Gauhati High Court
Umesh Chandra Tiwari vs The State Of Assam on 4 May, 2012
Author: I A Ansari
Bench: I A Ansari
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR;
TRIPURA; MIZOAM AND ARUNACHAL PRADESH)
Criminal Misc. Case No. 58 of 2007
(In Bail Application No. 422/2007)
Shri Umesh Chandra Tiwari,
S/o Late Baleswar Tiwari,
Resident of A. K. Azad Road,
Guwahati, District - Kamrup, Assam.
- Applicant
- Versus -
The State of Assam
- Opposite party
BEFORE
THE HON'BLE MR. JUSTICE I A ANSARI
Advocates present:
For the applicant : Mr. B. D. Konwar,
Mr. J. M. Konwar,
Mr. M. K. Borah,
Amicus Curiae : Mr. N. Dutta, Senior counsel,
For the opposite party : Mr. B. S. Sinha,
Mr. K. Munir, Senior counsel,
Mr. J.M. Choudhury, Senior counsel,
Ms. M. Hazarika, Senior counsel,
Mr. M. U. Mahmud,
Mr. A. K. Purukayastha,
Mr. J. I. Borbhuiya,
Ms. F. Begum,
Ms. A. Ajitsaria,
Date of hearing : 01.03.2012, 29.03.2012 & 11-04-2012
Date of judgment & order : 04.05.2012
2
JUDGMENT & ORDER
The material facts, leading to this criminal petition, may, in brief,
be set out as under:
A. EVENTS OF 09.02.2007
On 09.02.2007, interim direction for pre-arrest bail, in favour of
the petitioner, namely, Shri Umesh Chandra Tiwari, in connection with
Paltanbazar Police Station Case No. 68 of 2007, under Section 353 IPC,
was granted by the High Court, in Bail Application No. 422 of 2007,
fixing the bail application, for hearing, on 14-02-2007, and, in the
meanwhile, the relevant case diary was called for. This interim direction
for pre-arrest bail was subject to the condition that the petitioner shall
make himself available for interrogation by police at all reasonable time.
The FIR, lodged by an Executive Magistrate, which had given rise to the
case aforementioned, alleged, inter alia, that on 13.02.2007, on being
detailed by the District Magistrate, while she was discharging her duties,
as regards cleanliness drive of the city of Guwahati, the said Umesh
Chandra Tiwari had obstructed them in discharging their duties and
misbehaved with the informant and her team.
B. EVENTS OF 13.02.2007
(i) By making this miscellaneous application on 13.02.2007, it
was brought to the notice of the High Court that the bail applicant had
gone, on 12.02.2007, at about 6:30 pm, to Paltanbazar Police Station, in
order to make himself available for recording his statement by the police
and, since then, he had been kept detained. On the basis of the
instructions received, learned Public Prosecutor submitted to the Court
that the petitioner had, indeed, been kept detained, at the said police
station, on the instructions of the police authorities, superior in the rank
3
of the Officer-in-Charge (in short, 'O/C'), Paltanbazar Police Station (in
short, 'PBPS').
(ii) Considering the fact that the matter, in question, concerned
the liberty of a citizen, and the conduct of the police machinery, if true,
was a serious impediment in the administration of justice, the Court
directed that the O/C, PBPS, shall appear, in person, within half-an-
hour, along with the bail applicant and offer explanation as to why action
shall not be taken against him, in accordance with law, for not carrying
out the directions of the Court. The Registry was directed to
communicate the said order, telephonically, to the O/C, PBPS, and also
send a copy of the order by special messenger. This apart, even the
Director General of Police, Assam, was directed to ensure appearance of
the O/C, PBPS, within the time as mentioned hereinbefore.
(iii) The order, passed by the Court, on 13-02-2007, read as
under:
"By making this application, it has been brought to the notice
of this Court that the petitioner, who was granted interim pre-arrest
bail on 09.02.07, in Bail application No. 422/2007, in connection
with Paltan Bazar Police Station Case No. 68/2007, under Section
353 IPC, went, on 12.02.07, at about 6-30 p.m., to the Paltan Bazar
Police Station, in order to make himself available for recording of his
statement by the police and since then, he has been kept detained.
When this application was moved by Mr. B. D. Konwar,
learned counsel for the petitioner, Mr. B. S. Sinha, learned Additional
Public Prosecutor, Assam, sought for time to obtain instructions in
the matter and, now, after obtaining instructions, it has been
submitted by Mr. Sinha that the petitioner has, indeed, been kept
detained at the said police station on instructions from the
authorities superior in rank to the Officer-in-Charge, Paltan Bazar
Police Station.
As the matter, in question, relates to liberty of a citizen and
the conduct of police is a serious impediment in the administration of
justice, it is hereby directed that the Officer-in-Charge, Paltan Bazar
Police Station, shall appear, in person, within half-an-hour from now,
along with the petitioner and explain as to why action shall not be
taken against him in accordance with law for not carrying out the
directions of this Court.
The Registry is directed to communicate the order, as directed
hereinbefore, to the Officer-in-Charge, Paltan Bazar Police Station,
telephonically, and also send a copy of this order by a special
messenger.
4
Let a copy of this order be also furnished to the learned Public
Prosecutor, Assam, for doing the needful.
The Director General of Police, Assam, is hereby directed to
ensure appearance of the Officer-in-Charge, Paltan Bazar Police
Station, within the time as given hereinbefore.
Bring the above directions to the notice of the Deputy Registrar
(Judicial)."
(iv) On 13-02-2007, the Court passed an order at 4:15 pm. The
order, so passed, indicates that in compliance with the directions given
in the forenoon, on 13-02-2007, the O/C, PBPS, presented himself, in
the Court, along with the bail applicant. On his appearance before the
Court, the bail applicant stated before the Court that on 12-02-2007, the
Investigating Officer of the case, namely, K Mandal, a Sub-Inspector of
Police, had visited the bail applicant's shop and asked him to come to the
police station for obtaining bail and, in terms of the directions, so given
to the bail applicant, the bail applicant had gone, with his brother,
namely, Ramesh Chand Tiwari, to the police station and, since then, the
bail applicant had been kept detained there until 3:45 pm, when his bail
bond was accepted.
(v) Apart from what the Court had been informed by the bail
applicant, as indicated above, the O/C, PBPS, too, submitted to the
Court that on appearance of the bail applicant, at the said police station,
he (i.e., the O.C, PBPS) had directed the Investigating Officer (in short,
'I/O') to release the applicant on bail, but he was told by the I/O that he
(I/O) had been instructed, by the Senior Superintendent of Police,
Guwahati (City), not to let the bail applicant go on bail. The O/C, PBPS,
also submitted to the Court that he had, over phone, personally, talked
to the Senior Superintendent of Police, Guwahati (City), but he, too, was
instructed by the Senior Superintendent of Police, Guwahati (City), not to
release the bail applicant, on bail, on the ground that the bail applicant
had violated the orders of the Court.
