E.S. Rajesh v. The State

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** CRR/18/2023 E.S.Rajesh Vs The State Mr. Gopala Binnu Kumar Ms. Vinita Devi ... for the petitioner Mr. Sumit Karmakar ... for the State April 11, 2025 [AKB] Item No. 2

1. The learned counsel for the petitioner, Mr. Kumar has submitted that the petitioner is a resident of 30 KMs of Campbell Bay and as he is a local resident he cannot be restrained from entering into Indira Point which is not covered under Andaman and Nicobar Islands (Protection of Aboriginal Tribes) Regulation, 1956. But unfortunately the petitioner who went to the said place for the purpose of a project under the auspices of Border Road Organization (BRO), was charge sheeted under Regulations 7/8 of the Regulation, 1956.

2. The learned counsel has also pointed out that in the relevant place, no member of aboriginal tribe resides or exists, but in spite of that the said Regulation of 1956 is still in vogue. He has also drawn the attention of this Court to the charge sheet submitted against him and pointed out that there is specific observation of the concerned Investigating Officer that he visited the place for the purpose of the relevant project at Indira Point, but in spite of knowing that he is a local resident and is not under an obligation to obtain permission before visiting Indira Point, he has been falsely implicated in this case. The relevant notification along with map does not show that Indira Point is within the restricted area as alleged by the concerned Investigating Officer. He has also submitted that as per order dated January 22, 2024 the State has failed to submit its report as per requirement of the said order.

3. The learned counsel for the State Mr. Karmakar, on the other hand, has submitted that whether no member of aboriginal tribes lives in the area or whether the petitioner

had visited the place for the purpose of the alleged project work etc., are all matters of evidence and, therefore, the prosecution as well as the accused should be given opportunities to prove their respective cases or defence. At this stage, the prayer for quashing the complaint and the charge sheet cannot be allowed since the same, if allowed, would detriment the safety and security of the country. However, the learned counsel for the State has also drawn the attention of the Court to the fact that the petitioner has already been granted bail and, therefore, there is no necessity for quashing the instant proceeding at this stage.

4. I have considered the materials on record including a report submitted by the concerned officer as per direction of this Court recorded at order dated January 22, 2024.

5. For the sake of convenience the excerpts of the order dated January 22, 2024 is quoted herein below.

"...In the charge sheet certain specific areas has been pointed out by the Investigating Officer, the entry of which resulted in violation by the present petitioner and others, which according to the state is an offence under the Andaman and Nicobar Islands (Protection of Aboriginal Tribes Regulation), 1956. The areas which have been pointed out in the charge sheet for which violation has been committed do fall within the amendment No. 2 in respect of the Gazette Notification dated 20.04.1972 should be submitted in the form of a report by a competent officer.

Learned advocate for the state submits that there is D 1 section in the office of the Deputy Commissioner, South Andaman. The authorized officer of the concerned department will submit a report before this Court detailing as to whether the places which has been referred in the charge sheet falls under the amended provisions and for visiting those place whether any offence has been committed under the Amended Provision of Regulation, 1956. To that effect the officer submitting/preparing the report would rely upon authorities (be it notification, circular, orders or any meteorological findings).

Learned advocate for the state prays for fifteen days time to submit such report.

Let the revisional application appear before the next available Circuit Bench on 09.02.2024 when the State would submit the report."

6. By virtue of the said order, a letter dated 8th June, 2024 has been placed before the Court by the learned counsel for the State for consideration. The excerpts of the said letter is as follows:- "I am to refer your letter No. M-13/54/2024-Rev.Sec-CN-DCNIC_AN (Computer No.83207) dated 03rd June 2024 on the above cited subject and to inform that as per the Sub-Section 1(d) of Notification No.3 dated 02nd April, 1957 published in the A&N Gazette (Copy enclosed), the entire area comprised in the Great Nicobar Island has

been notified as reserved area under Andaman & Nicobar Islands (Protection of Aboriginal Tribes) regulation 1956 (Regulation No.3 of 1956).

Later, as per the Amendment Notification No. 51 dated 20th April, 1972 published in the A&N Gazette vide Amendment No. 2 (Copy enclosed), which is reproduced below:- In clause (d)in the opening paragraph, the following shall be added at the end namely:

"and the area located between the co-ordinates mentioned below in the eastern coast of Great Nicobar Island.

LONGITUDE- the area between longitude 900 50 minutes East and 930 57 minutes east.

LATITUDE- the area between latitude 60 53 minutes North 70 2 minutes North"

Further, a copy of the map showing the above Longitude and Latitude is enclosed and as per the above notifications, the remaining part of Great Nicobar Island including Indira Point falls under Andaman & Nicobar Islands (Protection of Aboriginal Tribes) regulations 1956 (Regulation No. 3 of 1956).

This is for your kind information and necessary action please."

7. From the above documents it transpires that Assistant Commissioner, Campbell Bay has submitted in his report that Indira Point falls under Andaman & Nicobar Islands (Protection of Aboriginal Tribes) Regulation, 1956.

8. If that be so, the contention of the petitioner that he can enter into the Indira Point without any permit or order from the Ch`ief Commissioner cannot be relied upon at this stage without having sufficient evidence in this regard.

9. In other words, as per Regulations, 1956 as amended in the year 1972, no person can enter into the reserved area except on the authority and subject to the observance with condition and restrictions of a pass granted by the Deputy Commissioner or by such other officer as the Deputy Commissioner may authorize in writing in this behalf. This Regulation 7 does not contain any exemption rule showing that the local inhabitants of Campbell Bay are exempted from Regulation 7 as aforesaid.

10.

The map furnished by the learned counsel for the State shows that though the Campbell Bay is shown as Protection of Aboriginal Tribes excluded area under Great Nicobar, the map does not show that Indira Point is an excluded area under the above regulations. Therefore, I find prima facie materials in support of the prosecution case. 11.

Accordingly, I am not inclined to allow the prayer of quashing the relevant proceeding under Section 482 of the Criminal Procedure Code.

12.

Accordingly, the criminal revisional application being CRR/18/2023 is dismissed. No order as to costs. 13.

The report dated 11th June, of the Superintending of Police, Nicobar District containing the letter dated 8th June, 2024 of the Assistant Commissioner, Campbell Bay along with the map as furnished be part of the record of this proceeding.

14.

Urgent Photostat certified copy of this order if applied for, the same be supplied to the parties upon compliance of necessary formalities.

(Apurba Sinha Ray, J.)