Md. Aslam vs State of West Bengal

Ashim Kumar Roy, J.—Heard Mr. Taimur Hossain, learned counsel appearing on behalf of the petitioner as well as Mr. Asimesh Goswami, the learned Public Prosecutor appearing with Mr. Barin Roy, on behalf of the State.

In the instant criminal revisional application the petitioner challenged an order passed on December 17, 2007, in connection with the Sessions Trial No. 7 (12) 2007 by the learned Additional Sessions Judge, Fast Track Court-III, Sealdah arising out of Topsia Police Station Case No. 91 dated August 27, 2007, under sections 392/397/120B of the Indian Penal Code, whereby the learned Judge rejected the petitioner''s prayer for discharge and confirmed the bail subject to the conditions that he would attend the Court on the date so fixed by the Court and shall meet the Investigating officer for investigation/interrogation in connection with the said case.

Mr. Taimur Hossain appearing on behalf of the petitioner submitted before this Court that apprehending arrest in connection with Topsia Police Station Case No. 91 dated August 27, 2007 under sections 392/397/120B of the Indian Penal Code the petitioner applied for anticipatory bail before this Hon''ble Court and by an order passed on 5.12.2007 this Hon''ble Court granted anticipatory bail to the petitioner and directed that the same shall remain in force for a period of three weeks within which the petitioner shall surrender before the regular Court and upon such surrender, if the petitioner makes any prayer for bail the same shall be consider by the regular Court in accordance with law.

Mr. Taimur Hossain further submitted that as in the meantime the Topsia Police Station Case No. 91 dated August 27, 2007 ended in charge-sheet against three accuseds viz. Md. Ibrar Alam, Md. Manjur Alam and Md. Marud and following the submissions of the charge-sheet same gave rise to the Sessions Trial No. 7(12) 2007 pending before the Learned Sessions Judge, Fast Track Court-III, Sealdah, the petitioner on December 17, 2007 surrendered before the learned Judge and prayed for discharge from the case. At the same time the Investigating Officer of the case files a petition praying for direction upon the petitioner Md. Aslam to meet him on every working day at the office hours at the office of the Anti Dacoity and Robbery Squad, Detective Department, Lalbazar. He further submitted by an order passed on December 17, 2007, the learned Judge framed charge under sections 392/397/120B of the Indian Penal Code against the aforesaid three accused persons viz Md. Ibrar Alam, Md. Manjur Alam and Md. Marud and fixed a date for recording of evidence. So far, as the petitioner is concerned the learned Judge by the order passed on the self-same day i.e. on December 17, 2007 directed the petitioner shall be released on bail subject to the condition amongst other that he shall attend the Court on the date fixed and shall make himself available to the Investigating Officer of the case as and when required for investigation. He further submitted that thereafter pursuant to the aforesaid order on January 22, 2008 the date fixed for recording of evidence, the petitioner with his Advocate were present before the trial Court, on that day two witnesses were present in Court for their examination. When the Investigating Officer of the case filed a petition praying for permission to interrogate the petitioner and the learned Judge allowed the same. According to Mr. Taimur Hossain the aforesaid order is wholly illegal and without jurisdiction and is liable to be set aside.

On the other hand, the learned Public Prosecutor Mr. Ashimesh Goswami produced one report submitted by the Assistant Commissioner of Police, Investigation, Detective Department, Lalbazar in connection with the instant case. Let the same be kept with the records. Mr. Goswami submitted that the petitioner was never wanted in connection with the Topsia Police Station Case No.91 dated August 27, 2007 and already the investigation of the case is over and same has ended in charge-sheet as against the three accused persons viz. Md. Ibrar Alam, Md. Manjur Alam and Md. Marud and their trail has already been started where the evidence of some of the witnesses has also been recorded. He further categorically submitted neither the petitioner was wanted earlier nor is wanted at present in connection with the aforesaid case. It is his categorical submission that the Investigating Officer interrogated the present petitioner but no prima facie material could be obtained against him.

