Calcutta High Court (Appellete Side)
Chalking vs Unknown on 25 November, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
18. 25.11.2011. C.R.R.2324 of 2010.
as
In Re: An application under Section 401 read with Section 482 of the Cr. P. C. Re: The State of West Bengal. ........Petitioner.
Mr. Debasish Roy, Ld. P. P., Mr. Amarta Ghosh.
....For the Petitioner.
Mr. Kaushik Gupta, Mr. Somopriyo Chowdhury.
....For the O.P. The challenge in this application under Section 401 read with Section 482 of the Code of Criminal Procedure is to the legality, validity and propriety of the order dated 5.5.2010 passed by the learned Chief Judicial Magistrate, Paschim Midnapore in connection with Salboni Police Station Case No.81 of 2008 dated 2.11.2008 whereby rejecting the prayer of the Investigating Officer for showing arrest of the accused Chhatradhar Mahato.
On 2.11.2008, incident of explosion of high powered mines had taken place near Kalaichandi Bridge on N. H. 60 under Salboni Police Station when the pilot car taking the then Chief Minister of this State arrived that place. The matter was then and there taken care of and one F.I.R. was lodged against unknown miscreants. In course of investigation, it was revealed that the Left Wing Extremist Organisation known as CPI (Maoist) Party had undertaken to eliminate the Chief Minister of this State and for that purpose, the mines were planted on the way he was supposed to travel on the particular date. A plan was chalked out earlier to give effect to the same and several meetings were held. In course of investigation, it also revealed that a party known as "Police Santras Janasadharaner Committee" was also joined hands with the CPI (Maoist) party in order to give effect to the plan. In course of investigation, the I.O. of the case recorded some statements in the first part of 2010 wherefrom it also revealed that one Chhatradhar Mahato, leader of "Police Santras Janasadharaner Committee" had active role in the matter of chalking out the plan. On 12.4.2010, Chhatradhar Mahato was interrogated by the I.O. in connection with this case. Chhatradhar Mahato was in jail in connection with numerous cases at that time. The I.O. of the case on 30.4.2010 had taken out an application before the learned Chief Judicial Magistrate, Paschim Midnapore praying for shown arrest of Chhatradhar Mahato in connection with the case. The learned Magistrate rejected the prayer on the ground that the I.O. failed to canvass satisfactory reasons for making such a prayer after such a long period when incriminatory evidence was found available in January, 2010. The State of West Bengal has come up with this application challenging the legality, validity and propriety of the order and also asked for invoking the extraordinary power of this Court under Section 482 of the Code of Criminal Procedure in order to enable the I.O. of the case to shown arrest of the accused Chhatradhar Mahato.
Mr. Debasish Roy, learned Public Prosecutor, High Court, Calcutta contends that the learned Magistrate erred in not taking into consideration the evidence already collected by the I.O. in course of investigation against Chhatradhar Mahato and the gravity of the same. He also submits that the learned Court failed to consider that for the purpose of smooth investigation or proper investigation, arrest of Chhatradhar Mahato was required badly, otherwise the process of investigation would be affected.
Mr. Kaushik Gupta, learned Counsel appearing on behalf of the accused/opposite party contends that this application is not maintainable. In support of his contention, he refers to the following decisions;
a) Rajen Kumar Machananda Vs. State of Karnakata, reported in 1990 SCC (Cri) 537;
b) Manoj Kumar Agarwal Vs. State of U.P., reported in 1995 Cri. L. J. 646;
c) State represented by Inspector of Police & Ors. Vs. N. M. T. Joy Immaculate, reported in (2004) 5 SCC 729; and
d) Vakeel Ahmad Vs. State of U.P. & Anr., reported in 2010 Cri. L. J. 2256.
Mr. Gupta also contends that the order impugned is a reasoned order and cannot be categorized as perverse one requiring interference in this revision.
In Rajen Kumar Machananda (Supra), the issue before the Hon'ble Apex Court was the applicability of the provisions under Section 397 (3) of the Cr. P. C. not the provision of sub section (2) of Section 397 of the Code. Therefore, the decision in Rajen Kumar Machananda (Supra) is not applicable in this case.
In Manoj Kumar Agarwal (Supra), the Hon'ble Single Bench of Allahabad High Court decided an issue as to whether the order of remanding of accused during pendency of investigation, amounts to interlocutory order or not. In doing so, the Hon'ble Judge also discussed the spirit of Section 57 of the Code which shows an accused arrested is to be produced within 24 hours and what would be the effect of delay. I think that the factual back ground of the case before the Hon'ble Judge and that of this case is quite different.
