Jitendra Narain v. The State (Ut Of Andaman And Nicobar Islands)

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WPA(H)/2/2022 Jitendra Narain ... Petitioner Vs.

The State (U.T of Andaman and Nicobar Islands) .....Respondent With CRM(A)/5/2022 Jitendra Narain ... Petitioner Vs.

The State (U.T of Andaman and Nicobar Islands) .....Respondent Mr. Deep Chaim Kabir Mr. S.Ajith Prasad ... for the petitioner Mr. Sumit Karmakar Mr. S.C.Mishra ... for the State Mr. Arul Prasanth Mr P.C.Das (through VC) ... for the private respondent November 16, 2022 [SR] Item Nos. 20 & 21 Party/parties is/are represented in the order of their name/names as printed above in the cause title. The two petitions - one in the nature of Habeas Corpus and the another in the nature of an application for anticipatory bail - being respectively WPA(H)/2/2022 and CRM(A)/ 5/2022 are taken up for analogous consideration. The petitioner in both the petitions is common and so are the respondents.

Mr. Deep Chaim Kabir, Learned Counsel and Mr. S.Ajith Prasad, Learned Counsel, appear for the petitioner. Mr. Arul Prasanth, Learned Counsel and Mr. P.C.Das, Learned Counsel, appear for the private respondent/defacto complainant in both the petitions. Mr. Sumit Karmakar, Learned Counsel appears with Mr. S.C.Mishra, Learned Counsel, for the Prosecution and together with the de facto complainant raise the point of lack of maintainability of both the petitions.

On the lack maintainability of the two applications, it is submitted by the respondents that after a series of ligation instituted by the petitioner, who is the accused in Aberdeen P.S Case No.165 of 2022 dated 1st October, 2022 under sections 376(D)/228A/506/ 120 B of the Indian Penal Code, his application for anticipatory bail was rejected by the learned Sessions Court at Port Blair on the 10th of November, 2022. Immediately thereafter the petitioner was taken into custody. In view of the present custodial detention of the petitioner, it is submitted that neither a prayer for Habeas Corpus nor a prayer for anticipatory bail are now maintainable before this Court.

In this connection, both the Learned Counsel for the respondents take this Court to several Orders passed by the learned Sessions Court, the Vacation Bench of the Hon'ble High Court at Calcutta, a concurrent Order of the Hon'ble

Division Bench sitting in Circuit at Andaman and Nicobar Islands and the Order of the Hon'ble Apex Court. Mr.

Kabir, Learned Counsel appearing for the petitioner, submits that both the petitions are maintainable for the sole reason that the Hon'ble High Court at Calcutta sitting in Vacation by Order dated 21st of October, 2022, never abdicated its jurisdiction to consider the status of the petitioner to be on bail notwithstanding the subsequent Orders passed by the other Courts. In this connection, Learned Counsel further submits that by the Order dated 21st October, 2022, the Hon'ble Division Bench of the Hon'ble High Court at Calcutta sitting in Vacation granted the petitioner as well as the Prosecution an opportunity to place the matter before the Hon'ble Circuit Bench physically sitting and available in the Andaman and Nicobar Islands on the 14th of November, 2022. While directing so, the Hon'ble Division Bench at Calcutta was pleased to grant the petitioner interim protection from arrest till the 14th of November, 2022.

Mr.Kabir points out that thereafter by the Order dated 7th November, 2022, on a challenge thrown to the Order of the Vacation Bench dated 21st October, 2022 (supra) by the de facto complainant, the Hon'ble Apex Court directed the parties to approach the appropriate jurisdictional Court on and by 9th November, 2022.

It is the stand of the petitioner that by the Order dated 7th November, 2022, the Hon'ble Apex Court did not set aside and/or interfere with the interim protection of personal liberty granted in favour of the petitioner till 14th November, 2022 by the Hon'ble Vacation Bench at Calcutta. It is, therefore, submitted that the arrest of the petitioner on 10th November, 2022 even before the date fixed by the Hon'ble Vacation Bench for placing the matter next before the physically available Circuit Bench on 14th November, 2022, is an illegal detention and liable to be set aside by appropriate Orders prayed for in the application for a Writ of Habeas Corpus.

Relying on judicial authorities, it is argued that even in the event the prayer for a Writ of Habeas Corpus is found not to be technically acceptable by this Court, this Court exercising jurisdiction under Article 226 of the Constitution of India is constitutionally empowered to deal with any illegality fettering the liberty of the petitioner. Having closely heard the parties and considering the materials placed, the attention of this Court is drawn to the language of the Order dated 7th November, 2022 of the Hon'ble Apex Court. By the said Order, it is noticed by this Court that the Hon' ble Apex Court, while directing the respondent no.2/i.e. the present petitioner to make an application before the jurisdictional Sessions Court on 9th November, 2022, was further pleased to direct that the

Order impugned of the Vacation Bench of Calcutta dated the 21st of October, 2022 stood accordingly modified. Notwithstanding the detailed interpretative exercise undertaken by the Learned Counsel for the petitioner, this Court feels compelled to recognize the settled judicial position that an Order of Court being modified by a Superior Court requires to be holistically understood. The modification of the Order passed by the Vacation Bench at Calcutta on 21st October, 2022 by the Hon'ble Apex Court on the 7th of November, 2022 in the language and the manner as quoted above, does not persuade this Court to hold that the modification could be only in part by allowing the petitioner to approach the learned Sessions Court and granting the Sessions Court the obligation to hear and decide the issue within two days thereafter in accordance with law and, at the same time, keep the direction of the Hon'ble Vacation Bench dated 21st October, 2022 extending the interim protection of liberty to the petitioner till 14th November, 2022 to be alive.

It is also to be noticed from the Order of the Hon' ble Apex Court dated 7th November, 2022 that the parties were permitted to keep all their contentions open to be placed before the jurisdictional Sessions Court.

It is also brought to the notice of this Court that the learned Sessions Court has since heard the prayer of the

petitioner for anticipatory bail and rejected the same by a detailed Order dated 10th November, 2022.

The judicial authorities further relied upon by Mr. Kabir, Learned Counsel, on the Doctrine of Merger do not inspire this court to take a view contrary to the discussion as recorded above.

It is also not lost upon this Court that following the Order of the Hon'ble Apex Court on the 7th of November, 2022, the petitioner did apply before the learned Sessions Court for anticipatory bail, being Misc. Case No.87 of 2022, which stood dismissed.

In the backdrop of the above discussion, this Court is not ad idem with Mr. Kabir that a case of illegal detention of the petitioner has been made out. This Court therefore is of the further considered view that the applications filed for both a Writ of Habeas Corpus and a prayer for anticipatory bail are misconceived at this stage.

WPA(H)/2/2022 and CRM(A)/5/2022 stand accordingly dismissed by this common Order. Since affidavits are not invited, all allegations to the contrary stand denied and disputed.

All parties to act on a server copy of this order downloaded from the website of the Hon'ble High Court.

Urgent Xerox certified copy of this order be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.

( Rabindranath Samanta, J. ) ( Subrata Talukdar, J. )