C.O. 8377(W) of 1993. Case: Md. Rashid Khan Vs State of W.B.. High Court of Calcutta (India)
| Case Number | C.O. 8377(W) of 1993 |
| Counsel | For Petitioner: Mr. Dipankar Ghosh, Tapan Deb Nandi, Advs. and For Respondents: Mr. Balai Roy, Nisith Adhikary, Sisir Ghosh, Ranjan Roy, Bikash Patranabis for State; Mr. Soumen Bose, S. K. Kundu, Anjan Mukherjee, Advs. |
| Judges | S. K. Sen, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 353, 362, 197; Terrorist and Disruptive Activities (Prevention) Act (28 of 1987) - Sections 20A(2), 2(h), 3, 21, 14, 18, 19; Constitution of India - Article 226 |
| Citation | 1994 CriLJ 2699 |
| Judgement Date | April 13, 1994 |
| Court | High Court of Calcutta (India) |
Judgment:
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In the instant writ petition the petitioner has challenged the validity and propriety of the cognizance taken by the Designated Court constituted under Section 9 of the Terrorist and Disruptive Activities (Prevention) Act 1987 (hereinafter referred to as the TADA Act) presided over by the learned Judge l2th Bench of the City Civil Court, Calcutta of the case arising out of Section H (Bowbazar P.S.) Case No. 84 dated March 17, 1993. The petitioner has also prayed for declaration that the said cognizance taken as also all subsequent proceedings relating thereto to be illegal, void and inoperative in law. In the instant writ petition the provisions of the said TADA Act have also been challenged as ultra vires the Constitution of India. Since, however, the vires of the said statute which has been challenged in the instant writ petition it was also the subject matter of a proceeding pending in the Supreme Court of India, in the case of Kartar Singh v. State of Punjab and Kripa Shankar Rai v. The State of U.P. the petitioner, although he has not given up the said question has made his submissions on other questions.
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The brief facts leading to this instant writ petition inter alia are that on the evening of March 16, 1993 an explosion occurred at or near premises No. 267, B.B. Ganguly Street, Calcutta. As a result of the explosion several persons died, others were injured and premises No. 267, B.B. Ganguly Street and some buildings adjoining it collapsed and/or were badly damaged.
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On March 17, 1993 one B. K. Chattopadhyay, a Sub-Inspector of Police, attached to the Bowbazar Police Station, lodged a complaint regarding the said incident at the said Police Station. The said complaint was treated as a First Information Report and on that basis a case was registered in the said Bowbazar Police Station under Sections 120B/436/326/307 of the Indian Penal Code and Sections 3 and 6 of the Explosives Substances Act. The said case was numbered as Section H (Bowbazar Police Station) Case No. 84 dated March 17, 1993. Copy of the said complaint has been filed and marked Annexure 'A' to the writ petition. The complaint records that on hearing a loud sound from Bipin Behari Ganguli Street, the complainant proceeded to the place of occurrence of explosion, observed the damage caused by it and he arranged for removal of the injured persons to hospitals. He also collected materials for examination and examined a good number of persons. On the basis of such enquiry, the complainant arrived at the following conclusion:
".......... considering the above facts and circumstances, I do hereby lodge complaint that some unknown persons pursuant to their criminal conspiracy caused explosion at the aforesaid collapse building by means of explosive materials causing death of 40 persons, attempted to murder and grievious hurt to several persons for causing injuries at the above noted date, time and place."
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On March 17, 1993 the respondent No. 5 who was the Investigating Officer appointed for the said case started his investigation. The said investigation is governed by Chapter XII of the Code of Criminal Procedure. It has been submitted that in spite of the fact that the petitioner had not been named in the First Information Report and there was not an iota of evidence to connect him with the said incident, the petitioner was wrongfully arrested by the Police in connection with the said case on March 17, 1993. On March 18, 1993, he was produced before the Learned Chief Metropolitan Magistrate, Calcutta. The petitioner's prayer for being relesed on bail was rejected by the Learned Chief a Metropolitan Magistrate, and he passed an order remanding the petitioner to Police Custody. Thereafter his detention in police custody was prolongled for some time and ultimately he was remanded to jail custody pending completion of the investigation. The petitioner carved leave to refer to the remand orders passed from time to time, at the time of hearing. It has been alleged that since March 17, 1993 and till the date of the instant writ petition i.e. for a period of about 3 months and 22 days, the petitioner has been continuously kept in custody and has been deprived of his liberty. The petitioner is still in jail custody.
