Calcutta High Court (Appellete Side)
Sajeeb Gurung vs The State Of West Bengal on 19 April, 2016
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
CRR 142 of 2015
Sajeeb Gurung
-Vs.--
The State of West Bengal
For the Petitioner : Mr. S. Basu
Mr. M. Mukherjee
Mr. S. Chatterjee
Mr. D. Guha
For the Respondent : Mr. M. Singh
Mr. A. Ghosh
Mr. P. K. Gupta
Heard On : 04.02.2016
C.A.V. On : 04.02.2016
Judgment On : 19.04.2016
SHIVAKANT PRASAD, J.
The petitioner has approached this Court for quashing of the investigation in connection with Rangli Rangliot Police Station Case No. 57 of 2014 dated 06.12.2014 under Sections 120B/121/121A/ 122/123/124A of Indian Penal Code and under Section 25/27 of the Arms Act, corresponding to G.R. Case No. 473 of 2014 pending before the learned Chief Judicial Magistrate, Darjeeling.
The backgrounds leading to FIR in Rangli Rangliot police station is that on 08.11.2014 Umesh Kami and Ganesh Chetri were arrested upon being intercepted by the Assam Police allegedly with huge amount of arms and ammunitions and a case being Dhaligaon Police Station Case No. 198 of 2014 dated 08.11.2014 under Section 25(1A)/35 of the Arms Act was registered for investigation against the said Umesh Kami, Ganesh Chetri and another.
On 10.11.2014 Umesh Kami and Ganesh Chetri were produced before the learned Additional Chief Judicial Magistrate, Bongaigaon, Assam and were remanded to police custody for a period of 5(five) days.
Another case being Bhaktinagar Police Station Case No. 163 of 2014 dated 30.01.2014 under Section 25(1B)/35 of the Arms Act was registered for investigation in the district of Jalpaiguri, West Bengal on the basis of a written complaint lodged by one S.S. Gupta, Senior Intelligence Officer, Directorate of Revenue Intelligence, Siliguri against eight accused persons. However, the aforesaid two accused persons were not named in the First Information Report but, on the prayer of the Investigating Officer of Bhaktinagar Police Station Case No. 163 of 2014 dated 30.01.2014 under Section 25(1B)/35 of the Arms Act on 19.11.2014 production warrant was issued against them as they were detained in Assam in connection with Dhaligaon Police Station Case No. 198 of 2014 dated 08.11.2014 under Section 25(1A)/35 of the Arms Act vide an order dated 19.11.2014 of learned Chief Judicial Magistrate, Jalpaiguri, on 21.11.2014 the case records were put up before the learned Additional Chief Judicial Magistrate, Bongaigaon, Assam on the basis of a petition filed by Sri Garendra Nath Ray, Sub-Inspector of Police, CID, West Bengal inter alia, praying for handing over the aforesaid Umesh Kami and Ganesh Chetri for being produced before the learned CJM, Jalpaiguri and they were produced on 27.11.2014 and remanded to police custody till 07.12.2014.
It is submitted that while the aforesaid accused persons were in police custody allegedly on the basis of a purported leading statement of the accused Umesh Kami made on 06.12.2014 the Investigating Agency seized large number of arms, ammunitions and printed leaflets containing slogans of Gorkhaland Liberation Army.
It is argued that though the aforesaid recovery and seizure dated 06.12.2014 was in connection with Bhaktinagar Police Station Case No. 163 of 2014 dated 30.01.2014 under Section 25(1B)/35 of the Arms Act but was suspiciously described to be in connection with Matigara Police Station G.D. Entry No. 410 of 2014 dated 06.12.2014. Sri Garendra Nath Ray, Sub-Inspector of Police, CID, West Bengal lodged a suo motu written complaint before the Officer- in-Charge, Rangli Rangliot Police Station, Darjeeling which was registered as Rangli Rangliot Police Station Case No. 57 of 2014 dated 06.12.2014 under Sections 120B/121/121A/122/123/124A of the Indian Penal Code and under Sections 25/27 of the Arms Act for investigation not only against the said Sri Umesh Kami, Sri Ganesh Chetri and others, but also against the present petitioner and the articles seized vide the seizure list dated 06.12.2014 were re-seized on 07.12.2014.
