Shafique Ahmed vs State of West Bengal and Others

Joymalya Bagchi, J.—RE: C.R.A.N. No. 2604 of 2015

Petitioner has challenged the order dated 11th June, 2014 discharging one Manjar Hossain @ Anu (opposite party No. 3) and one Kaushik Sen (opposite party No. 4) from the instant case. Prayer has also been made to add Sanjay Surekha (opposite party No. 2) as an accused person in the instant case and not to accept his statement under section 161 Cr.P.C. as gospel truth and cite him as prosecution witness. There is a delay of 422 days in challenging the order dated 11th June, 2014. In the application seeking condonation of delay, it has been pleaded that the petitioner was in jail in connection with another case till 3.12.2014 and during such incarceration his father died in November, 2014. The twin events had a traumatic impact on his life and accordingly, he was unable to pay attention to the court proceedings immediately upon being released on bail. Being the only responsible member of the family who is capable of managing its affairs, the petitioner had to make immediate arrangements regarding his family after the demise of his father and also had to take care of his widowed mother and sick sister. Only after making such arrangements in connection with his family affairs, the petitioner could divert his attention to the present litigation and after perusing the records petitioner found that the opposite party No. 2 had been illegally given a reprieve from the instant case due to faulty and sham investigation by the investigating agency engineered to screen him and upon obtaining legal advice from his lawyer has instituted the instant proceeding. On the other hand, the opposite party No. 2 has strongly opposed the condonation of delay application by filing an affidavit-in-opposition to it. It has been pleaded there that the petitioner was released on bail in December, 2014 and had admitted in his application that he had come out of his mental trauma by April, 2014 and thereafter there is no explanation of the delay in filing the application in August, 2015. It has further been argued that the medical reports annexed to the petition do not inspire confidence.

I have considered the materials on record and I find that the petitioner was in detention in connection with another case when the police report was filed in the instant case and prayer for discharge was made in favour of opposite party No. 2 and 3 herein. Petitioner was produced from custody on 11th June, 2014 and claimed that he did not wish to file a naraji petition to the prayer of discharge of opposite party No. 2 & 3 herein. Accordingly the prayer of discharge was accepted by the impugned order dated 11th June, 2014. The petitioner was finally released on bail in December, 2014. It is pertinent to note that his father expired in November, 2014 while he was in custody. After coming to terms with such traumatic experience the petitioner examined the papers in this case and decided to file the instant litigation. Perusal of the prayer in the petition shows that the petitioner has not only prayed for setting aside of the impugned order but also for arraying opposite party No. 2 as an accused in the instant case in exercise of inherent powers of this Court. The nature and scope of the prayer is, therefore, not restricted to the legality and propriety of the impugned order alone but also relates to the fairness of the investigation proceeding vis-�-vis opposite party No. 2. Such prayer is to be countenanced by this Court in exercise of inherent powers which are not regulated by the laws of limitation but prompted on the principles of justice and fair play. I have referred to the nature of the prayer in the instant case in order to examine the justification of condoning the delay in the instant case. Having regard to twin circumstances, namely, petitioner was in detention when the impugned order of discharge was passed and that due to the sudden demise of his father while he was in custody he took sometime to arrange his family affairs before paying attention to the instant case and bearing in mind the nature of the prayer made in the petition which is not only restricted to the legality of order of discharge but is also directed against the lack of fairness and propriety of investigation proceeding in not arraying opposite party No. 2 as an accused in the instant case, I am inclined to accept the explanation offered by the petitioner and condone the delay in instituting the instant proceeding.

Authorities relied upon by the learned lawyer appearing on behalf of the opposite party No. 2 are not apposite to the facts of the case for reasons as discussed herein below.

In Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr., , 2012 (2) Supreme 244, Apex Court held that for the purpose of condonation of delay there is no reason why Government departments should be treated differently. The instant case does not relate to condonation of delay at the behest of a Government department but by an individual who was in incarceration for a major period of time for which the delay was caused and suffered the misfortune of losing his father during such detention. Therefore, the explanation that delay was caused in managing the family affairs due to such misfortune is a relevant consideration for condonation of such delay.

In State v. Sk. Sirajul Islam, (2013)1 C Cr LR (Cal) 693, delay was not condoned in the factual matrix of that case which is wholly distinguishable from the present one.

In Popat Bahiru Govardhane Etc. v. Special Land Acquisition Officer & Anr., , (2013) 6 Supreme 97, it has been held that the commencement for the period of limitation for filing of the application is to be construed from the date of the order not from the date of its knowledge. There is no quarrel over such proposition but the issue which is to be considered is whether sufficient cause for condonation of delay has been made out in the facts of a case.

