Calcutta High Court (Appellete Side)
State Of West Bengal vs Md. Sohrab And Others on 25 July, 2017
1 25.07.201751
as/rkd & PA to Justice J.
Bagchi, J. C.R.R. 1990 of 2017
STATE OF WEST BENGAL
. . . PETITIONER
VERSUS
MD. SOHRAB AND OTHERS
. . . OPPOSITE PARTIES
Mr. Saswata Gopal Mukherjee, Ld. P.P.,
Mr. Sabir Ahmed,
Mrs. Anasuya Sinha.
...for the Petitioner
Mr. Deep Chaim Kabir,
Mr. Mazhar Hossain Chowdhury,
Md. Zeeshan Uddin,
Ms. Jonaki Saha.
...for the O.P. No.1.
Mr. Debasish Roy,
Mr. Daanish Haque,
Mr. Arindam Dey.
...for the O.P. Nos.2 & 3.
The State has assailed the order dated 26.5.2017 passed by the learned Additional District and Sessions Judge, 1st Track Court-II, Bichar Bhavan, Kolkata in S.C. No.76 of 2016 to the extent it discharges the opposite parties from the instant case.
Prosecution case, as alleged, is that in the early morning of 13.1.2016 while the Republic Day practice parade was going on along Khidderpore Road from south to north towards Red Road the 2 principal accused Tousif Sohrab @ Tausiff Sohrab @ Sambia being the driver of a white coloured Audi Q7 car without registration plates, willfully entered the restricted 'No Driving Zone' area by breaking the steel guard railings placed on the road and drove the vehicle dangerously at a high speed. The steel guard railings were placed along both flanks of Khidderpore Road which is used by the horses of Race Course. The driver avoided the guard rails placed near Vidyasagar Setu ramp on the said road for the purpose of practice parade for Republic Day and reached the crossing of Khidderpore Road and Lovers Lane near the South Gate of Fort William. When the on duty traffic constables in uniform tried to stop him by waving their hands, without paying any heed to them, he crashed the guard rails placed at the northern side flank of Khidderpore Road and proceeded towards Jenson and Nicolson Island at a very high speed. As the car proceeded recklessly along the western flank of Khidderpore Road, the parade contingents were marching along the eastern flank of Khidderpore Road in the same direction. At Jenson and Nicolson Island on duty police personnel in uniform again tried to stop the accused by waving their hands but again ignoring their signals the driver entered into the eastern flank of Khidderpore Road by taking U-turn at Jenson and Nicolson Island though at that time Red Road was open and not under guard rails. Thereafter the accused drove his car into the eastern flank of Khidderpore Road and at that time the contingents were approaching Jenson and Nicolson Island along the same flank keeping a narrow space between themselves and concrete 3 road divider. The said accused person instead of stopping his car accelerated the vehicle dangerously at a very high speed through the narrow space in opposite direction of the parade contingents towards Khidderpore. By this imminently dangerous act, the accused intentionally knocked down a corporal of Indian Air Force, Abhimanyu Rangalal, a Ground Training Instructor (GTI) of Indian Air Force Contingent who initially tried to save himself from the collision but sustained grave bodily injury due to the impact with the looking glass of the car. In spite thereof, the accused did not stop his car and knocked down the victim Corporal by driving his car straight of him and fled away. Before the incident, the unfortunate corporal of Air Force had stretched his hand and tried to save his life but failed to resist the offending car from running him over at very high speed. After committing the offence, the accused fled away with his car along Khidderpore Road and near the crossing of Lovers Lane again crashed the rail guards which were flung along the road so dangerously that it endangered the life of the on duty police personnel at that place. Due to the collision with the said guard rails the air bags of the offending car got inflated and the system of the said car stopped functioning compelling the accused to stop the car about 150 meters west of South gate of Fort William on Khidderpore Road and flee away. The witnesses noticed accused Tousif Sohrab @ Sambia coming out from the driver's seat and fleeing from the said car shaking his left hand.