Accordingly, the petitioner has prayed for quashing of the FIR, inter alia, on the grounds that the seizure list dated 06.12.2014 being the cause of action behind initiation of the impugned criminal case being Rangli Rangliot Police Station Case No. 57 of 2014 dated 06.12.2014 is shrouded in mystery inter alia for the following reasons--
a) Though the accused Umesh Kami, who was in police remand till 07.12.2014 in connection with Bhaktinagar Police Station Case No. 163 of 2014 dated 30.01.2014 under Section 25(1B)/35 of the Arms Act and he allegedly made a statement leading to the recovery as narrated purportedly in the seizure list dated 06.12.2014 while being investigated and/or interrogated upon in connection with the case registered in Bhaktinagar Police Station, the case reference given in the seizure list dated 06.12.2014 is that of a Matigara Police Station G.D. Entry No. 410 of 2014 dated 06.12.2014.
b) The accused Umesh Kami, who allegedly made the statement leading to recovery was in police custody in connection with the aforesaid case vide seizure effected on 06.12.2014 by Sri Garendra Nath Ray, Sub-Inspector of Police, CID, West Bengal.
c) In the aforesaid seizure list dated 06.12.2014 it was noted that the seized articles were being seized as "alamat" or "case property" as per the leading statement of Umesh Kami. Such fact by itself renders the said seizure list dated 06.12.2014 suspicious as the same pertains to a General Diary Entry of Matigara Police Station which cannot by any stretch of imagination be turned as a criminal case.
d) It is nobody's case that the recovery and seizure dated 06.12.2014 took place by chance and/or on the basis of a source information. In view of the same, referring to Matigara Police Station G.D. Entry No. 410 of 2014 appears to be a blatant attempt of the Investigating Agency to inter alia suppress embellishment.
Mr. Sekhar Basu, learned Counsel for the petitioner urged that initiation of the impugned Rangli Rangliot Police Station Case No. 57 of 2014 dated 06.12.2014 is patently absurd and inherently improbable inasmuch as the instant criminal case was initiated on the basis of a recovery made on the basis of a leading statement made by an accused Umesh Kami while he was in police custody in connection with the investigation of Bhaktinagar Police Station Case No. 163 of 2014 dated 30.01.2014 under Section 25(1B)/35 of the Arms Act which could not be the foundation for initiation of a separate criminal case at Rangli Rangliot police station, merely because such recovery and seizure had taken place within the territorial jurisdiction thereof.
It is also pointed out that the Investigating Officer of Bhaktinagar Police Station Case No. 163 of 2014 dated 30.01.2014 under Section 25(1B)/35 of the Arms Act is the complainant of the impugned Rangli Rangliot Police Station Case No. 57 of 2014 dated 06.12.2014. It is surprising as to what prompted him to lodge a separate complaint and seek initiation of a separate criminal case in Rangli Rangliot police station which is situated in the district of Darjeeling while he had collected evidence, as alleged or at all, vide a seizure list dated 06.12.2014 in the course of investigation of a case registered in Bhaktinagar police station, Jalpaiguri.
It is further submitted that order dated 23.12.2014 passed by the learned Chief Judicial Magistrate, Darjeeling in connection with Rangli Rangliot police station Case No. 57 of 2014 dated 06.12.2014, the witnesses of the seizure list dated 06.12.2014 namely Ajay Thapa and Kumar Chetri though signed in the said seizure list as claimed, but their statements were not recorded till after five days of such seizure and the same casts more doubt on the genuineness of the said seizure.
In my considered opinion all those facts can only be gone into at the time of trial according to the evidence to be adduced by the prosecution.