I have given my anxious consideration to the submissions made on behalf of the parties and carefully perused the materials on record.

This is a case where a police officer in utter misuse and abuse of his statutory power most arbitrarily interfering with the personal liberty of a citizen. Even, after completion of investigation of Topsia Police Station Case No. 91 dated August 27, 2007 which has ended in charge-sheet as against the three particular accused persons viz. Md. Ibrar Alam, Md. Manjur Alam and Md. Marud and even after their trial being commenced before the Learned Additional Sessions Judge, Fast Track Court III, Sealdah in Sessions Trial No.7(12) 2007, the Investigating Officer still made a prayer before the Sessions Court for a direction upon the petitioner Md. Aslam to meet him on every working day at the office of Anti Dacoity and Robbery Squad, Detective Department, Lalbazar although the petitioner Md. Aslam was neither charge-sheeted nor wanted in connection with the case. It is absolutely beyond my understanding when investigation of a case has been ended in charge-sheet against some particular accused persons and their trial has already been commenced and admittedly the petitioner is not wanted in connection with the said case as to how and under what authority of law a police officer can make a prayer before a Court of law for enforcing his attendance before him at his office every day. This is wholly a colourable exercise of power and I have no language to condemn the same. I am of the clear opinion this is an infringement of a fundamental right of a citizen guaranteed under Article 21 of the Constitution of India by interfering with the personal liberty of a citizen without any sanction of law.

It is also beyond comprehension when a police case has been ended in charge sheet against particular three accused persons and their trial has already been commenced, as to how a Court of law on the prayer of a police Officer direct any person, neither facing trial before him nor charge sheeted which culminated in the trial, to meet the Investigating Officer of the case for the purpose of interrogation, more particularly when there was no material even remotely suggesting his complicity in the said case. It appears to me on the face of the materials on record that the learned trial Court has allowed the prayer of the Investigating Officer mechanically and without any justifiable materials before him which is wholly illegal and without jurisdiction.

The learned Judge has also exceeded his jurisdiction and most illegally directed the petitioner to be present in Court on each and every day fixed by the Court, although no case is pending before the learned Additional Sessions Judge, Fast Track Court -III, Sealdah against the present petitioner and the petitioner is not facing his trial in Sessions Trial No. 7 (12)/07 pending before that Court in connection with which such an order has been passed. I fail to understand when there is no charge-sheet submitted against a person and there is no material before a Court of law showing his involvement, in the case as to how his prayer for discharge be rejected.

It is not expected that a Court of law shall act as a mouth piece of the police and pass any order merely on the prayer of the Investigating Agency without any application of judicial mind. It is desirable in future the learned Judge must be very careful in passing any such order while discharging his judicial duty.

In view of the report submitted by the Assistant Commissioner of Police, Investigation, Detective Department, Lalbazar, Kolkata-1 that the petitioner is not wanted in connection with the Topsia Police Station Case No.91 dated August 27, 2007 and on his interrogation police found no materials showing his involvement in the commission of the alleged offence, the continuation of the impugned proceeding as against the present petitioner would be an abuse of process of Court. Accordingly, I set aside the impugned order dated 17.12.2007 passed by the learned Additional Session Judge, Fast Track Court-III, Sealdah in connection with S.T No.7(12) of 2007, whereby the learned Judge rejected the petitioner''s prayer for discharge in connection with Topsia police, station case No.91 dated August 27, 2007 and also quash all proceedings as against the petitioner arising out of Topsia police station case No.91 dated August 27, 2007.

I direct the learned Registrar General, High Court, Calcutta to communicate this order to the Commissioner of Police, Kolkata as well as to the Deputy Commissioner of Police, Detective Department, Lalbazar to apprise them about the product their subordinate police officer and to proceed in terms of Regulation 2 under Chapter II and Regulation 11 under Chapter VIII of the Police Regulation of Calcutta and in accordance with law.

The Registrar General, High Court, Calcutta is also directed to communicate the copy of this order to the concerned learned Judge.