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2002 DIGILAW 536 (CAL)

Rajjak Ali @ Abdus Rajjak v. State of West Bengal

2002-08-12

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J. This revisional application is directed against the order dated 12th April, 02 passed by the learned S.D.J.M. Barasat thereby issuing warrant of arrest against the petitioners who were the accused persons in the criminal case in question namely G.R. 868/79 arising out of Barasat P.S. Case No. 11 dated 3.5.1979 under section 364 I.P.C. The relevant facts leading to the present state are in brief as follows. The said criminal case under section 364 I.P.C. were filed in 1979 F.LR. was lodged on 3rd May, 1979 alleging that one Judhisthir Ghosh, a grand-son of the informant Jyotish Chandra Ghosh had been taken away from his home by some unknown persons. The informant further stated that they suspected and apprehended that Judhistir might have been taken away by the miscreants with a motive of murdering him. Thereafter the police took up investigation. In the meantime the present petitioners were apprehending that they might be arrested and prayed for anticipatory bail before the sessions court of the District South 24 Parganas and obtained the same therefrom. But they did not surrender themselves before the Court of Magistrate till 1997. On 7th January, 1997 they surrendered before the Court by filing a petition of surrender, but curiously enough although the court did not pass any order on their petition for bail which they filed, they were found at large after that date and thereafter on the next date, that is, 21st February, 1997 the learned S.D.J.M. passed an order "filing the case for the present" on the ground that in spite of his definite direction neither the I.O. nor the de facto complainant had appeared before him and therefore no order should be passed on the F.R.T already submitted by the I.O. and in such circumstances the case was "filed for the present". Thereafter, against that order of the learned Magistrate dated 21st February, 1997 the de facto 'complainant Lakshmi Kanta Ghosh filed a revisional application before this High Court whereupon a single bench of this Court set aside that order and also the order dated 7th January, 1997 and directed the learned Magistrate to issue process against the accused persons of the case for their appearance and after procuring their attendance to pass an order in accordance with law including an order of commitment of the case to the court of sessions. After this order was received by the court below the learned Magistrate passed an order issuing warrant of arrest against the present petitioners for procuring their appearance. Being aggrieved by that order they have preferred the revisional application before this Court. 2. Mr. Roy, learned Advocate for the petitioners has vehimently argued that in this case the learned Magistrate was not competent under the law to issue warrant of arrest in view of the reason that the petitioners being accused persons of this case took anticipatory bail as far back, as in 1987 when the decision of the Apex Court in K.L. Verma's case did not come into existence and under the legal principles prevailing at that point of time such accused persons having taken anticipatory bail had no obligation to surrender themselves before the Court of Magistrate, because the order granting such anticipatory bail was not for a limited period at that time. But after having perused the order-sheets of the learned Magistrate I find that the effect of the anticipatory bail granted to the petitioners has been no longer in force, once they surrendered themselves before the Court of Magistrate on 7th January, 1997. It goes without saying that the force of that order of the sessions court granting anticipatory bail to these accused persons came to an end, as soon as they surrendered before the Court of Magistrate. Therefore the question whether the warrant of arrest should have been issued against them or not is to be governed by the general law as provided under the Criminal Procedure Code for the purpose of procuring attendance of the accused persons. Section 87 of the Cr.P.C. contains the required provisions in this respect. Under the provisions of this section 87 Cr.P.C. a court may in any case in which it is empowered by this Code to issue summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest if either before the issue of such summons or after the issue of the same, but before the time fixed for his appearance, the court has reasons to believe that he has absconded or will not obey the summons. In the present case the question is whether by issuing warrant of arrest the court has committed any error of law. Mr. In the present case the question is whether by issuing warrant of arrest the court has committed any error of law. Mr. Roy draws my attention to the fact that in this order while issuing warrant of arrest against the accused persons at the very first instance the learned Magistrate has not recorded any reasons for his so doing and since this mandatory provisions of law have been violated by him the order is liable to be set aside on that score alone. But I am not impressed by this contention of Mr. Roy. In the first place, this order is not to be taken as an order of the first instance. May be, after this Court passed a direction for issuing process, the order was being passed for the first time but in a case of this nature where a serious offence has been allegedly committed, the whole background reflecting the entire conduct of the accused persons particularly the present petitioners should be taken into account. As I have pointed out above, the present petitioners absconded for long 11 years, as the order-sheet shows. At the first instance, the learned Magistrate had to issue warrant of arrest against them, but when that produced no result he had to issue Warrant of Proclamation and Attachment (in short called WP & A) and that also went on for a long time till the process was recalled on 7.1.1997 by the Court when these petitioners surrendered themselves on 7th January, 1997, but curiously enough, although their petition for bail was not disposed of, and no order on their prayer for bail was passed on that date, they came out of the Court's custody of their own accord. It is contended by Mr. Roy that since the Court did not pass any order touching their custody, they were quite at liberty to do that, but this contention cannot be accepted. Once an accused person surrenders himself before a Court of Magistrate by filing a petition, automatically he is taken into the custody of the Court and unless and until he obtains an order of bail from that Court, he cannot according to his sweet will come out of such custody. Such conduct of the accused practically gives rise to another distinct offence. Such conduct of the accused practically gives rise to another distinct offence. It is not understood how such an act on the part of the accused could escape the notices of the Court or its officials. As soon as an accused surrenders before a Court he is to be taken into the Court's Lock up. Be that as it may, if in consideration of such past conduct of the accused, namely, his absconsion for long 11 (eleven) years and his coming out of Court's custody, after making surrender there, without the Court's knowledge or permission, far less any bail order, the learned Magistrate has not considered it wise or proper to issue a summons at the very first instance after the above-mentioned order of this Court was received by him, then his order cannot be subjected to any criticism to the effect that it is illegal or erroneous or improper. It is true that no reason in express words has been assigned by him, but when it is found that there were reason and justification in abundance for passing such an order, simply because such reasons have not been jotted down in express words, the order, otherwise quite justified, cannot be thrown aside. That apart, an order issuing warrant of arrest is not an order of final nature but a mere interlocutory order and according to the established principles, such interlocutory orders are not revisable under the provisions of section 397 read with section 401 Cr.P.C. 3. In view of the entire reasons discussed above, I do not consider the argument of Mr. Roy as substantial and I uphold the impugned order and dismiss the revisional application. The interim order of stay be vacated. 4. The L.C.R. be sent down to the Court below at once. 5. Office shall communicate this order to the Court below and submit a compliance report before me within a week from the date on which they receive thus record. Revisional application dismissed.