Calcutta High Court (Appellete Side)
Sankar Prasad Bhowmick & Ors vs State Of West Bengal & Ors on 4 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 7
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Gaurang Kanth
M. A. T. 2261 of 2023
(CAN 1 of 2023)
Sankar Prasad Bhowmick & Ors.
-Vs-
State of West Bengal & Ors.
For the Appellants : Mr. Surojit Nath Mitra, Sr. Adv.
Mr. Atarup Banerjee, Adv.
Mr. Rajdeep Pramanik, Adv.
Mr. Atreya Chakraborty, Adv.
Mr. Arka Roy, Adv.
For the Respondent : Mr. Bikash Ranjan Bhattacharya, Sr. Adv.
Nos.10 to 21 Mr. Firdous Samim, Adv.
Ms. Gopa Biswas, Adv.
Ms. Payel Shome, Adv.
For the Respondent : Mr. Mrityunjoy Chatterjee, Adv.
No.18 Mr. Manas Das, Adv.
Mr. Debapriya Majumder, Adv.
For the State : Mr. Pantu Deb Roy, ld. A.G.P.
Mr. Subrata Guha Biswas, Adv.
Heard on : 02.09.2024 & 04.09.2024
Judgment on : 04.09.2024
Joymalya Bagchi, J. :-
1. An unholy nexus between civic administration and a political
group has degenerated the election to the post of Pradhan into a one-
sided charade.
2. Factual matrix giving rise to the imbroglio is as follows :-
3. During the Panchayat election in 2023, twenty-three candidates
were elected to Sitalpur Gram Panchayat. Eleven of them belonged to 'All
India Trinamool Congress' (AITC) and twelve belonged to other political
parties. The post of Pradhan in the said Panchayat is in the reserved
category. Only one candidate i.e. appellant no.5 out of the elected
members of AITC was from the reserved category and respondent no.21
(out of eleven candidates elected from other political parties) belonged to
the said category. Consequentially, only these two candidates viz.
appellant no.5 and respondent no.21 were eligible to contest for the post
of Pradhan. On 11.08.2023 date was fixed for the election of Pradhan.
4. On the fateful day of election, all the elected members including
appellant no.5 and respondent no.21 assembled at the Panchayat office.
However, prior to the election respondent no.21 was arrested by police in
connection with a criminal case being Nandakumar Police Station Case
No.242 of 2023 dated 05.07.2023 under Sections
341/323/324/325/307/380/427/506/34 of the Indian Penal Code. It is
alleged respondent no.21 and his associates resisted the arrest, assaulted
police personnel and burnt police vehicles. Another criminal case being
Nandakumar Police Station Case No.304 of 2023 dated 11.08.2023 under
Sections 147/148/149/186/188/189/353/332/307/427/506/34 of the
Indian Penal Code, Sections 3/4 of the Prevention of Damage to Public
Property Act, 1984 and Section 9 of the Maintenance of Public Order Act,
1972 was also registered. As respondent no.21 had been arrested, he was
unable to offer himself as a candidate for the post of Pradhan and
appellant no.5 was elected uncontested. The election conducted under
such strange and oppressive circumstances has been challenged in the
writ petition.
5. During hearing of the writ petition, affidavits were filed by the
Officer-in-charge, Nandakumar Police Station justifying the arrest of
respondent no.21 and respondent no.8 i.e. Block Development Officer,
Nandakumar Block, Purba Medinipur with regard to the circumstances in
which he proceeded to conduct the election to the post of Pradhan.
6. In the affidavit filed by the Officer-in-charge, Nandakumar Police
Station it is stated on 11.08.2023 Sub-Divisional Magistrate, Tamluk had
issued an order under Section 144 of the Code of Criminal Procedure to
maintain peace and tranquillity at Sitalpur Gram Panchayat. One Biswajit
Mondal, Sub-Inspector of Police and other officers had gone to the
Panchayat office for promulgation of the said order. At that time another
Sub-Inspector viz. Ravi Grahikar (Investigating Officer of Nandakumar
Police Station Case No.242 of 2023 dated 05.07.2023) informed Biswajit
Mondal that respondent no.21 was roaming near the Panchayat office.
Biswajit Mondal proceeded to confront respondent no.21 which gave rise
to violent protest, assault on police personnel and damage to public
property. Respondent no.21 was arrested from the spot and a separate
criminal case being Nandakumar Police Station Case No.304 of 2023
dated 11.08.2023 under Sections 147/148/149/186/188/189/353/332/
307/427/506/34 of the Indian Penal Code, Sections 3/4 of the
Prevention of Damage to Public Property Act, 1984 and Section 9 of the
Maintenance of Public Order Act, 1972 was registered.
