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2010 DIGILAW 327 (CAL)

K. M. B. Jayapal v. State

2010-03-26

J.K.BISWAS, RAGHUNATH RAY

body2010
JUDGMENT Biswas, J. 1. THE three petitioners in this application dated March 10,2010 are seeking a direction under Section 438 of the Code of Criminal Procedure, 1973 for their release on bail in case they are arrested on the accusation of having committed offences under Sections 468, 471, 420 and 34 I.P.C. mentioned in the FIR No.267/010 registered by the Aberdeen Police Station of the District-South Andaman on March 9, 2010. 2. SEEKING a mandamus commanding the authorities concerned to acquire certain land in terms of notifications dated July 18, 2007, July 21, 2007 and August 2, 2007 under provisions of the Land Acquisition Act, 1894, W.P. No.332 of 2009 dated October 28, 2009 was filed under Article 226 with one Hari Ram's name on it as the petitioner. One Vincent Walter executed the vakalatnama, signed the petition and verified it by the solemn affirmation made by him stating that he was the duly authorized attorney of Hari Ram. It was recorded in the petition that it had been prepared in the chamber of G. Mini, K. M.B Jayapal and P. Dutta, Advocates. P. Dutta identified Walter and also signed qua the Advocate representing Hari Ram. 3. W. P. No. 332 was taken up for hearing on November 5, 2009 when Mr.S. K. Mandal, Counsel for the respondents therein, prayed for two weeks so that he might obtain necessary instructions. Accordingly, hearing was adjourned. It was again taken up for admission hearing on November 26, 2009 when after hearing Mr. Jayapal for Hari Ram and Mr. Mandal, for the respondents, the Single Judge disposed of it directing the collector concerned to conclude the proceedings initiated for the acquisition of the land according to provisions of the Land Acquisition Act, 1894 within six months from date of communication of the order. 4. FEELING aggrieved, the respondents in W.P. No. 332 moved M.A.T. No.1 of 2010 before the Division Bench. On January 29, 2010 the stay application was taken up for hearing. At the time of hearing Mr: H. R. Bahadur, Advocate, appeared and submitted that Hari Ram, whom he was representing, had not instructed anybody to file W.P. No. 332. 4. FEELING aggrieved, the respondents in W.P. No. 332 moved M.A.T. No.1 of 2010 before the Division Bench. On January 29, 2010 the stay application was taken up for hearing. At the time of hearing Mr: H. R. Bahadur, Advocate, appeared and submitted that Hari Ram, whom he was representing, had not instructed anybody to file W.P. No. 332. Under the circumstances, the Division Bench held that the petition "is prima facie fraudulent", it directed the Superintendent of Police, South Andaman "to cause enquiry and file a report in a sealed cover", and the registrar of this Court to keep the records of W. P. No. 332 in his custody. 5. THE stay application was taken up for hearing again on February 4, 2010 when it was disposed of with the appeal. By the order dated February 4, 2010 the Division Bench set aside the order of the Single Bench dated November 26, 2009 and directed the registrar of this Court "to file a complaint on the basis of the enquiry report submitted by the Superintendent of Police". 6. THEN the Division Bench made a further order dated February 10, 2010 clarifying "that it was the intention" of the Court "in passing order dated 04.02.2010 that a First Information Report be lodged with the concerned Police Station". In terms of the orders of the Division Bench dated February 4, 2010 and February 10, 2010 the registrar of this Court sent a letter dated February 10, 2010 to the station house officer of Aberdeen Police Station. On the basis of such information in writing the officer concerned of the police station registered an FIR, No.188/010, on February 11, 2010 under Sections 193, 465, 466, 468, 471, 201 and 34 I.P.C. Walter, Jayapal, Mini and Dutta all were named in the FIR as the persons accused of the offences. 7. IT is to be noted that in the order dated February 04, 2010 the Division Bench said that it "will also be open to the respondent Shri Hari Ram to initiate such appropriate proceedings, criminal or otherwise, as he may be advised". 8. 7. IT is to be noted that in the order dated February 04, 2010 the Division Bench said that it "will also be open to the respondent Shri Hari Ram to initiate such appropriate proceedings, criminal or otherwise, as he may be advised". 8. PRESUMABLY in view of this observation of the Division Bench, during pendency of investigation under FIR No.188/010 Hari Ram sent a letter dated March 9,2010 to the station house officer of Aberdeen Police Station alleging that Walter, Jayapal, Mini and Dutta all connected with filing of W.P. No. 332 committed various offences. Consequently the officer registered the FIR No.267/010. Under the circumstances Jayapal, Mini and Dutta filed this application under Section 438 for their release on bail in the event of their arrest in connection with FIR No.267/010, and at once they moved this Court under Section 482 of the Code of Criminal Procedure, 1973 questioning the FIR No.188/010. 9. BY an order dated March 10, 2010 in the Section 482 application further proceedings of G. R. Case No. 568/2010 registered before the Chief Judicial Magistrate on the basis of the FIR were stayed and the investigating officer was restrained from making further investigation. And finally, by an order dated March 16, 2010 the Section 482 application was allowed. Everything was quashed on the ground that in view of the provisions of Sections 340 and 343 of the Code of Criminal Procedure, 1973 the FIR was not maintainable. 