CALCUTTA HIGH COURT JUDGMENTS

Chhatradhar Mahato & Ors vs State Of West Bengal-CHC-06/05/2016

ACTS: U/S 121/120B/121A/ 122/123/124A of the Indian Penal Code and under Sections 18/20/38(2)/39(2)/40(2) of the Unlawful Activities (Prevention) Act, 1967

CALCUTTA HIGH COURT

(Appellate Side)

Criminal Revisional Jurisdiction

CRR 3000 of 2015

with

CRR 3053 of 2015

Form No. J (1)

Chhatradhar Mahato & Ors vs State Of West Bengal Opposite

Present: The Hon’ble Mr. Justice Ranjit Kumar Bag

Mr. Kaushik Gupta Mr. Anirban Tarafdar Mr. Somopriyo Chowdhury Mr. Avishek Bhandari … for the petitioners.

Mr. Manjit Singh Mr. Ayan Basu … for the State.

Heard On : 06.05.2016.

Judgement on : 06.05.2016.

R.K.Bag, J.

The petitioners have challenged the order dated May 28, 2015 passed by learned Additional Sessions Judge, 4th Court, Paschim Midnapore in Sessions Trial No. XLVI/March/2010 by preferring this revision under section 401 read with section 482 of the Code of Criminal Procedure.

2.  It appears from record that all the petitioners were convicted and sentenced to suffer imprisonment for life and imprisonment for various terms for the offences punishable under Sections 121/120B/121A/ 122/123/124A of the Indian Penal Code and under Sections 18/20/38(2)/39(2)/40(2) of the Unlawful Activities (Prevention) Act, 1967 by the Trial Court in Sessions Trial No. XLVI/March 2010.

3.  The backdrop of filing the present revisional applications is as follows:

The Petitioners enjoyed the privileges as political prisoners under section 24(3)(vi) of the West Bengal Correctional Services Act, 1992 during the pendency of the trial by virtue of the order passed by learned Single Judge of this Court on September 3, 2012 in CRR 463 of 2012. The provisions of section 24(3)(vi) of the West Bengal Correctional Services Act, 1992 was amended with effect from November 1, 2013. By virtue of this amendment any member or supporter of any terrorist organisations or an organisation of similar nature is not entitled to get the privileges as political prisoners. The Superintendent of the Correctional Home where the petitioners were serving sentence filed an application before the Trial Court seeking clarification whether the petitioners will enjoy the privileges as political prisoners after the conviction. On May 28, 2015 learned Judge of the Trial Court held that the petitioners are not entitled to enjoy the privileges as political prisoners after the date of delivery of Judgment on May 11, 2015. The petitioners have challenged the said order dated May 28, 2015 passed by learned Judge of the trial court denying the privileges to the petitioners as political prisoners.

4.  Mr. Kaushik Gupta, learned counsel for the petitioners, contends that the rights and privileges enjoyed by the petitioners as political prisoners by virtue of the order passed by learned Single Judge of this Court on September 3, 2012 in connection with CRR 463 of 2012, CRR 1312 of 2012 and CRR 4000 of 2011 cannot be curtailed by way of amendment of Section 24(3)(vi) of the West Bengal Correctional Services Act, 1992. He further submits that learned Judge of the Trial Court cannot pass an order to decide the rights and privileges of the convicts after delivery of judgement as learned Judge of the Trial Court has become functus officio. He also argues that “Polishi Santrash Birodhi Janashadharaner Committee” (Committee to Protest Terrorism of Police) cannot be considered as frontal organisation of Communist Party of India (Marxist and Leninist) without specific declaration in this regard by the Central Government, though the frontal organisation of the Communist Party of India (Marxist and Leninist) has been declared as terrorist organisation by including the same in item no. 24 of the schedule annexed to the Unlawful Activities (Prevention) Act, 1967. According to Mr. Gupta, the rights and privileges accrued in favour of the petitioners during the trial of the criminal case will continue in spite of their conviction by the trial court even after amendment of Section 24(3)(vi) of the West Bengal Correctional Services Act, 1992.

5.  Mr. Ayan Basu, learned counsel for the State submits that the petitioners have been found to be members of terrorist organisation by the trial court at the time of delivery of the judgement and as such they are not entitled to enjoy the privileges and rights as political prisoners after amendment of Section 24(3)(vi) of the West Bengal Correctional Services Act, 1992, which came into force on November 1, 2013. Mr. Basu has supported the order passed by the learned Judge of the Trial Court by curtailing the rights and privileges enjoyed by the petitioners as political prisoners.

6.   Admittedly, the petitioners were tried by learned Judge of the Trial Court on the allegation of committing offences punishable under sections 121/121A/122/123/124A/307/120B/34 of the Indian Penal Code and offences punishable under sections 18/38(2)/39(2)/40(2) of the Unlawful Activities (Prevention) Act, 1967 and offences punishable under section 3/4 (b) of the Explosive Substance Act,1908 and offences punishable under section 25(1)(a) of the Arms Act, 1959. On August 8, 2012 learned Single Judge of this Court passed an order in CRR 463 of 2012 with CRR 1312 of 2012 with CRR 4000 of 2011 by virtue of which the petitioners enjoyed the rights and privileges as political prisoners under section 24(3)(vi) of West Bengal Correctional Services Act, 1992. It is relevant to quote the provision of Section 24(3)(vi) of the West Bengal Correctional Services Act, 1992 before its amendment with effect from November 1, 2013, which is as follows:

” 24(3)(vi) Any person arrested or convicted on a charge of having committed or attempting to commit or aiding or abetting the commission of any political offence, whether or not the act constituting such offence comes within the purview of any offence punishable under the Indian Penal Code or any other law for the time being in force, and any person believed to have been prosecuted out of political animosity or grudge, shall be classified as political prisoner.”