7. Affidavit of Block Development Officer is completely silent with
regard to the alleged mayhem unleashed by respondent no.21 and his
associates at the time of arrest infront of and/or at the Panchayat office.
His affidavit merely states that the meeting for electing Pradhan and Upa-
Pradhan was held at the Panchayat office on 11.08.2023 at 11.00 A.M. as
per law. Twenty-two elected members were present and Form-3 i.e.
declaration of candidates were distributed to them. But eleven members
did not submit their forms and left the venue. Since eleven members
remained at the venue which constituted quorum, Block Development
Officer, Nandakumar Block proceeded to conduct the election to the post
of Pradhan/Upa-Pradhan and appellant no.5 came to be elected
uncontested.
8. Hon'ble Single Judge after considering the reports came to a
finding that the arrest of respondent no.21 was unjustified and mala fide.
As he was illegally prevented from participating in the election process,
the Judge declared the election null and void and directed fresh election
to be held.
9. During pendency of the appeal, re-election was held on
28.11.2023 and respondent no.21 was returned as the elected candidate.
10. Mr. Surojit Nath Mitra, learned senior Advocate with Mr. Atarup
Banerjee argues there was no illegality and/or irregularity in the election
process to the post of Pradhan. Respondent no.21 had not offered himself
as a candidate. There is no averment in the writ petition that he intended
to contest the election for the post of Pradhan. It cannot be said his arrest
near the venue had in any way influenced the result of the election
process. Accordingly, it is prayed that order under challenge be set aside.
11. In reply, Mr. Bikash Ranjan Bhattacharya, learned senior
Advocate with Mr. Firdous Samim argues the arrest of respondent no.21
from the election venue was arbitrary, illegal and mala fide. It was
engineered to deprive the said respondent of his valuable right to
participate in the election process by offering himself as a candidate to
the post of Pradhan. As respondent no.21 had been illegally arrested and
removed from the venue, uncontested election of appellant no.5 to the
post of Pradhan in the reserved category became a foregone conclusion.
Under such circumstances, Hon'ble Single Judge was justified in
nullifying the election and directing re-election. They submit this court
may declare respondent no.21 as Pradhan in terms of re-election held
during pendency of the appeal.
12. Mr. Pantu Deb Roy, learned Additional Government Pleader
submits FIR was registered against respondent no.21 and others on
05.07.2023. In the FIR it was alleged respondent no.21 had assaulted the
complainant with a knife on the forehead. He was absconding for more
than a month and as per secret information he was apprehended from the
Panchayat office. During apprehension he and his associates assaulted
police personnel and damaged public property. A separate criminal case
was registered. It cannot be said that arrest was unjustified or mala fide.
13. In light of the aforesaid submissions, the following issues fall for
consideration :-
(i) Whether the arrest of respondent no.21 on the day of
election from the election venue was unjustified and
mala fide?
(ii) If so, whether it impacted the uncontested election of
appellant no.5 to the post of Pradhan?
14. In order to adjudicate the first issue we called upon Mr. Deb Roy
to produce the case diary in connection with Nandakumar Police Station
Case No.242 of 2023 dated 05.07.2023.
15. We have perused the materials in the case diary including the
statement of the complainant/victim and the injury report. The injury
report discloses a simple injury.
16. We are mindful that nature of injury per se may not be a
determining factor with regard to invoking graver offence under Section
307 IPC. However, we note a Hon'ble Coordinate Bench while dealing with
the application for anticipatory bail of the co-accused had, inter alia,
expressed prima facie doubt whether the offence under Section 307 IPC
was disclosed or not. In light of such observation, one may safely
conclude citing the offence under Section 307 IPC in the FIR was to add a
sinister hue which was lacking in the factual matrix of the case.
17. That apart, other offences apart from offence under Sections
324/380 of the Indian Penal Code in the FIR are bailable. However,
scanning the FIR and statements of witnesses we do not find any list of
articles disclosed therein which were stolen attracting Section 380 IPC.
With regard to Section 324 IPC, we are of the view nature of the offence
may not require arrest and detention for progress of investigation.
18. No doubt arrest is a power concomitant to investigation. However,
existence of such power does not justify its wanton exercise in every case.
