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2008 DIGILAW 646 (CAL)

Laltu Mal v. STATE OF WEST BENGAL

2008-07-01

DIPANKAR DATTA

body2008
Judgment :- (1.) THE petitioner claims to be a rickshaw-puller belonging to Schedule Caste community. On the basis of an order passed by the concerned Magistrate under section 156 (3) of the Code of Criminal Procedure (hereafter the Code) in a proceeding initiated by the petitioner, Chinsurah Police Station Case No. 232 dated 24. 8. 05 under Sections 147/148/149/354/447/427/379/506/376/511 of the Indian Penal Code and Section 3 (i) (iii) (iv) (v) (x) (xi) of the Schedule Castes and schedule Tribes (Prevention of Atrocities) Act, 1989 (hereafter the Act of 1989)was registered for investigation against nine accused persons namely (1) Sukanta das @ Bhombal, son of late Panchanan Das, presently residing at Buroshibtala, police Station-Chinsurah, District-Hooghly; (2) Ujjal Ghosh @ Biku; (3) Lal mohan Ghosh @ Ghota (4) Lalu Das; (5) Pintu Das; (6) Ujjal Bhattacharya (7)Achintya Goswami; (8) Bubai Pal; (9) Apu Ghosh. (2.) INVESTIGATION of the case culminated in charge sheet being filed by the police against the aforesaid nine persons under provisions of law mentioned hereinabove. (3.) THE accused persons had applied for anticipatory bail under Section 438 of the Code before the learned Sessions Judge, Hooghly giving rise to Criminal Misc. Case No. 1491/05. While considering the application, the concerned Sessions judge did not note that offences under the provisions of the Act of 1989 had been registered and that in terms of Section 18 thereof, an application under Section 438 of the Code would not lie. On the basis of submission made by learned public Prosecutor who raised no objection to the prayer for anticipatory bail and submitted that there is practically no case made out for the offence under sections 376/379 read with Section 511 of the Indian Penal Code, against the applicants for bail, the learned Sessions Judge granted the application by order no. 2 dated 20. 9. 05 with a direction that the applicants would be released on bail of Rs. 500/-with one surety of like amount each subject to compliance with the conditions enumerated in Section 438 (2) of the Code, with a further direction to surrender before the appropriate forum by 5. 10. 05. (4.) THE order dated 20. 9. 05 was challenged by the petitioner before this Court by filing an application under Section 401 read with Section 482 of the Code, giving rise to C. R. R. No. 2884 of 2004. By judgment dated 2. 2. 10. 05. (4.) THE order dated 20. 9. 05 was challenged by the petitioner before this Court by filing an application under Section 401 read with Section 482 of the Code, giving rise to C. R. R. No. 2884 of 2004. By judgment dated 2. 2. 06, a learned Single judge of this Court disposed of the application by passing the following order : "after due consideration of all relevant facts and materials, there is no point but to hold that the order granting anticipatory bail passed by the learned Sessions Judge in Criminal Misc. Case No. 1491 of 2005 suffers from inherent impropriety as well as jurisdictional error. As such, the said order dated 20. 09. 2005 stands set aside and the learned Sessions Judge, hooghly, is directed to take necessary steps in view of setting aside of the said order. The opposite parties, in whose favour prayer for anticipatory bail was allowed, if already out on bail, must be directed to appear before the learned Court and take steps in accordance with law. " (5.) ON or about 27. 12. 06 the petitioner addressed a representation to the legal Remembrancer, Government of West Bengal praying for appointment of a special Public Prosecutor to conduct the trial against the accused persons on the ground mentioned therein. (6.) THE representation of the petitioner was not disposed of which led him to send a reminder dated 9. 3. 07. Since it did not yield any result, a lawyers notice dated 4. 5. 07 was served on the Legal Remembrancer. This too proved abortive. (7.) FEELING aggrieved by the inaction of the Legal Remembrancer to grant his prayer, the petitioner had the occasion to invoke the writ jurisdiction of this court earlier by filing W. P. No. 7329 (W) of 2007. That writ petition was disposed of on 30. 4. 07 with a direction upon the Legal Remembrancer to consider and dispose of the petitioners representation dated 27. 12. 06 in accordance with law within a period of 7 days from date of receipt of a copy of the order. It was further directed that if the decision be adverse to the interest of the petitioner, the same must be supported with reasons. (8.) THOUGH there was no direction in the aforesaid order to grant the petitioner any personal hearing, the Legal Remembrancer afforded him such opportunity on 16. 5. 07. It was further directed that if the decision be adverse to the interest of the petitioner, the same must be supported with reasons. (8.) THOUGH there was no direction in the aforesaid order to grant the petitioner any personal hearing, the Legal Remembrancer afforded him such opportunity on 16. 5. 07. Upon hearing the petitioner and on perusal of documents before him, the Legal Remembrancer passed an order on 24. 5. 07 holding, inter alia, as follows : "therefore, I find that there is no merit in this application and the same is rejected after due consideration. However, the learned Panel P. P. Mr. Bhattacharya is directed to see that this trial of the case is conducted properly and to report progress of such trial at the interval of three months from this date through Ld. P. P. Hooghly. Inform all concerned accordingly". (9.) CHALLENGE in this writ petition is to the aforesaid order dated 24. 5. 07. Mr. Ghosh, learned Counsel appearing on behalf of the petitioner submitted that the prayer for appointment of a Special Public Prosecutor as made by him ought to have been allowed in order to secure a fair trial having regard to his social status. He submitted that the petitioner was given a raw deal by the Legal Remembrancer and in this context referred to statements contained in paragraph 16 of the petition. According to him, the prosecution is eager to ensure the acquittal of the charge-sheeted accused persons. This would be evident from the fact that the learned Public Prosecutor did not oppose the prayer for anticipatory bail on 20. 