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2019 DIGILAW 709 (GAU)

Rameswar Talukdar v. State of Assam

2019-06-07

AJIT BORTHAKUR

body2019
JUDGMENT : Ajit Borthakur, J. 1. Heard Mr. BK Mahajan, learned counsel for the petitioner and Mr. MG Singh, learned counsel for the informant Also heard Mr. NJ Dutta, learned Additional Public Prosecutor for the State of Assam. 2. By this petition under Section 438 of the Code of Criminal Procedure (Cr.P.C.), the petitioner, namely, Rameswar Talukdar, has prayed for granting pre-arrest bail, apprehending arrest in connection with Dispur PS Case No. 2973 of 2017 under Sections 420/468/471/34 of the IPC. 3. The case diary, as called for, is placed before the Court. 4. Be it mentioned that a co-ordinate bench of this Court, by order, dated 18.2.2019, was pleased to grant the interim pre-arrest bail to the petitioner. 5. Mr. BK Mahajan, learned counsel for the petitioner contended that in terms of the conditions of the interim pre-arrest bail, the petitioner appeared before the investigating officer and is constantly co-operating with him in investigation. Mr. Mahajan, therefore, contended that custodial interrogation of the petitioner is not necessary for the purpose of investigation and accordingly, the interim pre-arrest bail may be made absolute subject to any reasonable conditions. 6. Mr. NJ Dutta, learned Addl. Public Prosecutor, Assam submitted that the case diary shows that the petitioner has given his statement under Section 161 of the Cr.P.C. and thus, is co-operating with the investigating officer in investigation. 7. Opposing the pre-arrest bail application filed by the petitioner, the wife of the informant (since dead) Smti Punya Buragohain filed an affidavit-in-opposition. Mr. MG Singh, learned counsel appearing on her behalf contended that the petition under Section 438 of the Cr.P.C. is not maintainable on the grounds, inter alia, that the police interrogated the petitioner twice on 12.02.2019 and 16.02.2019 and he was taken for medical check-up, but as he was found medically unstable, he was admitted at the MMC Civil Hospital, on 16.02.2019. According to Mr. Singh, the petitioner being found to be medically unstable, he was not produced before the learned Judicial Magistrate concerned at Guwahati, which reason was reported to the learned Magistrate with objection against grant of bail and thereby sought for time to produce him. Mr. Singh further contended that the learned Magistrate accordingly directed his production on the following day, that is, 18.02.2019. Mr. Mr. Singh further contended that the learned Magistrate accordingly directed his production on the following day, that is, 18.02.2019. Mr. Singh, therefore, contended that had the petitioner been not in custody of the police, the investigating officer would have not sought for his production. Referring to the order, dated 17.02.2019, Mr. Singh submitted that the learned Chief Judicial Magistrate directed the investigating Officer to produce the petitioner along with the medical report regarding his health condition fixing the following day, that is, on 18.02.2019 and accordingly, although a medical report of a board of 5 doctors of the MMC Civil Hospital showing that the petitioner was suffering from hypertension and hyper glycemia was submitted, he was not produced and on being referred got him admitted at Gauhati Medical College and Hospital (GMCH) on police requisition. Therefore, Mr. Singh contended that the petitioner was, in fact, detained in police custody and his movements were restricted though no formal arrest memo was issued. 8. Mr. Singh, learned counsel for the wife of the informant (since dead), vehemently stressed on the meaning of 'custody' in the context of Section 439 of the Cr.P.C. as explained by the Hon'ble Supreme Court in Niranjan Singh & Anr. Vs. Prabhakar Rajaram Kharote & Ors, reported in (1980) 2 SCC 559 and submitted that in the aforesaid backdrop of facts and circumstances, the remedy lies in Section 439, not in Section 438 of the Cr.P.C. Mr. Singh, therefore, submitted that the pre-arrest bail application of the petitioner is not sustainable in law. 9. Per Contra to the objection against grant of anticipatory bail to the petitioner, Mr. NJ Dutta, learned Addl. P.P., Assam contended that the counsel for the informant has no right of audience without permission of the Public Prosecutor under Section 301 (2) of the Cr.P.C. which he has not obtained and in this regard he relied on a judgment rendered by Chhattisgarh High Court. According to Mr. Dutta, the case diary does clearly show that the petitioner was not arrested at all in connection with the case and as such, the pre-arrest bail application under Section 438 of the Cr.P.C. is maintainable. 10. Mr. According to Mr. Dutta, the case diary does clearly show that the petitioner was not arrested at all in connection with the case and as such, the pre-arrest bail application under Section 438 of the Cr.P.C. is maintainable. 