Calcutta High Court (Appellete Side)
J. Sankar Rao vs State Of West Bengal & Anr...Opposite ... on 13 February, 2018
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
CRR No. 3474 of 2017
J. Sankar Rao. ...Petitioner
Versus
State of West Bengal & Anr...opposite parties
For the Petitioner : Mr. Sourav Chaqtterjee
Mr. Soumyajit Das Mahapat
Mr. S.C. Mukhopadhyay..learned P.P.
For the State Mr. Ranabir Roy Chowdhury
Mr. Ayan Basu
Heard on : 09.02.2018
Judgment on : 13.02.2018
Debi Prosad Dey, J. :-
1.This application under Section 397 read with Section 482 of the Code of Criminal Procedure for setting aside the order dated 20.06.2017, 22.06.2016 and 16.09.2017 passed by the learned Additional Chief Judicial Magistrate, 1st Court, Jhargram, Paschim Medinipur in GR Case No. 202 of 2017 arising out of Jhargram Police Station Case No. 41 of 2017 dated 20.03.2017 under Sections 15/16/16A/18/23 of the Unlawful Activities Prevention Act, 1967 UAPA) and 25 (1-B) (a) of the Arms Act, 1959 and 5/6 of the Explosive Substances Act, 1908, whereby and whereunder the learned Additional Chief Judicial Magistrate, 1st Court, Jharghram Paschim Medinipur extended the period of detention from 90 days to 180 days and thereafter took cognizance of the charge-sheet submitted by the investigating agency .
2. Mr. Chatterjee learned Advocate appearing on behalf of the petitioner contended that the application for extension of the period of detention/investigation from 90 days to 180 days has not been filed in strict compliance of Section 43D(2) (b) of UAPA and accordingly the order of extension passed by learned Additional Chief Judicial Magistrate, 1st Court, Jhargram, Paschim Medinipur ought to be set aside. It is further submitted that no sanction was obtained from the competent authority in strict compliance of Section 45(1) (ii) of the UAPA at the time of filing of such charge- sheet under UAPA and accordingly the order of taking cognizance ought to be set aside. It is submitted that in fact the prosecuting agency took step with regard to obtaining sanction only after filing of this Criminal Revisional Application and ultimately a supplementary charge-sheet was submitted after obtaining sanction on 27th December 2017 long after filing of the first charge- sheet. Mr. Chatterjee has relied on a decision reported in (2017) 3 C Cr. Lr (Cal) 619 Sharmistha Chowdhury & Arn. V. State of West Bengal & Ors. and another decision of the Supreme Court reported in (2013) 6 Supreme Court Cases 348 Amitbhai Anil Chandra Shah v. Central Bureau of Investigation & Anr.
3. Learned Advocate appearing on behalf of the State contended that detailed report was submitted by the learned Public Prosecutor before the concerned Court and after carefully considering the said report learned Additional Chief Judicial Magistrate had extended the period of detention/investigation in compliance with Section 43 D(2) of UAPA. It is further submitted that there is absolutely no provision or stipulation in the concerned Act that such application has to be made within 90 days and accordingly the order of learned Magistrate cannot be termed to be absolutely illegal. Learned Advocate appearing on behalf of the state contended that valid sanction was given/obtained in respect of the offences against Explosive Substances Act and Arms Act prior to filing of the charge-sheet and the learned Additional Chief Judicial Magistrate, 1st Court, Jhargram, Paschim Medinipur has duly taken cognizance of the offences on receipt of the charge- sheet. Therefore, the cognizance taken by Additional Chief Judicial Magistrate, 1st Court, Jhargram, Paschim Medinipur cannot be altogether termed to be illegal. Admittedly no sanction was obtained at the time of filing of such charge-sheet under UAPA but the sanction was obtained on 27.12.2017 and thereafter a supplementary charge-sheet was submitted.
