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2008 DIGILAW 1075 (CAL)

Imran Bashir v. State of West Bengal

2008-12-17

ARUNABHA BASU

body2008
JUDGMENT 1. Heard learned Advocate for the petitioner and the learned Advocate for the State. In terms of earlier direction passed by this Court, the learned Advocate for the State has produced the case diary. 2. The revisional application under section 482 Cr. PC is directed to quash the proceeding in connection with CGR Case No.56/08 arising out Alipore P.S. Case No.9 dated 6. 1. 08 registered for commission of offence under section 147/148/149/324/307/427 IPC. 3. The main contention of the learned Advocate for the petitioner is that in the four-corners of the petition of complaint nothing has been disclosed to show even prima facie that the petitioner herein is involved with the offence. The learned Advocate for the petitioner drew attention of this Court to the recital in the FIR. It will be appropriate to set out the relevant portion of the FIR. for the purpose of the present' discussion: "On seeing such our Manager intimated it to Imran Basir of BIG 92.7 FM. Then Imran talked with his authority over phone and thereafter told us to close the bar counter. Accordingly, we closed the bar counter and informed the invitees for unavailability of wine in exchange of coupon. On hearing such group of people in the age group of 20-22 years, ten/twelve in number became violent. On seeing such, we requested Imran, Soumitra and Jatin Lakhani for taking necessary steps since the situation turned worse. But they kept themselves aloof from the incident and did not pay any heed into our request. Suddenly, a group of people, became violent and started to break wine bottles and glasses of the tables of the lounge. On seeing such scene when we resisted them, then those violent people started to assault us by means of wine bottle, glasses of table and chair of the lounge, resulting servere bleeding injuries on the persons of Manager, Nabin Jha, employees Rajesh Jana and Debasish Das respectively." 4. From the recital of the FIR as stated above, it can be seen that the allegation against the petitioner herein is not in respect of commission of actual assault or the act of mischief which subsequently took place and it is recited in the FIR that those offence was committed by a group of people who suddenly became violent. From the recital of the FIR as stated above, it can be seen that the allegation against the petitioner herein is not in respect of commission of actual assault or the act of mischief which subsequently took place and it is recited in the FIR that those offence was committed by a group of people who suddenly became violent. The people as alleged in the FIR became violent for non-supply of drinks even though they were holding necessary slip. It is recited in the FIR that the complainant contacted the petitioner herein who is stated to be representing BIG 92.7 FM and two others. The petitioner was present as it is alleged in the FIR that he along with others were entrusted to organise the party. It further appears from the FIR that the invitees were issued cards with complementary drinks of "2 PEG" in each card. So the genesis of the occurrence or the origin of the occurrence took place due to alleged non-supply of drinks to the card holders. Upto that stage, it cannot be stated that any offence as alleged took place. The offence as alleged took place when the people became violent due to non-supply of drinks and they started breaking furnitures and committed an act of assault on several persons. It is categorically stated in the FIR that the group of people became violent and stated breaking wine bottle and glasses. It is further stated in the FIR that informant along with others started to run when the act of assault by the group of people took place causing injury to Nabin Jha, Rajesh Jana and Debasish Das. 5. I am in agreement with the submission made by the learned Advocate for the petitioner that the petitioner's name appeared in the FIR under different context. In the FIR it is not stated that the petitioner herein was one of the assailants. In the FIR it is clearly stated that as the situation became serious, the complainant requested the petitioner along with two others to take necessary steps. If one looks into the entire FIR it is clear that the complainant approached the petitioner herein to ensure free supply of liquor. In the FIR it is clearly stated that as the situation became serious, the complainant requested the petitioner along with two others to take necessary steps. If one looks into the entire FIR it is clear that the complainant approached the petitioner herein to ensure free supply of liquor. Even assuming for the sake of argument that the petitioner failed to fulfil the request of the complainant, such failure can not and does not make the petitioner as one of the assailants or offender involved with the commission of offence. 6. The being the position in FIR where the petitioner has not been named as one of assailants, the submission made by the learned Advocate for the State on consideration of the case diary materials, particularly the statement of witnesses recorded under section 161 Cr. PC that there is material to show the involvement of the petitioner herein as one of the offenders, merits necessary consideration. 