Present : Sk. Md.

Arif Hasan Judicial Magistrate 5th Court , Bankura

GR-375/10
03/12/2014
Today is fixed for Evidence.
All the accuseds are absent by filing a petition to which Ld. APP raise objection
and submitted the same to be contemptuous material.
Hd. Considered.
Ld. APP raise serious objection against the petition on the ground that 410 Cr.
P.C application yet not filed and the third paragraph of the petition contains
contemptuous materials. He also submitted that the petition was filed purposely
to delay the case. He filed written objection to the petition also.
I would read the relevant portion of the petition. It read thus:
That in course of the Examination in chief said witness deposed in the tune that
The occurrence was taken place and night and dark as such he can't identified
any one from the huge mobs.
The said witness at that juncture stated by your Honour please go through the
161 Cr. P.C Statement Recorded by the I.O and your honour also threatened for
legal steps if he resist from his earlier statement.
Then it was said in the petition that they would file application u/s 410Cr.P.C
and for that they prayed for adjournment of this case till filing of application u/s
410 Cr. P.C even though Honble supreme court directed speedy disposal of
cases like this wherein any sitting MP is involve.
The materials of last portion of the above quoted statements which contained in
the said petition, no doubt, is a contemptuous material since it would destroy
confidence of general public from the Judiciary.
Let me go through the examination in chief so far recorded of the witness who
is an Officer of Police came to give evidence in official capacity. In the said
examination in chief the witness said that 30 to 40 assailants were abusing DTO
and both these 30 to 40 persons as well as employees of DTO office started
throwing stones to each other. Then little later the witness, who is an Officer of
Police came to give evidence in his official capacity, identified one accused
namely Bidu Sukul but when he was asked by Ld. APP to the effect that if he
could identify any other or not. Then, the accuseds were directed to stand in a
row. After such standing witness went closed to the accuseds and then he made
some astonishing statements. He said, whose name I will speak ( kar nam
bolbo). He also said: I was knowing Biru Sukul since I had seen in many
meetings and processions. Then after coming back to witness box the witness
said: since intensity of light was low at that time I could not see the culprits.
Having been came across with this situation, S.165 of Evidence Act was invoked
and I had asked two questions with regard to the already given evidence wherein
the witness made allegations against employees of DTO office also alleging that
they also thrown stones and abused the assailants. I think, I should mention why
had I invoked S.165 Evidence Act. I had invoked it because of the Judgment of
Honble Supreme court given in the Judgment reported in 1997 (6) SCC 162.
Criminal trial, their lordship said, should not turn out to be a bout or combat
between two rival sides with the Judge performing the role only of a spectator
or even an empire to pronounce finally who won the race. A Judge is expected
to actively participate in the trial, elicit necessary materials from witnesses at
the appropriate contest, which he feels necessary for reaching the correct
conclusion. There is nothing, which inhibits his power to put questions to the
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witnesses, either during chief examination or cross examination or even during

