused person, Court cannot deprive him from making such statement for proper adjudication of the case and for the sake of proper justice. There can be no doubt that a confession of the accused can be recorded by Magistrate. An accused is a definite person against whom there would be an acquisition and the Magistrate can 4 ascertain whether he is in fact an accused person. Such a confession can be used against the maker thereof. In the instant case the petitioners are the accused persons and a definite person, who wants to make confessional statement before the Magistrate and under the provisions of Section 164 of the Cr.P.C. Magistrate has the power to record such confessional statement for the sake of an appropriate investigation and proper justice.
In reply Mr. Manjit Singh, Learned P.P. with Mr. A. Keshwari and Amarta Ghosh appears on behalf of the State. Mr. Singh vehemently opposes the prayer for direction upon the learned Magistrate for recording the statement of the petitioners. Mr. Singh submits that it is absolutely in the domain of investigating agency and neither Court nor any other person can have any interference during the course of investigation. Mr. Singh also submits that in the same case, one writ petition is pending before one of the Hon'ble Single Bench of this Court wherein the investigating agency are submitting periodical progress report. It will not be proper to allow the prayer of present petitioners under such circumstances. Mr. Singh after drawing my attention on the order sheet dated June 3rd, 2014 passed by Chief Judicial Magistrate, Birbhum in the 5 present case being G.R. Case No. 638 of 2011, certified copy of which has been annexed by the petitioners, submits that learned Advocate for the accused persons submitted before the learned Court below in course of the hearing of the petitions that the accused person are not inclined to give any confessional statement but wants to make some statements before the learned Magistrate. So, the petitioners did not want to make any confessional statement as alleged in the present revisional application and recording of an exculpatory statement by the present petitioners should not be allowed by the concerned Court. Mr. Singh further submits that learned Court below rightly rejected the prayer of the petitioners as the petitioners had no intention to record their confessional statement.
Consider the observation of learned Magistrate, and submissions of Mr. Ghosh and Mr. Singh. Perused the provisions under Section 164 (1) - (4) of Criminal Procedure Code. Further perused the certified copies of the order impugned. There is a specific observation by the learned Chief Judicial Magistrate at Birbhum, Seuri to the effect that learned lawyer for the petitioners submitted that the petitioners are not inclined to give any confessional statement but wants to make some statements before the 6 learned Magistrate. Mr. Ghosh placed a photocopy of certified copy of the forwarding report submitted by I.O. at the time of production of the petitioner before the learned C.J.M, Birbhum at Suri, wherein the I.O. stated that the petitioner confessed the guilt before him.
In view of a decision of Hon'ble Apex Court in a case of Mahabir Singh Vs. State of Haryana reported in AIR 2001 SC 2503 (2001) 7 SCC 148 that the accused person can appear before a Magistrate and it is not necessary that such accused person should be produced before the police for recording the confession. But it is necessary that such appearance must be in the course of an investigation under Chapter XII of the code. If the Magistrate does not know that he is concerned for a case for which investigation has been commenced under the provisions of Chapter XII it is not permissible for him to record the confession. If any person simply barges into the Court and demands the Magistrate to record his confession as he is committed a cognizable offence, the course opens to the Magistrate is to inform the police about it. The Magistrate may record the confession if he has the reason to believe that investigation has commenced and that the 7 person who appeared before him demanding the recording of his confession is concerned in such case.
So, a person can approach before a Magistrate for recording his confessional statement and Magistrate may record his statement being satisfied that the person is definite person involved in the case and willing to make confessional statement in such case.
In the instant case, the petitioners are under judicial custody. There are indication in the forwarding report of the I.O. on the very date of production of the accused petitioners that the petitioners confessed their guilt. The investigating agency did not sponsor the petitioner for recording their statements under Section 164 of Cr.P.C. for the reason best known to them. There is still a scope for consideration of the prayer of the petitioners in view of the provisions of Section 164 of the Criminal Procedure Code as well as in view of the guidelines of the Hon'ble Apex Court.
Under such circumstances matter is remanded to learned Chief Judicial Magistrate, Birbhum at Suri to consider the prayer of the petitioner, in the event of filing of any such petition afresh by the petitioners before him in accordance with law and guidelines of the Hon'ble Supreme 8 Court in this regards and pass necessary order after hearing both sides.
Thus, the revisional application is disposed of. Plain copy be given to the parties duly countersigned by the Assistant Registrar (Court) on usual undertakings.
(Asim Kumar Mondal, J.)