Calcutta High Court (Appellete Side)
Md. Sahrukh @ Sarukh vs State Of West Bengal & Ors on 30 August, 2023
4
30.08.2023
ssi
Ct 14 WPA 21188 of 2023
Md. Sahrukh @ Sarukh
-vs-
State of West Bengal & ors.
Mr. Moyukh Mukherjee
Mr. Abhijit Singh
Mr. Avijit Dev
....for the petitioner
Mr. Arun Kumar Maiti
Mr. Debapriya Samanta
...for the respondent no.6
Mr. Amal Kr. Sen
Mr. Lal Mohan Basu
...for the State
Learned counsel appearing on behalf of the petitioner
submits as follows. The petitioner was a member of the Wakf
Board. The petitioner raised an objection to a Muslim
crematorium being handed over for development to
promoters. The local land grabbers are hand in gloves with
the Titagarh Police Station. This prompted the local land
grabbers in collusion with the local police authorities to
frame the petitioner in false cases. Earlier, there was an
attempt to frame him in a case where it was alleged that
petitioner was involved in such offences involving
commercial quantity of codeine phosphate in 2019. He got
an acquittal in that case in 2020. Again the police had made
effort to falsely implicate the petitioner. The petitioner was
sitting in his shop on 19.11.2022, when a white colored
police car came and picked him up at 5.56 PM. This is
evident from CCTV footages available from the CCTV at the
shop and outside. He was, thereafter, taken to and made to
wait at the Titagarh Police Station, which is near AP Debi
Road. The petitioner had made a facebook live while he was
sitting at the police station. At about 9 PM, his mobile
phone was taken away. But, no seizure list was provided.
Supposedly, the phone remains with the police. After this,
the police made out a case that the petitioner was arrested
from the Kelvin Math, which is about 10(ten) minutes away
from the police station. This issue was taken up before this
Court after the petitioner's bail application was rejected by
the learned Session Judge. By an order dated 08.06.2023
passed by this Court in WPA 4022 of 2023, the order
rejecting bail was set aside and the learned Session Judge
was asked to consider the bail prayer afresh after going
through the CDR records, the CCTV footages and the like.
The question of investigation by another agency was not
decided then. The learned Session Judge did not appreciate
the facts in the proper prospective. First, he came to a
perverse finding that the Titagarh Police Station was not
near AP Debi Road. This is in direct contradiction with what
was held by a Co-ordinate Bench of this Court on
25.04.2023 in WPA 7882 of 2022. If a person is at such
police station, the tower location would show near AP Debi
Road. Secondly, no real effort was made to have the
petitioner identified from the CCTV footage. If necessary, the
footage could have been sent to an expert. This has
prompted the petitioner to approach the Court again. In
such circumstances, the petitioner reiterates its prayer for
transfer of investigation. Incidentally, in the said judgment
dated 25.04.2023 passed by this Court in WPA 7882 of
2022, the Court awarded compensation of Rs. 2 lakhs to the
family of the accused victim for the illegalities committed by
the police officers of the Titagarh Police Station in falsely
framing a person under the NDPS Act. The signature of the
accused in the seizure list and the arrest memo appear to be
completely different.
Learned senior counsel representing the State submits
as follows. The present writ petition is hit by the principles of
res judicata as the prayer for transfer of investigation made
by the petitioner in the earlier writ petition had been
effectively turned down. A proceeding has reached very
mature stage for the trial to began. At this stage, an
interference by this Court would jeopardize the whole effort
of the Investigating Agency. The averment of facts have also
remained the same in the two writ petitions.
The facts averred by the petitioner would obviously be
the same uptill a point in the two writ petitions because the
present writ petition only challenges an order that was
passed subsequently. Since a subsequent order has been
challenged, it cannot be said that the writ petition is hit by
res judicata.
It appears that the petitioner's intention is not just to
challenge the rejection of bail. In such event, the petitioner
could have filed a fresh bail application before the High
Court. It appears that the petitioner is more concerned with
the purported wrong findings made while deciding the bail
application.
One error is apparent in the impugned order where it
was held to the contrary to what was laid down by Co-
ordinate Bench of this Court on 25.04.2023 in WPA 7882 of
2022 that Titagarh Police Station is in the same area as AP
Debi Road.
It needs to be seen whether the learned Session Judge
also erred in not finding out whether the person who was
picked up from near the shop of the petitioner by the police
on the particular day was the petitioner himself or not.
The actions of the police officers appear to be suspect
in the facts and circumstances of the case, particularly if
read with the earlier acts as discussed in the judgment dated
25.04.2023 passed in WPA 7882 of 2022.
It is rather strange that the Investigating Agency had
purportedly completed its investigation without having a
CCTV footage tested by a Forensic Agency.
The present matter needs to be heard at length.
Let the State file an opposition within a fortnight from
this date.
Reply, if any, shall be filed within a week therefrom.
List this matter for hearing under the heading "To Be
Mentioned" on 25.09.2023.
The CCTV footage of the police station on and from
19.11.2022 to 20.11.2022 shall be preserved by the
respondent authorities.
Urgent photostat certified copies of this order may be
delivered to the learned Advocates for the parties, if applied
for, upon compliance of all formalities.
(Jay Sengupta, J.)
