Calcutta High Court (Appellete Side)
Abul Hasim vs C.B.I on 29 July, 2011
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
C. R. R. No. 4134 of 2007
Abul Hasim
Vs
C.B.I., S.C.B.-II, New Delhi
For the petitioner : Mr. Milon Mukherjee,
Mr. Sandipan Ganguly,
Mr. Rurdadipta Nandy.
For the C.B.I. : Mr. Himangshu De,
Mr. Mrityunjay Chatterjee.
Heard on : 23.12.2010
Judgement on : 29.07.2011
Syamal Kanti Chakrabarti, J.:
The instant revisional application under Section 397/401/482 Cr.P.C. has been filed for quashing of the proceedings of session trial no. 62 of 2006 under Sections 120B/342/304/201/193/218 IPC now pending before the First Court of learned Additional Sessions Judge, Howrah 2 including order dated 05.10.2007 rejecting prayer of the petitioner for discharge from the case.
2. It is contended on behalf of the petitioner herein, Mr. Abul Hasim that the petitioner herein is a member of the West Bengal Police Force and at present working in the office of DIG, Control Room, Writers' Buildings, Kolkata. One case being RC-6(S)/98-SCB-II/DLI dated 28.04.1998 was registered by the opposite party CBI, SCB-II, New Delhi alleging commission of offence by Moni Krishna Sarkar, Biman Mitra Mazumdar and A. Haque all police officers attached to Bally Police Station at the time of alleged occurrence coming within the mischief of Section 302/343/201/193/218/34 IPC.
3. The genesis of the aforesaid case relates back to an order of this Hon'ble Court dated 26.02.1997 passed under Article 226 of the Constitution directing for initiation of a criminal proceeding for the custodial death of one Satrughan Prasad. In the said case the learned Chief Judicial Magistrate, Howrah submitted a report dated 01.11.1995 informing that Moni Krishna Sarkar, Biman Mitra Mazumdar and Ajijul Haque, police officers attached to Bally Police Station were found to be prima facie liable for the death of one Satrughan Prasad. After completion of investigation charge-sheet was 3 submitted bearing no. 4 dated 22.09.2004. It was alleged that a prima facie case was made out against the petitioner herein under Sections 120B/302/201/342/193/218 IPC. On the basis of such report the erstwhile SDJM, Howrah took cognizance of the offence on 23.09.2004 and committed the case after compliance of statutory formalities to the Court of Sessions being Sessions Trial No. 62 of 2006 which upon transfer is now at the disposal of the learned Additional District Judge, First Court, Howrah. On 25.04.2007 the learned Trial Judge framed charges against all the accused persons. Thereafter, the petitioner submitted a petition praying for his discharge under Section 227 Cr.P.C which was rejected by the learned Trial Judge on 05.10.2007 which is now being assailed.
4. It is submitted by the learned lawyer for the petitioner that the instant prosecution relates to the custodial death of one Satrughan Prasad in police custody at Bally Police Station due to brutal and merciless assault by Moni Krishna Sarkar, Biman Mitra Mazumdar and Azizul Haque, three police officers attached to Bally Police Station at the material time. In course of investigation it is gathered that to justify detention of Satrughan Prasad in Bally Police Station two false cases were initiated being Bally Police Station Case No. 223 4 of 1993 and Bally Police Station Case No. 225 of 1993. The first case was registered for investigation of alleged commission of rape of a minor girl by the said Satrughan Prasad and the latter case has been initiated on the charge of assault upon Satrughan Prasad by unknown persons at the auto stand in Belur Railway Station on 12.09.1993. In fact, both the cases were falsely registered to justify the arrest of the said Satrughan Prasad and to indemnify the aforesaid three police officers from the charges leveled against them of brutal assault upon the victim resulting in his custodial death. In the charge-sheet it is alleged that the said two police cases were registered by Sub-Inspectors, Dinabandhu Chakraborty, Samrat Mondal and Abdul Hasim (the petitioner) in order to create false evidence so as to destroy evidence of commission of offences of wrongful confinement and torture of deceased Satrughan Prasad resulting in his custodial death as also to help and assist the said three police officers attached to Bally Police Station at the time of occurrence. It is further alleged that the subsequent two false cases being Bally PS Case No. 223 of 1993 and Bally PS Case No. 225 of 1993 were further investigated by the present petitioner after transfer of the earlier investigating officers namely, Biman Mitra Mazumdar and Ajijul Haque, Sub-Inspectors of Police.
