Gauhati High Court
Bibit Dehingia vs The State Of Arunachal Pradesh And 5 Ors on 16 June, 2020
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010076082020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 301/2020
1:BIBIT DEHINGIA
S/O SRI TARA NATH DEHINGIA, R/O VILL. METEKA LAIMEKURI, P.O.
METEKA, P.S. AND DIST. SIVASAGAR, ASSAM
VERSUS
1:THE STATE OF ARUNACHAL PRADESH AND 5 ORS.
REP.BY THE PP, AP
2:JONGO MILI
S/O LT. BUKE MILI
HEAD GAON BURAH
EMUL VILL. LOWER DIBANG VALLEY DIST. ROING PIN-792110
3:THE STATE OF ASSAM
REP. BY THE PP
ASSAM
4:THE OFFICER IN CHARGE
SADIYA POLICE STATION
PIN-786155
5:THE CONSERVATOR OF FORESTS
EASTERN ASSAM CIRCLE
JORHAT
PIN-785001
6:THE DIVISIONAL FOREST OFFICER
DOOMDOOMA
DIVISION
PIN-78615
Advocate for the Petitioner : MR. B K MAHAJAN
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Advocate for the Respondent : PP, A P
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 16.06.2020 Heard Mr. B.K. Mahajan, learned counsel for the petitioner. Also heard Mr. N.N.B. Choudhury, learned Public Prosecutor for the State of Arunachal Pradesh (respondent no.1), who has produced the case diary.
2) By this application under Section 482 CrPC, the petitioner has assailed the impugned order dated 11.05.2020, passed by the learned Chief Judicial Magistrate, Roing, thereby issuing warrant of arrest to secure appearance of the petitioner before the said learned court in connection with Roing P.S. Case No. 25/2020.
3) The petitioner herein is the Range Forest Officer, Chapakhowa Range, PO & PS Sadiya, Dist. Tinsukia, Assam, which is not disputed by the learned PP.
4) The gist of the allegations contained in the FIR lodged on 02.05.2020 is that at about 1200 hours, a group of 20-30 including 5-6 uniformed persons, probably belonging to Assam Forest Department led by the petitioner, all armed with rifles, had entered Emuli Village of Lower Dibang Valley District (Arunachal Pradesh) from Assam side by crossing Kundil river by boats and went on a rampage. At first shots were fired in the air to threaten the people of the village to vacate the area, then they burnt down 6 houses after looting the valuables, livestock, etc. from those houses. They assaulted the villagers and had grievously injured one resident who is named therein, with a machete blow on his head, and was given treatment. It was projected that before all could escape, the police had apprehended two assailants from whom the looted items were recovered. It was further alleged that one more villager was assaulted and six of his oxen were snatched away and his brother was assaulted with a machete when he tried to resist. Accordingly, Roing PS Case No. 25/2020 was Page No.# 3/11 registered in respect of offence committed under sections 447/147/ 148/326/397/395/188/269/271/34 I.P.C. read with section 25(1-A) of the Arms Act, triggering investigation by the police personnel of Roing P.S.
5) The learned counsel for the petitioner has submitted that vide notification dated 14.12.1966, Kundil Kalia was declared to be a "reserved forest" with total area of 18,000 acre (7284.34 hectare) which is located along the border of the States of Assam and Arunachal Pradesh. It is projected that the said forest range is under Sadiya Range of Doomdooma Division, but presently 4100 hectare area of the said forest is under illegal encroachment, out of which 3900 hectare area is encroached by people from Arunachal Pradesh. It is submitted that on 02.05.2020, by taking along his forest staff and Assam Forest Protection Force personnel as well as the police personnel from Sadiya P.S., the petitioner went on patrolling duty in the said Kundil Kalia Reserved Forest and identified some persons who had encroached the forest land and during that time, had erected temporary sheds and had started cultivation. During the said time, about 100- 150 persons from Sadiya entered the area and burnt down those temporary sheds. Thereafter, the police personnel of Santipur P.S. and Roing P.S. of Arunachal Pradesh had accosted the petitioner and his team and after threatening the petitioner and his team, returned. Hence, it is submitted that the documents annexed to this revision would show that the petitioner had visited the forest area under his jurisdiction, for which reference to revenue map, Gazette notification of 14.12.1966, and location coordinates have been provided, and it is submitted that those documents would be sufficient to show that the petitioner was patrolling forest area within his territorial jurisdiction. Accordingly, the petitioner has prayed for quashing of the Roing PS Case No. 25/2020, and he has also assailed the impugned order dated 11.05.2020, by which the learned Chief Judicial Magistrate, Roing had issued non- bailable warrant of arrest against the petitioner. It is also submitted that the impugned order was without jurisdiction as warrant cannot be issued to facilitate custodial interrogation by the investigating agencies. It is also submitted that the case of the State of Arunachal Pradesh fell within category 7 of Bhajanlal's case [State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335 ] and the prosecution of the petitioner was totally mala fide and abuse of the process of Court.