9. 05 despite provisions contained in Section 18 of the Act of 1989 to the contrary. He further contended that though Mr. Suman bhattacharya has now been appointed as Prosecutor from the panel of Public prosecutors for conducting the trial, it is the petitioners apprehension that since mr. Bhattacharya has been appointed by the self-same Public Prosecutor, he would dance to his tune and thereby facilitate acquittal of the charge-sheeted accused persons. (10.) MR. Ghosh referred to the decision of the Apex Court reported in 2008 (2) Supreme 718 : Himanshu Singh Sabhawral vs. State of M. P. and ors. Bhattacharya has been appointed by the self-same Public Prosecutor, he would dance to his tune and thereby facilitate acquittal of the charge-sheeted accused persons. (10.) MR. Ghosh referred to the decision of the Apex Court reported in 2008 (2) Supreme 718 : Himanshu Singh Sabhawral vs. State of M. P. and ors. in support of his submission that the concept of fair trial does not exclude the interests of the victim and that interest of society is also not to be treated completely with disdain and as persona non grata. Since efforts should be made to ensure fair trial where both the accused and the prosecution get a fair deal and the accused would not in any manner be prejudiced if the petitioners prayer is granted, he urged the Court to allow his prayer. (11.) MR. Ghosh also referred to the decision of a learned Single Judge of this court dated 14. 9. 94 in the matter of Pulak Chakraborty. Since the Court had directed appointment of a Special Public Prosecutor for the purpose of proper conducting of the Sessions Trial in question, he prayed for similar order. (12.) HE concluded by submitting that the order of the Legal Remembrancer ought to be set aside and that he ought to be directed to appoint a Special Public prosecutor for conducting trial. (13.) THE anxiety of the petitioner to have a fair trial can well be comprehended. His apprehension that a fair trial cannot be had if a prosecutor appointed by the public Prosecutor (who did not oppose the anticipatory bail prayer of the accused persons) is allowed to conduct the trial is not based on any definite evidence. It is settled law that allegations pertaining to malice or bias must not be fanciful or imaginary, the requirement is availability of positive and cogent evidence. There must exist a real danger of bias as opposed to a likelihood of bias. It is true that the Public Prosecutor did not oppose the application for anticipatory bail but that can hardly be a ground to suspect that the present prosecutor Sri Suman bhattacharya would also be biased and facilitate acquittal of the accused persons. The Public Prosecutor, after all, has recused himself from the trial. Yet, it is the apprehension of Mr. It is true that the Public Prosecutor did not oppose the application for anticipatory bail but that can hardly be a ground to suspect that the present prosecutor Sri Suman bhattacharya would also be biased and facilitate acquittal of the accused persons. The Public Prosecutor, after all, has recused himself from the trial. Yet, it is the apprehension of Mr. Ghosh that such acquittal can be facilitated by the present Prosecutor by not putting relevant questions to the witnesses and by not summoning relevant witnesses. In the considered view of this Court, this apprehension can hardly afford a ground for directing replacement of the prosecutor entrusted with the trial. The petitioner has not made a whisper in his petition in regard to improper conduct of trial by the present Prosecutor. To direct him to be replaced without any reflection of improper conduct of trial by him would amount to a stigma being attached to him without he being at fault. There is no good reason for giving such direction. That apart, the incumbent in the post of Legal Remembrancer whose order is under challenge is not a respondent eo nomine. The Court in such circumstances is unable to proceed on the assumption that the contents of paragraph 16 of the petition are correct. The petitioner also does not have any absolute right to claim that a prosecutor of his choice ought to be engaged, unless remissness of the present Prosecutor in conducting trial or moral misconduct is proved in which case the Court may consider the desirability of directing a fresh engagement of a Prosecutor. (14.) THE decision of this Court in Pulak Chakraborty (supra) does not lay down any law. It is an order passed by the Court without assigning any reason as to why it was considered necessary for directing the Legal Remembrancer to appoint a Special Public Prosecutor. This Court respectfully dissociates with the view taken therein. (15.) HOWEVER, one cannot overlook the observations of the Apex Court in himanshu Singh Sabharwal (supra). Paragraph 16 of the decision is worth quoting : "the Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. (15.) HOWEVER, one cannot overlook the observations of the Apex Court in himanshu Singh Sabharwal (supra). Paragraph 16 of the decision is worth quoting : "the Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. " (emphasis added) (16.) THIS Court is sure that the concerned learned Judge would take a participatory role in the trial and rise to the occasion if he finds the prosecutor to be remiss. In his quest to ascertain the truth, he shall strive to prevent miscarriage of justice, ensure that the trial is not reduced to a mockery and in the interest of the society, bring to book the culprits if the situation before him so warrants. This Court finds no reason to interfere with the order of the Legal remembrancer at this stage. The writ petition stands dismissed without costs. Liberty is, however, reserved to the petitioner to approach this Court afresh if the occasion so warrants.