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2020 DIGILAW 361 (CAL)

Samir Kumar Halder v. State Of West Bengal

2020-03-05

PROTIK PRAKASH BANERJEE

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JUDGMENT Protik Prakash Banerjee, J. - This is a petition under Article 226 of the Constitution of India which challenges an order dated May 17, 2013 passed by the Executive Officer, Burdwan. By the said order, the Executive Officer, terminated the service of the writ petitioner, after he appointed pursuant to due process, admittedly without any disciplinary proceeding. This termination was made by way of cancellation of the appointment of the writ petitioner purportedly because he had suppressed a material fact about his having been arrested in a criminal case and also because he had undertaken that his appointment was liable to cancelled if any adverse comment is made regarding his antecedents by the police. 2. The false statement imputed to be a suppression of fact is regarding the involvement of the petitioner in connection with Memari PS Case No. 18/6 dated 30-01-2006 under section 420/417/492/376-IPC and that the categorical assertion the petitioner was never arrested by any Police Officer is not correct because it is found from the Judgment dated 30-11-2011 passed by the Additional District and Sessions Judge, Fast Track 2nd Court, Burdwan that Sri Samir Halder, Sahayak was arrested and produced before the Hon'ble Court and subsequently granted bail after suffering a considerable period of custody. 3. The matter was adjourned from time to time for the learned Advocate for the respondents to come back with instructions. When the instructions arrived and the Affidavit-in-Opposition was filed after condonation of delay, it appeared that the entire casus belli of the respondents pertains to the question mentioned in column 14 of the verification form submitted by him as opposed to the recording made in the judgment and order dated November 30, 2011 passed by the learned Additional Sessions Judge in S.C. 144/08 S.T. 1(12)09. It is in the judgment of the jurisdictional magistrate that the accused persons were arrested and produced before this Court and subsequently they were granted bail after suffering a considerable period of custody. 4. Mr. Mukherjee, learned senior advocate appearing for the State assisted by Mr. Santanu Mitra have appeared today and produced the original verification form submitted by the petitioner to the respondents. Column 14 of the said form asked the petitioner the following question: "Have you ever been arrested, detained or convicted by a Court for any offence? 4. Mr. Mukherjee, learned senior advocate appearing for the State assisted by Mr. Santanu Mitra have appeared today and produced the original verification form submitted by the petitioner to the respondents. Column 14 of the said form asked the petitioner the following question: "Have you ever been arrested, detained or convicted by a Court for any offence? If the answer is 'yes' the full particulars of the arrest or detention or conviction and the sentence should be given." 5. The petitioner answered this with a resounding 'no'. Despite the aforesaid on the basis of a recording made in the judgment that some unspecified accused was arrested in a case where the petitioner was one of the accused persons, the respondents have taken the view that the petitioner had been less than truthful in his answer to the verification form. The petitioner, on the other hand, has contended that the order of the jurisdictional criminal court granting him anticipatory bail shows he was never arrested, and he has also relied upon certain documents which would show that the investigating officer has admitted that he never arrested the petitioner and the petitioner was never taken into custody. Admittedly the petitioner has not been convicted of any offence. The records show that though the petitioner obtained anticipatory bail on February 18, 2006, he was released on interim bail by the order dated February 20, 2006. It is of course true that he was acquitted, but that is not the point. Even if the petitioner had not been physically arrested, whether grant of an anticipatory bail amounts to the accused not being arrested is the real point to be decided. 6. A common misconception is that unless a person is taken into custody by the police he is not arrested. However, what happens when a person gets an anticipatory bail and surrenders to the Court of the Jurisdictional Magistrate? Does it have the same effect as an arrest? Can the same be construed to be an arrest without sending him to jail? 7. However, what happens when a person gets an anticipatory bail and surrenders to the Court of the Jurisdictional Magistrate? Does it have the same effect as an arrest? Can the same be construed to be an arrest without sending him to jail? 7. The parties relied upon a judgment of the Hon'ble Division Bench in the case of W.P.S.T. 29 of 2018 The State of West Bengal-v-Bharat Prasun Purkait decided on December 12, 2018 which has held as follows: "That surrender of the accused before the criminal court concerned and obtaining an order of release on bail in anticipation of arrest by the police is intervened by an arrest of such accused by the said court and taking him into judicial custody, is often not understood by many to be an arrest in the legal sense of the term, which results in misrepresentation or suppression of fact, perhaps, without mens rea" 8. In this connection, ( Niranjan Singh-v-Probhakar Raja Ram Kharote, 1980 AIR(SC) 785) paragraph 7 was also relied upon to the effect: Paragraph 7. "When is a person in custody, within the meaning of Section 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 Section 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 straightforwardness 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." Paragraph 8. 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." Paragraph 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 a least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court." 