5
(vi) Considering the fact that no order(s), passed by the Court,
appeared to have been violated by the bail applicant, the Court formed
the view that the directions given by the Senior Superintendent of Police,
Guwahati (City), and the conduct of the I/O had created serious
impediments in the course of administration of justice and that such
action would not only undermine the majesty of law, but also weaken the
confidence of the people in the rule of law. The Court, therefore, directed
the Senior Superintendent of Police, Guwahati (City), hereinafter referred
to as 'the SSP(City)', and the I/O to appear, in person, in the Court, on
14-02-2007, at 10:30 am, and submit their explanations, in writing, as to why action, as permissible in law, shall not be taken against them in the light of the facts as stated above.
(vii) The order, passed by the Court, at 4:15 pm, on 13-02-2007, reads as under:
"Later on at 4-15 p.m. In compliance with the directions, given hereinabove today, the Officer-in-Charge, Paltan Bazar Police Station, is present in the Court along with the petitioner, namely, Umesh Chand Tiwari. According to what the petitioner states before this Court is that on 12.02.07, the Investigating Officer of the case, namely, K. Mandal, a Sub-Inspector, had visited the petitioner‟s shop and asked him to come to the police station for obtaining bail and, in terms of the directions, so given, to the petitioner, the petitioner went with his brother, Ramesh Chand Tiwari, to the police station and since then, he had been kept detained there until 3-45 p.m. today, when his bail bond was accepted.
What the Officer-in-Charge, Paltan Bazar Police Station, submits before this Court is, to say the least, shocking, for, he states that upon appearance of the petitioner at the police station yesterday, he (i.e. the Officer-in-Charge) had directed the Investigating Officer to release the petitioner on bail, but he was told by the Investigating Officer that he (Investigating Officer) had been instructed by the Senior Superintendent of Police, Guwahati (City), not to let the petitioner go on bail. The Officer-in-Charge, Paltan Bazar Police Station, also submits that he had, over phone, personally talked to the Senior Superintendent of Police, Guwahati (City), but he was also instructed by the Senior Superintendent of Police, Guwahati (City), not to release the petitioner, on bail, on the ground that the petitioner had violated the orders of the Court.
As no order(s) of the Court appears to have been violated by the petitioner in the present case, the directions given by the Senior Superintendent of Police, Guwahati (City), and the conduct of the Investigating Officer have created serious impediments in the course 6 of administration of justice. Such action will not only undermine the majesty of law, but also weaken the confidence of the people in the rule of law.
Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the Senior Superintendent of Police, Guwahati (City), and the Sub-Inspector of Police, Mr. K. Mandal, shall appear, in person, in this Court tomorrow, i.e. on 14.02.07 at 10-30 a.m. and submit their explanation, in writing, as to why action, as permissible in law, shall not be taken against them in the light of the facts as stated above.
The Officer-in-Charge, Paltan Bazar Police Station, is hereby directed to serve copies of this order on the Senior Superintendent of Police, Guwahati (City), and Sub-Inspector of Police Mr. K. Mandal. The Officer-in-Charge, Paltan Bazar Police Station, and the petitioner shall also remain present in this Court on the date and time as directed hereinbefore.
Let a copy of this order be also furnished to the Director General of Police, Assam, who shall ensure appearance of the officers aforementioned in the Court on the date and time as aforementioned. Let the Officer-in-Charge, Paltan Bazar Police Station, serve the copy of this order on the Director General of Police, Assam.
Let a copy of this order be also furnished to the Public Prosecutor, Assam.
Bring the above directions to the notice of the Deputy Registrar (Judicial)."
C. EVENTS OF 14.02.2007
(i) On 14.02.2007, the SSP (City), the O/C, PBPS, and the I/O appeared, in person, in the case. The bail applicant, too, presented himself, in the Court, with his learned counsel. The Court noticed that the explanation, which the SSP, Guwahati (City), had offered, ran contrary to what had been submitted, in the Court, on 13-02-2007, by the bail applicant and the O/C, PBPS, inasmuch as the statement, made by the O/C, PBPS, was that it was the SSP, Guwahati (City), who had ordered him not to release the bail applicant on bail; whereas the SSP, Guwahati (City) contended that, on being informed, over phone, by the O/C, PBPS, that the bail applicant had been granted anticipatory bail in connection with the case aforementioned, he had instructed the O/C, PBPS, not to release the accused until and unless competent and satisfactory bailor was produced to get him released on bail and that 7 there was no blanket direction, given by him, i.e., SSP, Guwahati (City), to the O/C, PBPS, not to at all release the bail applicant. The relevant portion of the explanation, offered by the SSP, Guwahati (City), read as under:
"That the deponent begs top state that on 12.02.2007 the applicant/petitioner Shri Umesh Chand Tewari was brought to the Paltanbazar Police Station by s.I. Kukhendra Mandal in connection with Paltanbazar Police Station Case No. 68/2007 u/s 353 IPC and was arrested. After arrest the said Umesh Chand Tewari produced a Xerox copy of the order of the Hon‟ble High Court dated 09.02.2007 passed in B.A. 433/2007. At that time only it came to the knowledge of the police officer that he has been granted anticipatory bail in connection with aforesaid case. Thereafter, the said accused produced a Xerox copy of the said order before the investigating officer and that too without producing any competent bailor upto the satisfaction of arresting officer. This matter was informed to the deponent over phone by the officer-in-charge of the Paltanbazar Police Station to which the deponent instructed him not to release the accused until and unless competent and satisfactory bailor is produced to get him release on bail.
In this connection it is to be stated that the informant of the Paltanbazar Police Station Case No. 68/2007 was Smti Madhuchandra Talukdar, ACS, Executive Magistrate, Kamrup (Metro) District who in her statement clearly stated that due to hindrance and obstacles created by cleanliness drive of the greater Guwahati City keeping in view of the national interest and the dignity of the people of Assam, who rather created some provocative actions which are disgraceful and may bring great wrath of the higher authority. As such the deponent asked the officer-in-Charge to be fully satisfied regarding the veracity and credibility of the bailor, and thereafter to release the accused on bail as ordered.
The deponent further begs to state that he never asked to the Investigating Officer not to release the accused/petitioner on bail rather asked the Officer-in-Charge, Paltanbazar Police Station not to release the accused without credible surety. The deponent never intended to undermine the majesty of law or the supremacy of the judiciary rather wanted that by producing a non credible bailor, the 8 accused can not get scot free which might go as a wrong message to the persons, who are creating obstacle, and disturbing the public servants in executing their assigned duties, in an appropriate manner, so that the State do not suffer due to some ugly activities or the few persons like the accused/ petitioner."
(ii) As far as the I/O is concerned, his explanation, submitted, by way of affidavit, on 14-02-2004, read as under:
"On being produced the order dated 09.02.2007 passed by this Hon‟ble Court in B.A. 422/2007 granting pre-arrest bail in connection to the said P.S. Case.