10. Mr. BK Mahajan, learned counsel for the petitioner also vehemently opposed the bail objection moved by the wife of the informant (since dead) and contended that the facts and circumstances of the case do not -justify custodial interrogation of the petitioner, more particularly when he is co-operating with the investigating officer. According to Mr. Mahajan, Chapter V of the Cr.P.C. prescribes the detail procedure for arrest of a person and in the instant case, in view of noncompliance of the procedures of Sections 41 B, 46 and 50, it cannot be said that the petitioner was ever arrested in connection with the case as is evident from the petition, dated 17.02.2019, filed by the investigating officer in the Court of learned Chief Judicial Magistrate, Kamrup (M) at Guwahati, whereby he clarified that before effecting arrest of the petitioner he was sent for medical examination and as he was under medical treatment at MMCH, he would be arrested and produced before the said learned Court only after receipt of certificate of fitness from the doctor and accordingly, the learned Court, by order, dated 17.02.2019, called for medical report and directed to produce him on the following day, that is, on 18.02.2019. Mr. Mahajan also submitted that in view of the mandate of Section 301 of the Cr.P.C., the learned Public Prosecutor is only authorised to conduct a case instituted on police report and in case of engagement of any private lawyer, he can only submit written argument in the case on permission of the Public Prosecutor and the Court, which are absent in this case. Mr. Mahajan, therefore, submitted that the interim pre-arrest bail may be made absolute. 11. I have considered the above arguments advanced by the learned counsel of both the sides. Perused the case diary. 12. In a nutshell, the case of the informant is that he along with other family members are the joint owners of a 4 storied building over a plot of land measuring about 7.87 acres. They signed a Memorandum of Understanding (MOU) with the petitioner and others and mortgaged their house for money taken from them. Perused the case diary. 12. In a nutshell, the case of the informant is that he along with other family members are the joint owners of a 4 storied building over a plot of land measuring about 7.87 acres. They signed a Memorandum of Understanding (MOU) with the petitioner and others and mortgaged their house for money taken from them. However, the petitioner and others concerned did not register the MOU. Later on, the family members also signed in a sale deed as security for financial assistance of their said property on 01.10.2017. Later on, they came to know that the petitioner and others had got registered the sale deed on 01.07.2017, after obtaining sale permissions from various authorities. It is alleged that the sale deed contains manipulations and alterations of dates at several places. 13. It may pertinently be mentioned that in Dr. Sunil Puri Vs. State of Chhattisgarh, reported in 2006 Cri.L.J. 2866 and in Women's Legal Aid Cell Vs. State of Assam, reported in 1995 (3) GLT 27, the Chhattisgarh and Gauhati High Court respectively categorically held that the informant has no right of audience in a petition filed under Section 438 of the Cr.P.C. for grant of anticipatory bail. However, the learned counsel for the informant can assist the Public Prosecutor, on his consent and permission of the Court concerned. This is the mandate of Section 301 of the Cr.P.C. 14. It is noticed that the penal offences under which the case is registered carry a maximum punishment of 7 (seven) years and in such a case, the police may without an order from a Magistrate or without a warrant may arrest any person if certain conditions incorporated in Section 41 of the Cr.P.C. are satisfied. 15. Section 41A(3) provides that where such person complies and continues to comply with the notice issued by the police under Section 41A(1) of the Cr.P.C., he shall not be arrested unless for reasons to be recorded to the effect that his arrest is necessary. 16. In Niranjan Singh case (supra), the Hon'ble Supreme Court succinctly explained as to when a person can be said to be in custody, within the meaning of Section 439 of the Cr.P.C. which are extracted herein below: "7 When is a person in custody, within the meaning of s. 439 Cr. P.C.? 16. In Niranjan Singh case (supra), the Hon'ble Supreme Court succinctly explained as to when a person can be said to be in custody, within the meaning of Section 439 of the Cr.P.C. which are extracted herein below: "7 When is a person in custody, within the meaning of s. 439 Cr. P.C.? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of s. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straight forwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. 8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court." 17. In Adri Dharan Das Vs. State of W.B., reported in (2005) 4 SCC 303 , the Apex Court observed that an application for anticipatory bail can be moved by a person, who has not been arrested and a direction there under can be issued by the Court only at pre-arrest stage to the effect that in the event of his arrest he shall be released on bail. 18. In D.K. Basu Vs. 18. In D.K. Basu Vs. State of West Bengal, reported in AIR 1997 SC 610 , the Hon'ble Supreme Court had considered the requirements to be followed in all cases of arrest or detention till the legal provisions were made in that behalf, which are extracted herein below: "We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1) xxxxxxx (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) xxxxxxxx" 19. Section 50 requires that any person arrested without warrant shall immediately be informed of the detail grounds of his arrest. Further Section 50-A requires the police to give information about the arrest of a person as well as the place where he is being held to anyone, who may be nominated by him for sending such information. 