7. It is correct that FIR is never treated to be all and end all of the prosecution version about the occurrence. FIR can never be equated as plaint and all the incidents and particulars are required to be meticulously recorded in order to accept that information to be one in terms of provision under section 154 Cr. PC. It is also correct that the purpose of investigation is to collect evidence. The police registers a case on perusal of the FIR. The apparent statement in the FIR is required to be worked out in order to see whether the FIR. discloses offence, whether any further offence in connection with the same occurrence has been committed. For example, if the FIR is recorded for a lesser offence and if it appears during the course of investigation some other distinct and separate offence which may not have been reflected' in the FIR has actually taken place during same occurrence, the same shall also be subject matter of investigation in connection with the same occurrence for which the case was registered. The absence of name of a person in the FIR cannot and does not assume much importance if it is shown by the prosecution that there is material collected against him during the investigation which does not justify invoking of the power of this Court under section 482 Cr. PC. 8. The absence of name of a person in the FIR cannot and does not assume much importance if it is shown by the prosecution that there is material collected against him during the investigation which does not justify invoking of the power of this Court under section 482 Cr. PC. 8. Such materials according to the submission of the learned Advocate for the State is available. It is somewhat unfortunate that there is no pagination in the case diary. The pagination is required as the case diary is to be maintained on day to day basis. The absence of pagination does not rule out the possibility of materials being removed or subsquently inserted for some ulterior motive. I am aware that these words have some serious repercussion and consequence. But unforunately the situation demands that this Court must take an exceptional view about the contents of the case diary materials. It has to be borne in mind that the applicant has filed this application seeking justice before a Court of Law. The other side is required to oppose it. But to do so unfair means cannot be adopted. So far as this case is concerned, I am constraint to observe that the investigating officer who is present in Court namely S.I. Shih Sankar Roy has unfortunately adopted unfair means in the case diary. But in my view he has done so in order to mislead the Court to arrive at a proper decision in connection with the application filed by the petitioner. Such tactics adopted by the police officer is not only seriously condemned but it is expected that the authority being the Commissioner of Police shall take appropriate action against the said officer. 9. The object of maintaining case diary in proper and correct manner is a duty cast on the officer conducting investigation. But if it is found that the police officer is manipulating case diary in such manner, only to frustrate the course of justice, then in all fairness of the matter, the Court can not be an idle spectator, to allow such misdeeds un enquired and unpunished. To do so, would amount to encourage such police officer to mock the entire justice delivery system and thereafter to go scot free. The attempt made by the officer concerned is to frustrate administration of justice for which alone the Courts exist. To do so, would amount to encourage such police officer to mock the entire justice delivery system and thereafter to go scot free. The attempt made by the officer concerned is to frustrate administration of justice for which alone the Courts exist. If a person is trying to practice fraud on Court in order to prevent a litigant from obtaining appropriate order from the Court, he does so at his own peril. I must hasten to add that entire Police Administration can not be faulted for act of an individual police officer. It is not the business of the Court to comment as to how the Police Administration shall be run. But in view of seriousness of the matter as attempt is made to frustrate due course of administration of justice, the entire matter should be brought to the notice of Commissioner of Police, Calcutta, so that necessary action and corrective steps may be taken by appropriate authority. In my humble view investigation must be conducted in such manner that accused must fill confident about impartiality of investigation and must have trust on the officer conducting investigation that materials and evidence actually collected during investigation shall be placed and not manipulated records to cause harassment and denial of justice to accused. 10. I now propose to discuss the manipulation of materials committed by the police officer. I have no other option but to record the name of the witnesses in whose statement recorded under section 161 Cr. PC, such manipulation and fabrication of records have taken place. In the FIR Nabin Jha has been disclosed to be one of the injured person. The statement of Nabin Jha which is personally marked by me as "A" in order to avoid further mainpulation. The statement of Nabin Jha indicates and I am setting out the relevant portion "............ When we the staff of the lounge tried to pacify them, they pounced upon us and started assaulting my co-staffs with fist and blow, chairs, broken pieces of bottles etc........ as a result of which I received bleeding injury on my person." 11. The statement of Nabin Jha indicates and I am setting out the relevant portion "............ When we the staff of the lounge tried to pacify them, they pounced upon us and started assaulting my co-staffs with fist and blow, chairs, broken pieces of bottles etc........ as a result of which I received bleeding injury on my person." 