Learned Counsel for the petitioner has submitted a case of Amitbhai Anilchandra Shah v. CBI, reported in (2013) 6 SCC 348, the issue before the Hon'ble Supreme Court was whether death of one person in one occasion and two other persons on different occasions and at different places could be said to be a continuous transaction and the subsequent death did call for registration of a separate and independent First Information Report? After analysing the stand taken by the appellant in the Hon'ble Supreme Court and the CBI stated in paragraphs 29 to 34 of the judgment, Their Lordships concluded to the effect in paragraph 35 in the following words--
"The above details mentioned in the charge-sheet dated 04.9.2012 clearly show that what CBI conducted is mere "further investigation" and the alleged killing of Tulsiram Prajapati was in continuance of and an inseparable part of the conspiracy which commenced in November 2005 with the abduction of Sohrabuddin, Kausarbi and Tulsiram Prajapati and which culminated into the final stage of alleged killing of Tulsiram Prajapati who was kept under the control of accused police officers since he was a material eye witness like Kausarbi. To put it straight, apart from the consistent stand of CBI, the charge-sheet dated 04.9.2012 itself is conclusive to show that the said charge-sheet, in law and on facts, deserves to be treated as "supplementary charge-sheet in the first FIR."
Paragraph 37 of the aforesaid judgment which runs as follows--
"This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution....."
It is contended that if the statement made by Umesh Kami and the consequent recovery is taken to its logical conclusion, the alleged recovery of the arms and leaflets are nothing but collection of evidence with regard to offences committed in the same transaction. Regardless of what the Investigating Agency had done in respect of Bhaktinagar Police Station Case No. 163 of 2014 dated 30.01.2014, the text and tenor of the complaint lodged in the present Rangli Rangliot Police Station Case No. 57 of 2014 dated 06.12.2014 make it abundantly clear that the statement of Umesh Kami relates to whatever he did or the role that he played in the commission of the offence/offences relating to Bhaktinagar Police Station Case No. 163 of 2014 dated 30.01.2014. the fact that the Investigating Agency in its wisdom decided to have Umesh Kami and Ganesh Chetri exonerated from Bhaktinagar Police Station Case No. 163 of 2014 dated 30.01.2014 is a different issue altogether.
In Amitbhai Anilchandra Shal v. CBI (supra) had enormously extended the principle contained in Category No. 6 in Bhajal Lal's case. The Hon'ble Supreme Court has emphatically equated the express legal bar in registration of an FIR in respect of the same offence or to different offences arising out of the same transaction to be violation of Article 21 of the Constitution of India. Once it is found that the present case has been registered on the basis of the allegations made in the complaint are nothing but collection of facts in respect of offence/offences committed in the same transaction, then the second case or second FIR is constitutionally impermissible.
It would appear from the order passed by the learned Chief Judicial Magistrate, Darjeeling that he has questioned the conduct of the investigation by the Investigating Officer in connection with Rangli Rangliot Police Station Case No. 57 of 2014 dated 06.12.2014 by his order dated 23.12.2014 in the manner as noted thereunder; all such queries put to the prosecution by the learned Chief Judicial Magistrate at the stage of investigation, in my opinion is not justified because the power of investigation is a statutory one and ordinarily and save and except some exceptional situation no interference by any Court is permissible as the Court cannot interfere in the investigation by police particularly when there is nothing to show that the Investigating Officer is not functioning in an honest manner. It would appear from the said order that the learned Chief Judicial Magistrate while considering an application for bail passed his observation which amounted to pre-empting a final order on the merit of the case which the Magistrate is not supposed to make such observation touching the merit of the case at the stage of investigation.