On the basis of complaint of Colonel Richard Fernendes, Commanding Officer, 12, Garhwal Rifles, Garrison Battalion, Fort 4 William, Kolkata, investigation was started at Maidan Police Station Case No. 09 dated 13.01.16 U/s 120B/302 of IPC was registered against the driver of a white coloured Audi Q7 and others. Thereafter accused Tousif Sohrab @ Sambia absconded with the assistance of his father Md. Sohrab (opposite party no.2) and his friends viz., Shahnawaz Khan @ Sonu @ Shanu and Md. Noor Alam @ Joney @ Johny (opposite parties no. 2 and 3) who had been with him in a Skoda car bearing registration No.WB-02W-05777 and soon before the aforesaid ghastly incident, had parted company from the principal accused. Thereafter, the said opposite parties no. 2 and 3 had taken refuge at the residence of opposite party no. 3. Subsequently, principal accused Sambia met them at the residence of opposite party no.3 and all of them left in the said Skoda vehicle. Thereafter, the principal accused and opposite party no. 2 and 3 fled to Ranchi and with the help of their associates initially, secreted themselves in the residence of Hadisha Bibi at Khunti in the night of 14.01.2016. It is further alleged that initially they had intended to go to Cuttack but later on changed their minds and stayed back at the residence of Hadisha Bibi, as aforesaid. Md. Sohrab, that is, opposite party no.1 arranged for funds for his son at Ranchi through his associate, Md. Ahtisan. On 15.01.2016, the principal accused came to Kolkata whereas the opposite party no. 2 and 3 went elsewhere. Subsequently, the principal accused Sambia was arrested at Kolkata by the police. Investigation has also revealed that prior to taking refuge at the house of opposite party no.3. Sambia had come to the 5 latter's family garage house which was under the control of their employee, Rajesh Mallick. At that time opposite party no. 1 telephoned Rajesh Mallick and told him to hand over the phone to his son Sambia and talked to him in a low voice. Thereafter, Sambia left the garage house after informing Rajesh that his father had instructed him to leave Kolkata immediately. Opposite party no. 1 also instructed Rajesh Mallick not to disclose anything about Sambia or the white coloured audi car to the police or anybody.
It also came to light during investigation that opposite party no. 1 had telephoned his agent, Md. Ahtisan at Ranchi and informed him to provide money and any other assistance to his son, Sambia. Ahtisan, in turn, handed over Rs.20,000 to Sambia while the latter was in Ranchi.
In conclusion of investigation, charge sheet was filed against the principal accused Tousif Sohrab @ Sambia under Sections 302/304/307/201/427 of Indian Penal Code and under Sections 115/94 of the Motor Vehicles Act and under Section 212 of the Indian Penal Code against the opposite party Nos.2 and 3 and under Section 201/212 of the Indian Penal Code against the opposite party no.1. The case was committed to the Court of Sessions and transferred to the trial court for trial and disposal. The opposite party Nos.1 to 3 prayed for discharge from the charges levelled against them. The trial judge by the impugned order dated 26.5.2017 while framing charges under Sections 302/304/307/201/427 of the Indian Penal Code and under Sections 115/194 of the Motor Vehicles Act against the 6 principal accused Sambia, discharged the opposite party Nos.1 to 3 therein from the charges proposed against them.
Learned Public Prosecutor with Mr. Ahmed and Ms. Sinha, learned counsels submitted that the impugned order discharging the accused persons is a non-speaking one. He further submits that there are ample materials on record to show that the opposite party Nos.1 to 3 harboured the principal offender and, therefore, refusal to frame charges against them under Section 212 IPC was illegal. It is further submitted that statement of witnesses show that the opposite party no.1 was aware of the commission of the crime and had advised his son to leave Kolkata immediately to avoid arrest. He had also instructed his employee not to inform anybody including the police about the whereabouts of his son or the particulars of the offending vehicle. Public Prosecutor strenuously argued that the materials have also come on record that the opposite party no.1 had instructed his agent at Ranchi viz., Md. Ahtisan to give money to the principal accused in order to help the latter to evade the process of law. Such overwhelming materials were ignored by the learned trial Judge while discharging the opposite party no.1 from the alleged offences. He submitted that the aforesaid materials clearly disclose the ingredients of the alleged offences and to frame charges under Sections 201/212 of the Indian Penal Code ought to have been framed against the opposite party no.1 in the facts of this case.