On the other hand, I had, in the meantime, prepared the bail bond as per procedure. When I produced the bail bond prepared by me to the Officer-in-Charge, I was directed by the Officer-in-Charge that the bail bond should not be executed until his further direction of the ground that the Officer-in-Charge had taken up the matter with the higher authorities, for obtaining clarification whether the photocopy of the certified copy of the bail order be accepted or not.
Thereafter, I had received the order/direction of the Officer-in- Charge at about 3.30 P.M. on 13.02.2007 to execute the bail bond which I had complied with immediately, after examining the certified copy of the bail order.
I beg most respectfully to submit that the accused, Sri Umesh Chandra Tewari was till then detained in the Police Station without putting him inside the lock-up and during this time I had recorded his statement under Section 161 I.P.C.
I beg further to submit most respectfully that the detention of the accused, Shri Umesh Chandra Tewari from 07.00 P.M. on 12.02.2007 to 03.00 P.M. on 13.02.2007 had already been explained before this Hon‟ble Court on being physically presented by the Officer-in-Charge in compliance to your Honour‟s direction/order which explanation of him do wholly admit."
(iii) From the affidavit of the I/O, his version appears as under:
The I/O brought the bail applicant to the police station, on 12-02-2007, at about 8:30 pm. The bail applicant produced the order, dated 09-02-2007, granting pre-arrest bail to the bail 9 applicant in connection with the said case. The I/O prepared bail bond as per the procedure and when he produced the bail bond to the O/C, he was directed by the O/C that the bail bond should not be executed until he gives further direction, for, according to the O/C, he had taken up the matter with higher authority for obtaining clarification whether the photocopy of the certified copy of the bail order be accepted or not and it was only on the following day, i.e., on 13-02-2007, at about 3:30 pm, that he received a direction from the O/C to execute the bail bond, which he accordingly complied with. By his report, the I/O prayed for being excused for the lapse committed by him in not complying with the order of High Court.
(iv) Apart from the fact that the Court noticed, on 14.02.2007, that the explanation, offered by the two officers, namely, SSP (City) and the O/C, PBPS, were not tallying with each other, the Court, on query being made from the O/C, PBPS, also came to learn that the General Diary of the said police station had, admittedly, not been maintained since 08-02-2007 and, hence, no entry had been made with regard to the fact that the bail applicant had appeared, at the said police station, on 12-02-2007 and 13.02.2007.
(v) What was, however, not in dispute is that the bail applicant had, indeed, appeared, on 12.02.2007, at the said police station, on being directed by the I/O and he was kept detained there until the time he was directed by the Court, by its order, dated 13-02-2007, to be produced before the Court by the O/C, PBPS.
(vi) The Court further noticed that even the case diary had not been maintained inasmuch as the case diary did not even reflect as to what action was taken by the I/O since after 03-02-2007, though the 10 petitioner had, admittedly, appeared, at the police station, on 12-02-
2007 and he had been, admittedly, kept there till he was produced before this Court as mentioned above. The case diary did not, in fact, indicate that the I/O had even recorded the presence of the bail applicant at the said police station or the fact as to whether the bail applicant had been interrogated or not. The case diary gave absolutely no indication that the bail applicant was not allowed to leave the police station for the reason that he had not furnished certified copy of the order, dated 09-02-2007, passed in Bail Application No. 422 of 2007, whereby the bail applicant had been granted interim pre-arrest bail. The case diary also did not reveal that proper surety or bailor was not offered by the bail applicant and/or that it was due to the bail applicant's failure to offer proper and adequate surety that the bail applicant had been kept detained at the said police station.
(vii) The Court concluded, albeit tentatively, that the perusal of the case diary prima facie demonstrated perfunctory nature of investigation, if not wholly manipulative. The maintenance of the General Diary of PBPS, the relevant case diary and the manner of investigation, according to the Court, reflected complete lack of supervision.
(viii) The Court, therefore, directed the SSP (City), the O/C, PBPS, and the Investigating Officer, to submit, in writing, as to what had actually happened at the said police station and in what circumstances, the bail applicant was, eventually, released. The Court also directed that no punitive action against any of the officers, concerned with the affairs of the said case, shall be taken by the authorities concerned without obtaining leave of this Court, for, when this Court is in seisin of the matter, any act or omission, which may adversely affect progress of the enquiry being made by this Court, would not be in the interest of justice. The Court, on complaint being made, on behalf of the bail applicant, 11 further directed that the bail applicant or anyone connected with him should not be intimidated or threatened by any of the police personnel so as to affect adversely further progress of the case. The bail applicant, namely, Umesh Chandra Tiwari, too, was directed by the Court to submit, in writing, as to what had actually happened at the said Police Station and in what circumstances, he was, eventually, released. The conclusions drawn by the Court and the directions given, on 14-02-2007, read as under:
"In the backdrop of what have been indicated above, it will be unfair and unjust to come to a definite conclusion as regards the complicity or otherwise of the officers concerned without giving them any effective opportunity to have their say in the matter. Situated thus, it is hereby directed as follows:
(a) The Officer-in-Charge, Paltan Bazar Police Station, shall submit, in writing, to this Court his version vis-à-vis the ones, which have been presented by the Investigating Officer and the Senior Superintendent of Police (City), Guwahati.
(b) The Senior Superintendent of Police (City), Guwahati, and S.I., K Mandal may also submit any further or additional explanation to this Court, if they so wish.
(c) The petitioner, namely, Umesh Chandra Tiwari, is also directed to submit, in writing, as to what had actually happened at the said Police Station and in what circumstances, he was, eventually, released."
D. EVENTS OF 22.02.2007
(i) When the matter came up on 22-02-2007, further disturbing
facts were brought to the notice of the Court inasmuch as what the bail applicant alleged before the Court was that the Deputy Superintendent of Police (in short, 'the DSP'), Guwahati City, had asked the bailor of the bail applicant to leave PBPS and the DSP, Guwahati City, had further told the bail applicant and his bailor that no bail would be granted to the bail applicant.
(ii) As had been directed on 14-02-2007, the bail applicant, namely, Umesh Chandra Tiwari, filed, on 22.02.2007, a detailed affidavit narrating, in a sequence, the events, which, according to the bail 12 applicant, had taken place since after his appearance at the PBPS, till his release from police custody. Broadly speaking, what transpired from the affidavit, so filed by the bail applicant, were as under:
(a) An application seeking to obtain certified copy of the interim directions for pre-arrest bail, passed, on 09-02-2007, in the said case, was made on 09-02-2007 itself; but, as 10-02-2007 and 11-02-2007 were declared holidays, the certified copy had been handed over to the bail applicant on 12-02-2007 at about 11:00 am and when the bail applicant came to his office, he was informed by his office staff that Sub-Inspector, namely, Shri K Mandal, had come in the afternoon and taken the bail applicant's mobile number and, thereafter, at about 6 pm, on that day, i.e., 12-02-2007, the said Sub-Inspector called the bail applicant, on mobile phone, and, on coming to know that the bail applicant was in his office, Sub-Inspector, Shri K Mandal, asked the bail applicant to stay there and, within about 5 minutes, the said police officer reached the office of the bail applicant and told the bail applicant that he (bail applicant) stood arrested, whereupon the bail applicant showed, to the said police officer, the certified copy of the order, passed by the Court, granting interim directions for pre-arrest bail in favour of the bail applicant and the bail applicant, then, requested the said police officer to release him (i.e., the bail applicant) on bail.