20. It needs to be mentioned that the word 'arrest' implies apprehension or restraint on, or the deprivation of one's personal liberty by adopting the procedure laid in Section 46 of the Cr.P.C., which are (a) submission to custody, (b) trouncing the body physically, or (C) confining the body. Therefore, detention of a person to amount to arrest, it must be shown that he is put under restraint which prevents him from going wherever he likes, to which Sections 56 and 57 of the Cr.P.C. are applicable. 21. In other words, in case of detention, the person so detained is not formally accused of committing any offence. In such a situation, the person is only questioned or investigated by the detaining authority. 21. In other words, in case of detention, the person so detained is not formally accused of committing any offence. In such a situation, the person is only questioned or investigated by the detaining authority. In case of arrest, however, the person is reasonably charged of commission of a crime and has to be produced before a Magistrate within the next 24 hours. In certain other situations, of course, initial detention may lead to arrest of the person, subject to the safeguards for arrest and detention under the provisions of Article 22 of the Constitution and other mandatory provisions of Sections 50 and 50 A of the Cr.P.C. 22. In the present case, the investigating officer filed a report on 17.02.2019, in the Court of learned Chief Judicial Magistrate, Kamrup (M) at Guwahati, which is extracted herein below: "Sir, With due respect and humble submission, I have the honour to report before you that, the following person is required to be arrested in connection with the above reference case as there is sufficient evidence and witnesses found against him. Accordingly, during the course of investigation he was interrogated at Dispur PS on 12.02.2017 and was sent for medical examination at MMCH for inspection before effecting arrest. But the accused person was found medically unstable by the examining doctor at MMCH and admitted him at the hospital. Presently the accused is under medical treatment at MMCH and will be arrested and produced before the Hon'ble Court on being certified fit by the concerned doctors of MMCH. This is for favour of your kind perusal.". Based on the above report, the learned Magistrate passed the following order: "17.2.19 C.R. put up before me. Seen the prayer of the I.O., ASI Horen Gogoi of Dispur P.S. stating that accused Rameswar Talukdar has been admitted at MMCH. Call for the medical report from the MMCH. I.O. is directed to produce the accused before the concerned Magistrate immediately. Fix 18/2/19 for production and medical report. Sd/- Illegible" 23. Thus, the above report of the investigating officer and the corresponding order, dated 17.02.2019 clearly indicate that the petitioner was questioned in connection with the case and recorded his statement under Section 16 of the Cr.P.C. There is no indication of observation of the legal formalities of arrest, aforementioned meaning thereby that he was not in custody of police. Thus, the above report of the investigating officer and the corresponding order, dated 17.02.2019 clearly indicate that the petitioner was questioned in connection with the case and recorded his statement under Section 16 of the Cr.P.C. There is no indication of observation of the legal formalities of arrest, aforementioned meaning thereby that he was not in custody of police. The petitioner, therefore, on apprehension of being arrested on accusation of commission of non-bailable offences, under which the aforementioned case has been registered, has made the instant application under Section 438 of the Cr.P.C. for the privilege of pre-arrest bail. Accordingly, a co-ordinate bench, at the motion stage itself, on hearing of the petitioner and the prosecution was pleased to grant the interim pre-arrest bail, subject to certain conditions vide order, dated 18.02.2019. Scrutiny of the case diary, of course reveals prima facie incriminating evidence against the petitioner. However, in terms of the conditions of the aforesaid interim pre-arrest bail order, the petitioner appeared before the investigating officer, after recovery from illness and has given his statement under Section 161 of the Cr.P.C. There is no report from the investigating officer that the petitioner has committed any breach of the conditions of interim pre-arrest bail order. The petitioner appears to have been co-operating in investigation. Therefore, this Court is of the considered opinion that the petitioner's custodial interrogation in connection with the case is not necessary. 24. Therefore, the interim pre-arrest bail granted to the petitioner, vide order, dated 18.02.2019, is hereby made absolute/permanent, subject to the following conditions:- (a) That the petitioner shall co-operate in the investigation of the case as and when required; (b) That the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; and (c) That the petitioner shall not commit offences similar to the offences of which he is accused or suspected, of the commission of which he is suspected. 25. Return the case diary. 26. With the above directions, the anticipatory bail application stands disposed of.