Ratanlal Nath vs State of Tripura and Others

N.S. Singh, J.—Heard Sri B.B. Deb, learned Senior Counsel assisted by Sri B. Bhattacharjee for the Petitioner as well as Sri S. Das, learned Counsel for the Respondent No. 1. Respondent No. 2, 3 and 4 did not file any affidavit in this case. In view of the existing facts and circumstances of the case, this Court proposes to dispose of this case at the admission stage and accordingly, this writ petition is being disposed of by the following judgment.

In this petition under Article 226 of the Constitution of India, the Petitioner has prayed for issuing a writ of mandamus, and/or any appropriate writ of the like nature commanding the investigation to be conducted by an independent investigating agency afresh relating to Sedhai Police Station Case No. 171 of 1994 u/s -307/118 I.P.C., and also for quashing the impugned order dated 28.4.1995 passed by the learned Chief Judicial Magistrate, West Tripura whereby the final report submitted in connection with the Sedhai Police Station Case No. 171 of 1994 was accepted.

The facts of the case in a short compass are as follows:

The writ Petitioner Sree Ratan Lal Nath is an Advocate by profession of Agartala Bar and he is also an elected and sitting M.L.A. of the Tripura Legislative Assembly from No. 2. Mohanpur Assembly Constituency. He is also the General Secretary of Tripura Pradesh Congress Committee and also an elected member of All India Congress Committee. According to the writ Petitioner the Respondent No. 1 State of Tripura committed some fatal illegalities and irregularities regarding the appointment of Panchayat Election Commission, regarding delimitation of Panchayats and also preparation of Electoral Rolls elating to Panchayet Election. Being dis-satisfied, the Petitioner moved this Court in a public interest litigation under Article 226 of the Constitution of India being Civil Rule No. 74 of 1994 against the Respondent No. 1 and Ors. . In the State of Tripura, the Indian National Congress to which the Petitioner belongs and the Communist Party of India (Marxist) are the rival major political parties. After the litigation relating to the Panchayet Election was over, the Respondent No. 1 held Panchayet Election through out the State and that date of poll was fixed on 27.8.1994 in West Tripura District including the Panchayet Constituencies falling under Sedhai Police Station. The writ Petitioner being politically dedicated person, people representative as well as organizational office bearer took utmost endeavor in electioneering the said Panchayet Election during the month of July and August, 1994. The Petitioner supervised the election machineries of the parties on 27.8.1994, the date of poll for the three tire panchayet system under Sedhai Police Station in order to ensure free and fair election and also for giving protection to the Congress volunteers around different polling stations within the jurisdiction of the said Sedhai police station on the said date viz 27.8.1994.