10. THIS application was taken up by us on March 22,2010 when hearing was adjourned to enable Mr. Mandal, the public prosecutor, to produce the case diary. Then we took up the application on March 23, 2010 when further hearing was adjourned to enable Mr. Mandal to cite decisions he wanted to rely on, and the petitioners were granted interim relief till the disposal of the application. It has again been listed today, and we have heard Mr. Gobind for the petitioners and Mr. Mandal for the state. Stating the backgrounds of the petitioners who are Advocates practising in the Courts in these islands including this Court, Mr.Gobind has submitted as follows. The petitioners will co-operate with the investigating officer in every respect. Records of W.P. No. 332 are already in Court custody. Gobind for the petitioners and Mr. Mandal for the state. Stating the backgrounds of the petitioners who are Advocates practising in the Courts in these islands including this Court, Mr.Gobind has submitted as follows. The petitioners will co-operate with the investigating officer in every respect. Records of W.P. No. 332 are already in Court custody. In view of T. T. Antony v. State of Kerala andOrs., 2001(6) SCC 181 , the second FIR lodged by Hari Ram in connection with the same incident alleging commission of the same offences by the same persons is not maintainable. 11. MR. Mandal has argued as follows. Since the Court of Session possesses power to give necessary direction under Section 438, the petitioners could not move straight this Court without first moving the Court of Session. The proposition is supported by a decision of the Bombay High Court in Mohanlal Nandram Choudhari v. State of Maharashtra, 2007 Cri. LJ 4656. In view of the limited scope of the provisions of Section 438 ordinarily a direction thereunder is not given in a case where the accusation is commission of offences under Sections 468, 471 and 420 I.P.C. 12. IN T. T. Antony the police opened fire at two places on November 25, 1994. On that same day two police officers registered two FIRs in the same police station making almost identical allegations against unidentified workers of a political party. On the basis of a report of a commission another police officer registered the third FIR in 1997 in the same police station under Section 302 I.P.C. against a former minister, a police officer and a deputy collector On these facts, their Lordships of the Supreme Court examined whether the 1997 FIR was a valid FIR entitling the investigating officer concerned to make further investigation. Considering the provisions of Sections 154, 162 and 173 of the Code of Criminal Procedure, 1973 and the decision in Ram Lal Narang v. State (Delhi Administration), 1979 (2) SCC 322 , their Lordships stated as follows:- "21 ....it follows that if the gravamen of the charges in the two FIRs - the first and the second - is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 Cr. P. C. will be irregular and the Court cannot take cognizance of the same." 13. P. C. will be irregular and the Court cannot take cognizance of the same." 13. WE find no reason to accept the argument that under Section 438 requisite direction is not ordinarily given when the persons seeking the direction are accused of committing offences under Sections 468,471 and 420 I.P.C. The provisions of Section 438 provide that direction there under can be sought and given when the accusation is of commission of a non- bailabie offence. Hence the relevant question is whether in the opinion of the Court the case is a fit one for giving the direction. 14. WE do not find any reason to accept the contention that the petitioners could not move straight this Court without first moving the Court of Session. The provisions of Section 438 have conferred concurrent jurisdiction on the High Court and the Court of Session to give direction there under in a fit case. WE see no reason to give them such an interpretation as has been sought to be given. Choice given by the statute to a person seeking relief cannot be curtailed by the Court by imposing a self restriction. It amounts to refusal to exercise jurisdiction vested by law in a Court. We are unable to agree with the proposition stated in the Single Bench decision of the Bombay High Court relied on by Mr. Mandal that since Section 438 does not confer a right to choose forum, a Section 438 application filed straight before the High Court, though maintainable, should not be entertained "unless exceptional reasons exist." 15. IN our opinion, Section 438 confers a right to apply for a direction there under either to High Court or to Court of Session. Relegating a person apprehending arrest and detention and applying to the High Court having jurisdiction, power and authority to grant bail, to the Court of Session on the ground that it also possesses power to grant the bail, is contrary to the concept of bail based on supremacy of personal liberty. A bail. request brooks no delay essentially involved in a process of relegation. 16. IN the order dated March 23, 2010 we have already noted that the investigating officer, so far only recording the statement of Hari Ram, does not want custodial interrogation of the persons named in the FIR. A bail. request brooks no delay essentially involved in a process of relegation. 16. IN the order dated March 23, 2010 we have already noted that the investigating officer, so far only recording the statement of Hari Ram, does not want custodial interrogation of the persons named in the FIR. It is not disputed that records of W.P. No. 332, having been seized, are in the custody of the registrar of this Court. IN view of the principle stated by the Supreme Court in T. T. Antony it cannot be said that there is no merit in the contention that the second FIR lodged by Hari Ram is not maintainable. On the facts, we are of the view that this is a fit case for directing the petitioners' release on bail in the event of their arrest on the accusation of commission of the offences under the sections mentioned in the FIR. For these reasons, we allow this application and order as follows. In the event any of the petitioners is arrested on the accusation of commission of the offences mentioned in FIR No.267/010, he shall be released on bail to the satisfaction of the Chief Judicial Magistrate concerned on the conditions that he shall make himself available to the investigating officer as and when required; and that within 4 weeks he shall appear before the Court concerned and seek bail. The Court approached shall decide the request for bail in the light of the available materials. Certified xerox according to law.