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1989 DIGILAW 27 (GAU)

KAJAL DEY v. STATE OF ASSAM

1989-02-22

S.K.HOMCHAUDHURI

body1989
JUDGEMENT 1. By this petition the petitioners who have been kept in the jail custody since 14-1-89 during the pendency of investigation have approached this Court for enlargement on bail after their applications for bail were rejected by the learned Chief Judicial Magistrate, Gauhati one after another. 2. FIR of the case discloses that on 13-1-89 around 10-30 p.m. some miscreants numbering 15/20 attacked deceased Robin Patowari and two other persons of Mahadebpur road of Rehabari with lathi, rod and other weapons and caused grievous injuries on Robin Patowari who ultimately succumbed to the injuries. In the FIR the informant named one Atul and another Gopal who are alleged to be members of the miscreants. After receipt of FIR Paltanbazar P.S. Case No. 24/89 under Sections 148/302/325 IPC was registered and thereafter the police arrested the petitioners in connection with the case. The petitioners were produced before the learned Chief Judicial Magistrate, Gauhati on 15-1-89 and GR Case No. 37/89 was registered in the Court of the learned Chief Judicial Magistrate, Gauhati. It appears from the order sheet of the said case that on 15-1-89 an application for bail was filed on behalf of the petitioners; but the same was rejected by the learned Chief Judicial Magistrate on the ground that the offence appears to be serious one. The learned Magistrate remanded the petitioners to jail custody till 27-1-89. On 16-1-89 another bail petition was also moved; but the same was rejected on the same ground. On 18-1-89 police made a prayer for holding TIP and Mr. B.J. Mahanta, Magistrate (J) was asked to conduct the TIP by the learned Chief Judicial Magistrate. On 27-1-89 another bail petition for bail was moved in the meantime but the same was rejected on the ground that the TIP was not yet over. On 27-1-89 a prayer was made to defer the holding of TIP and the learned Chief Judicial Magistrate fixed 28-1-89 for TIP and remanded the accused petitioners to custody. On 28-1-89 another prayer was made by the police for deferring TIP date. The learned Magistrate allowed the prayer and fixed 30-1-89 for holding TIP and the petitioners were remanded to custody for holding TIP. On 4-2-89 the learned Magistrate again remanded the accused petitioners to jail hajot till 17-2-89. 3. Heard Mr. A.M. Mazumdar, learned Counsel for the petitioners and Mr. B.B. Narzary, learned Public Prosecutor, Assam. The learned Magistrate allowed the prayer and fixed 30-1-89 for holding TIP and the petitioners were remanded to custody for holding TIP. On 4-2-89 the learned Magistrate again remanded the accused petitioners to jail hajot till 17-2-89. 3. Heard Mr. A.M. Mazumdar, learned Counsel for the petitioners and Mr. B.B. Narzary, learned Public Prosecutor, Assam. It is stated in the petition that the petitioner No. 1 is 15 years and a student while the petitioners Nos. 2, 3 and 4 are aged 19, 20 and 24 years respectively. These facts are not disputed by the prosecution. I find that there is no specific allegation against the accused petitioners in the FIR. On 21-2-89 the date on which the petition was moved after hearing the learned counsel for the petitioners as well as the learned Public Prosecutor for sometime I felt it necessary to peruse the case diary and I fixed next day for production of case diary and further hearing. The learned Public Prosecutor has produced the case diary today. The learned Public Prosecutor submits that under Section 41 Cr. P.C. Police is empowered to arrest any person without warrant or order of Magistrate. No doubt police is empowered under Section 41 Cr. P.C. but exercise of that power is governed by certain conditions enumerated in the Section 41 Cr. P.C. On perusal of the case diary I find that there is no in criminating materials for which police felt it was necessary to arrest the petitioners soon after the receipt of the FIR. A serious crime no doubt took place in the night of 13-1-89 at Rehabari which resulted in the unfortunate death of one Architect/Engineer and all efforts must be made to apprehend the culprits involved in the crime. But that does not entitle the police to exercise the power under Section 41 Cr. P.C. arbitrarily and to trample the dignity and liberty of the citizens safeguard of which is guaranteed under our Constitution. On mere suspicion police must not arrest a person unless suspicion is well founded. On perusal of the case diary I do not find the existence of the conditions precedent for arrest of the petitioners in the exercise of power under Section 41 Cr. P.C. by the police, on 14-1-1989. 4. On mere suspicion police must not arrest a person unless suspicion is well founded. On perusal of the case diary I do not find the existence of the conditions precedent for arrest of the petitioners in the exercise of power under Section 41 Cr. P.C. by the police, on 14-1-1989. 4. True in the FIR the informant has also stated that some persons could be identified by one Ratul Malla Bujar Barua if he sees them. In case the petitioners are arrested as suspects solely for the purpose of holding the TIP what prevented the police to make a prayer before the learned Chief Judicial Magistrate immediately after arrest of the accused petitioners before exposing the petitioners by bringing them out of jail custody. Police ought to have approached the Magistrate immediately after the arrest of the petitioners for holding the TIP and the learned Chief Judicial Magistrate ought to have ordered that TIP was to be held without loss of time after taking due precautions that the petitioners are not exposed to outside public. But it appears that the learned Magistrate by the order dated 15-1-89 and 16-1-89 rejected the prayer for bail only on the ground that the offence appears to be serious one without requiring the police to produce the case diary to satisfy himself whether any reasonable ground existed for keeping the accused petitioners in the jail custody. Jails are not houses of correction but the living place of hardened criminals and other criminals and the innocent may turn criminals with the association of such hardened criminals and returns back to society as criminals. As such detention of suspects in the jail hajot ought not to be taken casually, but seriously. Suspects could be kept in the jail under compelling circumstances for the barest minimum period for the purpose of investigation. In the instant case on perusal of the case diary, I find that only the possible ground for which the accused petitioners are detained in jail hajot may be for holding TIP. Mr. A.M. Mazumdar, learned counsel for the petitioners submits that TIP was held 17 days after keeping the petitioners in the jail custody and that too after the petitioners are exposed to the public while presenting them before the Court on several dates which rendered the TIP valueless. Mr. A.M. Mazumdar, learned counsel for the petitioners submits that TIP was held 17 days after keeping the petitioners in the jail custody and that too after the petitioners are exposed to the public while presenting them before the Court on several dates which rendered the TIP valueless. Be that as it may, I find that both police as well as the learned Chief Judicial Magistrate took the detention of the accused petitioners casually. The learned Magistrate ought to have given serious consideration as to the necessity of keeping the petitioners in jail hajot particularly when the petitioner No. 1 is a student and 15 years old and the petitioner No. 2 is 18 years and the case diary does not disclose anything against them after police examined a number of persons in the locality on 14-1-89. 5. From what is stated above, I am satisfied that the petitioners should be enlarged on bail and accordingly I direct that petitioners Kajal Dey, Subrata Ghosh, Dilip Roy and Monu Mahanta detained in the jail hajot in connection with GR case No. 37/89 arosing out of the Paltanbazar P. S. Case No. 24/89 u/s. 147/148/302/325 IPC be enlarged on bail on furnishing bond of Rs. 5,000/- each with one local surety of the like amount to the satisfaction of the learned Chief Judicial Magistrate, Gauhati. The petitioners shall not leave the State of Assam without prior permission of the learned Chief Judicial Magistrate, Gauhati and shall make themselves available for interrogation before the investigating authority as and when required. 6. With the said observations and direction the petition is allowed and disposed of. Petition allowed.