Calcutta High Court (Appellete Side)
Tanushri Mitra & Anr vs State Of West Bengal & Anr on 7 April, 2021
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
C.R.M 8638 of 2019
with
IA No. CRAN 1 of 2021
Tanushri Mitra & Anr.
Vs.
State of West Bengal & Anr.
For the Applicant/Opposite Party No.2:
Mr. Ayan Bhattacherjee,
Mr. Sharequl Haque,
Mr. Aditya Ratan Tiwary,
Mr. Subhajit Manna,
Mr. Amitabrata Hait,
For the Petitioners: Mr. Debapratim Guha.
Ms. Archita Sarkar.
For the State: Mr. Ranabir Roy Chowdhury,
Ms. Faria Hossain,
Ms. Baishali Basu.
Heard on: 22 March, 2021.
Judgment on: 07 April, 2021.
BIBEK CHAUDHURI, J. : -
1.
This is an application for recalling of the order dated 11th January,
2021 passed by this Court in CRM No.8638 of 2019 thereby cancelling
interim bail granted to the petitioner by the learned Chief Judge, City
Sessions Court in Criminal Misc Case No.347 of 2019 arising out of GR
Case No.1712 of 2018 and Shakespeare Sarani P.S Case No.311 dated 9th
December, 2018 under Sections 420/406/120B of the Indian Penal Code
vide order dated 5th July, 2019.
2. Before dealing with the contention raised by the petitioner in the
instant application it is necessary to refer the following facts:-
3. Shakespeare Sarani P.S Case No.190 of 2018 dated 16th July, 2018
under Section 420/406/409/120B of the Indian Penal Code was
registered against the petitioner on allegation that the petitioner in
association with other persons started a business of providing job and
higher educational facilities in Canada and other foreign countries for the
students and job seekers. In this way the petitioner and her associates
took huge amount of money from different persons, but they failed to
provide them with any kind of job or higher education facility in foreign
countries. Thereby they cheated the innocent students and job seekers
and committed criminal breach of trust and misappropriated the money
of the said candidates in connivance and conspiracy with each other.
4. When the candidates came to know about the arrest of the
petitioner in connection with Shakespear Sarani P.S Case No.190 of 2018,
they submitted series of complaints to the Officer-in-Charge of
Shakespeare Sarani P.S who again registered P.S Case No.311 under
Section 420/406/120B IPC dated 9th December, 2018 on the basis of suo
moto complaint. On 30th January, 2019 the applicant was arrested. She
was however released on interim bail by the learned Chief Metropolitan
Magistrate, Kolkata vide order dated 16th February, 2019. On 11th April,
2019 the applicant threatened petitioner No.1 of CRM No.8638 of 2019
outside the court room of the learned Chief Metropolitan Magistrate,
Kolkata with dire consequence. Petitioner No.1 lodged FIR before the Hare
Street P.S immediately after the occurrence, on the basis of which Hare
Street P.S Case No.115 was registered against the petitioner under
Sections 195A/506/114 of the Indian Penal Code. An application under
Section 437(5) of the Code of Criminal Procedure was filed against the
petitioner before the learned Chief Metropolitan Magistrate and by an
order dated 17th June, 2019 the learned Chief Metropolitan Magistrate
cancelled the interim bail granted to the petitioner. The applicant filed an
application under Section 439 of the Code before the learned Chief Judge,
City Sessions Court praying for bail and vide order dated 5th July, 2019
the learned Chief Judge, City Sessions Court granted interim bail to the
accused/petitioner. The opposite parties No.2 and 3 prayed for
cancellation of bail of the petitioner by filing CRM No.8638 of 2019 on 16th
September, 2019. This Court vide order dated 11th January, 2021 allowed
CRM No.8638 of 2019 and the bail of the petitioner was cancelled.
5. The present application was filed by the accused/petitioner on 2nd
March, 2021 praying for recalling of the order dated 11th January, 2021
passed by this Court.
6. In her application the petitioner contends that an order of grant of
bail can be assailed on the ground of improper exercise of discretion as
well as for post bail conduct. The order of bail can be cancelled under
Section 439(2) of the Code only on post bail conduct. In case, the order of
grant of bail is assailed, the same cannot be adjudicated upon under
Section 439(2) of the Code in as much as post bail conduct assumes no
relevance in such case. Therefore improper exercise of discretion can be
assailed only by filing an application under Section 482 of the Code of
Criminal Procedure before a higher forum and the same cannot be
assailed under Section 439(2) of the Code. In the instant case, the private
opposite parties has filed a misconceived application as they have assailed
the grant of bail by filing an application under Section 439(2) of the Code
which is per se non maintainable in view of the law of the land. It is also
submitted by the petitioner that the provision under Section 439(2) of the
Cr.P.C could not have been invoked by the private opposite parties in an
application therein assailing the order of grant of bail, therefore, the
cancellation application becomes non maintainable and a misconceived
one. Therefore the application for cancellation of bail deserves no
adjudication on merit and it ought to be rejected by this Court.