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5. Learned lawyer for the petitioner further submitted that from the materials on record it would appear that both the cases were not registered and initiated at the instance of the present petitioner who was not at all posted and present at the time of registering those cases. From the documents on record prima facie it would appear that the Bally Police Station case no. 223 of 1993 was registered on the 11th September, 1993 and Bally Police Station case no. 225 of 1993 was registered on the following date, i.e., on 12th September, 1993. At that time the present petitioner was posted at Burdwan District as a Sub-Inspector of Police, Training Reserve Control Room, Burdwan having been transferred there from the post of Officer-in- Charge of Raina Police Station on 19th September, 1993. Subsequently under memo no. 3528(4) Par/A-650-91 dated 06.12.1993 issued by the DIG(A), West Bengal the petitioner was transferred from Burdwan for joining the police force of the district of Howrah which was duly endorsed by the Superintendent of Police, Burdwan under his memo no. DOA 1558 dated 22.12.1993. On 03.01.1994 the petitioner took departure from the Control Room, Burdwan for joining at Howrah. In terms of the order of the Superintendent of Police, Howrah made under DOA no. 14 dated 13.01.1994 he joined the police force of the district of Howrah on 6 13.01.1994. Thereafter, in terms of a subsequent order of the Superintendent of Police, Howrah made under DOA no. 37 dated 02.02.1994 he was posted at Bally Police Station. Therefore, it is apparent on the face of record that in September, 1993 the petitioner was not posted at Bally Police Station and in fact, he had joined Bally Police Station on 2nd September, 1994, i.e., more than four and a half months thereafter. Therefore, under no stretch of imagination it can be presumed that the subsequent two false cases were registered and initiated by the present petitioner and merely continuation of the investigation in the discharge of his official duties at a subsequent stage cannot be treated as a valid ground for prosecution of the said officer.
6. Opposing the above contention Mr. Dey, learned lawyer for the opposite party has contended that the present petitioner continued investigation of those two cases from 16.09.1994 to 20.02.1995 and at a subsequent stage he was involved in the alleged offence as noted in the charge-sheet. For this reason the instant proceeding cannot be quashed at present and charge as framed against the accused may be altered under Section 216 Cr.P.C at any time. In course of investigation strong suspicion arose against the present petitioner 7 who was in fact, trying to protect the three police officers against whom there was allegation of merciless assault upon the victim resulting in his custodial death. It is a pure question of disputed fact which cannot be looked into by this revisional Court and can only be decided at the time of trial. He has drawn my attention to paragraphs 24, 39 and 25 of the case reported in (2009) 3 SCC Cri 926, paragraph 10 of the case reported in (2007) 2 SCC (Cri) 514, and paragraphs 6, 8, 11, 16, 18 and 23 of the case reported in (2005) SCC (Cri) 415 in support of his contention.
7. Learned lawyer for the petitioner on the contrary has further contended that if the above contention of Mr. Dey is accepted by this Hon'ble Court, Mr. N. Ganguly and Utpal Banerjee, the two other investigating officers who continued investigation of those two false cases after transfer of the present petitioner will have to be impleaded and prosecuted for the same offence of conspiracy of custodial death and disappearance of evidence. Ultimately, learned lawyer for the CBI has failed to offer any plausible explanation regarding the identity of A. Haque who really ought to have been prosecuted for the alleged offence in place of the present petitioner. It might be mistake on the part of the CBI officer in identifying the real officer at fault. 8
8. On perusal of the materials on record it appears that one Sanket Mondal drew the formal FIR in GR Case no 2053 of 1993 arising out of Bally PS case no. 223 of 1993 on 11.09.1993. It also appears that one Ajijul Haque drew up the second FIR relating to Bally Police Station case no. 225 of 1993 on 12.09.1993.
9. The concluding paragraph of the report of the learned Chief Judicial Magistrate, Howrah dated 01.11.1995 is quoted below for appraisal of the charges of the case and the mens rea involved therein.
" From the above stated it prima facie appears to me that in the instant case the police officers of the Bally Police Station played a dubious role and plotted the story that Satrugna Prasad was manhandled by the members of the public, he suffered injuries and ultimately succumbed to the injuries at the hospital. From the statement of the witnesses examined by me it is prima facie clear that Satrugna was all along in the police custody since 10.11.93 (10.09.1993 ?) and he died at the hospital on 17.11.93 (17.09.1993 ?). The role of the Officers of the Bally Police Station is quite fishy. The death of Satrugna is prima facie an instance of custodial death while he was in the custody of the police at the Bally Police Station for the period from 10.11.93 to 17.11.93 (10.09.1993 to 17.09.1993 ?), Sri Moni Sarkar then Officer in charge of Bally Police Station, 9 Sub-Inspector Biman Mitra Mazumdar and Sub-Inspector A. Haque posted at the Bally Police Station at the material time who were the investigating officer of the concerned cases, cannot prima facie escape their liability for the death of Satrugna Prasad while he was in the custody of the Police at Bally Police Station."