The Petitioner having supervised and observed the progress of election at Ishanpur proceeded towards Mohanpur being accompanied by party workers and one A.D.C. Member namely Subodh Deb Barma with three jeeps and one Maruti van which were hired by the Petitioner''s party for the aforesaid purpose. Those vehicles bears registration No. namely TR-01-2124, TR-01-2518, TRT-1308, TR-01-0467 (Maruti). At the relevant time the Petitioner was sitting in the vehicle bearing registration No. TR 01-2518, By virtue of this Court''s order passed in Civil Rule No. 195 of 1994, the Petitioner was provided with Armed escort numbering five and to accommodate the escort party of the Petitioner and his workers four vehicles as stated above had been with the Petitioner. While the Petitioner along with his company as stated above reached in front of Ishanpur PACS office having distance of less than 1 K.M. from Ishanpur school towards south, the Petitioner law and heard that the 3rd Respondent namely Sri Anil Sarkar, a Cabinet Minister ordered his escort party to open fire to the Petitioner and without delay the escort party of the 3rd Respondent opened 7/8 rounds fire from their 303 rifles and two round of firing hit directly the vehicle bearing registration No. TRT-1308 in which the Petitioner''s party workers were sitting. Fortunately the bullets could not hit any person though attempt was made to kill the Petitioner at the instance of the 3rd Respondent without any reason or provocation. After observing the situation, the Petitioner''s escort party got down and cried out identifying them to be the police personnel and requested for stopping the firing and no further firing happened. Thereafter, the Petitioner along with his fellow workers rushed to Sedhai Police Station on the same day i.e. 27.8.1994 at about. 4 p.m. and lodged as FIR being written by Congress worker Sri Madan Mohan Saha at the dictation of the Petitioner himself. Thereafter, the Petitioner handed over the written FIR to the Duty officer S.I. Santi Das as the O/C 2nd Respondent, was not in Police Station building at that moment. It is also the case of the Petitioner that before handing over the written FIR, it is noticed that the 3rd Respondent along with his security personnel and accompanying an employee namely Dilip Kr. Dey entered in the Police Station (sic)allding and started rebuking with filthy and provocating languages and threatened the Petitioner. After few days the Petitioner learnt that the 2nd Respondent instead registering the Petitioner''s FIR as stated above registered Anr. FIR bearing Sedhai Police Station Case No. l11 of 1994 as against the Petitioner and the said FIR was lodged by the said Dilip Kr. Dey, a Govt. employee of the 3rd Respondent. (sic)ing apprehended, the Petitioner moved an anticipatory bail petition before this Court under Crl. Original Petition No. 189 of 1994 in connection with the said case. While disposing the said Criminal Original petition No. 189 of 1994 this Court by order dated 16.12.1994 allowed the 2nd Respondent to take a carbon copy of the complaint of the Petitioner as available in the said Criminal Original Petition and that it as FIR and take all necessary action in accordance with law provided he is classified that the said complaint, prima facie, discloses the commission of cognizable offences. This Court further directed the Petitioner to lodge appropriate complaint with the Officer in-charge of Sedhai Police Station containing all those (sic)tions and whatever transpires from the order which this Court passed in connection with the said case, and therefore, the said Officer In-charge of Sedhai Police Station shall register the same as an FIR if he finds that the said complaint that may be lodged by the Petitioner prima facie discloses commission of offence under Chapter-XI of the Indian Penal Code and any other provision of the Code, and accordingly, the Petitioner lodged a formal FIR on 22.12.1994 against S.I. Santi Das for concealment of the Petitioner''s FIR on 27.8.94. Thereafter the police registered a case on 17.12.1994 in respect of the FIR 27.8.1994 lodged by the Petitioner as against the 3rd Respondent as per order and direction dated 16.12.1994 passed by this Court as stated above. The Petitioner went on to state that though the 2nd Respondent registered the Petitioner''s FIR vide Sedhai Police Station Case No. 171 of 1994, he did not at all under-take or conduct any investigation of the said case in its legal spirit and the 2nd Respondent did not even record the statement of the eye witnesses, though some of the eye witnesses have been interrogated by him. Moreover, the 2nd Respondent did not examine and record any statement of the driver of the vehicle which sustained bullet injury as a result of firing committed by the escort party of the 3rd Respondent. The damaged and effected vehicle had never been inspected or seized by the police. In the meantime the 2nd Respondent furnished final report purportedly for want of evidence on 10.4.1995 in the court of the learned Chief Judicial Magistrate who accepted the final report vide his order dated 28.4.1995. According to the Petitioner, on 23.1.1995 and 27.1.1995 he received threatening telephonic calls pressing the Petitioner not to proceed with the case against the Minister, for which the Petitioner promptly reported the matter to the O/C Sedhai Police Station vide his complaint dated 24.1.1995 and the O/C West Agartala P.S. on 27.1.1995. The eye witnesses sworn affidavit narrating the incident what they have seen and what happened on that day of incident for which the Petitioner annexed the copies of the affidavit of as many as six witnesses along with English renderings which are marked as Annexure-8A, 8B, 8C, 8D, 8E, 8F, 8G and 8H respectively to the writ petition. The Petitioner went on to state that since the 3rd Respondent, a Cabinet Minister is involved in the commission of a crime, the 2nd Respondent the O/C of Sedhai Police Station being investigating officer failed to investigate the case in its true spirit. The 2nd Respondent deliberately did not record the statements of the eye witnesses u/s 161 Code of Criminal Procedure in connection with the said FIR case in which the 3rd Respondent is involved. The Petitioner further averred to the extent that where a politician like a ministers involved in commission of crime, the State police would be reluctant to conduct free and fair investigation which happened in the present case, and as such, for the faulty purported investigation done by the 2nd Respondent, the offence committed would go un-redressed and the Petitioner''s grievance touching the commission of criminal offence would go untried, unless an independent agency is directed to conduct the investigation. Unless an order for re-investigation to be conducted by any independent agency like CBI is ordered by this Court, the offence commuted by the Respondent No. 3 would go untried, the Petitioner contended.

