Gauhati High Court
Major (Now Lt. Col.) Z A Khan vs The State Of Assam And Anr on 3 January, 2020
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/8
GAHC010000192020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.) 2/2020
1:MAJOR (NOW LT. COL.) Z A KHAN
S/O MAJOR HAKIM ALI (RETD.), AGE ABOUT 44 YEARS AFI BUILDING,
DHOBHI TALIO, NCC DIRECTORATE, MUMBAI 400020, MAHARASHTRA
2: NO 3183065F EX. NK KARAN SINGH
S/O- HAWA SINGH
VPO- BAMAL TEH AND DIST.- BHIWANI (HAR)
PIN- 127021.
3: JC- 490906X SUB SAHAB SINGH
S/O- KARTAR SINGH
11 JAT
C/O- 56 APO
PIN- 911211.
4: JC-315689M SUB BHIM SINGH
S/O- PREET SINGH
23 JAT
PIN- 911223.
5: NO 31895793A EX SEP ALOK PAUL SINGH
S/O- VEERPAL SINGH
395 DSC PIATT TO 16 FAD
PIN- 909716.
6: NO 3187089H EX SEP SANJAY KUMAR
S/O- SUKHPAL SINGH
1210B DSC PLATT TO 51 AREA GP
PIN- 916591.
7: NO 3187176W EX HAV SUBASH CHANDER SHIVRAN
S/O- PARMESHWAR SINGH
VILL.- SHIVRANA KA BAS
Page No.# 2/8
P.O.- NARODA TEH-LAXMANGARH
DIST.- SIKAR (RAJ)
PIN- 332311.
8: NO 3189242M EX HAV RAKESH KUMAR
VILL. AND P.O. MOJAWASH TEH AND DIST.- JHUNJHUNU RAJASTHAN
PIN- 333704
GENERAL OFFIER COMMANDING.
9: NO 3189900N EX NK BHUP SINGH
S/O- LATE SH. RAMKAR
VILL. AND P.O. NAIWA TEH AND DIST.- HISAR
HARYANA
PIN- 125037.
10: NO 3189972X EX NK NARENDER SINGH
S/O- BHAG SINGH
VILL. AND P.O. DIGHAL TEH AND DIST.- JHAJJAR
HARYANA
PIN- 124107.
11: GENERAL OFFICER COMMANDING 2 MOUNTAIN DIVISION
REP. BY LT. COL. UMESH PATIL
2 MOUNTAIN DIVISION
C/O- 99 APO
VERSUS
1:THE STATE OF ASSAM AND ANR
THROUGH PP, ASSAM.
2:OFFICER-IN-CHARGE
DIBRUGARH POLICE STATION
DIBRUGARH
Advocate for the Petitioner : MR. S C KEYAL
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.Pet. 1500/2019
1:MAJOR (NOW LT. COL.) Z A KHAN
S/O- MAJOR HAKIM ALI (RETD.)
Page No.# 3/8
AFI BUILDING
DHOBHI TALIO NCC DIRECTORATE
MUMBAI- 400020
MAHARASHTRA.
2: NO 3183065F EX. NK KARAN SINGH
S/O- HAWA SINGH
VPO- BAMAL TEH AND DIST.- BHIWANI (HAR)
PIN- 127021.
3: JC- 490906X SUB SAHAB SINGH
S/O- KARTAR SINGH
11 JAT
C/O- 56 APO
PIN- 911211.
4: JC-315689M SUB BHIM SINGH
S/O- PREET SINGH
23 JAT
PIN- 911223.
5: NO 31895793A EX SEP ALOK PAUL SINGH
S/O- VEERPAL SINGH
395 DSC PIATT TO 16 FAD
PIN- 909716.
6: NO 3187089H EX SEP SANJAY KUMAR
S/O- SUKHPAL SINGH
1210B DSC PLATT TO 51 AREA GP
PIN- 916591.
7: NO 3187176W EX HAV SUBASH CHANDER SHIVRAN
S/O- PARMESHWAR SINGH
VILL.- SHIVRANA KA BAS
P.O.- NARODA TEH-LAXMANGARH
DIST.- SIKAR (RAJ)
PIN- 332311.
8: NO 3189242M EX HAV RAKESH KUMAR
VILL. AND P.O. MOJAWASH TEH AND DIST.- JHUNJHUNU RAJASTHAN
PIN- 333704
GENERAL OFFIER COMMANDING.