11. Close scrutiny of the abovementioned statement clearly indicates that the following words were recorded and inserted in between sentences as referred to above in different ink those words are "in return some unknown persons including Imran Basir also threw broken wine bottles towards them including injured person." This insertion, in my view, is subsequently incorporated in different pen by the police officer who is conducting investigation and whose name is disclosed above in order to frustrate the petition filed under section 482 Cr. PC. The relevant sentence has not meaning because Nabin Jha as stated in the FIR. is one of injured person and it is meaningless on his part to state that Imran Basir also threw broken wine bottles towards them including injured person. He has no stated anything that he sustained injury which is disclosed in the FIR. Such manipulation which has taken place in this case indicates that the police officer who is conducting investigation instead of collecting evidence required in order to assess whether the accused persons either named or unnamed are involved with the commission of offence, is bent upon to frustrate the application by the petitioner by adopting unfair means. 12. Similar is the statement of Narendra Kr. Balmiki and again in the absence of pagination I have marked the said statement as "B". This witness has stated as follows: "........we tried to pacify them but all of them became so violent that they started assaulting us and me and my other colleagues by fist and blows, chair and glasses/bottles......... I noticed Rajesh Jana, Debasish Das and our Manager Nabin Jha received bleeding injuries on their hands." It appears in between these two sentences, the police officer conducting investigation has inserted the following words again in different ink. I noticed Rajesh Jana, Debasish Das and our Manager Nabin Jha received bleeding injuries on their hands." It appears in between these two sentences, the police officer conducting investigation has inserted the following words again in different ink. Those words are "in return, Imran Basir and others also threw broken glasses, bottles towards them including injured persons." The subsequent insertion in different ink is indicating that this was inserted in order to create a material against the petitioner herein so that this Court while examining the case diary, comes to a finding that the material collected during investigation does not exonerate the petitioner herein from the rank of accused. But the sentence as originally written and the subsequent insertion causes the entire sentence to become meaningless. Both Nabin Jha and Narendra Kr. Balmiki as per their own statement were injured during the occurrence and both of them in the subsequent inserted part has stated that due to assault committed by the petitioner with others by throwing bottles (including the injured persons). Such insertion makes the first part and the later part of the statement meaningless in view of the insertion effected by the Investigating Officer for reasons best known to him. 13. It is really unfortunate that such partisan attitude was adopted by a police officer who is exercising his statutory function vested upon him under law. It is expected that the materials collected shall be placed before the Court of Law. The statement of Nabin Jha was recorded on 6.1.08, similarly, the statement of Narendra Kr. Balmiki was also recorded on 6.1.08. The petition under section 482 Cr. PC was filed on 7.2.08. In terms of the direction passed by this Court, case diary is produced. It further appears to me that the learned Court below by his order dated 8.1.08. perused the case diary in connection with the bail application filed by the petitioner along with others. On that date the learned Magistrate recorded that "perused the C/R and C/D. On perusal, I do not find iota of incriminating materials against all the three accused persons." It further indicates that insertion by way of manipulation was effected subsequently and it is not out of place to mention that the same was done only to frustrate the present application filed by the petitioner. This is another indication as to how the case diary is manipulated by this police officer. This is another indication as to how the case diary is manipulated by this police officer. If everything is taken together the vindictive attitude on the part of the police officer becomes absolutely clear. This Court is constraint to observe that no reliance can be placed on the statements recorded by this police officer. What shall be the consequence in view of the comment recorded by this Court, is for the authority to decide. While hearing a judicial matter and an application under section 482 Cr. PC, shall restrict my finding only to examine whether the application filed by the petitioner deserves and justifies any order under section 482 Cr. PC. Admittedly, the petitioner is not named in the FIR as one of the assailants. The involvement of the petitioner as disclosed in the statements of witnesses cannot be relied upon. It appears to me those statements are not only false but subsequently inserted only to frustrate the application filed by the petitioner herein. This amounts to interference in administration of justice. 14. Under these circumstances, the revisional application is disposed of with direction that the above noted proceeding so far as the petitioner herein is concerned stands quashed. There shall be no order as to costs. Before I part with the discussion, it would be appropriate if the record is forwarded to the learned Registrar General, High Court, with direction that a copy of the order be forwarded personally in the name of Commissioner of Police, Calcutta, so that appropriate action may be taken in the matter by the concerned authority. This Court expects that the action taken report showing compliance of the order is submitted before this Court positively on or by 16.1.09. As the record will be sent to the learned Registrar General, the learned Advocate for the petitioner is permitted to communicate the order before the learned Court below as I have already quashed the proceeding against the petitioner. 15. The petitioner herein stands released from bail bond. 16. Criminal Section is directed to supply urgent photostat copy of the order to the learned Advocate for the petitioner as and when applied for. 17. Case diary be returned. Arunabha Basu, J.: Revisional application disposed of.