In State represented by Inspector of Police & Ors. Vs. N. M. T. Joy Immaculate (Supra), the question before the Hon'ble Court was whether the order granting police remand is interlocutory order or not. It was held by the Hon'ble Court that an order granting or rejecting police remand being a purely interlocutory order, revision against it is not maintainable.
In this context, the decision of the Apex Court in Madhu Limaye Vs. State of Maharashtra, reported in 1978 SCC (Cri) 10 can well be referred to which was also taken into consideration by the Hon'ble Apex Court in State represented by Inspector of Police & Ors. Vs. N. M. T. Joy Immaculate (Supra). In Madhu Limaye's case (Supra), the Hon'ble Court held that what is not a final order must be an interlocutory order cannot possibly be accepted as this will render the revisional power conferred under Section 397 (1) nugatory.
However, the principle in State represented by Inspector of Police & Ors. Vs. N. M. T. Joy Immaculate (Supra), the principles laid down by the Hon'ble Court are not disputed.
In the instant case, an application under Section 401 of the Cr. P. C. has been filed challenging an order as well exercising of extraordinary jurisdiction under Section 482 of the Cr. P. C. which can well be invoked by this Court. The facts, back grounds, principles of law discussed at the Bar are not similar to the peculiar fact and back grounds of the instant case. In this case, the F.I.R. was lodged against unknown miscreants. Therefore, it was not known to the I.O. at the time the F.I.R. was lodged as to who the persons behind the offence. The investigation in a case of such nature is, no doubt, a difficult job. It is a case where facts are being unearthed gradually. On 19.1.2011, for the first time, the I.O. came to know about the involvement of Chhatradhar Mahato with the alleged offence. Thereafter also some evidence could be collected by the I.O. against him. To verify the same, I.O. had been to the correctional home where Chhatradhar Mahato was detained in connection with other cases. He was interrogated there. Being satisfied with the interrogation, the I.O. thought it wise and proper to bring him on record as an accused and made a prayer of his shown arrest on 30.4.2010. The learned Magistrate, however, was not pleased with the belated action of the I.O. and rejected his prayer mainly on that ground although the learned Magistrate recorded that there is clear mentioning of the alleged meeting and involvement of the accused Chhatradhar Mahato.
Ordinarily, arrest is part of the investigation process intended to secure various purpose. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and action of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. To enable the process of investigation continues, smoothly and without any hindrance, it is necessary to arrest a person. Therefore, prayer for arrest whether shown arrest or not is a part of investigation process and investigating agency should get full opportunity of arresting a person for the purpose of proper investigation of a case and unearthing the truth.
In the instant case, the prayer of the I.O. was for shown arrest simplicitor not for remand of any kind. Therefore, the decisions of the Hon'ble Court in State represented by Inspector of Police & Ors. Vs. N. M. T. Joy Immaculate (Supra) and Manoj Kumar Agarwal Vs. State of U.P. (Supra), have no application because in those two decisions, the question before the Hon'ble Court was quite different. Whether the I.O. will ask for police remand or not would be next step from the prosecution side. That stage has not come yet and no remand order has yet been passed. Therefore, I do not find any reason as to why this application is not maintainable in this Court and why this Court should not exercise its power under Section 401 read with Section 482 of the Code.
When the Investigating Officer wants arrest of a particular person who is confined in jail in connection with other cases, he is supposed to make a prayer before the learned Magistrate and upon permission of the learned Magistrate, he can arrest that person not physically but showing him as arrested accused in connection with the case. Upon such a prayer, Magistrate should consider only whether the arrest of such a man is necessary for the purpose of investigation or not and for that matter, the production of the arrested accused in Court from the jail is required or not. I do not think that it has got any connection with timely prayer or belated prayer. Investigation process does not depend on a particular fact but on manifold factors. The I.O. of the case is to verify statement of the witnesses or co-accused, first of all and for that it takes time specially when one F.I.R. is lodged against unknown miscreants.
Taking everything into consideration, I think that the prayer of the I.O. ought to have been allowed by the learned Magistrate. Therefore, I set aside the order and allowed the Investigating Officer of the case to shown arrest of Chhatradhar Mahato in connection with this case.
The revisional application is disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates of the parties upon compliance of necessary formalities.
( Kanchan Chakraborty, J. )