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6) In support of his submissions, the learned counsel for the petitioner has relied on the following cases, viz., (1) Ahmad Ali Quraishi Vs. State of Uttar Pradesh, Crl.Appeal No. 138/2020, decided by Supreme Court of India, reported in (2020) 0 Supreme(SC) 90; (2) Sangeeta Agrawal Vs. State of U.P., (2019) 2 SCC 336; (3) Prashant Bharti Vs. State (NCT of Delhi), (2013) 9 SCC 293; (4) State through CBI Vs. Dawood Ibrahim Kaskar, (2000) 10 SCC 438; (5) In Re: Md. Fakhrul Islam, (2012) 4 NEJ 543: (2012) 2 GLT 994: (2012) 3 GLJ 328; (6) Bhupatbhai Valabhai Dekawadiya Vs. State of Gujarat, Special Crl. Appln. (Quashing) No. 2012/2015 decided by Gujarat High Court on 15.04.2015; (7) Gurjeet Singh Johar Vs. State of Punjab, CRM-M 47872/2019 (O&M), decided by Punjab & Haryana High Court on 08.11.2019; (8) Kamlesh Govindbhai Sagparia Vs. State of Gujarat, decided by high Court of Gujarat on 17.10.2016.
7) Seriously opposing this application, the learned PP had come prepared with the scanned copy of the relevant pages of the case diary. By referring to the photographs of whatever remains of the burnt houses it is submitted that not only the petitioner and his team had entered the Emuli Village of Lower Dibang Valley District by violating lockdown norms, but he was also instrumental in the burning down of the houses of 6 persons named in the FIR, and thereby committed the offence of arson, dacoity, robbery, causing grievous injury by assaulting and also committed theft of a huge number of livestock including cattle and poultry as well as looted huge quantity of other food items. It is also submitted that the area where the crime was committed under the leadership and/or instigation of the petitioner fell within the territory of Arunachal Pradesh. Accordingly, the learned PP submits that as heinous crime was committed by the petitioner, no ground has been made out to interfere with the police case as well against the impugned order. It is further submitted that the Court has unfettered power to issue warrant of arrest with a view to ensure that any person accused of committing any cognizable offence can be brought before the said learned Court. Hence, it is submitted that the cases cited by the learned counsel for the petitioner would not help the petitioner in any manner. In support of his submissions, the learned PP has referred to the following cases, viz., 1) Arnab Ranjan Goswami Vs. Union of India, W.P.(Crl) 130/2020 decided on 19.05.2020; (2006) 7 SCC 245; (3) State through CBI Vs. Dawood Ibrahim Kaskar, (2000) 10 SCC 438; (4) Prakash Rasiklal Dhariwal Vs. CBI, (2005) 0 Supreme(Bom) Page No.# 5/11
234.
8) In view of the nature of dispute raised in this revision, the matter needs to be examined. Accordingly, let a notice returnable on 27.07.2020 before the Itanagar Permanent Bench be issued on the respondents no. 1 and 2. As the FIR is by respondent no.2, the respondent nos. 3 to 6 are neither the necessary nor the proper parties for being heard in this criminal quashing petition. Hence, issuance of notice on the respondent nos.3 to 6 is dispensed with at this stage, keeping the issue of arraying of the said respondents in this revision open. No formal steps need be taken in respect of respondent no.1. However, requisite extra copies of this petition may be furnished to the learned PP for the State of Arunachal Pradesh in course of the day. The petitioner shall take steps in course of the day for service of notice on the respondent no. 2 by registered post as well as through the jurisdictional Magistrate in terms of the Gauhati High Court Rules with suitable modification of the prescribed form.