With regard to opposite party Nos.2 and 3, learned Public Prosecutor submitted that they were with the principal accused soon 7 before the alleged incident and immediately thereafter all of them fled to Ranchi and had secreted the principal accused at Khunti in order to avoid his detection and arrest. It has also come to light that they were planning to flee to Cuttack but thereafter changed their plans and stayed back at Ranchi till they finally parted ways on 15.01.2016. Materials on record clearly indicate a strong suspicion that opposite party no.2 and 3 harboured the principal accused knowing that he had committed a crime and ought not to have been discharged.
On the other hand, Mr. Kabir, learned Counsel appearing for the opposite party no.1 submitted that the best evidence with regard to the fact that the principal accused Sambia had come to the family garage house after the incident has been withheld, since the video recording from the C.C.T.V. camera fixed at the said place had not been produced before the Court. He further submitted that there is nothing to show that the opposite party No.1 was aware of the incident and had advised his son to flee from justice as the statement of Rajesh Mallick does not indicate what transpired between the father and the son in the course of their telephonic conversation. Call charts do not conclusively establish such conversation also. He relied on various authorities to support his submission that merely requesting a witness not to disclose whereabouts of an accused does not amount to "disappearance of evidence" or "giving any information"
respecting the offence which the accused knew or believed to be false and, therefore, no charge under Section 201 of the Indian Penal Code 8 could be framed against his client. He also submitted that the materials with regard to harbouring the principal accused is vague and does not give rise to strong suspicion as to the involvement of the opposite party no.1 in the alleged offence.
Mr. Roy, learned Senior Counsel appearing for the opposite party Nos.2 and 3 submitted that the alleged role of his clients ought to be appreciated in the light of the genesis of the incident as it unfolded on and from the morning of 13.1.2016. First information report was registered against "other accused persons" in addition to the driver of the Audi Q-7 car and an impression was created through the public media that his clients were also suspects in the instant case. Accordingly, their accompanying the principal accused as transpiring from the statements of the witnesses cannot be treated as an act of harbouring the principal offender Sambia in the instant case. It is also argued that mere presence with the principal offender does not tantamount to harbouring of the offender and accordingly, his clients were rightly discharged. He relied on various lexicons for the definition of the word 'harbouring' to elucidate his contention that a suspect cannot harbour another.
I have considered the submissions of the parties in the light of the materials collected during investigation. Statements of witnesses show that in the early hours of 13.1.2016 the principal accused Sambia who was driving a white Audi car vehicle was accompanied by opposite party nos.2 and 3 in their Skoda car bearing registration No.WB-02W-05777. It also transpires from the materials on record 9 that soon before the incident the opposite party nos.2 and 3 parted ways with the principal accused who drove his vehicle at a breakneck speed down Red Road breaking number of guard rails and causing death of a corporal attached to the Indian Air Force while the corporal was participating in the practice parade march as part of Republic Day preparations. The imminently dangerous act of the principal accused resulting in a certain death of the victim was followed by his abscondence from the spot after leaving behind the offending vehicle at a nearby place. Soon thereafter the principal accused sought refuge in his family garage house which was under the control of their employee viz., Rajesh Mallick. Statement of Rajesh Mallick shows that the principal accused Sambia talked in a low voice over the mobile phone with his father opposite party no.1 and soon thereafter the latter told his employee, Rajesh not to inform anyone about the whereabouts of his son Sambia or the particulars of the offending vehicle. It also transpires from the statement of Rajesh that the principal accused told him that his father had instructed him to leave Kolkata immediately. Soon thereafter Sambia met opposite party nos.2 and 3 at the residence of the opposite party no.3 and all of them left in the aforesaid Skoda vehicle. The Skoda vehicle was subsequently abandoned and the aforesaid persons secreted themselves at Ranchi. Statement of witnesses, namely, Sarfarash, Daanish and Hadisha Bibi show that the principal accused along with the opposite party nos.2 and 3 conspired amongst themselves and initially intended to go to Cuttack but subsequently changed their 10 minds and hid themselves for the night at the residence of Hadisha Bibi at Khunti. In the meantime, the opposite party no.1 contacted his agent Md. Ahtisan at Ranchi and informed him to give financial and other assistance to his son Sambia who was absconding from law. Thereafter on 15.1.2016 after receiving money from Md. Ahtisan the principal accused parted ways with the opposite parties no.2 & 3 and proceeded to Kolkata. Upon returning to Kolkata on the self-same day, the principal accused was arrested.
