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1997 Supreme(Cal) 19
HIGH COURT OF CALCUTTA
Dibyendu Bhusan Dutta, J.
Rashid Khan alias Md. Rashid
vs.
State
Decided on : January 14, 1997
Advocate Appeared:
Milan Mukherjee, Subir Ganguly for the petitioner;
Sudipta Moita, Swapan Mallick for the opposite party.
The period of detention in one case can be set off against the sentence in another case if the accused was not formally detained in the second case due to the negligence of the authorities and for no fault of his own.
Headnote:
CRIMINAL PROCEDURE - SECTION 428 - SET OFF OF PERIOD OF DETENTION - APPLICABILITY - CONDITIONS - INTERPRETATION - WEST BENGAL GAMBLING AND PRIZE COMPETITION ACT, 1957 - SECTION 3 - OFFENCE UNDER - PUNISHMENT - IMPRISONMENT AND FINE - SET OFF - ENTITLEMENT - CONSIDERATION - PREMATURE STAGE - TRIAL COURT'S JURISDICTION.
Fact of the Case:
The petitioner was arrested in connection with two cases. In the first case, he obtained anticipatory bail but was arrested in the second case and remained in custody. The investigating agency in the first case submitted a challan seeking his production warrant. However, the Magistrate declared him an absconder and issued a non-bailable warrant of arrest. The petitioner was eventually produced before the Magistrate on the basis of a production warrant issued in connection with the second case. He challenged the legality of the Magistrate's orders and sought to quash the proceedings in the first case, arguing that the period of his detention in the second case should be set off against the sentence in the first case.
Finding of the Court:
The court held that the Magistrate's orders for issuance of warrant of arrest and proclamation were not legally sustainable but that did not warrant quashing the cognizance or the trial. The court relied on the Supreme Court decision in Government of A.P. vs. A.v. Rao and the Allahabad High Court decision in Shabbu vs. State of U.P. to hold that the period of detention in the second case could be deemed to be detention for the purposes of the first case, as the petitioner was not formally detained in the first case due to the negligence of the authorities. However, the court found that the question of set off was premature and could not be legally considered at that stage, as the trial was still ongoing and the petitioner might be acquitted.
Issues: 1. Whether the Magistrate's orders for issuance of warrant of arrest and proclamation were legally sustainable. 2. Whether the period of detention in the second case could be set off against the sentence in the first case. 3. Whether the question of set off could be considered at the premature stage of the trial.
Ratio Decidendi: 1. The court held that the Magistrate's orders for issuance of warrant of arrest and proclamation were not legally sustainable as they were passed without proper application of mind and without considering the fact that the petitioner was in custody in connection with the second case. 2. The court relied on the Supreme Court and Allahabad High Court decisions to hold that the period of detention in the second case could be deemed to be detention for the purposes of the first case, as the petitioner was not formally detained in the first case due to the negligence of the authorities. 3. The court found that the question of set off was premature and could not be legally considered at that stage, as the trial was still ongoing and the petitioner might be acquitted.
Final Decision: The court dismissed the petitioner's application under Section 482 of the Code of Criminal Procedure, 1973, holding that there was no sufficient ground to quash the impugned proceeding and that the question of set off was premature.
Dibyendu Bhusan Dutta, J.
1. Bowbazar P.S. Case No. 401 dated 13.12.92 under Ss. 3 and 4 of the West Bengal Gambling and Prize Competition Act, 1957 was registered against as many as 34 persons including the petitioner. The petitioner obtained an anticipatory bail from the Court of Chief Judge, City Civil and Sessions Court, Calcutta, on 12.1.93. in connexion with that case. Subsequently on 17.3.93, the petitioner was arrested in connexion with another case of Bowbazar P.S. being No. 84 under Ss. 120B/436/326/307/302 of Indian Penal Code, Ss. 3 and 4 of Explosive Substance Act and TADA Act 1993 and since then the petitioner has been in custody. After completion of the investigation of the earlier case, that is to say, the Case No. 401 challan was submitted on 22.7.93 against the petitioner under s. 3 of the West Bengal Gambling and Prize Competition Act. In the said challan the investigating agency prayed for issuance of production warrant against the petitioner for coming his production in connexion with the said case, stating categorically the fact that he was arrested on 17.3.93 in connexion with the latter case (Case No. 84 dated 17.3.93) and was lodged in Central Jail. But the ld. Magistrate while taking cognizance on the basis of the said challan, by his order dated 22.7.93, declared the petitioner to be an absconder and issued warrant of arrest against him. On 3.12.93, the warrant of arrest returned unexecuted and the Id. Magistrate issued proclamation against the petitioner. On 7.2.94 and 22.4.94 it was detected that proclamation was not actually issued for want of prescribed form. On 22.8.94, fresh warrant was issued against the petitioner and when the warrant of arrest returned unexecuted on 25.11.94 with a report that the petitioner had been lodged in the Central Jail in connexion with the latter case referred to above, the ld. Magistrate issued production warrant and on the basis of this production warrant, the petitioner was produced before the Ld. Magistrate in connexion with the earlier case only on 14.2.95. On 14.12.95, charge was framed against the petitioner under s. 3 of the West Bengal Gambling and Prize Competition Act and the petitioner pleaded not guilty. Thereafter, several witnesses have been examined and the concerned proceeding being G.R. Case No.7 of1993 is now pending trial before the 7th Court of Metropolitan Magistrate, Calcutta.
The petitioner, on filing the instant application under s. 482 of the Code of Criminal Procedure, 1973 has prayed for quashing the said proceeding.
Virtually, two grounds were urged on behalf of the petitioner for quashing the proceeding.
2. First, it is urged that the orders of the Id. Magistrate for issuance of warrant of arrest as well as proclamation were bad and illegal and by reason of such illegality itself, the proceeding is liable to be quashed. The second ground that has been urged on behalf of the petitioner may be elaborated as follows. Had the ld. Magistrate applied his mind to the challan that was submitted on 22.7.93, he would have no other alternative than to issue a production warrant for causing production of the petitioner from the Central Jail in which he was stated to have been lodged in connexion with the other case No. 84 dated 17.3.93. Had production warrant been issued by the Magistrate on 22.7.93, the date on which he took cognizance, the petitioner would have been produced before the Magistrate within a short period from that date and would have been shown arrested and detained in connexion with this case. But, because of non-application of mind on the part of the ld. Magistrate and for no fault on the part of the petitioner, instead of production warrant the ld. Magistrate ordered issuance of warrant of arrest despite the categorical disclosure in the challan to the effect that the petitioner was lodged in the Central Jail in connexion with Bowbazar P.S. Case No. 84 dated 17.3.93. This mistake was multiplied by subsequent orders for issu