9) As the petitioner has prayed for interim relief, in order to consider such interim prayer, the following discussions have been made.
10) While the learned counsel for the petitioner claims that the place of occurrence of the alleged offence is well within the boundaries of the State of Assam and in this regard, the learned counsel for the petitioner has referred to the documents annexed to this revision and it is projected that the place which the petitioner had visited is within the following GPS location coordinate, viz., (1) 27 056'59.4" north and 95050'10.6" east; (2) 27056'55.3" north and 95050'13.0" east; (3) 27057'01.1" north and 90050'04.5" east; (4) 27057'20.4" north and 95049'41.9" east; (5) 27057'20.2" north and 95050'03.8" east; (6) 27057'08.7" north and 95050'13.6" east; (7), 27057'18.5" north and 95050'14.2" east. It is further projected that the said area was 1.39 km. inside from the northern boundary of Kundil Kalia reserved forest area. However, though in the case diary the GPS location coordinates are not available, but the learned PP has projected that the place of occurrence is in Emuli Village, Lower Dibang Valley District.
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11) Thus, the petitioner as well as the I/O of Roing PS are both claiming that the place of occurrence is within their territorial jurisdiction. In view of the provisions of Article 131(b) of the Constitution of India, this Court while exercising jurisdiction under Article 482 CrPC, cannot decide whether the place of occurrence is in the State of Assam or in the State of Arunachal Pradesh. It may, however, be stated that both sides have not produced any document to show that the area where the alleged incident had taken place is otherwise a disputed territory between the two States i.e. Assam and Arunachal Pradesh.
12) Be that as it may, the fact remains that the I/O of Roing P.S. Case No. 25/2020, with a notion that the place of occurrence is under the jurisdiction of his police station, has investigated the case. Under such circumstances, when the learned Chief Judicial Magistrate, Roing had issued a warrant of arrest against the petitioner, he is also under a bona fide belief that the place of occurrence is within the territory of Arunachal Pradesh and that his Court would have territorial jurisdiction over such place.
13) In order to appreciate the submissions made by the learned counsel for both sides, let us now assume that in a given case, the accused, a resident of Delhi has gone to Mumbai. He has committed a non-bailable offence at Mumbai. After committing the crime, he returns back to Delhi. In view of the provisions of Section 48 CrPC, the police can arrest a person anywhere in the Country (including Delhi) without a warrant and bring him to Mumbai. However, under Section 50(2) CrPC, such arrested person must be informed of his right to be released on bail and that he must be given opportunity to arrange for sureties. Similarly, Court has the power to issue warrant of arrest under Section 71 and 73 CrPC and the safeguards of the rights of the arrested persons is provided, inter-alia, under Sections 80 and 81 CrPC. Under the provisions of Section 73(1) CrPC, it is provided that - " The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest ." Thus, statute provides that warrant can be issued against "any person" accused of non- bailable offence.
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14) It is deemed appropriate to quote below paragraphs 20 to 24 of the case of Dawood Ibrahim Kaskar (supra) :-
20. Apart from the above observations of the Law Commission, from a bare perusal of the Section (quoted earlier) it is manifest that it confers a power upon the class of Magistrates mentioned therein to issue warrant for arrest of three classes of person, namely (i) escaped convict, (ii) a proclaimed offender and (iii) a person who is accused of a non-bailable offence and is evading arrest. If the contention of Mr. Sibal that Section 204 of the Code is the sole repository of the Magistrate's power to issue warrant and the various Sections of part 'B' of Chapter VI including Section 73 only lay down the mode and manner of execution of such warrant a Magistrate referred to under Section 73 could not - and would not - have been empowered to issue warrant of arrest for apprehension of an escaped convict, for such a person cannot come within the purview of Section 204 as it relates to the initiation of the proceeding and not to be a stage after a person has been convicted on conclusion thereof.
21. That Section 73 confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also, can be best understood with reference to Section 155 of the Code. As already noticed under this section a police officer can investigate into a non cognizable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a non-
cognizable and non-bailable offence, (like Section 466 or 467 (Part 1) of the Indian Penal Code) and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek for and obtain a warrant of arrest from the Magistrate. If the accused evade the arrest, the only course left open to the Investigating Officer to ensure his presence would be to ask the Magistrate to invoke his powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise his powers under Section 73, for the person to be apprehended is "accused of a non-bailable offence and is evading arrest."