re-examination to elicit truth.
I have no hesitation, however, in saying that I can understand what sort of
pressure a Police Officer faces while prosecuting any political leader, if he or
she belongs to the party in power. In this case one of the accused happens to be
a sitting M.P of the party in power of this land. This being the situation, I could
not ignore my duty as directed in the aforesaid case. It is my duty to ascertain
the truth and if a witness for whatever reason may be try to conceal any truth or
try to screen any culprit, I would certainly not remain sited as a mere spectator;
but would invoke S.165 Evidence Act. Hence, I had invoked the same and asked
the following questions with regard to the matters said by the witness which I
did not find in his earlier statement recorded u/s 161 Cr. P.C.:
Q. have you lodged any complaint against those employees of DTO office
about whom who said in evidence to have thrown stones?
A. No.
Q. Is there any mention of abuse by employees of DTO office or stone throwing
by them in your 161 statement?
A. No.
Before the last mentioned question the witness was given opportunity to go
through his 161 statement as per S.145 Evidence Act. After this examination in
chief of the witness was resumed and thereafter the witness in his evidence
admits that his 161 statement was recorded as per his version and he had gone
through the same after its recording. Thereafter Ld. APP sought for leave to
cross examine the witness u/s 154 Evidence Act declaring him to be hostile,
which I had allowed by order dt.01-12-2014. But these facts were distorted in
the petition to make a wild allegation against the Court that as if the Court had
threatened the witness to stick with his 161 statement after handing over the
same to the witness. The manner of submissions by the Ld. Advocates were no
doubt derogatory to the dignity of Judiciary and they had many times pointed
their fingers towards the Court and was in a threatening manner and even went
on saying that the Court is personally interested in the case etc etc.
Let me give a brief description about how the case born. It had born because an
Officer of Police got injured while discharging his duty due to stone throwing
of the culprits and it was alleged in the FIR by the said police Officer that Biru
Sukul (accused no.6) and Bappa Khan (accused no.1), who is a sitting MP, are
two amongst those culprits.[see, last line of the written complaint dt. 28-05-2010
of S.I Suresh Chandra Sahoo]. Nevertheless, these allegations on the Court that
has been made in the petition and while submission are sufficient to destroy
confidence of general people from Judiciary and is sufficient to obstruct a Court
from acting without fear or favour. Let me say at once that if wild allegations
are started to be made for invoking S.165 Evidence Act and for attracting a
witnesss attention to the contradiction of his statement on dock with his earlier
statement, which he admits to have been recorded as per his version and which
he admits to have gone through the same after recording of it, the situation
would be pretty deplorable for the independence of Judiciary and its free
discharge of duty. I have no hesitation in holding that the present petition was
made purposely to create pressure on me so that I may not actively participate
in the trial as per direction of Honble Supreme Court given in 1997 (6) SCC
162 and so that I may remain sited as a mere spectator even though I could see
that a police/witness is concealing some facts or screening someone. I do not
dispute their right to approach before Appellate Court against any of my order
if they are dissatisfied with it or for getting the case be transferred from my
Court. But I do not think, they had any authority to file contemptuous petitions
in the same Court alleging wild allegations and distorting facts for making such
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allegations. Nothing could be more unfortunate for Judiciary than the allegation
that one would not get justice from a Court simply because the Court had
allowed petition for the prosecution to declare a witness to be hostile and
because the Court had invoked S.165 Evidence Act for ascertaining truth. The
accused did not stop here. They went on making false and wild allegations that
as if the court had threatened of taking legal steps against the witness, if he does
not stick with his 161 statement. And all these only because the court had
attracted attention of the witness about his contradictory statement with the
statement he made in u/s161 Cr.P.C. This be the situation, I think, the petition
dt. 03-12-2014 filed by the accuseds, is sufficient to constitute contempt of
Court.[ Dr. D.C. Saxena vs Hon'Ble The Chief Justice Of India, Judgment
dt19-07-1997]. Nevertheless, I think, the matter should be referred to Honble
High Court for its decisions if contempt proceeding should be drawn up against
the accuseds and their Ld. counsels or not. At the same time, I think, in the
present situation when such wild allegations are made against the Court, it
would be best if Honble High court please to decide u/s 407(2) Cr.P.C that
should this case be tried in my court or elsewhere.
Nevertheless, while dealing with this case, I came across with a point of law
regarding necessity of having a guideline regarding police independence from
the executive. As I already pointed out, if anyone think practically, it would not
be hard for him to understand what sort of pressure a Police Officer faces while
prosecuting an accused who is from any political party, especially if such
political party is in power. So far I know, though our Constitution mandates
independence of Judiciary from executive interference, but there is no express
direction with regard to police independence from executive. In Western
counties like U.K, the police enjoys such independence. The Judgment reported
in 1968 (1) All. E.R 763 [Experte Blackburns 1st case] gave such
independence. Lord Denning expressly said: no Minister of crown can tell him
that he must or must not, keep observation on this place or that place or that he
must or must not prosecute this man or that oneHe is
answerable to the law and to the law alone.
Nevertheless, I think, the Constitution impliedly directed such police
independence in our land also. I would of course give my reason for such
conclusion. I do not think the independence of Judiciary could be secured, unless
the police is independent from the executives. I reached to this conclusion from
the angle of Criminal Justice system. In Criminal Justice system, the police, no
doubt, plays a very vital role and is performing a corollary function with the
Courts. Take a hypothetical situation for example. Think a Criminal is being
prosecuted in a Criminal Court. Now, if the executive could influence or could
dictate the police about what would he depose in Court or whom would he
screen or would he turn hostile in witness box or not; it would not be possible
for Judiciary to do true justice and its free function would somehow or other be
obstructed. Similar is the situation with respect to S.321 Cr. P.C. If the
prosecution is of the record compelled to file withdraw petition of any Criminal
case under influence of executive, the Criminal Justice system would again be
obstructed. The Court, no doubt, would decide if such petition u/s 321 Cr. P.C
should be allowed or not; but even if the Court disallow such petition, the result
would be the same since the prosecution could very well let a particular accused
to go free by withholding the witnesses or by making the police to turn hostile
and doing the same either at the influence of executive or under its pressure.
Then think about the situation of a poor victim of crime committed by any top
leader of any political party in power. If such executive or political interference
is not removed from functioning of police and if S.321 Cr. P.C remain in force,
would such poor victim have any hope of getting justice? The answer, I think,
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would be a big NO, since the Court could do nothing until the prosecution brings
true facts before it by producing the vital witnesses and until the police do not
turn hostile under the interference of executives. This is the time, I think, police
should be made independent from executive and political interference. I do not
think, the law should allow such executive or political interference. I do not
think, this should be the policy of law which stands for protection of society
from the criminals be he belongs to any political party or not and for this
protection of society alone. I have no hesitation in holding that the police should
be independent from executive and I think the Constitution, for the reasons I
gave above, has mandated such police independence and I think, S.321 Cr. P.C
is against our Constitutional policy regarding independence of Judiciary.
Nevertheless, I cannot decide such Constitutional issues such as if police
independence is mandated in our Constitution or if S.321 Cr. P.C is ultra-virus
to our Constitution or not. The law does not authorize me to decide such
constitutional issues. It, rather, direct me to refer the same to Honble High
Court for determination. Section 395 Cr. P.C gives such direction. I would
accordingly refer the case to Honble High Court for determination of the issues
I do mention in ordering portion of this order.
At the end of the day, I do, therefore,
ORDER
that, let the petition dt. 03-12-2014 be referred to Honble Calcutta High Court
along with this order for its decision as to whether contempt proceeding should
be drawn up by it against the accuseds or not and for invoking its jurisdiction
u/s 12 of Contempt of Courts Act.
Let this case along with this order be referred to Honble Calcutta High Court
u/s 395 Cr. P.C for its decision on the following constitutional issues:
A) Should the police be independent from executive and if our Constitution
impliedly mandated such independence?
B) Is S.321 Cr. P.C is ultra-virus to the Constitution for its implied obstruction
to the course of justice and its implied obstruction to the independence of
Judiciary.
Let the case be further referred to Honble Calcutta High Court u/s 407 (2) Cr.
P.C seeking order from Honble High Court on the point that should trial of this
case be conducted in this court or should it be transferred to some other court.
The B.C-I and B.C-II are directed to comply the order.
Inform both Ld. APP as well as Ld. defence counsels.

Dictated & Corrected by me

(Sk. Md. Arif Hasan)

J.M., 5th Court , Bankura

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