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 878 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, 30.06.2015
Judgment On : 14.07.2015
SUDIP AHLUWALIA, J.-
1.This revisional application has been preferred against the Order No. 41 passed by the Learned Additional District and Sessions Judge, 1st Fast Track Court, in Sessions Case No. 119 of his Court 17th of March 2015.
2. The Learned Sessions Judge by way of the impugned order had rejected an application filed on behalf of the petitioner under Section 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 Hiralal Joshi had lodged the FIR by way of his statement in the Burrabazar P.S on 29.07.2013 on the basis of which FIR No. 376 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 in 29.06.2013 he was engaged in his routine business in his office premises at about 5.30 p.m. when three unknown persons entered into his room. One of them showed an Identity Card to the complainant and claimed that he was a CID Officer and had arrived with his associates to search the premises. The same was then allowed to be searched by the complainant and those persons seized an amount of Rs. 40, 18,000/- apart from the mobile phones of the complainant and his associate employees. They then took away the one of the complainant's associates, namely Raju Jat with them. Later he was dropped by those persons from the car near the Camac Street Crossing and the seized mobile phones were also returned to him. All along the complainant and his associates were under the impression that the persons who had come to their Office and seized the cash amount were actually the Officers / Personnel of the CID. However almost a month later, the complainant read a news item in a vernacular news paper regarding the apprehension of certain persons who had been taking away cash from various establishments in this manner by representing themselves to be CID Officers, and that they had been apprehended by the Officers of the Burrabazar P.S. The complainant therefore got alarmed and approached the Burrabazar P.S and lodged the FIR against the unknown persons.
4. On the basis of the aforesaid complaint, the FIR was drawn up and after completion of investigation, a Charge-Sheet was submitted against the petitioner and others under Sections 120B/395/397/365 of the IPC.
5. The contention of the petitioner in this regard is that the offences of 'Dacoity' punishable under Sections 395 and 397 respectively, as also the offence of "Abduction or Kidnapping"
punishable under Section 365 of the IPC are not made out. According to the petitioner when the original FIR itself discloses the involvement of only three persons in the alleged occurrence, there cannot be any offence of 'Dacoity' committed, since the involvement of a minimum of 5 persons is a pre-requisite to constitute the same. 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 person taken from the complainant's office by the alleged culprits in the white car was taken by force or by any deceitful means, and the fact that he was made to get down from the car near the Camac Street Crossing 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.
6. 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."
7. 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.
8. 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."
9. It is true that in the original letter of complaint the complainant had mentioned about three (3) unknown persons who entered into his premises from where they took the money after representing themselves to be CID Officers. But subsequent investigation reveals some more facts, which may or may not have been personally noticed by the complainant at the relevant time. His associate Raju Jat in his statement has mentioned that he noticed two more persons standing outside the door of the premises when the three (mentioned by the complainant) had entered inside posing to the CID Officers. The witness has further stated that when he was taken away by the accused persons with them, he was made to sit in a white coloured private car on the back seat and was flanked by two persons, one on his either side and that in the front of the car was its driver and another person, while a fifth person aged around 40 to 45 years walked away from the spot thereafter. In this manner the witness has stated about involvement of five persons in the overall occurrence although only three of them had entered inside the premises and taken away the money from there along with the witness by claiming themselves to be CID Officers. The witness also stated that he noticed a small firearm tied on the left side of the waist/torso of one of the tall culprits who had entered inside the room and raised his shirt on account of which the firearm was noticed by the witness and he felt intimidated. The some type of statements have been given by his employer Naresh Joshi, regarding the involvement of two additional persons who stood outside the door of the premises, and the carrying of a firearm by one of the persons who had entered inside, which caused fear in the mind of the witness.
10. In this backdrop it cannot be said that there was absolutely no involvement of five persons in the entire operations carried out by the culprits, even though the complainant Hiralal Joshi might have noticed only the three persons who had actually entered inside the premises and taken away the money by representing themselves to be CID Officers. It cannot be automatically inferred that by silently showing 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 noticed the same. Furthermore, the fact that the witness Raju Jat 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 been urged on behalf of the petitioners that the fact that they had released the witness near the Camac Street 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 witness remained in the custody of four 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.
11. It cannot be said that the offence of extortion amounting to robbery on account of the implicit fear created in the mind of the persons who noticed the fire arms which was silently but rather consciously demonstrated by one of the culprits by way of lifting his shirt, is totally non-existent when there is material indicating involvement of two additional persons apart from the three noted only by the complainant. As such the ingredients of the offence of 'Dacoity' by way of commission of 'robbery' by five persons cannot be entirely ruled out.
12. 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.
13. 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.
14. 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.)