In M/s. Kokarmal Gurudayal v. Sagarmal Bengani, , AIR 1972 Calcutta 430, it was held that failure to take appropriate legal advice would not constitute of sufficient cause to condone delay in a tenancy proceeding relating to determination of fair rent. Admittedly, the tenant was not in custody in the said case and the failure of the petitioner in the instant case to act promptly due to incarceration and other attending circumstances cannot be put on the same footing as in the cited case and the aforesaid ratio is clearly distinguishable on facts.

In Binod Bihari Singh v. Union of India, , AIR 1993 Supreme Court 1245, Apex Court held that service of copy of award upon a counsel who had appeared in earlier proceeding does not contemplate service of the award upon the judgment debtor and the objection filed by him cannot be held to be barred by limitation. The said case has no manner of application to the facts of the instant petition.

In R. Rajeshwari v. H.N. Jagadish, , JT 2008 (3) SC 405, it was held that a final order passed by a Court cannot be recalled even after compromise due to bar under section 362 Cr.P.C. I am unable to appreciate as to how the aforesaid ratio would be of help in the instant case where challenge is thrown to an order of discharge which does not amount to autrofois acquit. Hence, I am of the view the aforesaid ratio is not applicable to the instant proceeding.

In Employers in relation to Monoharbahal Colliery Calcutta v. K.N. Mishra & Ors., , AIR 1975 Supreme Court 1632, it was held that an order on compromise cannot be avoided by a party to a litigation in view of Order 23 Rule 3 of Civil Procedure Code. The said provision of law has no manner of application to a criminal proceeding and the Superior Court may in revision always examine the legality of an order of discharge of an accused notwithstanding a protest petition being lodged by the complainant before the learned Magistrate.

It is a trite law that there is no limitation in exercise of inherent powers of this Court to correct an illegality in the course of a proceeding before the trial Court [See Municipal Corporation of Delhi v. Giridharilal, 1981 Cr L J 632 and D.J. Sen & Ors. v. State & Anr., , (2002) 3 CHN 438]. One must also not lose sight of the fact that an order of discharge is not in the nature of an acquittal which puts a final end to a prosecution against an accused. Furthermore, in the instant case, prayer has also been made to add opposite party No. 2 as an accused in exercise of inherent powers which is independent of the challenge to the order of discharge vis-�-vis opposite party No. 3 and 4 herein. Hence, I am of the opinion that the delay in the factual matrix of the case has sufficiently been explained and in the light of the prayers made herein, it is imperative in the interest of justice to condone the same.

CRAN 2604 of 2015 is allowed.

Let me now consider the reliefs prayed for in the present petition.

The petitioner, Shafique Ahmed who is the de facto complainant in the instant case has alleged that a sham and unfair investigation had been conducted by the investigating agency resulting in the non-inclusion of opposite party No. 2 in the array of accused persons and also discharge the opposite party No. 3 and 4 from the instant case.

The instant case was registered for investigation on the basis of a written complaint lodged by the petitioner resulting in registration of Shakespeare Sarani P.S. Case No. 340 dated 16.09.2013 under sections 120B/148/149/395/397/427/448 of IPC and under sections 25(1B)(a)/27 of Arms Act against one Parag Majumder, Kaushik Sen and 50-60 other accused persons. In the aforesaid F.I.R it has been alleged that the petitioner was the caretaker of Young Minds International School, situated at 9A, Short Street, Kolkata-700016 and on 15.09.2013 at about 04.30 p.m. 50-60 anti-social elements being armed with dangerous weapons including revolver raided the said school premises, broke the gate of the school, trespassed into the school and assaulted Ratanlal Nahata, Smt. Ganga Ghosh, Akhil Halder, Promod Sahu and others in a brutal manner causing severe injuries upon their persons. A licensed revolver of 32 calibre of Ratanlal Nahata was snatched away by the miscreants and they also took away Rs. 17,000 from the office of the said school and also a number of mobile phones from the aforesaid victims. The miscreants claimed that they had been sent by Parag Majumder and Kaushik Sen to evict the said school and its staff members from the said premises and also threatened of even murdering the staff members to achieve their end. In the face of such brutal attack, the petitioner called out for help and local people assembled whereupon the miscreants ran away. It is further alleged that the miscreants are being regularly sent by Parag Majumder and Kaushik Sen to take possession of the premises and police picket was prayed to protect them from such attack. Investigation commenced in the instant case on the basis of the aforesaid FIR. During its pendency, it appears that another incident occurred in the said premises causing death of two persons resulting in registration of Shakespeare Sarani P.S. Case No. 398 dated 11.11.2013 under sections 307/302/34 I.P.C. The petitioner was arrested in the said case on or about November, 2013. In the course of his incarceration, charge-sheet was filed in the instant case under sections 120B/148/149/395/397/427 of I.P.C. and under sections 25(1B)(a)/27 of Arms Act against Parag Majumder and six others. Prayer for discharge was made in respect of opposite party No. 3 and 4 herein.