9: NO 3189900N EX NK BHUP SINGH
S/O- LATE SH. RAMKAR
VILL. AND P.O. NAIWA TEH AND DIST.- HISAR
HARYANA
PIN- 125037.
Page No.# 4/8
10: NO 3189972X EX NK NARENDER SINGH
S/O- BHAG SINGH
VILL. AND P.O. DIGHAL TEH AND DIST.- JHAJJAR
HARYANA
PIN- 124107.
11: GENERAL OFFICER COMMANDING 2 MOUNTAIN DIVISION
REP. BY LT. COL. UMESH PATIL
2 MOUNTAIN DIVISION
C/O- 99 APO.
VERSUS
1:THE STATE OF ASSAM AND ANR
REP. BY P.P.
ASSAM.
2:OFFICER-IN-CHARGE
DIBRUGARH POLICE STATION
DIBRUGARH.
Advocate for the Petitioner : MR. S C KEYAL
Advocate for the Respondent : PP
ASSAM
Linked Case : I.A.(Crl.) 1/2020
1:MAJOR (NOW LT. COL.) Z A KHAN
S/O MAJOR HAKIM ALI (RETD.)
AGE ABOUT 44 YEARS AFI BUILDING
DHOBHI TALIO
NCC DIRECTORATE
MUMBAI 400020
MAHARASHTRA
2: NO 3183065F EX. NK KARAN SINGH
S/O- HAWA SINGH
VPO- BAMAL TEH AND DIST.- BHIWANI (HAR)
PIN- 127021.
3: JC- 490906X SUB SAHAB SINGH
S/O- KARTAR SINGH
11 JAT
C/O- 56 APO
PIN- 911211.
Page No.# 5/8
4: JC-315689M SUB BHIM SINGH
S/O- PREET SINGH
23 JAT
PIN- 911223.
5: NO 31895793A EX SEP ALOK PAUL SINGH
S/O- VEERPAL SINGH
395 DSC PIATT TO 16 FAD
PIN- 909716.
6: NO 3187089H EX SEP SANJAY KUMAR
S/O- SUKHPAL SINGH
1210B DSC PLATT TO 51 AREA GP
PIN- 916591.
7: NO 3187176W EX HAV SUBASH CHANDER SHIVRAN
S/O- PARMESHWAR SINGH
VILL.- SHIVRANA KA BAS
P.O.- NARODA TEH-LAXMANGARH
DIST.- SIKAR (RAJ)
PIN- 332311.
8: NO 3189242M EX HAV RAKESH KUMAR
VILL. AND P.O. MOJAWASH TEH AND DIST.- JHUNJHUNU RAJASTHAN
PIN- 333704
GENERAL OFFIER COMMANDING.
9: NO 3189900N EX NK BHUP SINGH
S/O- LATE SH. RAMKAR
VILL. AND P.O. NAIWA TEH AND DIST.- HISAR
HARYANA
PIN- 125037.
10: NO 3189972X EX NK NARENDER SINGH
S/O- BHAG SINGH
VILL. AND P.O. DIGHAL TEH AND DIST.- JHAJJAR
HARYANA
PIN- 124107.
11: GENERAL OFFICER COMMANDING 2 MOUNTAIN DIVISION
REP. BY LT. COL. UMESH PATIL
2 MOUNTAIN DIVISION
C/O- 99 APO.
VERSUS
1:THE STATE OF ASSAM AND ANR
THROUGH PP
ASSAM.
Page No.# 6/8
2:OFFICER-IN-CHARGE
DIBRUGARH POLICE STATION
DIBRUGARH.
Advocate for the Petitioner : MR. S C KEYAL
Advocate for the Respondent : PP
ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 03-01-2020 Heard Mr. R. Balasubramanian, learned Senior counsel, assisted by Mr. S.C. Keyal, learned ASGI appearing for the petitioners and Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the State/respondent Nos. 1 and 2.
By this interlocutory application, the petitioners have prayed for modification of the order, dated 19.12.2019, passed in Crl. Pet. No. 1500/2019.