10. On the basis of his report the Superintendent of Police, CBI, SCB-I, New Delhi registered case against accused Moni Krishna Sarkar, the then SHO, Bally Police Station, Biman Mitra Mazumdar, SI, Bally Police Station and Ajijul Haque, SI, Bally Police Station, District Howrah. After due investigation charge-sheet was submitted and in the charge-sheet it has been reported by the IO that both the cases were registered by SI, Dinabandhu Chakraborty, Samrat Mondal and Abdul Hasim in order to create false evidence so as to destroy the evidence of commission of offence by wrongful confinement of and torture upon deceased Satrughan Prasad resulting in his death and also to help accused Moni Krishna Sarkar, Biman Mitra Mazumdar and Ajijul Haque, SI. This report prima facie is contradictory because in the same sentence he is referring to the third officer once as Abul Hasim and in the same breathing the third officer has been identified as Ajijul Haque. This gives rise to a reasonable suspicion regarding the role of the third officer Abul Hasim or Ajijul Haque, as the case 10 may be, who has registered those two false cases. The later part of the said report also contains following information:
"In this respect it is worth mentioning that FIR 225 of 1993 was falsely registered by the above said accused persons on the basis of false complaint written by accused Ajijul Haque, SI and signed by accused Dinabandhu Chakraborty, SI about the assault of Satrughan Prasad by the public at auto stand near Belur Railway Station in the morning. It has come in evidence that no such incident had occurred and happened on that particular day. All these things were manipulated by above named police officers to justify the illegal detention of Satrughan Prasad and to save themselves from the clutches of law."
In the above context he has submitted the charge-sheet praying for prosecution of the three accused along with the present petitioner Abul Hasim.
11. In the above context the charge-sheet framed against the present petitioner accused no. 4 Abul Hasim may now be looked into.
12. In the charge-sheet firstly it is alleged that on or about the period from 9th September, 1993 to 17th September, 1993 at Bally Police Station the accused entered into a criminal conspiracy with other co- 11 accused to conceal the alleged assault upon the victim resulting in his custodial death. The second charge leveled against him is that on or about the same day and at the same place while posted at Bally Police Station the accused wrongfully confined the victim Satrughan Prasad in the police custody without any lawful cause and thereby committed an offence punishable under Section 342 IPC. The third charge leveled against him is that at the same day and in the same place at Bally Police Station he had severely beaten the victim Satrughan Prasad by causing bodily injuries to him which he knew likely to cause death of the victim and as a result the victim succumbed to his injuries and thereby committed an offence punishable under Section 304 IPC. The fourth charge leveled against him is that on or about same place at Bally Police Station knowing that certain offence of wrongful confinement and severe badly injuries were caused to the victim Satrughan Prasad and as a result he succumbed to such injuries the accused caused disappearance of the evidence of the said offence under Section 342/304 IPC for giving false information to screen him from the legal punishment and thereby committed an offence punishable under Section 201 IPC. 12
13. Learned lawyer for the petitioner herein has laid much emphasis upon the charges specifically leveled against the present accused petitioner Abul Hasim with respect to the period of offence i.e., from 9th September, 1993 to 17th September, 1993 and the place of commission of the offence which is at Bally Police Station. Such a charge cannot, prima facie, lie against the present petitioner who has admittedly joined Bally Police Station on 2nd September, 2004 and such a frivolous prosecution if allowed to be continued will not ultimately succeed but the accused will be put to unnecessary harassment for such false allegation for which the proceeding against him should be quashed to prevent abuse of the process of law.
14. It is also on record that the petitioner joined Bally Police Station on 02.02.1994 and thereafter he was transferred to Jagachha Police Station as Officer-in-Charge on 20.02.2005. During the short tenure at Bally Police Station he only made enquiries including the production of witnesses before the learned SDJM, Howrah and for recording of statement under Section 164 Cr.P.C. In fact, after his transfer those two false cases were endorsed to A. N. Ganguly, SI and Utpal Banerjee, SI who after further investigation submitted charge- sheet. Since in the midst of investigation both the cases were 13 entrusted upon the petitioner he had no option but to carry out investigation as per law in the discharge of his official duty and therefore, there is no material on record to show that the petitioner was in any way connected with the alleged assault and custodial death of the victim on 17.09.1993 and registration and investigation of two false cases on 11.09.1993 and 12.09.1993 respectively.