It is axiomatic from record that Bhaktinagar P.S. Case No. 163/2014 dated 30.01.2014 was started on the basis of complaint of one S.S. Gupta, Senior Intelligence Officer, Directorate of Revenue Intelligence, Siliguri against eight accused persons. However, accused persons namely Umesh Kami and Ganesh Chetri were not named in the said FIR and the allegation as reflected from the complaint is that on 30.01.2014 at about 4.00 hours the officers of Directorate of Revenue Intelligence, Siliguri Regional Unit with active support from Siliguri Metropolitan Police held raid at Fulbari Bye Pass Toll Gate and seized 9310 kgs. of "Ganja" carried in a truck and Maruti Gypsy, the escorting light vehicle. During this operation they arrested nine accused persons and recovered illegal arms and ammunitions from them, reasonably believed that they had procured the said arms and ammunitions by illicit means for illegal purpose. On 08.11.2014 two accused persons namely Ganesh Chetri and Umesh Kami were arrested by Dhaligaon P.S. District- Chirang (Assam) with one Tata Sumo vehicle driven by Umesh Kami who were on the way to West Bengal side and on search of the vehicle huge amount of arms and ammunition were recovered from them which referred to Dhaligaon P.S. Chirang (Assam) Case No. 198/14 dated 08.11.2014 under Section 25(1)(A)/35 Arms Act.
Therefore, it cannot be said that Bhaktinagar P.S. Case was subsequent to the Dhaligaon P.S. Case No. 198/14 which was registered against Umesh Kami, Genesh Chetri and others. Furthermore, the case of Bhaktinagar P.S. relates to NDPS case together with the offence under Arms Act which is subject to jurisdiction of learned Special Court under NDPS Act.
Learned Counsel for the State has submitted photocopy of Memo of Evidence in connection with Rangli Rangliot P.S. Case No. 57/14 dated 06.12.2014 under Sections 120B/121/122/123/124A IPC read with Section 25/27 Arms Act. It is revealed that during remand period and leading to the statement of the accused Umesh Kami, complainant and his team recovered arms, ammunitions and leaflets of GLA, from 27 mile, Teesta Valley, behind an abandoned house under Rangli Rangliot P.S. for which accused Umesh Kami failed to produce any valid documents. He disclosed that he along with other under direction of accused Sanjoy Thulung GTA member of Takdah T.E. had procured sophisticated arms and ammunitions many times earlier from the members of NSCN, which were transported from Dimapur to Darjeeling in a Tata Safari Vehicle No. WB 74V/7116 and concealed the said arms and ammunitions in the house of accused Sajeeb Gurung with the help of other accused persons. He also disclosed that accused Sanjoy Thulung has provided arms training under NSCN member of Nagaland to other accused persons for Gorkhaland agitation and had secret meeting for arm rebellion to achieve Gorkhaland. This is what is the foundational fact mentioned in the First Information Report lodged by complainant S.I. Garendra Nath Roy of D.D., Darjeeling, CID, who along with his team had seized articles being (1) one rifle "Remingion" Model 700, TW12, no. B6852120, approx 39.5 inch long with butt & barrel (2) 22 rds. of 9.9G live ammunitions (3) five nos. of printed leaflets of GLA with slogans "GLA IS FIGHTING TO GET GORKHALAND. JOIN GLA TO FIGHT TO GET GORKHALAND"
"WE WANT GORKHALAND. WE WILL FIGHT TILL DEATH. JOIN YOUR HANDS" " WE WANT GORKHALAND. JOIN GLA IN ARMS REBELLION" (4) One white colour synthetic plastic sheet (5) one blue colour plastic carry bag (6) one white plastic bag.
It would be apt to point out the explanation which has been rendered by the Investigating Officer in connection with this case relating to points raised from the side of the prosecution.
(1) That the prosecution failed to give reason of starting a case within the jurisdiction of Rangli Rangliot police station case, while a case is already started at Dhaligaon P.S., Assam for the same transaction of arms and offence.