(b) According to this affidavit, filed by the bail applicant, the bail applicant's brother, namely, Shri Ramesh Ch. Tiwari, stood as bailor, but the said police officer, namely, the Investigating Officer, told him to come to the police station, where he would be granted bail. It is in the affidavit of the bail applicant that accompanied by his brother, the bail applicant went to the 13 police station and reached there at about 6:30 pm and, on reaching the police station, Sub-Inspector, Shri K Mandal, (i.e, the Investigating Officer) started the process of releasing the bail applicant on bail and also started recording the events of 03-02-
2007, which had given rise to the case against the bail applicant, and when the bail applicant was narrating the events of 03-02- 2007, the O/C, PBPS, came to his office chamber, at the said police station, whereupon Sub-Inspector, Shri K Mandal, took the bail applicant, along with the papers, which the bail applicant and his bailor had produced, to the office chamber of the O/C, PBPS, and also informed the O/C, PBPS, that the bail applicant had brought the order of the High Court along with bailor and asked the O/C, PBPS, as to what he(Investigating Officer) should do.
(c) The bail applicant's said affidavit also discloses that after thinking for about five minutes, the O/C, PBPS, talked with someone on his office phone and told, on phone, the person, on the other side, that Sub-inspector, Shri K Mandal, had arrested the accused, Umesh Chandra Tiwari, who is having interim bail from the High Court, and further disclosed, over the phone, that the bail applicant had come to the said police station with his bailor and asked, on his phone, as to what he should do.
(d) In fact, what the bail applicant further averred, in his said affidavit, reveals, if true, a shocking state of affairs. The remaining portion of this affidavit is, therefore, reproduced hereinbelow:
"After thinking about 5 minutes, the Officer-in- Charge by his official phone was talking about me with somebody and told that S.I. K. Mandal has arrested the accused Umesh Chandra Tiwari who has an order of interim bail of the High Court. The O/C further disclosed over phone that I had come alongwith 14 the bailor and the necessary documents and now what he should do. For about 5 minutes I only heard the O/C time and again saying „yes sir‟ - „yes sir‟.......... But looking at the face of the O/C I could see that he has been asked to do something which he does not want to do. After hanging up the phone he started doing other works. S.I. K. Mandal went to his room. I was kept standing there at the O/C‟s chamber. After about half an hour, the O/C again by his official phone started talking about me to somebody and I heard him saying that Sir if we do not release the accused we may face contempt of Court proceedings. After that I do not know what was said over phone to the O/C that he started sweating in his face and he kept the phone and was holding his head with his hand. The O/C then told me that you go to the chamber of S.I. K. Mandal and sit over there. I went to the chamber of S.I. K. Mandal and sat over there in a chair. My bailor/brother was asked to go out of the room. After realizing that there is some obstructions for my release from custody. I rang up Sri C.S. Tiwari who is an officer in C.I.D. and told him to enquire as to why I have not been released from custody inspite of there being an order of the Hon‟ble Court. C.S. Tiwari told me that he would talk to the Officer -in - Charge. After about 10.00 P.M. a police officer with three stars alongwith the O/C and S.I. Mandal came to the room where I was there. Later on I came to know that the three star police officer was D.S.P. Fakrul Islam. D.S.P. looked at my bailor and asked who is that person. When he was told that he is my bailor, the D.S.P. asked my bailor to go away and told that no bail can be granted to him. Then my bailor left the place where he was standing. I was kept sitting in the chamber of S.I. K. Mandal. At about 11.00 P.M. all the police personnel who were with me left the police station. I did not go to the police station by making any arrangement because of S.I. K. Mandal had told me that I would be released at the police station within one hour. For the whole night I sat in the police station shivering in the cold with mosquito bites. There was no question of me sleeping over there. From 6.30. P.M. in the evening of 12.02.2007 I sat in the police station without any food or 15 water till 3.45 P.M. of 13.02.2007. I am also a patient of high blood pressure and every morning and night I had to take medicines of high blood pressure. Lastly, on 11.12.2006 I had returned after getting myself examined at Apollo Hospitals, Chennai. The attending doctors had kept me in the high risk zone. If required I can furnish the medical documents during the hearing of the case.
That on 13.02.2007 at about 9.00 A.M. in the morning my advocate Sri Rajib Kalita visited me at Paltan Bazar Police Station and enquired about me. I narrated him about my detention and the refusal by the police to release me from custody. At that time the aforesaid police officers were not present at the police station. I heard the police personnel staying there with me saying that they are helpless. Sri Rajib Kalita told me that an application on my behalf would be filed before the Hon‟ble High Court regarding my detention at Paltan Bazar Police Station today itself.
That about 11.00 P.M. a police personnel came and snatched away my mobile phone and told me that he was instructed by the D.S.P. over telephone. My mobile was switched off and he kept the same with him. Till 12.00 noon of 13.02.2007 neither I could see S.I. Mandal or the Officer - in - Charge of the Paltan Bazar Police Station. I overheard the conversation of the other police personnel that they would keep me at the police station for the whole night of 13.02.2007 and on 14.02.2007 they would show my arrest from a different place and would produce me before the Court. Then they would tear the certified copy of the interim order of the Court and tell that the same was never produced by me. I could not disclose this conversation to any body and I was getting more nervous. My blood pressure was rising as I could not take the medicines and I have been kept starving without food. At about 2.30. P.M. of 13.02.2007, S.I. K. Mandal came to his chamber and I enquired what is happening about me. S.I. Mandal told that I cannot disclose to you anything about it. At about 3.30. P.M. the whole atmosphere in the police station changed. S.I. K. Mandal hurriedly came and told me that you have been granted bail and you may call your bailor 16 immediately. I then told him that my mobile has been taken away by a police personnel at the instruction of the D.S.P. S.I. Mandal then went and brought my mobile phone and asked me to bring the bailor. I called my bailor over my phone and asked him to come to the police station immediately. But the police officers who was standing there was getting restless and was looking at their watches time and again. At about 3.45. P.M. of 13.02.2007 my signature was taken at the bail papers at the police station and asked me to call my bailor to the High Court directly. I then again asked my bailor to come to the High Court forthwith who by then was proceeding towards the police station. S.I. Mandal and O/C Paltan Bazar took me in their police gypsy and entered the premises of the High Court at about 4.00 o‟clock in the evening. At about 5.00 in the evening I was allowed to leave the premises of the Hon‟ble Court.