The applicants have stated in the petition that while passing the order, dated 19.12.2019, this Court understood the submissions made by the learned ASGI in a different perspective inasmuch as the counsel for the petitioners submitted that the petitioners submitted to co-operate and join the investigation before the investigating officer of the case since arrest is not necessitated in view of the availability of the petitioner Nos. 1 to 10 for investigation and since due sanction under Section 45 of the Cr.P.C. has not been obtained, which position is already recorded at paragraph No. 25 of the Criminal Petition read with prayer clause and the counsel had accordingly made no such submission as recorded.
Mr. R. Balasubramanian, learned Senior counsel, submits, besides the above averments made in the application, that in a similarly situated case the Hon'ble Supreme Court in CC No. 14702/2015 (Union of India & Anr. Vs. Jana & Anr.) directed the newly impleaded party, namely Brig. Kishore Malhotra shall not be arrested by the police authorities, but he will participate in the enquiry and co- operate with the investigating agency. Mr. Balasubramanian, therefore, contends that similar order may be passed in the instant petition.
Per contra, Mr. B.B. Gogoi, learned Additional Public Prosecutor, appearing for the Page No.# 7/8 State/respondents submits that this Court by order, dated 19.12.2019, directed the petitioners to appear before the Court of learned Chief Judicial Magistrate, Dibrugarh on 13.12.2019 and till their appearance on the aforesaid date, no coercive action shall be taken/executed against them. But, Mr. Gogoi, with reference to the order, dated 23.12.2019, passed by the learned Court below, submits, the petitioners in compliance with the said order did not personally appear before the learned Court and therefore, the learned Court refused to extend the time for their appearance and issued Non- Bailable Warrants of Arrest to compel their appearance.
Be it mentioned here that in the connected Criminal Petition No. 1500/2019, the petitioners have prayed, inter-alia, for setting aside/quashing the impugned orders, dated 1.10.2019, 09.10.2019, 31.10.2019, 14.11.2019 and 28.11.2019 passed by the learned Chief Judicial Magistrate, Dibrugarh and to restrain the respondents from taking any coercive action against them. Accordingly, after hearing the learned counsel for both the sides, this Court directed as follows (relevant portion):
"In the peculiar backdrop of facts and circumstances that prima facie emerge from the averments made in the petition along with the documents annexed thereto, it is provided that all the petitioners shall appear before the Court of learned Chief Judicial Magistrate, Dibrugarh on 23.12.2019 and till their appearance on the aforesaid date, no coercive action shall be taken/executed against them."
However, the petitioners have not appeared personally before the learned Court below and as such, warrants of arrest have been issued against them to compel their appearance fixing 06.01.2020 vide the order, dated 23.12.2019, passed by the learned Chief Judicial Magistrate, Dibrugarh, in Dibrugarh P.S. Case No. 410/1998. Thus, instead of complying with the aforementioned order, dated 19.12.2019, the petitioners filed a petition praying for handing over the case documents to the competent military authority citing various case laws with respect to Section 125 of Army Act and Section 475 Cr.P.C.
It may further be mentioned that the aforementioned Dibrugarh P.S. Case No. 410/1998 under Section 302/427/120B/201 of the IPC is pending investigation since 1998 for failure of the police to arrest the accused persons.
The petitioners have neither complied with the order of this Court, dated 19.12.2019, referred to above nor have specifically prayed for consideration of their bail and instead, have prayed by the instant interlocutory application for modification of the aforesaid order, dated 19.12.2019 with reference to the factual error recording of the submission made by the learned ASGI while moving the criminal petition No. 1500/2019 at the motion stage.
With a view to achieve the very purpose of the criminal petition and without, however, Page No.# 8/8 disputing the submission as recorded, made by the learned ASGI on 19.12.2019, in fact, his corrected new submission to the effect that " to co-operate and join the investigation before the I.O. of the case since arrest is not necessitated in view of the availability of the petitioners No. 1 to 10 for investigation and since due sanction under Section 45 of the Cr.P.C. has not been obtained" is also accepted by way of addition to the said order and accordingly, modification is made in the interest of justice as prayed for.
As no specific prayer for bail has been made, it is provided that the petitioners shall personally appear before the Court of learned Chief Judicial Magistrate, Dibrugarh on or before 28.01.2020 and till then, the execution of the warrants of arrest issued against them shall remain in abeyance by extension of the order, dated 19.12.2019, passed in Criminal Petition No. 1500/2019.
The petitioners shall be at liberty to file appropriate bail application, if so advised, before the appropriate Court.
With the above directions, the interlocutory application stands disposed off.
JUDGE Comparing Assistant