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2001 DIGILAW 739 (CAL)

Niamat Gazi v. State of West Bengal

2001-12-11

ARUNABHA BARUA

body2001
JUDGMENT Arunabha Barua, J. 1. This revisional application under section 482 of the Code of Criminal Procedure is in respect of two criminal cases: (i) Minakhan P.S. Case No.69 dt. 16.10.1999, G.R. No.1076 of1999, under sections 147/148/353/325/326/307 I.P.C. and 25(1)(a)/27 Arms Act and section 9(B) I.E. Act. (ii) Minakhan P.S. Case No.70 dt. 16.10.1999, G.R No. 1075 of 1999 under sections 147/148/149/325/326/307/506 and adding section 302 I.P.C. & 25(1)(a)/27 Arms Act and section 9(E) I.E.. Act. This revisional application pertains to recording of two F.I.Rs. in two separate cases as mentioned above at two different times in respect of one and identical incident that took place between 9.30 hours to 10.05 hours on 16.10.99 as alleged by the petitioner, Niamat Gazi, who is an accused in the aforesaid cases: 2. Brief facts: S.I. of Police, Balai Ch. Ghosh of Minakhan P.S. arrived at Babur Ghat at about 10.00 hours on an information having been received to see that about 300/400 supporters of T.M.C. taking out a victory procession were being resisted by about 100 supporters of C.P.I(M) and prepared to attack each other. S.I., Balai Ch. Ghosh intercepted, wanted both parties to disperse, but to no effect. The warring groups hurled brick bats at each other and also at the police and also started firing at police. S.I., Balai Ch. Ghosh and another constable sustained injuries on their persons. The Police lathi-charged the mob and dispersed them from the place. Twenty- four persons were arrested on the spot and they were brought to Minakhan P.S. The entire episode took place from 10.00 hours to 10.45 hours. Thereafter, S.I., Balai Ch. Ghosh wrote the written complaint on the incident whereupon the said Minakhan P.S. Case No.69 dt. 16.10.99 was drawn and investigation taken up by one S.I., Subodh Chakraborty. 3. At about 15.35 hours another written complaint was filed to the O.C. of Minakhan P.S. by one Majed Ali Gazi giving information of the incident which according to the said complaint took place at about 9.00 A.M. at Babur Ghat and on that basis another F.I.R. was recorded against 35 persons touching upon the self-same incident, whereupon the second case that is Minakhan P.S. Case No.70 dt. 16.10.99 was recorded and the same was endorsed to S.I., Balai Ch. Ghosh for investigation. On 17.10.99 the accused persons including the petitioner, Niamat Gazi in the said P.S. Case No.69 dt. 16.10.99 was recorded and the same was endorsed to S.I., Balai Ch. Ghosh for investigation. On 17.10.99 the accused persons including the petitioner, Niamat Gazi in the said P.S. Case No.69 dt. 16.10.99 was forwarded by the S.I., Subodh Chakraborty to the S.D.J.M., Basirhat, North 24-Parganas with a forwarding report in the light of the written complaint filed by S.I., Balai Ch. Ghosh. A separate forwarding report was sent also in connection with Case No.70 dt. 16.10.99 by another S.I. of Minakhan P.S. against the identical persons of the former F.I.R. No.69 dt. 16.10.99 where the petitioner, Niamat Gazi also figured as an accused, though his name did not figure in the complaint or the F.I.R. It is further stated that Asoke Mondal, whose name was mentioned as having had bullet injury in Case No.70 dt. 16.10.99 was not mentioned in Case No.069 dt. 16.10.99. S.I. Balai Ch. Ghosh after returning from the spot on 16.10.99 did not mention about such bullet injury of Asoke Mondal, who was later picked up by a different Police Officer was sent to N.R.S. Hospital and died. On such death police got the charge in Case No. 70, amended by incorporating section 302 I.P.C. The names of those 11 persons, who were arrested by S.I., Balai Ch. Ghosh at 9.30 to 10.45 A.M. and brought to Police Station and a suo moto case was recorded as Case No.69 dt. 16.10.99 was manipulated and wrongly reported to have been arrested in connection with F.I.R. and Case No.70 dt. 16.10.99, a subsequently created and manufactured F.I.R. Case No.70 of the same date, although recorded at 15.35 hours. There may be a number of informations at the police station touching one and the identical matter disclosing commission of cognizable case but all the informations cannot be treated as just information report and recording of several cases based on them. First, Information Report is the one which was received first in point of time and in case is to be recorded for investigation on the said F.I.R. only, other cases on subsequent informations are illegal and cannot be acted upon and without jurisdiction. It is further alleged by the petitioner that false allegations have been made against the accused persons as shown in Case No.70. According to the petitioner the second F.I.R. of Case No.70 dt. It is further alleged by the petitioner that false allegations have been made against the accused persons as shown in Case No.70. According to the petitioner the second F.I.R. of Case No.70 dt. 16.10.99 is manifestly attended with malacious intention to wreak vengeance on the accused persons by their rival party and the second Case No.70 is absurd, inherently improbable and the proceedings in connection therewith shall result in an abuse of the process of law. The petitioner, therefore, prays for quashment of the said proceedings arising out of the second F.I.R. in case No.70 dt. 16.10.99. 