That after my release from custody I was mentally and physically exhausted and I was feeling that my blood pressure has increased substantially. I got my blood pressure examined and it was found to be 110/170. I immediately took the medicines and slept there in my friend‟s place.
That in the morning of 14.02.2007 when I went to my home I came to know that the police personnel came to my house and told that if anything is disclosed against them then they would arrest me in a different case and put me inside the jail. I will be always indebted before this Hon‟ble Court that the Hon‟ble Court by its rapid action has facilitated my release from the custody of the police. Otherwise, if I had been kept at the police station without food and medicines I would have suffered brain haemorrhage due to my high blood pressure. At the police station I also came to know that the husband of the complainant of Paltan Bazar P.S. Case No. 68/2007 is a Superintendent of Police and therefore the police officers are after me. During my twenty hours of detention at Paltan Bazar Police Station I came to realise that the said Police Station is not controlled by the Officer - in - Charge but by some other senior police personnel and it is as per his dictation all acts are being done.17
That on 09.02.2007 itself, the certified copy of the aforesaid order granting anticipatory bail was applied by the Advocate‟s Clerk. Since 10.02.2007 and 11.02.2007 was declared holidays of the Hon‟ble Gauhati High Court, the certified copy of the said order was handed over to me by the Advocate‟s Clerk on Monday i.e. 12.02.2007 at about 11.00 A.M. Thereafter, I went to the market for official works and reached my office chamber at 4 o‟clock in the evening located at Sarab Bhatti, A.K. Azad Road, Guwahati. Immediately, thereafter, I was informed by my office staff that S.I. K. Mandal came to my office at about 2 o‟clock in the afternoon and took my mobile phone number. At 6.00 P.M., S.I. K. Mandal called me up in my mobile and asked about my whereabouts. When I replied that I was in my office, S.I. K. Mandal asked me to stay there and he is coming over. After about 5 minutes s.I. K. Mandal reached my office and told me that he has arrested me. I then showed him the original certified copy of the order granting anticipatory bail by the Hon‟ble Court and requested him to grant me bail. I also called by brother Sri Ramesh Chand Tiwari to stand as bailor for me to my office. S.I. K. Mandal told me that you have to go to the police Station and there you would be granted bail. Thereafter, I along with my bailor followed SI, K Mandal‟s motor cycle to Paltan Bazar Police Station and reached there at about 6:30 pm. SI, K Mandal, then, went and set in his chair at Paltan Bazar Police Station and started doing the official formalities to release me on bail. SI, K Mandal perused the original certified copy of the order passed by the Hon‟ble Court and also the land documents and the NSC (National Saving Certificate) of Rs. 5,000/- in the name of my brother, Shri Ramesh Chand Tiwari, who stood bailor for me. SI, K Mandal, completed the entire formalities for granting me bail except taking the signatures of my brother and mine. At that time, the Officer-in-Charge, Paltan Bazar Police Station, was not present at the Police Station. SI, Mandal, then, started reporting the events that had taken place on 03-02-2007, as narrated by me. When half of the events as narrated by me was recorded by SI, Mandal, at that time, the Officer-in-18
Charge, entered his official chamber. Immediately, SI, K Mandal, along with all the papers took me to the official chamber of the Officer-in-Charge, and told him that he had brought the accused. SI, Mandal, also told the Officer-in- Charge, that I have brought the order of the Hon‟ble Court along with the bailor and he has perused it and asked him as to what he should do now. After thinking about five minutes, Officer-in-Charge, by his official phone was talking about me with somebody and told that SI, K Mandal, has arrested the accused, Umesh Chandra Tiwari, who has an order of interim bail of the High Court. The Officer-in-Charge, further disclosed over phone that I had come along with the bailor and the necessary documents and, now, what he should do. For about five minutes I only heard the Officer-in-Charge, time and again saying "yes sir" - "yes sir"......... but looking at the face of the Officer-in-Charge, I could see that he has been asked to do something, which he does not want to do. After hanging up the phone, he started doing other works. SI, K Mandal, went to his room. I was kept standing there at the O/C‟s chamber. After about half an hour, the O/C again, by his official phone started talking about me with somebody and I heard him saying that Sir if we do not release the accused, we may face contempt of Court proceedings. After that, I do not know what was said over phone to the O/C that he started sweating in his face and he kept the phone and was holding his head with his hand. The O/C, then, told me that you go to the chamber of SI, K Mandal, and sit over there. I went to the chamber of SI, K Mandal, and set over there in a chair. My bailor/brother was asked to go out of the room. After realizing that there is some obstructions for my release from custody, I rang up Shri CS Tiwari, who is an officer in CID and told him to enquire as to why I have not been released from custody in spite of there being an order of the Hon‟ble Court. CS Tiwari, told me that he would talk to the O/C. At about 10 pm, a police officer with three stars along with the O/C and SI, Mandal, came to the room, where I was there. Later on, I came to know that the three star police officer was DSP, Fakrul Islam. DSP looked at my bailor and asked who is that person. When he was told 19 that he is my bailor, the DSP asked my bailor to go away and told him that no bail can be granted to him. Then, my bailor left the place, where he was standing. I was kept sitting in the Chamber of SI, K Mandal. At about 11 pm, all the police personnel, who were with me, left the police station. I did not go to the police station by making any arrangement because SI, K Mandal told me that I would be released at the police station within an hour. For the whole night, I sat in the police station shivering in the cold with mosquito bites. There was no question of me sleeping over there. From 6:30 pm, in the evening of 12-02-2007, I sat in the police station without any food or water till 3:45 pm of 13-02-2007. I am also a patient of high Blood Pressure and every morning and night, I had to take medicines of high Blood Pressure. Lastly, on 11-12-2006, I had returned after getting myself examined at Apollo Hospital, Chennai. The attending doctors had kept me in the high risk zone. If required, I can furnish the medical documents during the hearing of the case."
(iii) From the averments made in the affidavit of the bail applicant, what transpires is that the I/O, on his visit to the bail applicant's office, on 12-02-2007, in the evening, had been shown a certified copy of the order, whereby the Court had granted interim directions for pre-arrest bail in favour of the bail applicant. Though the bail applicant's affidavit also shows that the I/O could have released the bail applicant on bail, at the bail applicant's office itself, the I/O asked the bail applicant to go to PBPS and, accompanied by his brother, who was to stand as surety, the bail applicant did reach the police station, where the I/O started the process for releasing the bail applicant on bail. According to the bail applicant's affidavit, it was at the time, when he (bail applicant) was narrating the events, which had led to the registration of the case against him (bail applicant), that the O/C, PBPS, appeared there and it is the O/C, who stopped the I/O from releasing the bail applicant. In fact, the bail applicant's affidavit further shows, in tune 20 with the version of the O/C, PBPS, that it was some superior authority, who had directed the O/C, PBPS, not to release the bail applicant despite the fact that the authority, who had issued such a direction, knew that the bail applicant had been granted interim pre-arrest bail by the High Court.
