Subhajit Ghosh & Ors vs State Of West Bengal & Ors
2024 Latest Caselaw 4717 Cal

Calcutta High Court (Appellete Side)

Subhajit Ghosh & Ors vs State Of West Bengal & Ors on 13 September, 2024

Author: Rajarshi Bharadwaj

Bench: Rajarshi Bharadwaj

                   IN THE HIGH COURT AT CALCUTTA
                  CONSTITUTIONAL WRIT JURISDICTION
                                 (Appellate Side)


Present:     THE HON'BLE JUSTICE RAJARSHI BHARADWAJ


                                         W.P.A 21916 of 2024


                                         Reserved on  : 09.09.2024
                                         Pronounced on: 13.09.2024


     Subhajit Ghosh & Ors.
                                                         ...Petitioners

                                       -Vs-


     State of West Bengal & Ors.
                                                            ...Respondents

Present:-

Mr. Rajdeep Majumdar Mr. Moyukh Mukherjee Ms. Sagnika Banerjee ... ... for the petitioners Mr. Kishore Datta, Ld. AG.

Mr. Sirsanya Bandopadhyay Mr. Ritesh Kumar Ganguly ... ... for the State

Rajarshi Bharadwaj, J:

1. Learned counsel appearing for the petitioners are students participating

in a rally titled "Nabanna Abhijan" that was organized by a student body to

protest against the inadequacy of the investigation conducted by the State

authorities concerning a heinous case of rape and murder at R. G. Kar

Medical College and Hospital, Kolkata. The petitioners were allegedly

unlawfully apprehended and detained by the Golabari police authorities at

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Howrah Railway Station on the night of August 26, 2024. Subsequently, they

were transported to Belur Police Station and were made to enter through the

rear gate. During their detention, the petitioners overheard police officials

conspiring about fabricating charges to justify their detention.

2. Notably, the petitioners' family members were informed of the detention

by Golabari Police Station at approximately 11:00 a.m. on August 27, 2024.

The father of petitioner no. 1 suspecting wrongful detention, consequently

approached the Hon'ble High Court at Calcutta through WPA No. 21763 of

2024 (Tanmoy Ghosh vs. State of West Bengal & Ors.) seeking redress for the

unlawful detention.

3. Subsequent to the writ application being filed and mentioned before this

Hon'ble Court, did the West Bengal Police issue a notification, justifying the

arrest of the petitioners based on an alleged apprehension that they might

disturb public order and compromise the safety and security of citizens.

Furthermore, no prior intimation regarding the petitioners' detention was

provided to their family members on the night of the incident. In light of the

aforementioned conduct by the police, amounting to a flagrant infringement of

the petitioners' fundamental rights to life and personal liberty, as enshrined

under Article 21 of the Constitution of India, the instant writ petition has been

filed.

4. The Learned Counsel for the petitioners categorically rejects any

suggestion of an intention to not peacefully partake in the rally on 27th August

2024, as alleged by the respondents. It is further submitted that at no

juncture were the petitioners notified of the grounds for their detention. The

respondents' claim that no other students, apart from the petitioners, were

present at Howrah Railway Station is completely and emphatically challenged.

5. Additionally, the respondents failed to present any credible evidence or

substantial information to warrant the detention or arrest of the petitioners,

therefore, have hastily detained the petitioners under Section 170 of the

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Bharatiya Nagarik Suraksha Sanhita, 2023. The actions taken by the

respondents are viewed as a calculated maneuver designed to obstruct the

petitioners from exercising their constitutionally guaranteed right to

participate in the rally. Such actions amount to harassment and unlawful

restraint, constituting a misuse of Section 170 of the Bharatiya Nagarik

Suraksha Sanhita, 2023.

6. It is contended that the procedural safeguards as stipulated under

Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023, has been grossly

violated in the present case. The arresting police officer failed to comply with

the statutory mandate by not preparing an arrest memo contemporaneously at

the time of the arrest. Furthermore, the subsequent arrest memo, which was

belatedly prepared, was attested by an individual who does not qualify as a

family member of the petitioners or a reputable person from the locality where

the arrest occurred, as required by law. Such non-compliance with mandatory

legal requirements renders the arrest unlawful and vitiates the entire process.