In the charge-sheet it has been alleged that one Mamata Agarwal and Ratanlal Nahata were in possession of the said premises for the last thirty years and Mamata Agarwal was running a school from the said premises. It is stated that in 2010 Ratanlal Nahata entered into a development agreement with accused Parag Majumder to develop the property. It is further stated that the property belonged to one Rajendra Nath Sein and one Saila Bala Sein (both deceased). It is alleged that in 1999 the said Saila Bala Sein through a power of attorney sold out the property to one M/s. Heart Line Estate Pvt. Ltd. It is further alleged that Parag Majumder arranged to sell the said property to Sanjay Surekha for a consideration of Rs. 8 crores and the property was registered in the name of Sanjay Surekha and his wife by two separate deeds. It has also come to light that there was a commitment on the part of Sanjay Surekha that a further sum of Rs. 13 crores would be paid to Parag Majumder in the event he could hand over vacant possession of the land. Parag, however, was unable to materialise the deal and accordingly Sanjay Surekha wanted to move out of the deal and sum of Rs. 1.8 crores was refunded by Parag to him. Parag has been trying to oust Ratanlal Nahata and Mamata Agarwal from the said premises and on 15.9.2013 Parag engaged number of henchmen who came to the premises being armed with revolver and other deadly weapons and thereby caused injuries to number of persons and committed dacoity in the said premises. They had stolen a revolver belonging to Ratanlal Nahata and sum of Rs. 17,000 from the office of the said school. Thereafter, on a number of occasions Parag Majumder again made repeated attempts to gain possession of the premises. Finally, on 11.11.2013 another attempt was made to forcefully oust the occupant from the said premises wherein two people died resulting in registration of case and counter case being Shakespeare Sarani P.S. Case No. 397 dated 11.11.2013 under sections 120B/143/148/149/458/459 of IPC and Shakespeare Sarani P.S. Case No. 398 dated 11.11.2013 under sections 307/302/34 IPC and 25/27 of Arms Act. Thereafter, investigation in the instant case was taken over by Anti Rowdy Section, Detective Department and other two cases were taken by the Homicide Squad, Detective Department.

Investigation further revealed that the power of attorney purportedly executed by Saila Bala Sein for the alleged transfer in favour of M/s. Heart Line Pvt. Ltd. was a forged document and actually had no existence. It appears that a specific case being Shakespeare Sarani P.S. Case No. 296 dated 6.7.2010 under sections 120B/420/467/468/471/511 of IPC was registered over the said transaction. In the course of investigation Parag was arrested and names of other accused persons transpired from the statement of the said accused person. Fire arms were recovered and stolen arm was recovered from the miscreants during investigation. Vehicles used for dacoit were also recovered. Investigation revealed that Parag Majumder had asked for power of attorney from Sanjay Surekha for selling the property to a new purchaser but the latter refused to do so and wanted the new purchaser to be introduced to him so that he may directly recover the money invested by him in the property. In the initial charge-sheet no prayer for discharge of opposite party No. 4, Kaushik Sen was made but subsequently, a prayer for discharge of the said accused person was made on 15.2.2014. During the hearing of the prayer for discharge, the petitioner was in jail in connection with Shakespeare Sarani P.S. Case No. 398 dated 11.11.2013. He was produced before the learned Magistrate and he submitted that he had no objection if such prayer was accepted. Accordingly, prayer for discharge of opposite party No. 3 and 4 was accepted and the case was committed to the Court of Sessions and registered as Sessions Case No. 2 of 2015. At this stage, the present petition has been filed seeking the reliefs as discussed hereinbefore.

Mr. Tirthankar Ghosh, learned counsel appearing for the petitioner submitted that the investigation of the instant case is a sham one in order to protect the real perpetrators of the crime. He also submitted that the letter dated 16th September, 2013, written by Ratanlal Nahata, has not been taken into consideration. Statement of Mamata Agarwal was not recorded under section 164 Cr.P.C. and Sanjay Surekha, who ought to have been arrayed as an accused person has been cited as a prosecution witness. He accordingly prayed for arraying Sanjay Surekha as an accused in the charge-sheet or, alternatively, for further investigation in the matter.