(iv) In view of the fact that the bail applicant's said affidavit had also alleged that the then DSP, Guwahati City, had asked the bailor of the bail applicant to leave PBPS and had also told the bail applicant and his bailor that bail would not be granted to the bail applicant, the Court formed the view that in the face of the said materials, the said DSP should be allowed to have his say in the matter, for, what had been alleged by the bail applicant would, if true, expose the DSP, Guwahati (City), to penal action. The Court accordingly directed the DSP, Guwahati (City), to appear, in the Court, on 23-02-2007 and submit his explanation as to why action shall not be taken against him in accordance with law.
E. EVENTS OF 23.02.2007 On the following day, i.e., on 23-02-2007, the DSP, Guwahati (City), along with his learned counsel, appeared and, on that day, the O/C, PBPS, filed his affidavit and also produced a draft/rough copy of the General Diary maintained at the said police station. The General Diary was directed by the Court to be kept, in sealed cover, in the custody of the Deputy Registrar (Judicial). As the DSP, Guwahati (City), asked for time to submit his explanation, the case was directed to be listed on 27-02-2007. Similarly, the case diaries of PBPS Case Nos. 68/2007 and 69/2007, which had been produced by the learned Public Prosecutor, were also directed to be kept, in sealed cover, in the custody of the Deputy Registrar (Judicial).
21F. EVENTS OF 28.02.2007
(i) The affidavit filed by the DSP, Guwahati (City), on 28.02.2007, read as under:
"Thereafter I went to my office at Panbazar Police Station and was there till 11.00 pm. At about 11.05. pm I left for Paltan Bazar Police Station to brief the staff. I stayed there for about 10 minutes and instructed the staff regarding the maintenance of law and order during the National Games as two of the stadia falls under the Paltan Bazar Police Station, after which I left for field duty. During my brief visit to the Paltan Bazar Police Station I had also met the Officer -in- charge in the Paltan Bazar Police Station. The Officer-in- charge did not tell me anything about Umesh Chandra Tiwari and I had no knowledge of the same. I came to know about the incident only in the second half of the following day, that is, on 13.02.2007.
That on 13.02.2007 I reported for duty at the Panbazar Police Station in the morning. At about 11.00 A.M. I went to the All Women Police station for interrogation of the aforementioned extremist. I returned to my office at 12 noon. At 3.00 P.M. I along with sub- Inspector of Police, J.N. Deka and others went to the Court of the Learned Chief Judicial Magistrate, Kamrup were the said accused was to be produced. As the case was a sensitive one and having apprehended the accused person myself, I deemed it appropriate to be personally present in the Court as the Learned Chief Judicial Magistrate may enquire and / or require the presence of the officer apprehending the accused person. I considered it appropriate that I should be present in the Court of the Chief Judicial Magistrate more so because of the fact that the investigating officer, Sri J.C. Nath of the said case had left for Silchar on some official duty. At about 6.00 P.M. I left for my office from the Court of Learned Chief Judicial Magistrate, Guwahati.
That I humbly stated that in view of the facts and circumstances stated herein above, the question of going to the Paltan Bazar Police Station at 3.20 P.M. and enquiring about the fate of the instant case does not arise. I humbly stated that I was not aware about the incident of not granting of bail to Umesh Chandra Tiwari till the second half of 13.02.2007.22
That I crave leave of this Hon‟ble Court to place before this Hon‟ble Court that I, as a Deputy superintendent of Police have always insisted upon the Officer-in-Charge of the Police stations under me that they maintained the General Diary properly and without any delay and or default. In fact on 14.02.2007 I checked the General Diary of Paltan Bazar Police Station at 10. 30 P.M. and I found that the General Diary was pending since 12. 10 A.M. of 09.02.2007. I instructed the Officer-in-Charge not to keep the General diary pending. I also reported the matter to the Senior Superintendent of Police, City Guwahati on 15.02.2007. There is a General Diary Entry to this effect.
On 22.02.2007, I was directed by the Senior Superintendent of Police, City, to report to him on the G.D Entries of the Paltan Bazar Police Station. Accordingly, I went to the Paltan Bazar Police Station on 22.02.2007 and enquired about the General Diary Entries from 6.2.2007 to 15.2.2007 but I came to know from U.B.C- 4126 Mukunda Nath (Constable) that the officer-in-Charge had taken the General Diary to his residence on 19.2.2007. in the circumstances I recorded the statement of Constable Mukunda Nath in that connection. Accordingly, I reported the fact to the Senior Superintendent of Police in writing under Memo No. DSP/PNB/DIV/07/35 dated 23.2.2007. A copy of the said statement was also enclosed in my report to the Senior superintendent of Police. An extract of the General Diary of my visit to the Paltan Bazar Police Station was also enclosed."
(ii) In support of his affidavit, the DSP produced a copy of a statement made by Constable, Mukunda Nath, which read as under:
"I Sri UBC/4126 Mukunda Nath I.C of Paltan Bazar PS. Normally I maintain the general diary entry as directed by O/C Paltan Bazar PS. On 19-02-2007, I have been instructed by O/C Kandarpa Chamua to hand over the GDE in respect of GDE from 6-2-07 to 15- 2-07 at 8PM and it was since then under the custody of OC. I do not know the reason why the particulars of GDE was kept with O/C. Today on 22-02-2007 at 5:15 PM Dy. SP Paltan Bazar Division visited the police station and enquired about the GDE, on his enquiry I told him that as instructed by the O/C Paltan Bazar PS the said GDE has been kept with the O/C. Entry which was already been 23 made that has been modified as directed and dictated by O/C himself at Investigating Officer‟s room. There was none at that moment in that room. The aforesee change and/or modification has been made on 18/02/2007 around 1:30 PM. This is my statement."
(iii) The report, which the said Constable is claimed to have given to the DSP, Guwahati (City), showed (if the report were true) that the General Diary was taken away by the O/C, PBPS, and that entries, which had been earlier made, were, subsequently, modified as directed and dictated by the O/C himself at the I/O's room and that the modification was made on 18-02-2007 at around 1:30 pm.
(iv) According to the affidavit filed by the DSP, Guwahati, (City) he went to PBPS, on 12-02-2007, at about 11.05 pm, to brief the staff with regard to maintenance of law and order during the National Games as two of the stadia fall under PBPS and he remained there for about 10(ten) minutes and, then, he left for field duty and though, during his brief visit to the said police station, he had met the O/C, PBPS, the O/C, PBPS, never told him about the bail applicant nor did the O/C, PBPS, ask him to talk to the SSP, Guwahati, (City), and he, i.e., DSP Guwahati, (City), came to know about the incident, as regards the factum of non- release of the bail applicant, only in the second half of the following day, i.e., on 13-02-2007. The DSP Guwahati, (City) also denied that he had visited PBPS on 13-02-2007 at about 3:20 pm.
