Calcutta High Court (Appellete Side)
Hafizur Rahaman Alias Chandan vs The State Of West Bengal on 14 July, 2015
Author: Sudip Ahluwalia
Bench: Sudip Ahluwalia
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Sudip Ahluwalia
C.R.R 879 of 2015
Hafizur Rahaman Alias Chandan
Vs.
The State of West Bengal
For the Petitioner : Mr. Rajdeep Majumder,
Mr. Anirban Guhathakurata,
Mr. Arindam Sen,
Mr. Saurav Basu,
For the State : Mr. Amartya Ghosh,
Heard On : 17.06.2015 & 30.06.15
Judgment On : 14.07.2015
SUDIP AHLUWALIA, J.
1. This revisional application has been preferred against the order No. 44 passed by the Learned Additional District and Sessions Judge, 1st Fast Track Court, in Sessions Case No. 120 of his Court 17th of March 2015.
2. The Learned Sessions Judge by way of the impugned order had rejected and application filed on behalf of the petitioner under Sections 227 of the CPC in which he had prayed for being discharged from the proceedings in which a charge-sheet was submitted against him and some other accused persons under Sections 120B/395/397/365 of the IPC and under Sections 25/27 Arms Act. The back ground of the matter is that the de- facto complainant namely Satya Narayan Sarswat had lodged the FIR by way of his statement in the Burrabazar P.S on 26.07.2013 on the basis of which FIR No. 364 of the said Police Station was drawn up under Sections 170/420/120B of the IPC initially. Against three unknown accused persons.
3. The gist of the statement of the de-facto complainant was that on the relevant date (25.07.2013) he was engaged in his normal business affairs in his office premises at about 5.30 p.m. At that time five tall and well-built unknown persons entered into his room and introduced themselves as CID officers. The complainant could spot a Holster tied to the waist of one of those persons from which a portion of the pipe was also visible. In addition, those persons were carrying Walkie-Talkies which made the complainant believe that they were actually CID officers. Those persons then said that they were going to search the premises since arms were hidden there. Thereafter they commenced the search and started to stuff an amount of Rs. 6 lakhs approximately which was kept in the room, in a black bag. The complainant also on their instruction helped them in stuffing the money inside the bag. Thereafter those persons told the complainant that he would have to accompany them to "Bhawani Bhawan". They accordingly started leaving the premises with the complainant and the money, but then suddenly while alighting from the stairs removed the CCTV machine which they also took with them. On reaching downstairs they made the complainant to board a cream coloured car and started the journey ostensibly towards "Bhawani Bhawan". In this manner after going around Ganesh Talkies they went via Central Avenue towards Victoria. The complainant requested them not to take him to "Bhawani Bhawan" and to let him go. The culprits then dropped him at a crossing and went away. From there the complainant took a taxi and reached the Police Station where he then lodged the FIR.
4. The contention of the petitioner in this regard is that the offences of 'Dacoity' punishable under Section 395, as also the offence of "Abduction or Kidnapping" punishable under Section 365 of the IPC are not made out. Furthermore, since there is no allegation of any attempt to cause death or grievous injury to any person at any time, so the ingredients of the offence under Section 397 are totally missing. According to the petitioner, there is no allegation in the FIR that the complainant was taken by force or by any deceitful means by the alleged culprits in the cream coloured car, and the fact that he was made to get down from the car at a crossing on his own request clearly goes to show that there was never any intent to cause any injury or to confine him secretly or wrongfully. As such even the ingredients of the offence of kidnapping or abduction punishable under Section 365 of the IPC are not attracted.
5. On the other hand, the submission on behalf of the State is that there is sufficient material available against the petitioner and his accomplices to establish the offences mentioned in the charge-sheet, and that in any case the bare original letter of complaint/FIR cannot be read in isolation from the other materials collected during investigation to determine what offences were actually committed by the petitioner and his accomplices. In the impugned order, the learned Court below has rejected the petitioner's application for discharge by holding, "The case be proceed by framing of charge under Sections 395/397/365/120B of the Indian Penal Code.
Fixing 12.03.15 for framing of charge against the accused persons."