Explanation: The seizure made at Dhaligaon P.S., Assam and the subsequent seizure of arms made in Rangli Rangliot P.S. area are not part of the same transaction. During investigation it is learnt that on more than one occasion the accused, in connivance with several others named in Rangli Rangliot P.S. case had brought arms in to Darjeeling district. While the Dhaligaon P.S. case was started under Section 25(1)(A)/35 Arms Act, on the other hand Rangli Rangliot P.S. case is being investigated under Sections 120B/121/122/123/124A IPC read with Section 25/27 Arms Act. The transaction of Dhaligaon P.S. case is a subsequent one and it's investigation does not deal with it's higher purpose of the accused persons and the previous transaction.
(2) That the prosecution failed to explain as to how the said arms and ammunition recovered by the Investigation Officer of Bhaktinagar P.S. Case No. 163/14 has been shown as seized alamat of the Rangli Rangliot P.S. Case No. 57/14.
Explanation: The accused persons of Dhaligaon P.S. case were interrogated by the CID, West Bengal team and on examination they were found involved in Bhaktinagar P.S. Case No. 163/14. They were shown arrested and taken in police custody. During their examination the facts related to Ranglirangliot P.S. Case came into light, which was a separate offence. The arm and ammunitions seized/involved in Bhaktinagar P.S. Case and the arm and ammunitions seized in Rangli Rangliot P.S. Case were brought in different times and for different purpose. Hence, the case was not related to each other.
(3) I.O. of Bhaktinagar P.S. case and also the de facto complainant of the instant case did not mention the case no. in the seizure list in which accused Umesh Kami was taken in police custody.
Explanation: As the seizure had nothing to do with Bhaktinagar P.S. Case, it is not related to the transaction of Rangli Rangliot P.S. case. During the remand period, I.O., of Bhaktinagar P.S. case no. 163/14 had kept the accused Umesh Kami and Ganesh Chettri at Matigara P.S. for the security and for the convenience of investigation and transportation of the accused persons, as the CID, Siliguri does not have their lock up facility. Further, during the remand period at Matigara P.S., accused Umesh Kami disclosed that Sanjoy Thulung of Tukdah T.E., under Rangli Rangliot P.S. had given him instructions regarding transaction of arms and ammunition into Darjeeling district. Hence, this fact was diarized at Matigara P.S. and the GDE. Reference of Matigara P.S. was mentioned in the seizure list.
(4) It is very unfortunate to hold that by seizure list dated 07.12.2014 the arms and ammunition have been re-seized by the I.O. in presence of O/C Rangli Rangliot P.S. and ASI. J. Lepcha, who are witnesses of the said seizure list, but this fact is not incorporated in the 161 statement of both the witnesses.
Explanation: Both the witnesses, namely S.I. N. S. Kujur, O/C, Rangli Rangliot and ASI. J. Lepcha were examined under Section 161 Cr.P.C. and they corroborated with the FIR. Their statements are tagged with the Case Diary in pg. No. 21,150 & 151.
(5) Seizure List dated 19.12.2014 and 20.12.2014 has not been forwarded to the Court.
Explanation: Seizure list dated 19.12.2014 regarding the seizure of hotel documents, where the members of NSCN were lodged in between 30.9.2014 and 03.10.2014 and the seizure list dated 20.12.2014 regarding the seizure of muster roll of I & CA Department in which the name of accused Umesh Kami was listed were tagged with case diary along with seized articles.
(6) Both the accused persons namely Umesh Kami and Ganesh Chettri are discharged from Bhaktinagar P.S. case no. 163/14.