Mr. Debasish Roy learned counsel appearing for the opposite party No. 2 submitted that Sanjay Surekha was not named as an accused in the First Information Report. Purported letter dated 16.9.2013 of Ratanlal Nahata was not signed by him but by the de facto complainant. It is a clear afterthought and materials collected clearly show that his client was in no way connected with the alleged crime in question.

Learned Public Prosecutor appearing on behalf of the State produced the case diary and submitted that investigation was conducted fairly and in respect of all aspects of the matter. He further submitted that it is open to the Public Prosecutor to choose its necessary witnesses to prove the prosecution case and it is not necessary that all witnesses cited in the charge-sheet would be examined.

I find that the petitioner did not oppose the prayer for discharge of the opposite party No. 3 and 4 and accordingly the learned Magistrate accepted the prayer for discharge so far as they are concerned. Even before me, the principal grievance agitated by the petitioner is that the investigating agency had given a clean chit to Sanjay Surekha (opposite party No. 2) and cited him as a prosecution witness in the charge-sheet. Hence, I feel that no case for setting aside the order of discharge of opposite party No. 2 and 3 has been made out in the facts of this case.

Coming to opposite party No. 2, Sanjay Surekha I find he was not implicated in the First Information Report lodged by the petitioner/de facto complainant in the instant case. Learned counsel for the petitioner has, however, strongly relied upon a letter dated 16.9.2013 purportedly written by Ratanlal Nahata to the investigating agency implicating Sanjay Surekha as the person who along with other miscreants trespassed into the property and committed acts of assault and dacoity etc. on the fateful day. It has been claimed that the said document was written at the behest of Nahata and signed on his behalf by the petitioner as the former was indisposed. It has been vehemently argued that the police did not give credence to the said letter but relied on the statement of Sanjay Surekha recorded during investigation as gospel truth and cited him as a prosecution witness in the instant case. I have perused the letter dated 16.9.2013 which is annexed at page-217 of the petition. No doubt in the said letter it is alleged that opposite party No. 2, Sanjay Surekha was a member of the unlawful assembly which committed the alleged offences but the said document suffers from some incongruity as it is not signed by its author, Ratanlal Nahata, but by the petitioner on his behalf. The plea that the document was so executed due to the poor state of health of the said Nahata, however, is not recited in the said letter but has been presently argued at the bar to explain away such inconsistency. No doubt, it would be open to the petitioner to depose during the trial and probabilise his contention but in view of such lacunae the aforesaid communication ipso facto cannot constitute prima facie material for the Court issue process against the opposite party No. 2 in exercise of power under section 204 Cr.P.C. in view of the law declared in [Dharam Pal & Ors. v. State of Haryana & Anr., , AIR 2013 SC 3018]. It is trite law such power is to be exercised sparingly only when the involvement of a person not send up as an accused is patent and self-evident and not in the realm of hypothetical probabilities. Such view is further reinforced by the fact that the role of opposite party No. 2 as narrated in the aforesaid letter dated 16.9.2013 is not consistent with the version of the incident as narrated in the injury report of the petitioner at page-222 of the petition. While in the injury report (recorded at the earliest point of time) opposite party No. 2 is described as an instigator in the letter dated 16.9.2013 he has been described as a direct participant in the crime. In light of shifting stance of the petitioner himself as to the role of the opposite party No. 2 in the crime, it cannot be said that his role in the crime is so self-evident that he ought to be summoned under section 204 Cr.P.C. though not cited as an accused in the charge-sheet. On the other hand, such prayer may be better appreciated in the event evidence adduced during trial discloses a more clear and consistent role of opposite party No. 2 in the crime so as to justify invocation of section 319 Cr.P.C. arraign him as an accused in the instant case.