6. This Court, therefore, is to scrutinize whether the ingredients of the aforesaid offence are prima facie fulfilled in the present case for the purpose of framing a formal charge or not.
7. In this connection it would be pertinent to first take note of the relevant provisions of law under which the aforesaid offences are punishable, and also the definitions of some of the offences which thus become punishable under the Indian Penal Code. The relevant Sections of the Code defining and detailing explain such offences are set out below:-
339. Wrongful restraint - Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
340. Wrongful confinement - Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.
Illustrations
(a) A causes Z to go within a walled space, and locks Z in. A is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z.
365. Kidnapping or abducting with intent secretly and wrongfully to confine person - Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
390. Robbery - In all robbery there is either theft or extortion.
When theft is robbery- Theft is 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restrain, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
391. Dacoity- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity.
395. Punishment for dacoity.- Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
"397. Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
8. As has already been noted the complainant had mentioned about 5 unknown persons who entered into his premises from where they took the money after representing themselves to be CID Officers. The complainant has further stated that when he was taken away by the accused persons with them, he was made to sit in a cream coloured car. The complainant has also stated that he noticed a Holster tied on the left side of the waist/torso of one of the tall culprits who had entered inside the room.
9. In this backdrop it cannot be said that there exist absolutely no ingredients to constitute the offence of 'Dacoity' as the FIR clearly mentions about involvement of five persons in the entire operations carried out by the culprits. It cannot be automatically inferred that by silently showing off the firearm hanging on the left side of his body, one of the culprits had not impliedly cause fear of instant injury in the mind of the person who could notice the same. It needs to be remembered that the culprits had originally claimed that they had come to search the premises since arms were concealed there. Nevertheless, they started to stuff the money found in the room in a black bag and also asked the complainant to help them in doing so. In such circumstances, clearly the complainant would appear to have been under tremendous fear or stress since he was not in a position to argue with those persons that they had no business to take away the money when all that they had come to find out were concealed Arms. On the contrary, the complainant was constrained to help the culprits to stuff the money in the bag. Furthermore, the fact that the complainant actually accompanied the culprits after being asked by them to come along with them also cannot automatically imply that in his mind, he would not have entertained any fear of avoidable harassment if not actual arrest or imprisonment if he chose not to accompany them as asked. While it has been urged on behalf of the petitioners that the fact that they had released the witness near a Crossing is indicative of the fact that they had no intention to wrongfully confine him or cause any physical harm, but the fact is that consent of the person concerned was obtained either under an implicit fear of bodily harm or harassment, and in any event certainly under the false representation that he was accompanying those whom he was given to understand were CID Officers, which in fact they were not. Furthermore, the fact that the complainant remained in the custody of the culprits inside the car in which he was taken till he was later released by them, itself amounts to wrongful confinement within the meaning of Section 341 of the IPC, how so ever brief that period of confinement might have been.
10. It cannot therefore be said that the offence of extortion amounting to robbery on account of the implicit fear created in the mind of the complainant who noticed the Holster/fire-arm which was silently but rather consciously demonstrated by one of the culprits is totally non-existent. As such the ingredients of the offence of 'Dacoity' by way of commission of 'robbery' by five persons cannot be entirely ruled out.
11. However this is undisputed that neither of the culprits actually used any force or actually caused any physical injury whether simple or grievous to any of the persons of the establishment. To that extent, therefore, the ingredient of the offence punishable under Section 397 of the IPC would not appear to be attracted.
12. But the other offences under Sections 365 and 395 (flowing out of Sections 390/391) do appear to be attracted. It therefore appears to be a fit case for trial in respect of these offences, although the actual truth of the statements indicating the application of these offences can only be conclusively determined after completion of the Trial.
13. The revisional application is therefore disposed off with the above observations and the Ld. Trial Court is directed to start the Trial and complete the same as expeditiously as possible and preferably within nine months from the date of communication of this order. It is further made clear that in passing its final judgement after completion of trial, the learned Trial Court shall not be influenced by any of the observations made in this judgement, since these observations are only for deciding whether a prima facie material warranting a trial in respect of certain specified offences exists or not.
(Sudip Ahluwalia, J.)