7. On the above mentioned ground the petitioner has filed the instant
application praying for recalling of the order dated 11th January, 2021.
8. Mr. Ayan Bhattacherjee, learned Advocate for the petitioner has
made a lengthy submission based on various decision of the Hon'ble
Supreme Court of India as well as this Court. On the question as to
whether an order under Section 439(2) of the Code of Criminal Procedure
of cancelling interim bail of the accused can be recalled by the same court
or not, Mr. Bhattacherjee refers to a decision of the Hon'ble Supreme
Court in the case of Municipal Corporation of Greater Mumbai & Anr.
Vs. Pratibha Industries Ltd. & Ors reported in (2019) 3 SCC 203. He
refers to paragraph 10 of the aforesaid decision of the Hon'ble Supreme
Court which reads as follows:-
"10... Insofar as the High Courts' jurisdiction to recall its own
order is concerned, the High Courts are courts of record, set
up under Article 215 of the Constitution of India. Article
215 of the Constitution of India reads as under:-
"215. High Courts to be courts of record.-- Every High
Court shall be a court of record and shall have all the powers
of such a court including the power to punish for contempt of
itself."
It is clear that these constitutional courts, being courts
of record, the jurisdiction to recall their own orders is
inherent by virtue of the fact that they are superior courts of
record. This has been recognized in several of our
judgments."
9. On this point he also refers to another decision of the Hon'ble
Supreme Court in the case of State of Punjab vs. Davinder Pal Singh
Bhullar reported in (2011) 14 SCC 770. In Davinder Pal Singh Bhullar
(Supra), an application was filed under Section 482 of the Code in appeal
against acquittal after dismissal of the said appeal. Under such factual
backdrop the Hon'ble Supreme Court held that If a judgment has been
pronounced without jurisdiction or in violation of principles of natural
justice or where the order has been pronounced without giving an
opportunity of being heard to a party affected by it or where an order was
obtained by abuse of the process of court which would really amount to
its being without jurisdiction, inherent powers can be exercised to recall
such order for the reason that in such an eventuality the order becomes a
nullity and the provisions of Section 362 Cr.P.C. would not operate. In
such eventuality, the judgment is manifestly contrary to the audi alteram
partem rule of natural justice. The power of recall is different from the
power of altering/reviewing the judgment. However, the party seeking
recall/alteration has to establish that it was not at fault.
10. Mr. Bhattacherjee next refers to the decision of the Hon'ble
Supreme Court in Sushila Aggarwal & Ors. vs. State (NCT of Delhi) &
Anr reported in AIR 2020 SC 831. He particularly refers to paragraph
93.11 which states as follows :-
"The correctness of an order granting bail, can be considered by the
appellate or superior court at the behest of the state or investigating
agency, and set aside on the ground that the court granting it did
not consider material facts or crucial circumstances. (See Prakash
Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr; Jai
Prakash Singh (supra) State through C.B.I. vs. Amarmani Tripathi).
This does not amount to "cancellation" in terms of Section 439 (2),
Cr.P.C."
11. He also refers to another decision of the Hon'ble Supreme Court in
Union of India vs. Hasan Ali Khan & Anr reported in (2011) 10 SCC
235 and submits that the cancellation of bail and an appeal preferred
against an order granting bail stand on different footings. While the
ground for cancellation of bail would relate to post-bail incidents,
indicating misuse of the said privilege, an appeal against an order
granting bail would question the very legality of the order passed. This
difference was explained by this Court in State of U.P. Vs. Amarmani
Tripathi reported in (2005) 8 SCC 21.
12. It is also submitted by Mr. Bhattacherjee that an order of bail is an
interlocutory order. Therefore the limitation contained in Section 362 of
the Code is not applicable in the instant case. The petitioner can file an
application praying for recalling of on order passed by this Court under
Section 439(2) of the Code of Criminal Procedure. In support of his
contention he refers to the following decisions of the Hon'ble Supreme
Court :-
i) Sushila Aggarwal & Ors. vs. State (NCT of Delhi) &
Anr (supra).
ii) Anowar Hossain Fakir @ Boto : (2017) 1 C Cr. LR
347 (Cal).
iii) Sri Sudip Sen vs. The State of West Bengal : 2010
Cri LJ 4628.
iv) B.N Elias & Co. LLP vs. Md. Idris Ali & Ors : (2013) 3
C Cr LR 437 (Cal).