It has been argued that the instruction to Md. Ahtisan by opposite party no.1 to give money to the principal accused was not to help the latter to abscond but to enable him to return to Kolkata and submit himself to the process of law. There is nothing on record to show that the principal accused Sambia travelled to Kolkata in order to turn himself over to the police. On the contrary, it appears that the investigating agency arrested the absconding accused. Nothing transpires from the statement of Md. Ahtisan that opposite party no.1 had instructed him to advance monies and other assistance to enable his son to surrender to the process of law. Such factual defense of the opposite party no.1 is not borne out from the materials on record and cannot be accepted at this stage in order to exonerate him from the charge of harbouring the principal offender.
Section 52A of the Indian Penal Code defines 'harbour' as follows:
"52A. Except in section 157, and in section 130 in the case in which the harbour is given by the wife 11 or husband of the person harboured, the word "harbour" includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means, whether of the same kind as those enumerated in this section or not, to evade apprehension."
Definition of the word 'harbour' is an inclusive one which includes supply of shelter, food, drink, money, clothes, arms or ammunitions or means of conveyance or assistance to a person by any means to evade apprehension. The aforesaid expression being couched in the widest terms would naturally include the efforts on the part of the opposite party no.1 to instruct his son to leave Kolkata immediately and his express mandate to his employee not to disclose his son's whereabouts to the police or anybody. His act of harbouring is further amplified by requesting his agent Md. Ahtisan in Ranchi to provide money to his son while the latter was secreting himself at that place.
Arguments of the learned Counsel relating to withholding of 'best evidence' in the form of CCTV footage of the family garage house or alleged discrepancies between the entries in the call lists and the version of Rajesh Mallick do not render the prosecution version inherently improbable so as to dislodge the foundation of a prima facie against the opposite party no.1. At the stage of framing of charge the Court is not required to sift and weigh the materials on record as 12 to its probative value but only to enquire whether a prima facie case is made out or not.
It has also been argued that merely extending support or assistance to an absconding accused does not attract Section 212 of the Indian Penal Code unless the person accused of such an offence knows or has reason to believe that the individual he is harbouring or concealing is an offender. Bearing in mind the relationship between the opposite party no.1 and the principal accused as father and son and the secretive exchanges which took place between themselves soon after the incident it may be reasonably inferred that opposite party no.1 knew or had reasons to believe that his son is an offender when he advised the latter to leave Kolkata immediately and subsequently financed him when he was secreting himself at Ranchi.
It is, however, relevant to note that there is nothing on record to show that the opposite party no.1 either caused disappearance of evidence or had given information regarding the offence which he knew or believed to be false to screen the offender. Nothing has been placed before me to show that the opposite party no.1 had been interrogated by the police with regard to the whereabouts of his son. Therefore, the question of giving incorrect or false information about the whereabouts of his son does not arise at all. Instruction to his employee not to divulge whereabouts of his son or the particulars of the offending vehicle to police or anybody cannot constitute the offence punishable under Section 201 of the IPC. Essential requirement to attract the said penal provision is that the offender 13 must himself give false or incorrect information to screen the offender and instruction to another person to do so would not constitute such offence. Causing disappearance of evidence would mean disappearance of material evidence with regard to the offence itself and not the efforts on the part of a person to screen an offender from detection. (See Anverkhan Mahamadkhan vs. Emperor, Vol.22 Cr.L.J. 609 and Jogta Kikla vs. The State, AIR 1962 Guj. 225). When the conduct of the opposite party no.1 is judged from the aforesaid legal perspective, I find it difficult to persuade myself that the factual matrix of the case discloses the essential ingredients of the offence punishable under Section 201 of the Indian Penal Code so far as the opposite party no.1 is concerned.
