Afjal Ali Sha @ Abjal Shaukat Sha vs State Of West Bengal & Ors
2023 Latest Caselaw 4159 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                                Appellate Side



Present:

The Hon'ble Justice Jay Sengupta

                            WPA 15893 of 2023
                      Afjal Ali Sha @ Abjal Shaukat Sha
                                    Versus
                         State of West Bengal & Ors.


For the petitioner              :   Mr. Sourav Chatterjee
                                    Mr. Rajdeep Majumder
                                    Mr. Moyukh Mukherjee
                                    Mr. Soumya Nag
                                    Ms. Aditya Tiwari
                                    Ms. Namrata Chatterjee
                                                             .....Advocates
For the State                   : Mr. Amitesh Banerjee
                                    Mr. Saswata Gopal Mukherjee
                                    Mr. Rudradipta Nandi
                                    Ms. Ipsita Banerjee
                                    Mr. Suddhadev Adak
                                                             .....Advocates
For the respondent no. 9        : Mr. Phiroze Edulji

Mr. Goutam Dey Mr. Dipendu Sarkar Ms. Ankita Ghosh Ms. Roshni Mukherjee .....Advocates

For the respondent no. 10 : Mr. Sukanta Chakraborty ....Advocate

Heard on : 05.07.2023, 06.07.2023 and 07.07.2023

Judgment on : 07.07.2023

Jay Sengupta, J.:

1. This is an application under Article 226 of the Constitution of India,

inter alia, praying for direction upon the respondent authorities, especially

the respondent nos. 2 and 5 to cancel the parole of the respondent no. 9, for

a direction upon the respondents, especially the respondent nos. 2, 5 and 8

to show cause as to why the disciplinary proceeding shall not be initiated for

releasing the respondent no. 9, direction upon the respondent police

authorities, especially the respondent nos. 3, 7 and 8, to provide adequate

security to the petitioner, his family members and witnesses of the case in

terms of the order dated 17.03.2023 passed by the Hon'ble Apex Court in

Transfer Petition (Criminal) 409 of 2021 and a direction upon the

respondent no. 10 to deploy Para Military Forces in Panshkura for adequate

protection of the petitioner, his family members and the witnesses of the

case.

2. Mr. Sourav Chatterjee, learned counsel appearing on behalf of the

petitioner submitted as follows. The petitioner is the brother of one Kurban

Sha (since deceased) who was brutally murdered on 07.10.2019. At the

behest of one Jawar Sha, a co-villager, Panshkura Police Station Case No.

495 dated 08.10.2019 was started under Section 302 read with Section

120B of the Penal Code and under Sections 25 and 27 of the Arms Act in

this regard. The respondent no. 9 is a prime accused in this case. He is a

dreaded criminal. According to a chart appended with the writ petition the

said respondent is an accused in at least 34 criminal cases of which some

are for murder, some for kidnapping and rape. His applications for bail in

connection with the present case was rejected by this Court at least on four

occasions. Two other applications were not pressed. After the petitioner

changed political colour, he has been treated with special favours by the

State. He could even celebrate birthday parties inside jail. The State applied

for withdrawal of prosecution against him under Section 321 of the Code.

On the very day that the matter was being heard before this Court in a writ

application, the learned Trial Court acquitted the respondent. A Single

Bench of this Court finally set aside the acquittal with caustic remarks. This

Court had termed the respondent no. 9 a history sheeter and the same was

not challenged. The Hon'ble Supreme Court, while transferring the trial of

the case to Calcutta, categorically recorded that the accused should not be

released on bail till conclusion of the trial. Yet, apparently for availing of his

services during the elections, an application was made seeking parole on the

ground of his mother's illness and on the very same day he was released on

parole. The respondent no. 9 has a brother living with his mother who can

very well take care of her. In fact, he is the owner of a medical shop.

Immediately after his release, the anti-socials owing allegiance to the

respondent no. 9 threatened one of the key witnesses who was supposed to

depose at the trial on 05.07.2023. He did not come on that day and would

possibly be able to depose on a subsequent date. Because of such threat,

the said witness lodged a complaint before the police. It is pertinent to state

that earlier a witness Imran Ali was abducted by the men of the said

respondent. As recorded by this Court the State was allowing witnesses to

turn hostile during trial without being declared to be so. The presence of the

said accused outside custody is a menace for all connected with the instant

case and would adversely affect a fair trial.