15. It also appears from order no. 4 dated 05.10.2007 passed in S. T. No. 62 of 2006 that the learned Trial Court has rejected the prayer for discharge with the following observation:
"Be that as it may the document placed before me are yet to be proved. The nature of involvement or non-involvement would reveal only true evidence on dock hence the objection of the learned PP of CBI is upheld and the petition under Section 227 Cr.P.C. placed before me on 25.04.2007 has been rejected on contest."
Such a finding and framing of charge as above, in my opinion, suffers from serious infirmities because at the time of framing of charge it is the bounden duty of the learned Trial Court to consider the materials collected by IO in course of investigation to justify the prosecution under specific provision under the code. Once materials are 14 forthcoming to show that the accused was not at all posted at the place of occurrence at the material time he ought not to be prosecuted for committing such offence which was beyond the scope of his employment. In the instant case it is apparent on the face of record that the alleged offence did take place at Bally Police Station while the petitioner was posted at Raina within the district of Burdwan. Therefore, the charge framed by the learned Trial Court against the accused showing the place of occurrence as Bally Police Station in the charge-sheet is not based on material facts on record justifying continuation of the prosecution against the present petitioner.
16. Learned lawyer for the CBI has also failed to offer any satisfactory explanation as to why the officer who concluded the investigation and submitted charge-sheet after transfer of the present petitioner will not be impleaded in this case for committing same offence of conspiracy in acting and abetting the principal offenders. The present accused is admittedly on the same footing with subsequent two other IOs, A. N. Ganguly and Utpal Ganguly.
17. So far as the charge of conspiracy is concerned it was prima facie hatched up on the date of assault upon the victim on the night of 10.09.1993, 11.09.1993 and 12.09.1993 while the alleged custodial 15 death and initiation of two other false prosecutions did take place. Since the present petitioner was not posted at Bally Police Station at that time the offence of conspiracy, prima facie, fails in absence of any mens rea and meeting of the mind. The liability of abetment of the offence of disappearance of evidence at a subsequent stage of investigation is equally applicable to other investigating officers namely, A. N. Ganguly, Utpal Banerjee and Layak Ram, Inspectors of Police, CBI, SCB-II, New Delhi who filed the charge-sheet no. 4 dated 22.09.2004. The mens rea of such conspiracy in the instant case bloomed on or about 9th September, 1993 and apparent in the manifest action of the said IO Mr. Layak Ram who filed the charge- sheet after application of his mind on the basis of entire materials collected during the course of investigation. He only got the full scope for exercise of his discretion upon appreciation of the materials and he was only competent to decide as to charge-sheet will be submitted or not for such offences.
18. Thus the entire process of registration of the case, investigation and final report what is confusing to me is that the mens rea and action is complete at the time of registration of the case with the exception of continued offence, if any, and disappearance of evidence by the 16 subsequent IOs can only take place at the time of marshalling of facts at the time of forming an opinion regarding guilt of a person for which charge-sheet may be submitted. The intermediate investigating officers have no role to play in the application of their mind or translation of any mens rea of conspiracy in course of their short tenure of investigation. It is also apparent on the face of record that there is also confusion in the mind of the I.O. who filed charge-sheet regarding identity of A. Haque posted at the Bally P.S. at the material time as referred to by the learned Chief Judicial magistrate, Howrah in his report dated 01.11.1995 and reference of Ajijul Haque in the charge-sheet who was in fact posted at Bally P.S. as mentioned in paragraph 10 above.
19. Therefore, I hold that the prosecution of the present petitioner, whose name appeared in the charge-sheet without collection of sufficient incriminating materials, will be mere an abuse of the process of law and unnecessary harassment of the police officer who simply discharged his official duty consequent upon his transfer at Bally Police Station for a brief period. To prevent such abuse of the process of law I hold that the Court should exercise its inherent power under Section 482 Cr.P.C. In the result I hold that the petition succeeds. 17
20. The instant proceeding against the present petitioner Abul Hasim is hereby quashed and he is acquitted of the charge and released from his bail bond. Liberty is, however, given to the prosecution to move the learned Trial Court for framing of additional charges against accused Ajijul Haque if any evidence transpires against him as mentioned by the IO submitting charge-sheet as quoted in paragraph 10 above.
21. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.
(Syamal Kanti Chakrabarti, J.)