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It has also been submitted on behalf of the writ petitioner that even after the investigation of the case had been in progress for nearly 7 weeks, no material or evidence had been collected by the investigating authorities which implicated the petitioner with the said incident or with the offences alleged in the said First Information Report dated l7th March, 1993. It then must have become evident to the police authorities that the materials collected in course of investigation were wholly insufficient to sustain a conviction against the petitioner under the ordinary law and that a prosecution of the petitioner with regard to the offences under the Indian Penal Code and the Indian Explosive Substances Act mentioned in the said First Information Report were bound to fail, if tried in the ordinary criminal course. It has been further submitted that in the circumstances, the police authorities with ulterior and oblique motive and in abuse of their powers decided to try and rope in the petitioner said prolong his detention by invoking the provisionals of the Terrorist and Dispruptive Activities (Prevention) Act, 1987.
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On May 3, 1993 an application was made by the respondent No. 5, Investigating Officer, before the Learned Chief Metropolitan Magistrate, Calcutta for addition of offence under Sections 3 and 4 of the TADA Act in the First Information Report dated March 17, 1993. About one week before the application was moved before the Learned Chief Metropolitan Magistrate, State Government in exercise of powers conferred by Section 9 of the TADA Act had issued notifications dated April 26th 1993 purporting to constitute la designated Court for Calcutta appointing Sri S.N. Bhattacharjee, Judge, l2th Court, City Civil Court, Calcutta as the Presiding Judge of the said designated Court. Copies of the said notifications have been filed and collectively marked Annexure `C' to the writ petition.
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It has been submitted on behalf of the petitioner that the said' order dated May 3, 1993 passed by the Learned Metropolitan Magistrate adding offences under Sections 3 and 4 of the TADA Act to the said First Information Report dated March 17, 1993 was without jurisdiction and bad in law. It has been further submitted that cognizance and actions relating to the offences under the TADA Act can be taken only by the designated Court constituted under the said Act, and by no other Court. The Court of the Learned Chief Metropolitan Magistrate was not a designated Court notified under the said Act. As such, the Learned Chief Metropolitan Magistrate had no jurisdiction to add sections 3 and 4 of the said TADA Act the said First Information Report as has been purported to be done by him by his order dated May 3, 1993. It has also been submitted that the said order dated May 3, 1993 is bad in law, because it was passed mechanically and without application of mind.
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It has been submitted on behalf of the petitioner that after the petitioner came to know of the said order dated May 3, 1993, an application was made by him before the Learned Chief Metropolitan Magistrate for setting aside of the said order and for other reliefs. By an order dated June 9, 1993, the Learned Chief Metropolitan Magistrate rejected the said application holding that as a designated Court had been established, he was not competent to deal with the said application made by the petitioner touching the provisions of the TADA. Act. By the said order the Learned Chief Metropolitan Magistrate also directed that all records relating to the case be sent to the designated Court. Copies of the application and of the said order dated June 9, 1993 are filed along with this writ petition and marked 'D' collectively. It has also been alleged that even after the said order, the learned Chief Metropolitan Magistrate continued to deal with the case and has passed remand order thereafter.
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Sometime in early June 1993, the police authorities completed investigation of the said Case No. 84 of Bowbazar Police Station dated March 17, 1993 and upon completion of the investigation a police report was prepared by them embodying the materials collected by them in course of investigation. The offences mentioned in the said report are offences under Sections 3 and 4 of the TADA Act, under Section 302 of the Indian Penal Code and certain other offences under Penal Code and the Explosive Substances Act, which have been mentioned in the original First Information Report. On June 14, 1993 the police authorities submitted the said police report and/or chargesheet to the designated Court constituted by the notification dated 26th April, 1993. Upon receipt of the said police report, the designated Court took cognizance of the offences mentioned in the said police report including the offences under Sections 3 and 4 of the TADA Act by an order dated June 14, 1993. The said order inter alia is set out hereinafter:-"Received charge-sheet against the accused No. 1 Rashid Khan under Ss. 120B/ 436/ 326/ 302, I.P.C. 3 and 5 of the E.S. Act and 3 and 4 of TADA Act. Ld. P.P. S. Ghosh prays of taking cognizance taken."
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In June 1993, an oral request was made to the Designated Court on behalf of the petitioner that a copy of the Police report on the basis of which cognizance had been taken should be furnished to the petitioner or his Learned Advocate, but the Designate Court disallowed such prayer, observing that it would be supplied only after process had been served on all the accused persons, some of whom were absconding. Subsequently on a further request made on behalf of the petitioner, the Designated Court was pleased to grant liberty to the petitioner's Learned Advocate to take inspection of...
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