4. The only point for consideration is whether the criminal proceedings arising out of the said case No.70 should be quashed. The learned Advocate, Mr. Sitaram Samanta, for the petitioner has submitted, in short, that petitioner, Niamat Gazi, is one of the accused in the first F.I.R. in Case No.69 dt. 16.10.99. Being arrested along with other accused persons on the spot on 16.10.99 between 9.30 A.M. and 10.05 A.M., brought to the police station and taken into custody. Niamat Gazi was named in the F.I.R. and the forwarding report by the police to the S.D.J.M. also mentioned his name as an accused but in the second F.I.R. of Case No.70 petitioner, Niamat Gazi does not figure there and only in the forwarding report his name has been inserted with mala fide intention. He further submits that the second F.I.R. is a product of collusion and is a manufactured one and also suffers on facts from inherent improbability and is a sheer absurdity. The petitioner, he submits, can only be legally proceeded with in respect of Case No.69 resulting out of the first F.I.R. and it is the F.I.R. in Case No.70 that is challenged because the petitioner- accused in Case No.69 cannot be an accused in Case No.70 to face two trials to be harassed, humuliated, prejudiced and doubly - jeopardised. So, it is contended that the criminal proceedings arising out of the second F.I.R. in Case No. 70 are mala fide, bad in law and is an abuse of the process of the court and the same should be quashed. 5. The learned senior Counsel, for the State, Mr. Sudipta Maitra draws my attention to the contents of case diary which was looked into. 5. The learned senior Counsel, for the State, Mr. Sudipta Maitra draws my attention to the contents of case diary which was looked into. He has submitted that the petitioner-accused, Niamat Gazi, figured in the forwarding reports of both the cases, Case No.69 as well as Case No.70, that the case diary has disclosed offences against the accused of the gravest nature and section 302 I.P.C. has been duly added and vigorous investigation is underway and further that it is still an early part of investigation in serious offences. He has further submitted that Case No.70 is quite separate from Case No.69 and a particular individual was attacked and he succumbed to his injury resulting in separate offences in separate cases. He has further submitted that the police investigates the offence, not the offender, cognizance is taken of the offence and not the offender, that investigation commenced on Case No.70 where grave allegations of murder involving the accused including the petitioner-accused, Niamat Gazi, have been made. The learned senior Counsel for the State has further submitted that in case of the same transaction, different offences may be committed and now that the investigation has ensued in respect of Case No.70, there is absolutely no reason why the same should be quashed. He has further submitted that the Case No. 70 has prima facie disclosed serious offences having been committed and there is absolutely no reason why it should be quashed. In support of the respective contentions while the learned advocate the petitioner has relied on some High Courts and Supreme Court decisions such as AIR 1965 SC 87 , AIR 1961 SC 578 , AIR 1992 SC 604 , AIR 1988 SC 709 and 82 am 454, the learned senior Counsel for the State has relied on AIR 1992 SC 604 : 1992 Cri.L.J. 527 (Bhajan Lal's case). 6. It is true that in respect of an incident in one and the same day, 16.10.99 an arm clash took place between two warring groups of political parties resulting in injuries and death and the two F.I.Rs. in question in Case No.69 and case No.70 of Minakhan P.S. were filed. 6. It is true that in respect of an incident in one and the same day, 16.10.99 an arm clash took place between two warring groups of political parties resulting in injuries and death and the two F.I.Rs. in question in Case No.69 and case No.70 of Minakhan P.S. were filed. But one, I think, is independent of the other and merely because the petitioner-accused has been booked for having allegedly committed serious offences and tagged eventually in the two forwarding reports by the police to the S.D.J.M., he cannot get rid of the entire investigation under-way in Case No.70 dt. 16.10.99 where section 302 I.P.C. has been added for murder with the apparent death of one Asoke Mondal in the N.R.S. Hospital having succumbed to his injuries in the said incident The case diary has prima facie disclosed the names of assailants and spells out serious offences having been committed and this requires further investigation. Striking out the F.I.R. of Case No. 70 and quashing the entire proceeding that it necessarily entails, I think, would neither be proper nor justified. The case laws cited by the learned Advocate for the petitioner speak of harassment, double-jeopardy, rule of estoppel that bars a second trial, mala fide intention of the prosecution in bringing about the second Case No. 70 and abuse of the process of the court. 