3. Mr. Amitesh Banerjee, learned senior standing counsel representing

the State, submitted as follows. The consideration for grant of parole is

distinctly different from the ones for grant of bail or for withdrawal of

prosecution under Section 321 of the Code. Parole has not been referred to

anywhere in the judgments and orders relied upon by the petitioner. In any

event, the petitioner is released on parole on being escorted by five armed

police personnel. The State has also complied with the direction of

videography of the activities of the respondent no.9 while outside his

residence as directed by this Court on 05.07.2023. The respondent no. 9

prayed for parole for five days on the ground of his mother's illness. She was

bedridden. Immediately after such he made an application, an enquiry was

made on the same date and parole was also granted on the same day. This

is in conformity with Section 62 of the West Bengal Correctional Services

Act, 1992. However, there is not a single ground on which the parole has

been challenged on merits. There is also no pleading in the writ petition as

to the documents annexed at page 140 purporting to be a complaint made

about threats received by a witness. The document referred to was sent by

email to the SP and the Police Station on 05.07.2023 itself the date on

which leave was sought to move the matter. There is no ground on which

such parole granted to the respondent no. 9 could be cancelled. The State

has provided two armed escorts for the security of the present petitioner.

4. Mr. Phiroje Edulji, learned counsel appearing on behalf of the

respondent no. 9 submitted as follows. Police and correctional service are

two different items in the State list appended to the Constitution of India.

This Court, dealing with group IX writ matters concerning the police, does

not have determination to take up matters regarding the West Bengal

Correctional Services Act, 1992. So far as the purported complaint of threats

alleged on 02.05.2023 is concerned, there was a delay of five days from the

last alleged occurrence of threats on 28.04.2023. The stories of threats

started coming only after the proceeding under Section 321 was initiated by

the State. It is also significant that the Hon'ble Supreme Court turned down

the petitioner's prayer for transferring the trial from West Bengal to

Guwahati. Quite significantly, no complaint was ever made about threats

before the Zonal Judge of this Court although there was a direction passed

by the Hon'ble Apex Court that the said Zonal Judge may monitor the trial.

There was a clear application of mind by the authority under the Act to

grant parole. The Hon'ble Supreme Court never said anything about parole.

Only the Trial Court was debarred from granting bail during trial. In fact,

there is no pleading about non-application of mind nor about the verbal

allegation that the respondent no. 9 was released on parole because of the

Panchayat elections. The petitioner may be continued to complete the parole

even on stringent conditions.

5. Mr. Sukanta Chakraborty, learned counsel representing the

respondent no. 10 relates about the difficulty of the Union of India in

providing further police personnel for protection as a number of them had

been deployed for the conduct of the elections in West Bengal. However, it is

left for the Court to decide finally on this.

6. In reply, Mr. Chatterjee, learned counsel for the petitioner submitted

as follows. The Chief of the Correctional Services and most of the senior

Officers of the service are officers of the Indian Police Service. This Bench

has the determination to deal with all police matters in group IX writ. It is

not that the petitioners and others started all allegations of threats against

the respondent no. 9 only after the State initiated a proceeding under

Section 321 of the Code. Even earlier on 03.02.2020 the Investigating Officer

of the case had lodged an FIR against the accused, inter alia, under Section

195A of the Penal Code for giving him threats. Since the writ petition had to

be filed in haste no proper pleading could be made regarding the document

annexed at page 140. But, earlier reference about threats have been

pleaded. The security provided to the petitioner is not regular.

7. I heard the learned counsels for the parties and perused the writ

petition and the documents filed on behalf of the State.

8. First, it appears from prayer (d) of the writ petition that the petitioner

has also prayed for protection of their and other witnesses' lives and

property from the respondent police authorities. The prayers are quite

inextricably intertwined. In fact, the issue of parole assumes significance

mainly on the question of security of the witnesses including the petitioner.

Therefore, this Bench has the required determination to take up the matter.

9. At the outset, I find it expedient to refer to the relevant observations of

this Court and of the Hon'ble Supreme Court while dealing with the

connected matters in respect of the instant case involving the respondent

no. 9. On 10.06.2022 a Division Bench of this Court while dismissing the

petitioner's bail application in CRM (DB) 1472 of 2022, held as under -

".....Manner in which the prosecution is sought to be jettisoned gives rise to

grave doubt with regard to the bona fides of the State in effectively

prosecuting the petitioner and the other accused persons. As noted above,

while on one hand the State chooses to support its stance of withdrawal of

prosecution, on other hand it appears to be conducting a 'lip-service' trial

wherein most witnesses have turned hostile.

An aura of fear and apprehension seems to pervade the minds of the

witnesses and the relations of the victim. In fact, Jahar Sha (informant in the

case) was constrained to withdraw himself from the writ proceeding

challenging the withdrawal of prosecution. This calls for a balancing act

between rights of victim i.e., access to justice and witness protection and the

right of the petitioner-accused under Article 21 of the Constitution of India.

In view of the painful state of affairs where the bias of the State is heavily

loaded in favour of the petitioner-accused, it would be prudent for us to tilt in

favour of protection of the witnesses and family members of the deceased and

ensure a fair and just prosecution. Hence, we are not inclined to release the

petitioner on bail......"