(v) As regards poor performance of the said police station, the DSP, Guwahati, (City) averred, in his affidavit, that he always insisted upon the O/C of all police stations, under him, to maintain the General Diary without any delay or default and that he had found that the General Diary was pending since 12:10 am of 09-02-2007 and he, therefore, called for an explanation, in this regard, from the O/C, PBPS, and that, in the explanation given by the O/C of the said police station, it 24 was admitted that sometimes, a rough General Diary was maintained due to work load and law and order duties, shortage of staff/personnel and that entries made, in the rough diaries, are, thereafter, entered into the original General Diary.
(vi) In the affidavit, the DSP, Guwahati, further averred that on 22-02-2007, he was directed by the SSP, Guwahati, (City), to report to him about the General Diary entries of PBPS and he, accordingly, went to the said police station on 22-02-2007 itself and enquired about the entries from 06-02-2007 to 15-02-2007, but he came to know from Constable Mukunda Nath that the O/C had taken away the General Diary to his residence on 19-02-2007, whereupon he, i.e., DSP, Guwahati, (City), recorded the statement of the said Constable and reported the matter to the SSP, Guwahati (City).
G. EVENTS OF 13-03-2007 By, however, filing an affidavit, on 12.03.2007, the said Constable, Mukunda Nath, denied, contrary to what the DSP had averred on 23.02.2007, that the General Diary entries were modified or altered at the direction or dictation of the O/C on 18-02-2007 or on any other date. The Constable further alleged that the DSP, Guwahati, had put pressure on him and had forced him to put signature on a hand-written paper, whereby it was made to appear as if the General Diary had been altered or modified by the O/C. H. EVENTS OF 22-03-2007 The DSP, Guwahati, then, filed, on 22.03.2007, another affidavit, wherein he denied and disputed the correctness and veracity of Constable Mukunda Nath's affidavit, whereunder the said Constable had averred that he had been forced to give statement as indicated above, In 25 support of his plea that the earlier statement was given by the said Constable without duress, the DSP, Guwahati, relied upon the Second Officer of the said police station, who, too, filed an affidavit, wherein he supported the stand of the DSP, Guwahati (City), and contended, in tune, with the DSP, Guwahati (City), belying the averments of the said Constable, that the said Constable had been put to duress and/or that his statement was forcibly obtained. The affidavit-in-reply was, thereafter, filed by the said Constable denying and disputing the fact that he had voluntarily given the statement, which had been filed in the Court by the DSP, Guwahati.
3. In the backdrop of what has been indicated above, it clearly transpires that despite that fact that the Court had granted interim pre- arrest bail to him, the bail applicant had remained, admittedly, detained, at PBPS, from the evening of 12-02-2007 until the time he was compelled to be produced, and was, in fact, produced, in the Court, by the O/C, PBPS, on 13-02-2007, at 4 pm, in terms of the directions given by the Court.
4. The earliest explanation, offered by the O/C, PBPS, on 13-02- 2007, does not give, even faintest indication, that the bail applicant had not produced certified copy of the order, granting him interim pre-arrest bail, and/or that the bail applicant had produced a Xerox or photocopy thereof. This apart, even the I/O did not claim, on 13-02-2007, that the bail applicant had produced a Xerox or photocopy of the bail order. It is only on 14-02-2007 that the I/O, for the first time, claimed that the bail applicant had produced a photocopy of the bail order.
5. What, however, one must recall is that it is the undisputed case of the bail applicant, as discernible from the affidavit of the bail applicant, that he had, on 12-02-2007, at about 6 pm, at his office, 26 shown to the I/O the certified copy of the order, which he (bail applicant) had received on 12-02-2007, though the application for the certified copy of the said order, dated 09.02.2007, had been made on 09.02.2007 itself, yet 10th and 11th of February, 2007, being holidays, the certified copy was made available to him (bail applicant) on 12.02.2007 only. In the face of the fact that the averments, so made by the bail applicant, have gone unchallenged, it is well-neigh impossible to hold that the I/O had not seen the certified copy of the said order.
6. No wonder, therefore, that when the bail applicant was produced in the Court, on 13-02-2007, it was not contended that the bail applicant had not produced the certified copy of the order. In fact, the clear submission made before this Court, on 13.02.2007, by the learned Public Prosecutor on the basis of, obviously, instructions received, and the statement of the O/C, PBPS were that it was on the instructions of the superior authority that the bail applicant had not been released indicating thereby the bail applicant would have been released, but for the fact that the superior authority, i.e., SSP (City), Guwahati, had directed that the bail applicant be not released. The impression, that the I/O's subsequent claim, that the bail applicant had not produced a photocopy of the said order, is a result of subsequent thought (or, may be, mutual calculations). This impression gains strength from the fact that it is admitted, even by the I/O, that he had prepared the papers for release of the applicant, but he was stopped by the O/C, PBPS, from releasing the person (applicant) on bail. If the bail applicant had not produced the certified copy of the said order, why did the I/O make necessary arrangements to release the bail applicant ?
7. The conclusion, which is inescapable, is that the bail applicant had, indeed, appeared, accompanied by his brother, as his 27 surety, at the said police station, in the evening of 12-02-2007, with the certified copy of the said bail order. This inference gets reinforced from the fact that, on 13.02.2007, when this Court directed production of the bail applicant, it was not contended, before this Court, that the bail applicant could not be released, because he had not been able to produce certified copy of the said bail order or that he was unable to produce a suitable bailor. In fact, it is the case of the SSP (City), Guwahati, that he had been told by the O/C, PBPS, that the bail applicant had produced a Xerox of bail order and that the bail applicant had not produced suitable bailor. The O/C does not, however, support the submission so made by the SSP (City), Guwahati. Even the I/O does not claim that the bail applicant had not offered a suitable bailor.
8. Two important facts emerging from the above are that the I/O and the OC, PBPS, have not been truthful before this Court when they claim that the bail applicant had not produced requisite order granting him pre-arrest bail and that he also could not produce a suitable bailor. The I/O and the OC, PBPS, have been clearly trying to mislead this Court by one way or the other; whereas none of them released the bail applicant despite the direction issued, in this regard, by this Court.
9. Moreover, none of the explanations of the police officers shows that they had any doubt with regard to the veracity, correctness or truthfulness of the fact that the bail applicant had been granted interim pre-arrest bail. As per the order granting interim pre-arrest bail, it was the arresting authority, which was to release the petitioner on bail to his satisfaction. In such circumstances, there was no question of the I/O waiting for the O/C to accept the bail bond, for, it was his duty, whenever and wherever he happened to arrest the bail applicant, as 28 accused, to release the bail applicant if the bail applicant were to offer surety, as directed by Court, to the satisfaction of the I/O. Above all, on 13.02.2007, neither the O/C, PBPS, nor the I/O had claimed that the bail applicant had not produced certified copy of the Court's order or that it was a Xerox or photocopy of the Court's order, granting interim pre- arrest bail, which was produced by the bail applicant, and/or that the bail applicant had not produced suitable bailor. It was only on 14.02.2007 that it was, for the first time, contended that the bail applicant had not produced the certified copy of the said order. In fact, at no stage of this proceeding, the I/O has disputed the truthfulness, correctness or veracity of the averments, made by the bail applicant, in his affidavit, that he had, at his office, shown to the I/O the certified copy of the said order. This apart, if the bail applicant had not given the certified copy of the order, why did the I/O prepare the papers necessary for release of the bail applicant on bail. The I/O has not, till today, explained this glaringly noticeable feature of the present case.