It is also the case of the Petitioner that when he applied for certified copy of the statements of the witnesses if recorded, during the investigation of the present case, the Petitioner was informed in writing by the office of the Chief Judicial Magistrate Agartala that no statement of witnesses recorded u/s 161 Code of Criminal Procedure, is available, and as such, no copy could be supplied.

As per direction and order of this Court, the relevant copies of the statement the witnesses recorded by the police u/s 161 Code of Criminal Procedure were supplied to the Petitioner and the copies of the same also have been placed on record.

The Respondent No. 1 resisted the case of the Petitioner by filing counter affidavit and contended, inter alia, that the Petitioner did not suffer any injury of substantial nature and; the fundamental rights of the Petitioner have not been violated as alleged in the said petition and as such the Petitioner cannot seek for redress under Article 226 of the Constitution of India.

According to Respondent No. 1 on 27.8.1994 the writ Petitioner Sri Ratan Lal Nath being accompanied by some of his party workers and one ADC Member Sri Subodh Deb Barma with three jeeps and one Maruti was reuniting from Ishanpur to Mohanpur after the incident occurred at Ishanpur. On that day around 1555 hours there was a hot altercation between the supporters of CPI(M) led by Sri Pranab Deb Barma, MLA and supporters of Congress(I) led by the Petitioner in front of Ishanpur High School on Agartala Simna Road and as a result of which supporters if both the parties turned violent and restored hurling of bombs etc. For safety and security of both MLAs their security personnel/P.G, open fired, and there was no quality nor any injury in any side due to the fire of the security personnel. This accident gave rise to police cases, one was instituted by the Petitioner and Anr. Pranab Debbarma. Those cases are registered as Sedhai Police Station Case to 112 of 1994 u/s 148/149/307 I.P.C. and 3/5 of the Explosive Substance Act lodged by the Petitioner and Sedhai Police Station Case No. 115 of 1995 u/s 148/149/307 I.P.C. and 3/5 of the Explosive Substance Act lodged by Sri Pranab Deb Barma. MLA of CPI(M). Investigation of both the cases are completed and the F.R.(T) No 20 dated 27.2.1996 has been submitted in Serial T.S. Case No. 112 of 1994 and charge sheet No. 100 dated 28.6.1995 u/s 147/148/149/307 I.P.C. and 3 of E.S. Act 27 Arms Act has been (sic) in respect of Sedhai P.S. Case No. 115 of 1995. While the Petitioner and his men were running form Ishanpur school after the incident, on that day a convoy of Hon''ble Minister form Education reached near Ishanpur PAC''s located about 500 yards south from Ishanpur school and the security personnel of Minister heard the sound of hearing coming from the convoy of Sri Nath, the writ Petitioner. It was found that when the Petitioner living Ishanpur after the first incident, his security personnel continued firing at the time of living at the said school. On hearing the sound of firing the security personnel of the Hon''ble Minister for Education apprehended a danger which may be detrimental to the safety of the Hon''ble Minister. One of the security personnel of the Hon''ble Minister made five round fire on air. The motor vehicle bearing registration No. TRT 1308 has not been hit by the bullets. As soon as the security personnel of the writ Petitioner got down from the vehicle, they gave their identity as police personnel and later on, the firing was stopped and misunderstanding between the two parties was immediately removed. It is also the case of the Respondent No. 1 that the then O/C Sedhai Police Station, Respondent No. 2 herein, was present at that time. At the Sedhai Police Station there was hot altercation between the Hon''ble Minister for Education Sri Anil Sarkar, 3rd Respondent and his party on one side and the Petitioner and his party on the other side after the incident of Ishanpur school, but the parties were pacified by the staff of the Police Station and there was no complaint in this regard. An appropriate measures was taken by the Respondent No 1 for the safety of the Petitioner on that day. It is true that on 27.8.94 two cases were registered at Sedhai Police Station relating to the said incident vide case No. 11 of 1994 u/s 147/148/149/307 I.P.C. on the complaint of one Dilip Kumar Dey accompaying Government employee of the 3rd Respondent and case No. 112 of 1994 u/s 147/148/149/307 and 3/5 of Explosive Substance Act on the basis of the complaint by the present Petitioner. Respondent No. 1 went on to state that both the cases were investigated duly and after completion of the investigation a report as contemplated u/s 173 Code of Criminal Procedure were submitted in both the cases before the Chief Judicial Magistrate, West Tripura, Agartala, and thereafter, the learned Chief Judicial Magistrate accepted both the reports submitted by the investigating officer, After investigation, the final reports in respect of both these two cases had been submitted in the Court of the learned Chief Judicial Magistrate, West Tripura. Agtutala as in Annexure R-1 and R-2 respectively. Nothing has been done by the authority is bias manner as alleged in the writ petition, After completion of the investigating Sedhai P.S. Case No. 112 of 1994 has ended in F.R.T. No. 20 dated 27.2.1996 and as the same was subsequently accepted by the learned Chief Judicial Magistrate West Tripura, Agartala, but in respect of the Sedhai P.S. Case No. 115 of 1994, the investigation officer after completion of the investigation submitted charge sheet No. 100 dated 20.6.1995 before the learned Chief Judicial Magistrate who was cognizance of the offence u/s 147/148/149/307 I.P.C. and 3 of E.S. and 27 Arms Act.