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22. Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of part 'C' of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a person against whom a warrant has been issued by it'. In other words, unless the Court issues a warrant the provisions of Section 82, and the other Sections that follow in that part, cannot be invoked in a situation where in spite of its best efforts the police cannot arrest a person under Section 41. Resultantly, if it has to take the coercive measures for the apprehension of such a person it has to approach the Court to issue warrant of arrest under Section 73; and if need be to invoke the provisions of part 'C' of Chapter VI. [Section 8(3) in case the person is accused of an offence under TADA.]
23. Lastly, we may refer to Section 90, which appears in part 'D' of Chapter VI of the Code and expressly states that provisions contained in the Chapter relating to a summon and warrant, and their issue, service and execution shall, so far as may be, apply to every summons and every warrants of arrest issued under the Code. Therefore, when a Court issues a warrant of arrest, say under Section 155 of the Code, any steps that it may have to subsequently take relating to that warrant of arrest can only be under Chapter VI.
24. Now that we have found that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and, is evading arrest, we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate Page No.# 9/11 does not exercise judicial discretion like while dealing with an accused of a non- bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr. Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the Courts solely for the production of the accused before the police in aid of investigation."
15) The herein before quoted paragraphs of the case of Dawood Ibrahim Kaskar (supra), leaves no room for doubt that in the present case in hand, the Chief Judicial Magistrate is not only empowered but he also has the jurisdiction to issue non- bailable warrant of arrest against the petitioner under Section 73 CrPC, who is accused of committing non- bailable offence.
16) As notice has been issued in connection with this instant petition, the Court is of the considered opinion that if all the cases cited by the learned counsel for both sides are discussed, it may prejudice the parties hereto when this application is finally heard on merit. Therefore, except for quoting relevant paragraphs of the case of Dawood Ibrahim Kaskar (supra), which clearly spells out the scope of issuing warrant under Section 73 CrPC, the Court has refrained from discussing all the cited cases.
17) In the present case in hand, the accusation is to the effect that the petitioner was involved in arson, looting, dacoity, theft of valuables and cattle, etc. of people residing within the jurisdiction of Roing PS., therefore, at this stage, the Court is of the considered Page No.# 10/11 opinion that this it would not be appropriate to stay the operation of the impugned order.
18) However, as the Court is exercising jurisdiction under Section 482 CrPC, the Court is of the opinion that there is absolutely no chance that the petitioner, who is a public servant of the State of Assam and presently posted as Forest Range Officer in the Environment and Forest Department of the Govt. of Assam would abscond with the intention to evade trial and, as such, the Court is of the considered opinion that ends of justice would be met if the petitioner appears before the I/O with some interim protection.
19) Accordingly, as an ad interim measure and till the next returnable date, it is deemed appropriate to provide that on appearance of the petitioner before the I.O. of Roing P.S. Case No. 25/2020 within a period of two weeks from today, no coercive action like arrest and/or detention shall be taken against the petitioner by the Police personnel and/or any other investigating agency of the State of Arunachal Pradesh. Moreover, if the I.O. requires any further appearance of the petitioner, he shall serve notice under Section 41A CrPC, giving sufficient time to the petitioner to appear. The petitioner shall provide his postal as well as e- mail address to enable the I.O. to serve notice to the petitioner. It is further provided that it would be permissible for the petitioner to seek transit protection from the police of the State of Assam and/or the State of Arunachal Pradesh to ensure his safe travel.
20) Return back the case diary so as to produce the updated case diary before the Court on the next date as fixed herein before.
21) Observations made hereinbefore in this order shall not affect the merit of the case in any manner and will strictly confine for the passing of this order.
22) On administrative side, permission was accorded by the Hon'ble The Chief Justice that the matter be listed before the Principal Seat for motion, as such, the Registry shall take steps to transfer this revision before the Itanagar Permanent Bench so as to list the matter before the said Bench on 27.07.2020, i.e. the next returnable date. Accordingly, the petitioner and the respondent no.1, who are represented herein, shall take notice that the Page No.# 11/11 matter shall henceforth be taken up for hearing before the Itanagar Permanent Bench at Naharlagun.
JUDGE Comparing Assistant