I am, however, unable to appreciate the stance of the investigating agency to cite Sanjay Surekha as a prosecution witness in the charge-sheet. Prosecution is required to prove its case, that is, who and in what manner the crime was committed and who are the perpetrators of the crime and ensure their conviction and punishment. It is no part of its duty to establish the innocence of any individual. Viewed from this perspective, I am unable to understand how examination of opposite party No. 2 (Sanjay Surekha) would help in unfolding of the prosecution case. On the other hand, by citing him as a witness for the prosecution, the latter effectively sounds a death knell to any future possibility of implication of opposite party No. 2 as an accused in the course of trial. Although in his statement to the police Surekha has emphasised on his innocence and claimed he is no longer interested in the property or he is not associated with the principal accused, Parag Majumder, one cannot lose sight of other attending circumstances in the instant case, namely, Sanjay Surekha continues to be the recorded owner of the property in the municipal records and has a large sum of money running to a few crores invested therein and is eager to recover the said invested sum of money. Under such circumstances, eviction of the occupiers like Ratanlal Nahata and Mamata Agarwal would certainly improve his prospects of better return on the said property by sale to a third party or otherwise. These or other circumstances may or may not unfold during trial on evidence. To foreclose such options by citing Sanjay Surekha as a prosecution witness appears to be an ingenious technique to derail all such possibility and deny the victim effective access to justice on such score. Ordinarily, investigation or prosecution of a crime is in the domain of the executive and courts would not encroach on such arena and direct investigation or prosecution to be conducted in a particular manner. However, if the course of such investigation/prosecution is intentionally slanted to pre-empt the unravelling of truth or deny effective access to justice to a party, it is open to the Superior Courts in exercise of its Constitutional powers under Article 32 or 226 of the Constitution or its inherent powers under the Code, to pass appropriate directions to monitor the investigation or prosecution so that it is brought back on rails to serve the ends of justice.

In Bharati Tamang v. Union of India & Ors. reported in , (2013) 15 SCC 578 the Apex Court, inter alia, held as follows:--

"41.3. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law.

41.4. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice."

I am constrained to hold that the investigating agency completely ignored the following relevant circumstances while citing opposite party No. 2 as a prosecution witness:--

"(1) Opposite party No. 2 is the recorded owner of the property in question in the mutation books of the municipal authorities. He has a substantial interest in the property having invested Rs. 8 crores therein out of which only Rs. 1.8 crore has been returned to him by principal accused, Parag Majumder.

(2) Eviction of the school as attempted by Parag would increase the value of the property and fetch better returns for Surekha even if he proceeds to dispose of it to a third party.

(3) In the injury report of the petitioner which is the earliest possible narration of the incident, Surekha and Kaushik Sen are referred to as abettors of the crime committed by Parag"

Under such circumstances, it is premature to give a clean chit to opposite party No. 2 and cite him as a prosecution witness as his version by no stretch of imagination is not necessary for unfolding of the prosecution case. At the same time, the materials on record particularly the prevaricating stance of the petitioner vis-�-vis the role of opposite party No. 2 in the incident in my opinion does not justify invocation of powers of the Sessions Judge under section 204 Cr.P.C. to summon him as an accused at this stage. Such issue may be addressed during trial, if necessary, provided the evidence adduced therein discloses a more clear and convincing involvement of opposite party No. 2 in the crime justifying invocation of powers under section 319 Cr.P.C. Mr. Ghosh has alternatively argued that the investigating agency be directed to conduct further investigation in the aforesaid aspects. His principal grievances are non-seizure of mutation records and non-examination of Mamata Agarwal under section 164 Cr.P.C. I find that the mutation records have already been seized in connection with another case and in view of the fact that incident occurred in 2013 and all most three years have lapsed in the meantime no worthwhile purpose would be served in directing further investigation for recording of statements of witnesses at this belated stage under section 161/164 Cr.P.C. On the other hand, concerns of the petitioner may be effectively addressed by permitting him to participate in trial and lead additional evidence during such trial by resorting to section 311/91 Cr.P.C., if necessary, so as to bring the offenders to book.

Hence, to remove the apparent bias in the prosecution case in favour of opposite party No. 2 and to ensure complete access to justice to the petitioner, I direct the prosecuting agency to delete the name of opposite party No. 2 from the list of prosecution witness. This order shall not, however, pre-empt the defence from examining him at its witness or the Court to summon him as a Court witness under section 311 Cr.P.C. if it considers it necessary for a just decision of the case. I further direct that it shall be open to the petitioner and/or other victims to participate in the proceeding by appointing their own lawyer to assist the Public Prosecutor in leading evidence to prove the prosecution case. They shall be at liberty to pray for production all such documents and/or witnesses under section 91/311 Cr.P.C. which may be necessary for a just decision of the case. Public Prosecutor of the case is directed to render all cooperation to them so as to ensure a just and fair trial in the matter.

I make it clear that the observations made by me are for the disposal of the instant case and shall have no bearing on the trial at any subsequent stage which needless to mention, shall be conducted independently and on the basis of evidence adduced before the trial Court.

With the aforesaid directions, the petition is disposed of.