The failure to adhere to these procedural protections, essential for

safeguarding the constitutional rights of the accused herein the petitioners,

makes the arrest not only procedurally defective but also violative of the

established principles of criminal jurisprudence, thereby rendering it legally

untenable. It is noteworthy that the petitioners were released post-7 PM on

27th August, 2024, due to the inability of the authorities to produce

substantial evidence to justify their continued detention, further underscoring

the illegality of the arrest and subsequent procedural violations.

7. Mr. Kishore Dutta, learned Advocate General representing the

respondent authorities unequivocally refutes the petitioners' contention that

they intended to participate in the rally on 27th August 2024 in a peaceful

manner. Furthermore, the assertion that the petitioners were merely engaged

in providing refreshments to other students at Howrah Railway Station on

26th August 2024 is similarly rejected. The petitioners' claim of being detained

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without being informed of the reasons for their detention is inconsistent with

the established facts.

8. The respondents maintain that the petitioners were the only students

present at Howrah Railway Station, aside from the respondent authorities,

and no evidence supports the petitioners' claim of distributing refreshments to

other students. In view of the foregoing, it is submitted that the respondent

authorities acted within the lawful scope of their powers, and their actions,

based on credible, reliable information and having reasons to believe that the

petitioners would be involved in certain unlawful activities, thus, the

petitioners were lawfully apprehended pursuant to Section 170, Chapter XII of

the Bharatiya Nagarik Suraksha Sanhita, 2023. The procedural requirements

stipulated under Section 36, Chapter V, of the same statute are inapplicable,

as the provisions pertain to distinct chapter headings. Compliance with the

conditions enumerated in Section 170 is deemed sufficient for lawful arrest, in

accordance with the judicial precedent outlined in Ahmed Noormohmed

Bhatti v. State of Gujarat and others reported in (2005) 3 SCC 647:

"A mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest. a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. He can do so only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented. The section, therefore, expressly lays down the requirements for the exercise of the power to arrest without an order from a Magistrate and without a warrant."

9. On perusal of the documents brought before this Court and considering

the submission made on behalf of the parties, it is observed that the

petitioners were unlawfully detained by the State Police authorities on the

night of 26th August, 2024. The manner in which the detention was executed,

particularly without any justifiable grounds, demonstrates a blatant disregard

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for the established legal and constitutional safeguards. Furthermore, the

Police authorities have demonstrably failed to discharge their statutory duties

as prescribed under Section 23 of the Police Act, 1861, which mandates that:

"23. Duties of police-officers:- It shall be the duty of every police-officer promptly, to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offences to justice and to apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension sufficient ground exists; and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant to enter and inspect, any drinking-shop, gaming-house or other place of resort of loose and disorderly characters."

10. The Hon'ble High Court in Kishor and Anr. Vs. State of Maharashtra,

Through the Secretary, Home Department and Ors. reported in 2019 SCC

OnLine Bom 6639 held:

"13................The police officer may take action as per Section 151(1) of the Code of Criminal Procedure against a person, only if he has knowledge of a design of commissioning of any cognizable offence, or if it appears to him that commission of cognizable offence cannot be prevented unless preventive action is taken against the person who may commit cognizable offence. Except for the explanation given on behalf of the respondent no. 5 that two reports were registered against the petitioners, nothing is placed on record to justify the preventive action. Knowledge to the police officer of a design to commit any cognizable offence and formation of opinion by the concerned police officer that commission of cognizable offence cannot be prevented unless preventive action is taken against the proposed offender is sine qua non for taking preventive action as per Section 151(1) of the Code of Criminal Procedure. Depriving a person of his liberty guaranteed by Article 21 of the Constitution of India cannot be left to the whims and wishes of the police officer, and if it is permitted it would be conferring arbitrary and unbridled powers on the police officers/authorities. It is important to note that knowledge to the police officer about the design to commit any cognizable offence by a person has to be reflected from the record showing the details of proposed preventive action against that person. Similarly, the opinion of the police

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officer that commission of cognizable offence cannot be prevented unless preventive action as per Section 151(1) of the Code of Criminal Procedure is taken should also be reflected from the record and the action cannot be justified by stating to that effect in the reply filed before the Court."