The Respondent No. 1 went on to state that as per direction and order of this Court passed on 16.12.1994 directing the O/C Sedhai P.S. to register a case on the basis of carbon copy of FIR, a case was registered by the Respondent No. 2 as Sedhai P.S. Case No. 171 of 1994 307/114 I.P.C. The case was treated with all its earnestness and the investigation was carried out in all legal spirits. During the course of the investigation of the said case, 15 witnesses were examined and their statements were recorded by the investigating machineries u/s 161 Code of Criminal Procedure but nothing was available from their statements to add the new facts as stated earlier and no marks of injury by firing was detected in any of the vehicle of the convoy of the Petitioner. It is also the case of the Respondent No. 1 that the police held enquiry to establish the identity of the threat maker on the telephone as reported by the Petitioner, but to no avail. For the alleged concealment of FIR a case was registered against SI Santi Das incompliance with the order passed by this Court Which refers to Sedhai P.S. Case No. 173 of 1994 u/s 201/204/1271.P.C. and the said case has been investigated by the CID officer of the State ns per order if this Court.

On perusal of the relevant case diary and the statements of the witnesses recorded by the investigating officer u/s 161 Code of Criminal Procedure in connection with Sedhai P.S. case No. 171 of 1994 u/s 307/114. I cannot agree with the contentions of Sri B.B. Deb, learned senior Counsel for the writ Petitioner that the Respondent No. 2 did not record the statements of the eye witnesses. Therefore, the Mayer of the writ Petitioner for issuing a writ in the nature of mandamus commanding the investigation to be conducted afresh by any independent investigating agency other than the police authority in respect of Sedhai Police Station case No. 71 of 1994 u/s 307/114 I.P.C. is devoid of merit, and the same has no basis inasmuch as there is material on record for establishing the fact that the Investigating machinery had investigated the case and recorded the statements of witnesses as discussed above.

So far the second prayer of the writ Petitioner for quashing the impugned order dated 28.4.1995 passed by the learned Chief Judical Magistrate, Sadar Police court, West Tripura, Agartaia in case No. Sedhai P.S. 171/1994 is a reasonable prayer Inasmuch as in my considered view, the impugned order dated 28.4.1995 passed by the learned Chief Judical Magistrate is an order passed on dictation by the police /C.I. (S). The impugned order of 28.4.1995 highlighted the fact that the FIR was accepted by the learned Chief Judical Magistrate as recommended by C.I.(S). Thus the C.J.M. hits allowed the said C.I.(S) to dictate him in the matter and the learned C.J.M surrendered his judicial wisdom for better appreciation of existing circumstances and for ascertaining the real position, the impugned order dated 28.4.1995 is quoted below.