7.  The petitioners were classified as political prisoners on the basis of the above provision of law. Section 24(3)(vi) of West Bengal Correctional Services Act, 1992 has been amended by West Bengal Act, XVI with effect from November 1, 2013 which is as follows:

” 24(3)(vi) Any person arrested or convicted on a charge of having committed or attempting to commit or aiding or abetting the commission of any political offence, whether or not the act constituting such offence comes within the purview of any offence punishable under the Indian Penal Code or any other law for the time being in force, and any person believed to have been prosecuted out of political animosity or grudge, shall be classified as political prisoner.
Provided that any member or supporter or any person having any involvement with any organisation which is either prescribed or is an organisation classified or declared to be a terrorist organisation or similar organisation under any law for the time being in force, shall not be classified as political prisoner.”

After amendment of the provisions of Section 24(3)(vi) of West Bengal Correctional Services Act, 1992, the petitioners were convicted by the trial court by delivery of judgement on May 12, 2015. The petitioners have been found guilty for various offences punishable under sections 121/121A/ 122/123/124A/120B of the Indian Penal Code and under section 18/38(2)/39(2)/40(2) of the Unlawful Activities (Prevention) Act, 1967 and under section 25(1)(b) of the Arms Act, 1959 and sentenced to imprisonment for various terms and also imprisonment for life with direction that the petitioners will serve the sentences concurrently. On perusal of the judgement delivered by learned Judge of the trial Court, I find that the petitioners have been found to be members of “Polishi Santrash Birodhi Janashadharaner Committee” (Committee to Protest Terrorism of Police), which is a frontal organisation of the Communist Party of India (Marxist and Leninist). Learned Judge of the Trial Court has observed in the judgement that the petitioners are found to be the members of the frontal organisation of Communist Party of India (Marxist and Leninist), which has been notified as terrorist organisation in item no. 24 of the schedule annexed to the Unlawful Activities (Prevention) Act, 1967.

8.  The question for consideration of the Court is whether the petitioners can enjoy the rights and privileges as political prisoners after their conviction and sentence by the Trial Court, which has specifically observed that the petitioners are members of frontal organisation of Communist Party of India (Marxist and Leninist) which is notified as terrorist organisation under the Unlawful Activities (Prevention) Act, 1967. The petitioners were classified as political prisoners under section 24(3)(vi) of West Bengal Correctional Services Act, 1992, when members of terrorist organisations were not excluded from the ambit of political prisoners. I accept the submission made by learned counsel for the petitioner that the amendment made in section 24(3)(vi) of West Bengal Correctional Services Act, 1992 cannot have any retrospective effect. This revisional court cannot look into the legality and validity of the amendment made under section 24(3)(vi) of West Bengal Correctional Services Act, 1992. If I accept the prospective effect of the amendment of section 24 (3)(vi) of West Bengal Correctional Services Act, 1992, I can safely hold that member or supporter of terrorist organisation cannot be classified as political prisoners under section 24(3)(vi) of West Bengal Correctional Services Act, 1992 with effect from November 1, 2013 when the amendment was made effective. Since the petitioners have been found to be members of terrorist organisation by the trial court, they are not entitled to enjoy the rights and privileges of the political prisoners under amended provision of Section 24(3)(vi) of West Bengal Correctional Services Act, 1992 as contended by learned Counsel for the petitioners.

9.  With regard to the submission made by learned counsel for the petitioners that learned Judge of the trial court has become functus officio after delivery of the judgement and as such he has no jurisdiction to pass any order curtailing the rights and privileges enjoyed by the petitioners as political prisoners. In this regard I would like to hold that after conviction and sentence of the convict, the trial court has the authority to issue instruction to the superintendent of the concerned Correctional Home where the convict is serving the sentence till the convict is released from the correctional home after serving the sentence. In this case the superintendent of the concerned Correctional Home had sought clarification from learned Judge of the Trial Court with regard to the rights and privileges of the petitioners as political prisoners after amendment of section 24(3)(vi) of West Bengal Correctional Services Act, 1992. So, learned Judge of the Trial Court can issue clarificatory order to the superintendent of the concerned Correctional Home where the petitioners are serving sentence, even when the trial court has become functus officio after delivery of the judgement. However, I am informed that the petitioners have preferred appeal against judgement and order of conviction and sentence passed by learned Judge of the Trial Court. So the appellate court can also decide afresh the issue whether the petitioners can be classified as political prisoners under amended provisions of section 24(3)(vi) of West Bengal Correctional Services Act, 1992.

10.  In view of my above observations I do not find any merit in the revisional applications. As a result, both the criminal revisions are disposed of.

Let a copy of this Judgement and order be sent down to learned Court below for favour of information and necessary action.

Urgent photostat certified copy of this order, if applied for, will be made available to the petitioner on priority basis after compliance with all necessary formalities.

R.K.Bag, J.