9. It does not appear that paragraph 8 of the above judgment in Niranjan Singh (supra) was brought to the notice of the Hon'ble Division Bench deciding the matter in Bharat Prasun Purkait (supra) which is why the interpretation of what is custody for the purpose of section 439 for granting regular bail was imputed into construing when an anticipatory bail can be granted under section 438 of the Code of Criminal Procedure though the Hon'ble Supreme Court itself rang a note of warning when deciding Niranjan Singh (supra). This was not even cited before the Hon'ble Division Bench. 10. Then there is the judgment in the case of State of Haryana and Others-v-Dinesh Kumar being Civil Appeal No. 84 and 85 of 2008 decided on January 8, 2008 where Their Lordships of the Hon'ble Supreme Court reiterated what is custody for the purposes of section 439 of the Code of Criminal Procedure and that a person can be stated to be in judicial custody if he surrenders before the Court and submits to its directions. 11. In none of the cases was the Hon'ble Supreme Court called upon to decide whether applying for anticipatory bail and obtaining it would imply that a person had been arrested. A bench decision of this Court being 2007 (3) L.L.N. 792 between Kakon Kumar Roy and State of West Bengal and Others held that: Paragraph 9. "Although Mr. Ganguly tried to impress upon us that his client never obtained separate bail and was at large by the strength of the said anticipatory bail and "should be deemed to have never been arrested", we are not at all impressed by such submission. It appears from the order-sheet submitted by the writ petitioner himself that on the date of acquittal, he was present in Court and the learned Court had recorded that all the thirteen accused persons were present and were on bail. It appears from the order-sheet submitted by the writ petitioner himself that on the date of acquittal, he was present in Court and the learned Court had recorded that all the thirteen accused persons were present and were on bail. Moreover, in criminal proceedings, it is preposterous to suggest that an accused person without obtaining bail faced trial and was acquitted. Once anticipatory bail is given, the person obtaining anticipatory bail is required to take regular bail from the Court during the subsistence of the period by which he is protected by the anticipatory bail. Therefore, in the case before us, it was the duty of the writ petitioner to disclose that a criminal case under Sections 379/304A of the Indian Penal Code was pending where he was released on bail at the relevant point of time and was facing trial. Suppression of such fact, in our view, was sufficient to disentitle him to be considered even though he was subsequently acquitted. Our aforesaid views find support from the decision of the Supreme Court in the case of Kendriya Vidyalaya Sangathan and Ors. v. Ram Ratan Yadav (supra)." 12. In the present case, the order dated February 20, 2006 clearly shows that the petitioner was released on interim bail which can only happen after the petitioner has surrendered in court and sought bail. Therefore, the ratio of Kakon Kumar Roy (supra) clearly applies. In the eye of law, the petitioner had been arrested because that is the effect of an anticipatory bail followed by a regular bail, and it is a case of the petitioner being in custody of the police without being sent to jail. Therefore, the response to the question in column no. 14 was not factually correct, though I must admit that my initial reaction on considering the facts of the case without the benefit of the above judgments was that there as no deliberately falsehood in such response; after all, the said question asked for response to a question which depended upon an interpretation of what is arrest and whether anticipatory bail followed by regular bail is a deemed arrest, which an ordinary person may not know. 13. The said order dated May 17, 2013 proceeded on the basis of the recording found in the judgment dated November 30, 2011 passed by the Learned Additional District & Sessions Judge, Fast Track 2nd Court, Burdwan. 13. The said order dated May 17, 2013 proceeded on the basis of the recording found in the judgment dated November 30, 2011 passed by the Learned Additional District & Sessions Judge, Fast Track 2nd Court, Burdwan. So far as that is concerned, I find no perversity in the order impugned though it may well be that the respondents may be asked to reconsider the position as to whether the said response was deliberately misleading or unintentionally so, and depending upon its decision, to further decide whether or not the services of the petitioner ought to be terminated, by revisiting the decision dated May 17, 2013 in the light of the observations contained in this judgment. 14. This writ petition is disposed of by directing the respondent authorities to revisit the decision dated May 17, 2013 and reconsider whether the response to column 14 of the police verification form could be considered to be a deliberately false statement or an interpretation of the provisions of law, and if the respondent authorities hold the latter view, to revoke the termination order and reinstate the petitioner from May 17, 2013 with notional benefits including seniority and qualifying service holding that there has been no break in service. Actual payment will however be from the date of the decision, if in favour of the writ petitioner, and no arrears shall be payable or claimed. A decision as above shall be taken within 2 months from the date of communication of the order. It shall be a reasoned decision and the fact that I have not interfered with the order dated May 17, 2013 does not mean that it will be binding on the respondent authorities which shall decide the matter uninfluenced by the decision dated May 17, 2013. No opportunity of being heard shall be allowed to the writ petitioner. There will be no order as to costs.