In view of the aforesaid discussion, I am of the opinion while there is strong suspicion against the opposite party no.1 for commission of offence punishable under Section 212 of the Indian Penal Code, the materials on record do not disclose the ingredients of the offence under Section 201 of the Indian Penal Code so far as he is concerned.
Coming to the role of the opposite party nos.2 and 3, it appears that they were present with the principal accused soon before the incident. Immediately, after the incident all of them fled away to Ranchi and hid themselves in the house of Hadisha Bibi. In the meantime, they even planned to go to Cuttack but changed such plan subsequently. The association of opposite party nos.2 and 3 with the principal offender soon before and after the incident and their 14 continued presence with the principal absconding offender at various places in Ranchi clearly give, rise to a reasonable belief that they were aware that Sambia was the offender in the instant case and they took efforts to secret him at various places at Ranchi.
It has been argued that the opposite party nos.2 and 3 at the initial stages of the investigation were labouring under an impression that they were also accused of the crime of murder. Hence, it cannot be said that they had harboured the co-accused viz., Sambia.
I have given my anxious consideration to such submission but I am unable to persuade myself that the wide definition of the word 'harbour' as defined in Section 52A of the Indian Penal Code would exclude a co-accused who knowingly assists another accused to abscond from legal punishment. The sole exception in that regard is a spouse and no one else. Moreover, in the light of the clear and expansive definition of the word 'harbour' in the Code, I am of the opinion that reference to various lexicographic authorities is of little relevance. Hence, I am of the opinion that a prima facie case has also been disclosed against the opposite party nos.2 and 3 with regard to the commission of offence punishable under Section 212 of the Indian Penal Code.
Last but not the least, I note with grave concern the laconic and casual manner in which the trial judge proceeded to discharge the opposite party nos.1 to 3 herein from the charges levelled against them. Although the court while framing charges may not be required 15 to record reasons, therefore, it is the statutory mandate under Section 227 of the Code of Criminal Procedure that cogent reasons must be recorded to discharge an accused from the charges levelled against him.
I have scanned the order passed by the learned Judge but I did not find an iota of reason recorded by the learned Judge while coming to a conclusion that the opposite party nos.1 to 3 herein ought to be discharged from the instant case. It must be borne in mind that unmerited discharge of accused persons bereft of rational foundation cause undue dilation in trial and consequential prejudice not only to the victim but also to other accused persons who are facing custody trial, as in the present case.
In view of the aforesaid discussion, I set aside the impugned order to the extent it discharges the opposite parties no.1 to 3 from the instant case. The trial court is directed to frame charges against the opposite party nos.1 to 3 under Section 212 of the Indian Penal Code.
I make it clear that the discharge of the opposite party no.1 from the charge under Section 201 Indian Penal Code shall not stand in the way of the trial Court in reframing the said charge at a subsequent stage if cogent evidence disclosing the ingredients of the said offences are brought on record in the course of trial. I also hasten to add that the observations made by me while disposing of this application shall not have any bearing at the subsequent stage of 16 the trial which needless to mention shall be decided independently on the basis of evidence adduced and in accordance with law without being swayed by any observation made in this order.
The trial Court is directed to expedite the trial and conclude the same at an early date bearing in mind that the fact that the principal accused is facing custody trial in the instant case.
Accordingly, the revision petition is disposed of. Urgent photostat certified copy of this order, if applied for, shall be given to the parties, as expeditiously as possible on compliance of all necessary formalities.
(Joymalya Bagchi, J.)