In this regard one may refer to the Shakespearian quote '...it is excellent to
have a giant's strength, but it is tyrannous to use it like a giant'1.
19. Investigating Officer appears to have exercised overzealousness in
arresting respondent no.21 in connection with the aforesaid case wherein
uncontroverted materials do not justify such aggressive course of action.
More so, arrest was made at a very crucial moment when respondent
no.21 had assembled with other elected members to participate in the
democratic process to elect the Pradhan. He was the only other candidate
Measure for Measure (Act 2, Scene 2)
apart from appellant no.5 who could have offered himself for the said
election. Arresting respondent no.21 at that crucial moment clearly
divulges a malicious and mala fide motive to abuse the power of arrest
and thereby frustrate the level playing field in the election process.
20. It has also been argued respondent no.21 was evading arrest. It
may not be out of place to record after the FIR was registered on
05.07.2023, election to the Gram Panchayat was held on 08.07.2023 and
results were declared on 11.07.2023. Respondent no.21 participated in
the election and was always available to the Investigating Agency.
Thereafter, on 01.08.2023 respondent no.21 and other co-accused named
in the aforesaid case had applied for anticipatory bail which was pending
before this court when the police officers arrested him from the Panchayat
office on the day of election. These circumstances improbabilise the
police's case that respondent no.21 was absconding and could only be
traced on 11.08.2023 at the Panchayat office where he was present to
participate in the election to the post of Pradhan.
21. The other issue with regard to resistance to arrest by respondent
no.21 also requires to be taken with a pinch of salt.
22. There is no whisper in the affidavit filed by the Block Development
Officer that respondent no.21 or his associates had created a law and
order situation, assaulted police or burnt police vehicles at the spot.
These facts only appear in the affidavit of the Officer-in-charge,
Nandakumar Police Station who registered another FIR being
Nandakumar Police Station Case No.304 of 2023 dated 11.08.2023. It is
most significant to note while respondent no.21 was arrested in the
earlier case, he was not shown arrested in the subsequent case involving
resistance to arrest, assault on police personnel and damaging public
property on the same day. After a lapse of eight days on 19.08.2023 he
was shown arrested in the said case.
23. In light of the aforesaid discussion, we are of the opinion arrest of
respondent no.21 in connection with Nandakumar Police Station Case
No.242 of 2023 dated 05.07.2023 on the date of election to the post of
Pradhan was wholly unjustified and was engineered not for the purpose of
investigation but to deprive him of an opportunity to offer himself as the
other alternative candidate to appellant no.5 to the post of Pradhan.
Accordingly, issue (i) is answered in the affirmative.
24. Facts and circumstances show respondent no.21 had already been
arrested before the declaration form i.e. Form-3 was distributed by the
Block Development Officer amongst the elected candidates. As a result, he
could not offer himself as a candidate to the post of Pradhan. In the writ
petition, the petitioners including respondent no.21 have averred the
illegal arrest had interfered with their democratic right to participate in
the election to the post of Pradhan. A democratic right to participate in
the election process includes the right to offer their nominee as a
candidate for election. Accordingly, we are unable to subscribe to Mr.
Mitra that belatedly respondent no.21 and other respondents/writ
petitioners had made out a new case that they proposed to recommend
respondent no.21 as a candidate to the post of Pradhan.
25. In this backdrop, there is no escape from the conclusion that the
unjustified and mala fide arrest of respondent no.21 from the election
venue had prejudiced his democratic right to offer himself as a candidate
to the post of Pradhan. Consequentially, appellant no.5 was elected to the
post unopposed.
26. Where a level playing field has been skewed by arbitrary and
unjustified arrest of a potential candidate who was thereby prevented
from contesting the election, issue (ii) is answered in favour of the writ
petitioners/respondents and nullifying the election result is wholly
justified.
27. Accordingly, we uphold the order of the Hon'ble Single Judge.
28. We are informed during the pendency of the appeal, fresh election
to the post of Pradhan had been held and respondent no.21 has been
elected to the said post.
29. In light of the subsequent development, we direct the appropriate
authorities shall act in terms of the result of the election held on
28.11.2023 and declare respondent no.21 as the Pradhan of the Gram
Panchayat.
30. With this direction, appeal is dismissed.
31. In view of dismissal of the appeal, connected application being
CAN 1 of 2023 is also disposed of.
32. There shall be no order as to costs.
33. Photostat certified copy of this judgment, if applied for, be given to
the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
akd