Explanation: During the remand period accused Umesh Kami and Ganesh Chettri confessed that they were involved in Rangli Rangliot P.S. case but not in Bhaktinagar P.S. Case and the motive of collecting arms and ammunitions in the Darjeeling was meant for separate issue. Motive, offence and date/time of offence of Bhaktinagar P.S. case and Rangli Rangliot P.S. case are separate. Accordingly separate FIR was lodged at Rangli Rangliot P.S. On 10.11.2014 Umesh Kami and Ganesh Chetri were produced before the learned Chief Judicial Magistrate, Bongaigaon, Assam who were remanded to police custody for a period of five days and they were again produced before the 14.11.2014 after police remand and remanded to judicial custody. On the prayer of Investigating Officer said two accused persons were shown arrested in connection with said Bhaktinagar P.S. Case No. 163/14 on the strength of production warrant as they were detained in connection with said Dhaligaon P.S. Case No. 198/14 and pursuant to the order passed by learned Chief Judicial Magistrate, Jalpaiguri vide order dated 19.11.2014 said two persons were produced in Bhaktinagar P.S. Case No. 163/14 on 21.11.2014 and were produced on 27.11.2014 and on the prayer of the Investigating Officer they were remanded to police custody till 07.12.2014. The case of the petitioner is that in police custody on the basis of the leading statement of accused Umesh Kami, Investigating Officer seized large number of arms, ammunition and printed leaflets containing slogans of Gorkhaland Liberation Army on 06.12.2014.
It would appear from the photocopy of seizure list dated 06.12.2014 that the seizure in connection with Matigara P.S. G. D. Entry No. 410 of 2014 dated 06.12.2014 obviously the said seizure was pursuant to leading statement made by Umesh Kami and the explanation of prosecution in this context is quite acceptable.
It would further appear from the FIR lodged by S.I. Garendra Nath Ray D.D., C.I.D., West Bengal dated 06.12.2014 and that on interrogation of the remand accused it was revealed that he is an active member of Gorkhaland Liberation Army and they were engaged by Sanjoy Thapa @ Rai and other for procuring sophisticated arms and ammunition to be used for waging war against the Sate for achieving their claim for State of Gorkhaland and accordingly on the based on that FIR submitted to the jurisdictional police station, Rangli Rangliot P.S. Case No. 57 of 2014 dated 06.12.2014 under Sections 120B/121/121A/122/123/ 124A IPC and read with Section 25/27 of the Arms Act was registered.
Therefore, in my considered view the aforesaid police cases (1) Bhaktinagar P.S. Case No. 163/14 dated 30.01.2014 (2) Dhaligaon P.S. Case No. 198 of 2014 dated 08.11.2014 and (3) Rangli Rangliot P.S. Case No. 57 of 2014 dated 06.12.2014 are different cases and cannot be held that a second FIR in respect of an offence or different offences committed in the course of the same transaction has been registered. Ergo, the principle as laid in Bhajanlal Case (Supra) is not attracted warranting this Court to invoke its inherent power under Section 482 Cr.P.C. for quashing the proceeding in Rangli Rangliot P.S. Case No. 57 of 2014 dated 06.12.2014, because the First Information Report prima facie distinctly constitute cognizable offence against the accused persons including the petitioner and the evidence collected so far thus disclosed commission of offence as alleged in the FIR against the accused persons. I do not find absurdity in the FIR and inherently improbable as not sufficient ground for proceeding against the accused persons. It is also not understood as to how the I.O. can be said to have malicious and ulterior motive for wracking vengeance on the accused persons with a view to implicate them falsely out of private and personal grudge.
In the context of the above discussion, I am of the considered view that the decisions cited above on behalf of the petitioner are not well nigh within the facts and circumstances of the instant case.
The provision of Section 157 Cr.P.C. is designed to keep the Magistrate informed of the investigation of cognizable offences so as to be able to control investigation, and if necessary to give appropriate direction under Section 159 of the Act and it requires the recording of different information about the cognizable offence committed by the accused. This is what has been done by the Investigating agency.
Therefore, the application for quashing of the proceeding in connection with Rangli Rangliot Police Station Case No. 57 of 2014 dated 06.12.2014 under Sections 120B/121/121A/122/123/124A of the Indian Penal Code and under Sections 25/27 of the Arms Act, corresponding to G.R. Case No. 473 of 2014 pending before the Chief Judicial Magistrate, Darjeeling does not deserve any merit and is dismissed.
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)