10. While considering the transfer petition of the present petitioner in

Transfer Petition (Criminal) No. 409 of 2021, the Hon'ble Apex Court

observed as follows -

".....33. Adverting to the facts of the case in hand in light of the principles

enunciated by this Court from time to time, it is true that the State of West

Bengal has taken a complete u-turn with a view to help the main accused,

namely, respondent no. 2 and it went to the extent of resorting to its powers

under Section 321 of Cr.PC to withdraw the prosecution itself. A plain reading

of Section 321, Cr.PC leaves no room to doubt that it is the Public Prosecutor

in-charge of the case who has to apply his mind independently and

impartially to form a view for withdrawal from the prosecution with the

consent of the Court. The procedure followed in the case in hand was

completely alien to the scheme of Section 321, Cr.PC as the decision to

withdraw prosecution was taken at the level of the State Government and the

Public Prosecutor was merely asked to act upon the said Government

notification. The Link Judge also showed tearing hurry in accepting the

application of the Public Prosecutor and permitting withdrawal from

prosecution even before the date when the case was listed for prosecution

evidence....."

Thereafter, the Hon'ble Supreme Court went on to hold that the present

respondent no. 9, having regard to the criminal antecedecents, as well as

the other accused who were in custody, shall not be enlarged on bail till the

conclusion of trial save except by High Court.

11. From the above, it is evident that the reason behind keeping the

respondent no. 9 in custody was that then a fair trial could take place.

Therefore, the same principle should have been taken into consideration

while granting parole. It would be rather naive to contend that merely the

difference between considerations for grant of bail and for grant of parole is

going to determine the present lis. The spirit of the above referred directions

were given a complete go-by while granting parole.

12. Now, let us see what is the requirement for granting parole to such an

undertrial for this. The relevant portion of Section 62 of the West Bengal

Correctional Act is quoted as under -

".....Section 62. (3) Notwithstanding anything contained in sub-section (1) or

sub-section (2), the Inspector General of Correctional Services may grant

release of any prisoner for a period not exceeding five days in case of any

emergency, such as serious illness of his near relative or friend or marriage of

his son, daughter, brother or sister or funeral of his near relative or friend or

son or daughter or brother or sister or any ceremony in which his participation

according to the prevalent custom is essential:

Provided that if the release of a prisoner is immediately necessary on parole

in case of any emergency as aforesaid, the Superintendent may subject to

ratification by the Inspector General of Correctional Services, release such

prisoner for a period not exceeding five days as may be considered necessary,

and may requisition police escort for the prisoner during the period of such

release and, in such case, the execution of any bond or the furnishing of any

surety shall not be necessary....."

13. Here, the instant case 'serious illness' of a near relative was invoked

for grant of parole to the respondent no. 9. However, there was hardly any

effort made for establishing or ascertaining the seriousness of the ailment.

There is nothing on record to indicate either what illness the respondent's

mother was suffering from or any medical prescription or opinion being

taken into consideration for this.

14. An application for parole was made on 03.07.2023, a purported

enquiry took place on the same day and on the very same day an order was

passed directing release of the petitioner on parole.

15. This is very exceptional indeed.

16. It is true that in case of demise of relatives, even a lethargic

bureaucracy often pulls up its sleeves and manages to grant parole on the

same day as when an application is made. But, the same being done in case

of a purported illness of a relative is indeed very rare.

17. It is also quite surprising that the petitioner is released on parole few

days before the ensuing Panchayat elections. A prisoner like him who has at

least 34 serious cases pending against him is ideally not to be released at

such vulnerable time. After assessing the situation and the criticality of

illness of the relative, the parole could have been postponed till after the

election. In fact, it is a practice to detain history sheeters and trouble

makers before such events if required. One fails to understand as to what

could be the very very special reason for the Administration to release the

present petitioner on parole immediately before the Panchayat elections.

18. Thus, the process of decision making in this regard and resultant

decision are suspicious, inchoate and bad in law.

19. It is another thing that with the turn of events, the respondent no. 9

has already been able to utilise nearby three days of parole out of five days

granted.

20. Be that as it may, in view of the above discussions, I am inclined to

set aside the order granting parole.

21. It is further evident from the above facts that the respondents need to

take prompt action to comply with the order passed by the Hon'ble Supreme

Court in the transfer petition, especially in respect of protection of

witnesses.

22. In view of the above and in the interest of justice, I dispose of the writ

application by passing the following directions -

(i) the order granting parole to the respondent no. 9 is set aside. The

respondents shall immediately transfer him to the correctional home.

(ii) during the respondent authorities shall continue to provide security to

the petitioner of two armed police personnel, henceforth with utmost

regularity.

(iii) the respondent authorities shall take immediate steps to comply with

the directions of the Hon'ble Apex Court regarding security of the other

witnesses and in the event a breach or violation is caused by any of the

accused or their associates, take immediate steps in accordance with law.

23. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

24. Let the order be communicated to the ADG & IG of the Correctional

Services forthwith.

(Jay Sengupta, J.)

Later

25. At this stage, learned counsel for the State prays for a stay of the

order passed.

26. The prayer is considered and is rejected.

27. Let this be treated as a part of the judgment passed earlier.

(Jay Sengupta, J.)

S.M