7. But at the same time, we have got to bear in mind that a F.I.R. which prima facie discloses serious offences including that of murder having been committed, there is no way the F.I.R. should be set aside or quashed. Short of adequate evidence at the appropriate time, allegations of mala fide against the prosecution at this stage is bereft of substance. We are also not going at this stage to delve into the truth or the falsity of the allegations. In the event of disclosure of an offence, which is what is very much here in the case in question (Case No. 70), it is a duty incumbent to investigate into the offences and bring the offenders to books in order to serve the cause of justice. The question of harassment and double-jeopardy as alleged by the petitioner pales into insignificance at this stage of the proceeding. The question of harassment and double-jeopardy as alleged by the petitioner pales into insignificance at this stage of the proceeding. In support of all these I might profitably refer to one of the latest decisions of the Apex Court in the case of S.N. Datta vs. State of Gujarat & Anr., reported in 2001 AIR SCW 3133. It has been held therein by the Hon'ble Supreme Court as follows:- FIR ought not to thwarted at the initial stages if an offence is disclosed but in the event however, the materials do not disclose an offence, no investigation should normally be permitted. Criminal proceedings, in the normal course of events ought not be scuttled at the initial stage, unless the same amounts to an abuse of the process of law. In the normal course of events thus, quashing of a complaint should rather be an exception and a rarity than ordinary rule. The genuineness of the averments in the FIR cannot possibly be gone into and the document shall have to be read as a whole to decipher the intent of the maker thereof. It is not a document which requires decision with exactitude, neither it is a document which requires mathematical accuracy and nicety, but the same should be able to communicate or indicative of disclosure of an offence broadly and in the event the said test stands satisfied, the question relating to the quashing of a complaint would not arise. It is this context however one feature ought to be noticed at this juncture that there cannot possibly be any guiding factor as to which investigation ought to be scuttled at the initial stages and investigations which ought not to be scuttled. The FIR needs to be considered and if the answer is found on a perusal thereof which leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police since two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere. While liberty of an individual are "sacred and sacrosanct" and it is a bounden obligation of the Court to protect them but in the event of commission of a cognizable offence and an offence stand disclosed in the FIR, interest of justice requires further investigation by the Investigating Agency. While liberty of an individual are "sacred and sacrosanct" and it is a bounden obligation of the Court to protect them but in the event of commission of a cognizable offence and an offence stand disclosed in the FIR, interest of justice requires further investigation by the Investigating Agency. Needless to record that investigation of an offence is within the exclusive domain of the police department and not the law courts. In the event of disclosure of an offence, it is a duty incumbent to investigate into offence and bring the offenders to books in order to serve the cause of justice. 8. It has already been stated in the celebrated case of State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335: 1992 AIR SCW 237, that the power to quash criminal proceedings should be exercised sparingly with circumspection and that too in the rarest of rare cases, that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or complaint. While exercising the inherent power and deciding whether the investigation itself should be quashed, utmost care should be taken by the Court and at that stage it is not possible for the Court to shift the materials or to weigh the materials and then come to the conclusion one way or the other. In view of what has thus been stated above by me, I am not inclined to set aside or quash the criminal proceeding arising out of the Case No. 70 in question. 9. Accordingly, I find that this revisional application is devoid of merits and is dismissed. Case diary be returned. Urgent xerox certified copy of this order, if applied for, be given to the parties. Revisional application dismissed.