4. On 20th June 2017 i.e. well within the period of 90 days the prayer was submitted by the investigating officer for extension of the detention of the present petitioner from 90 days to 180 days. The petitioner 'not pressed' his application for bail on that date. Ultimately an order was passed by the learned Additional Chief Judicial Magistrate, 1st Court, Jhargram, Paschim Medinipur on 22nd June 2017 considering the report of the learned Public Prosecutor, Paschim Medinipur and after going into the merit of the case. The Additional Chief Judicial Magistrate, 1st Court, Jhargram, Paschim Medinipur could not dispose of such application within the stipulated period and there was absolutely no fault on the part of the investigating agency in filing such application. In that view of this case it cannot be said that the order passed by the learned Additional Chief Judicial Magistrate, 1st Court, Jhargram, Paschim Medinipur for extension of the detention of the present petitioner is out and out illegal. It may be mentioned here that on the self-same ground the petitioner has filed CRM 13101 of 2017 for release on bail but the Division Bench has rejected such application holding inter alia that prima facie involvement of the petitioner is apparent on the face of the record. On that score also the petitioner cannot claim any mileage with regard to such illegal detention of the petitioner.
5. A co-ordinate Bench of this high Court has set out the proposition of law in respect of such extension in the decision reported in (2017) 3 C.Cr. LR (Cal) 619) (supra). It has been observed by the Bench that such extension is an exercise of judicial discretion which may be permitted upon following the statutory pre-conditions being satisfied:
(a) Report filed by the Public Prosecutor indicating the progress of investigation and specific reasons for detention of the accused beyond 90 days .
(b) Recording of satisfaction by the Court of such report filed by the Public Prosecutor that further detention of the accused is necessary for progress of investigation.
6. It is therefore, apparent from the aforesaid order passed by the learned Additional Chief Judicial Magistrate that learned Court being satisfied about the result of investigation as well as the reasons assigned by the learned Public Prosecutor has extended the period of detention from 90 days to 180 days, in that view of this case such order cannot be termed to be out and out illegal.
7. The learned advocate for the petitioner has also relied on a Judgement reported in (2013) 6 SCC 348 (supra) in support of his contention, that subsequent sanction obtained by the prosecuting agency for the UAPA cannot be taken into consideration. In the decision referred to hereinabove the Supreme Court has laid down the principle of law with regard to second FIR. The fact in issue in the case under reference is with regard to subsequent obtaining of sanction under UAPA and the filing of supplementary charge-sheet to that effect. No second FIR has been filed by the prosecuting agency in order to invoke UAPA and on the contrary the provisions of UAPA was added with the charges under Arms Act as well as the Explosive Substances Act. Since there was no sanction under UAPA on the date of taking cognizance by the Additional Chief Judicial Magistrate, 1st Court, Jhargram, Paschim Medinipur that is on 16.09.2017 it may safely be stated that no charge-sheet under UAPA was submitted on 16.09.2017. However, subsequent taking of cognizance by the Court concerned on the basis of supplementary charge-sheet cannot be said to be illegal in view of the decision reported in (2016) 2 Supreme Court Cases (Cri) 360 Nanjappa v. State of Karnataka. The Supreme Court in very many decisions has even observed that acquittal order not by a competent Court does not stand as a bar of retrial of the accused by the competent Court after having sanction of the trial of the appellant later on. That goes to show that accused is not entitled to get any mileage in terms of Section 300 of the Code of Criminal Procedure for not having sanction of UAPA at the earliest point of time. The petitioner has not been tried by any competent Court of law and accordingly in view of the decisions reported hereinabove the entire case of the prosecution cannot be thwarted at this stage. Moreover, the learned Advocate for the State further contended that the aforesaid objections were raised by the petitioner before the Division Bench of this Court and the Division Bench in CRM 13101 of 2017 has not acceded to such point raised by the petitioner.
8. In the premise set forth above, I find no reason to interfere with the order passed by the Additional Chief Judicial Magistrate, 1st Court, Jhargram, Paschim Medinipur in G.R. Case NO. 202 of 2017 and accordingly this revisional application being CRR 3474 of 2017 is dismissed.
9. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)