10. Furthermore, in view of the fact that the bail applicant had already obtained, on 12.02.2007, the certified copy of the said order, there was no reason for him not to produce the certified copy of the said order in order to obtain his release on bail. Till today, it is not the case of any of the police personnel, who have been involved in this case, that any of them had asked the bail applicant to produce the certified copy of the order aforementioned and the bail applicant had failed. Assuming, for a moment, that the bail applicant had produced, at the beginning, a photocopy of the order aforementioned and the police personnel required a certified copy of the said order to act upon, the natural course of event, if they were telling the truth, would have been that they would ask the bail applicant as to where the certified copy of the 29 order was. No such query is claimed to have been made by any of the officers from the bail applicant.
11. Coupled with the above, the bail applicant's bailor was also, according to the overwhelming materials on record, present at the said police station. Why he was not found suitable as the bailor of the applicant is a mystery and has not been explained till today. Neither the I/O nor the O/C says that the bail applicant had not produced a suitable bailor. The reason is obvious; if they had made such a claim, they would have been required to assign reason why the bailor was found unsuitable and/or who the said unsuitable bailor was. As far as the DSP (City), Guwahati, is concerned, he is alleged to have asked the bailor to go away as the bail applicant would not be released on bail. This allegation against the DSP (City), Guwahati, has been made much later in the Court. In fact, even the bail applicant did not claim, on his production before this Court, on 13.02.2007, that the DSP (City), Guwahati, had asked his bailor to go away as the bail applicant would not be released. To such belated allegation, no credence can be given, particularly, when there is no supporting material on record, though such a fact could have been recorded contemporaneously, both in the General Diary as well as in the relevant Case Diary.
12. What crystallizes from the above discussion is thus:-
(a) As far as the I/O is concerned, he ought to have released, but did not release the bail applicant. The story of the bail applicant, having not produced certified copy of the order or a suitable bailor, is not at all convincing.
(b) It, therefore, clearly emerges that as far as the I/O is concerned, he has willfully disobeyed the directions issued, 09.02.2007, in the Bail Application No. 422/2007, inasmuch as he could have even 30 informed the Court, before the bail applicant was produced in the Court, ( if the I/O is telling the truth) that he had been stopped from releasing the bail applicant by his superior authority. This apart, when this Court had already directed release of the bail applicant, on bail, by the arresting authority, the I/O could not have, even on the direction of his superior officer, refuse to release the bail applicant in terms of the directions of the Court.
(c) As far as the O/C, PBPS, is concerned, he claims, in effect, that he wanted the I/O to release the bail applicant, but the I/O did not release, because of the directions received from the SSP (City), Guwahati. As against this version of the O/C, the I/O's version is that it was O/C, PBPS, who had told the I/O not to release the bail applicant, because of the instructions received from the SSP (City), Guwahati.
(d) The duty to ensure release of a person, in whose favour an interim direction for pre-arrest bail has been passed by the High Court, under Section 438 Cr.P.C., was, undoubtedly, of the O/C, PBPS, too, and it was as much his duty as the duty of the I/O to ensure that the bail applicant was released as had been directed by this Court. This was not, however, done by the O/C, PBPS, and he too must, therefore, be held guilty of willfully disobeying the direction issued, on 09.02.2007, in Bail Application No. 422/2007.
(e) As far as the SSP (City), Guwahati, is concerned, he has denied the fact that he had stopped the O/C, PBPS, from releasing the bail applicant. The O/C, PBPS, did not make any entry in the General Diary of his police station indicating/reflecting that it was due to the direction received from the SSP (City), Guwahati, that he was unable to release or could not release the bail applicant. In the absence of any such contemporaneous entry in the General Diary made by the OC, PBPS, and/or in the absence of any such entry in the relevant Case 31 Diary by the I/O, it is not possible to hold the SSP (City), Guwahati, liable for contempt of Court. Same is the situation as far as the DSP (City), Guwahati, is concerned inasmuch as there is no consistent and coherent material on record showing that the DSP (City), Guwahati, had, in any way, stopped the I/O or the O/C, PBPS, from releasing the bail applicant. In fact, on the day, when the bail applicant was produced before this Court, neither the bail applicant nor the O/C, PBPS, gave even faintest of indication that the DSP (City), Guwahati, had, in any manner, interfered with the release of the bail applicant.
(f) Because of what have been discussed and pointed out above, I am of the view that while the I/O, PBPS, and the O/C, PBPS, have clearly committed civil contempt of this Court, the materials, as against the SSP (City), Guwahati, and the DSP (City), Guwahati, are inadequate and deficient to come to a firm and definite conclusion that they had interfered, as alleged, with the release of the bail applicant.
(g) So far as Constable Mukanda Nath is concerned, he has, admittedly, given a report, which, according to this Constable, was false. Whether the report, which he had given earlier, is true or his subsequent affidavit, which he has filed in this proceeding, contains the truth, is a question, which cannot be firmly answered in either way by this Court. The case against him is, therefore, a case of perjury inasmuch as one of his statements, either made in his report, or in his subsequent affidavit, is false.
(h) In the result and for the foregoing reasons, the proceedings, initiated as against the SSP (City), Guwahati, and the DSP (City), Guwahati, are hereby dropped due to lack of materials. Though the I/O and the O/C, PBPS, and constable Mukanda Nath have tendered unconditional apology for contempt of Court, if they have committed, this 32 Court does not find that in the facts and attending circumstances of the present case, the apology of any of these three persons can be accepted.
(i) In the result and for the reasons discussed above, while the proceedings against the SSP (City), Guwahati, and the DSP (City), Guwahati, are hereby dropped, the I/O and the O/C, PBPS, are hereby, if I may reiterate, held guilty of the commission of civil contempt of the Court and are accordingly directed to pay, within a period of one month from today, a fine of Rs. 5,000/- each and, in default thereof, the Officers concerned shall undergo simple imprisonment for a period of one month.
(j) So far Constable Mukunda Nath is concerned, the Joint Registrar (Judicial-I) is hereby directed to lodge necessary complaint, in the Court of the Chief Judicial Magistrate, Kamrup, for his act of perjury.
13. With the above observations and directions, this proceeding shall stand disposed of.
JUDGE Paul/rk/dutt 33