Order dated 28.4.95

Received FPT No. 64 dated 10.4.1905 in c/w Sidhai P.S. Case No. 171/95 u/s -307/118 I.P.C.

Seen the FR-considered. FR is accepted as recommended by C.I. (S) illegible but waiting evidence.

Inform the complainant.

Sd/- N. Chakraboriy, Chief Judicial Magistrate W. Tripura, Agartala

On perusal of the impugned order of 28.4.1995 I am of the view that the learned Chief Judicial Magistrate did not peruse the relevant case diaries and the relevant statements of the witnesses recorded u/s 161 Code of Criminal Procedure at the time of passing of the impugned order, and the learned Chief Judicial Magistrate did not pass a reasoned order.

For the reasons stated above, I hereby quash the impugned order dated 28.4.1995 passed by the learned Chief Judicial Magistrate, Sadar Police Court, West Tripura, Agartala in Sedhai P.S. Case No. 171 of 1994.

It is well settled that when the report forwarded by the Officer-in-charge of a police station to the Magistrate under Sub-section (2)(i) of Section 173 Code of Criminal Procedure comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things; (1) he may accept the report and take cognizance of the offence an issue process or (2) he may disagree with the repot and drop the proceeding order he may direct further investigation under Sub-section (3) of Section 156 Code of Criminal Procedure. In a case where the Magistrate to whom a report is forwarded under Sub-section (2)(SIC) of Section 173 Code of Criminal Procedure decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. The position may, however, be a little different when the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. However, if a person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding for what action be should take on the report, and such injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate end if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him, even though Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured or to any relative of the deceased, he may in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report. This principle of law finds its place in a decision of the Apex Court rendered in Bhagwant Singh Vs. Commissioner of Police and Another,

Recently, the Supreme court in a case between Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, (equivalent to Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, ) held thus:

Since at the time of taking cognizance die Court has to exercise its judicial discretion it necessarily follows that if in a given ere as the present one-the complainant, as the person aggrieved raises objections to the acceptance of a police report which recommends-discharge of the accused and seeks to satisfy the Court that a case for taking cognizance was made out, but die Court overrules such objections, it is just and desirable that the reasons therefore be recorded. Necessity to give reasons which disclose proper appreciation of the issues before the Court needs no emphasis, Reasons introduce clarity and minimize chances of arbitrariness. That necessarily means that recording of reasons will not be necessary when the Court accepts such police report without any demur from the complainant. As the order of the learned Magistrate in the instant case does not contain any reason whatsoever, even though it was passed after hearing the objections of the complainant it has got to be set aside and we do hereby set it aside. Consequent thereupon, two courses are left open to us; to direct the learned Magistrate to hear the parties afresh on the question of acceptance of the police report and pass a reasoned order or to decide for ourselves whether it is a fit case for taking cognizance u/s 190(1)(b), Code of Criminal Procedure. Keeping in view the fact that the case is pending for the last seven years only on the threshold question we do not wish to take the former course as that would only delay the matter further. Instead thereof we have carefully looked into the police report and it accompaniments keeping in view the following observations of this Court in H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), with which we respectfully agree:

The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusion arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence u/s 307, Indian Penal Code the Magistrate is not bound by the conclusion of the complaint. He may think that the facts disclose an offence u/s 324 IPC only and he may take cognizance of an offence u/s 324 instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by then claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report.

Keeping in view of the above decisions of the Apex Court and also considering the existing facts and circumstances of the case, I direct the learned Chief Judicial Magistrate, Sadar Police Court, West Tripura, Agartala to hear the parties including the present writ Petitioner Sri Ratan Lal Nath afresh on the question of acceptance of the said police report and pass a reasoned order in accordance with law after taking into consideration of the statements of the witnesses recorded u/s 161 Code of Criminal Procedure, relevant case diaries and other available materials on record.

With the above observations and directions this writ petition is disposed of. The party shall bear their own costs.

Let copy of this judgment be sent to the Chief Judicial Magistrate. Sadar Police Court, West Tripura, Agartala forthwith.