11. In the instant case, it is abundantly clear that the police authorities

have failed to establish any "concrete knowledge or reasonable apprehension"

as mandated under Section 35(b)(i) of the Bharatiya Nagarik Suraksha

Sanhita, 2023, regarding the petitioners' involvement in any cognizable

offence, as no substantial evidence was adduced against the petitioners upon

the expiration of 24 hours, necessitating their release. The Supreme Court, in

the case of Rajender Singh Pathania and Ors. v. State (NCT of Delhi) and

Ors. reported in (2011) 13 SCC 329, has emphatically reiterated that:

"18............A mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant have been laid down in Section 151. He can do so only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented. The section, therefore, expressly lays down the requirements for exercise of the power to arrest without an order from a Magistrate and without a warrant. If these conditions are not fulfilled and, a person is arrested under Section 151 Cr.P.C, the arresting authority may be exposed to proceedings under the law for violating the fundamental rights inherent in Articles 21 and 22 of the Constitution."

12. Moreover, the failure of the police authorities to notify the petitioners'

family members immediately after their detention, coupled with the delayed

issuance of a notification justifying their arrest only after the matter was

brought before this Court, highlights a clear breach of the due process of law.

13. Furthermore, in D.K. Basu Vs. State of West Bengal reported in (1997)

1 SCC 416 certain requirements were laid down in all cases of arrest and

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detention till legal provisions were made in that behalf as preventive measures

and subsequently, Section 41B of the Code of Criminal Procedure was

introduced in 2010 by Act 41 of 2010, and is now encapsulated under Section

36 of the Bharatiya Nagarik Suraksha Sanhita, 2023 :

"35. (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the district and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her

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body, must be recorded at that time. The 'inspection memo' must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board."

14. In the present case, the procedure laid down under Section 36 was not

duly followed. Instead, an unknown individual has been made a witness to the

arrest without providing any verifiable details about their identity or status.

This clear deviation from the prescribed legal procedure renders the arrest

unlawful. The requirement of having a known and reliable witness attesting

the arrest is a crucial safeguard against arbitrary detentions and wrongful

arrests. By failing to adhere to this statutory mandate, the police have acted in

contravention of the law, undermining the fundamental rights of the

petitioners. The absence of any family member or respected local individual as

a witness, and the use of an unidentified person for attestation, raises serious

concerns about the transparency and legitimacy of the arrest. This further

strengthens the conclusion that the petitioners' arrest and detention were

executed in violation of legal procedures, and consequently, the detention

stands vitiated in law.

15. It is pertinent to note that the interpretation advanced by the

Learned Advocate General undermines a cardinal principle of statutory

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interpretation that an act must be construed as a cohesive and integrated

whole. The law does not permit individual sections to be read in isolation or

compartmentalized into distinct provisions without regard to the broader

legislative intent. Section 36 of Chapter V, which mandates that- "36. Every

police officer while making an arrest shall-- (a) bear an accurate, visible and

clear identification of his name which will facilitate easy identification; (b)

prepare a memorandum of arrest which shall be-- (i) attested by at least one

witness, who is a member of the family of the person arrested or a respectable

member of the locality where the arrest is made; (ii) countersigned by the person

arrested; and (c) inform the person arrested, unless the memorandum is

attested by a member of his family, that he has a right to have a relative or a

friend or any other person named by him to be informed of his arrest" is

inherently linked to the substantive provisions of Section 170, Chapter XII.

Section 170 specifically states, "170. (1) A police officer knowing of a design to

commit any cognizable offence may arrest, without orders from a Magistrate

and without a warrant, the person so designing, if it appears to such officer that

the commission of the offence cannot be otherwise prevented. (2) No person

arrested under sub-section (1) shall be detained in custody for a period

exceeding twenty-four hours from the time of his arrest unless his further

detention is required or authorised under any other provisions of this Sanhita or

of any other law for the time being in force." Ignoring the interplay between

these sections would lead to fragmented and inconsistent application of the

Bharatiya Nagarik Suraksha Sanhita, 2023. The statute intends to create a

coherent framework where procedural and substantive safeguards work in

tandem to protect individual rights. Therefore, the petitioners' arrest, without

adherence to the procedural protections in Section 36, violates the holistic

statutory framework intended by the legislature.

16. With the above directions, the writ petition being WPA 21916 of 2024 is

disposed of.

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17. Urgent Photostat certified copies of this judgment, if applied for, be

supplied to the parties upon fulfillment of requisite formalities.

(RAJARSHI BHARADWAJ, J)

Kolkata 13.09.2024 PA (BS)