13. Mr. Debapratim Guha, learned Advocate for the private opposite
parties, on the other hand submits that although the court granting bail
can cancel the bail on the ground of misconduct by the accused or new
adverse facts having surfaced after the grant of bail, however, in view of
express bar contained in Section 362 of the Code, it cannot review its
order as to grant of bail on ground of it being unjustified, illegal or
perverse. Such challenge to bail order on ground of it being illegal or
contrary to law can be determined only by the court superior to the court
which granted bail. In support of this contention he refers to the decision
of the Hon'ble Supreme Court in Abdul Basit @ Raju & Ors. vs. Mohd.
Abdul Kadir Chaudhury & Anr reported in (2014) 10 SCC 454.
14. In the matter of Pravash Chandra Sarkar reported in (2014) 1 C Cr
LR (Cal) 908, referred to by the learned Advocate for the private opposite
parties, it was held by a coordinate Bench of this Court that recalling of
an order creates a vacuum, not coming within rigours of Section 362. If
an order is obtained by abuse of process of Court, the Court has the
authority to recall the said order for reason of its becoming nullity. Order
given without being heard, contrary to natural justice in violation of the
principle of audi alteram partem can always be recalled.
15. However in the instant case the applicant/accused was extensively
heard, the learned Advocate for the applicant/opposite party appeared at
the time of hearing of CRM No.8638 of 2019 and submission made by him
was recorded at length by this Court in its order dated 11th January,
2021. Under such circumstances the petitioner/accused cannot claim
that she was not given an opportunity of being heard. If the petitioner has
any grievance, she could move the higher court assailing the order of
cancellation of bail. An application for recall is not maintainable under
the facts and circumstances of this case.
16. The learned Advocate for the private opposite parties also refers to
the following decisions in support of his argument that the court can
cancel an order of bail of an accused granted by the court of sessions
under the provision of Section 439(2) of the Code. In Puran vs. Rambilas
& Anr reported in 2001 C Cr LR (SC) 391 it is held by the Hon'ble
Supreme Court that even if it is an interlocutory order, the High Court's
inherent jurisdiction under Section 482 is not affected by the provisions
of Section 397 (3) of the Code of Criminal Procedure. That the High Court
may refuse to exercise its jurisdiction under Section 482 on the basis of
self-imposed restriction is a different aspect.
17. On the same point he refers to following decision:-
i) Gurcharan Singh vs. State (Delhi Administration) :
AIR 1978 SC 179.
ii) Hari Singh Mann vs. Harbhajan Singh Bajwa & Ors :
2001 C Cr LR (SC) 41.
18. The Hon'ble Supreme Court has delineated in Dolat Ram vs. State
of Haryana reported in (1995) 1 SCC 349 the following situations as
supervening factors which justify the cancellation of bail of an accused:-
(a) Interference or attempt to interfere with the due course of
administration of Justice.
(b) Evasion or attempt to evade the due course of justice.
(c) Abuse of the concession granted to the accused.
(d) Possibility of the accused.
(e) Livelihood/actual misuse of bail.
(f) Livelihood of the accused tampering with the evidence or
threatening witnesses.
(g) Other supervening circumstances, which have rendered it
no longer conducive to a fair trial to allow the accused to
retain his/her freedom by being on bail.
19. The order of bail granted in favour of the applicant by the learned
Chief Judge, City Sessions Court on 5th July, 2019 was passed ignoring a
relevant circumstance that the accused while on bail threatened the
witnesses with dire consequence within the precinct of the trial court. The
petitioner No.1 had to lodge a complaint against the applicant before the
Hare Street P.S and on the basis of their complaint P.S Case No.115 dated
11th April, 2019 was registered under Section 195A/506/114 IPC.
20. It is needless to say that the applicant was granted bail under
Section 437 of the Code of Criminal Procedure on 16th February, 2019
and she threatened the witnesses so that the criminal case instituted
against her might be withdrawn on 11th April, 2019. The specific act of
the applicant committed on 11th April, 2019 was of course in violation of
the conditions enumerated in Section 437(3) of the Code. The learned
Chief Judge, City Sessions Court did not consider her post bail
misconduct in court premises though he recorded the said fact in his
order.
21. On factual aspect, Mr. Bhattacherjee submits that the applicant did
not violate any condition for bail after she being released by the learned
Chief Judge, City Sessions Court. However, the report submitted by the
Officer-in-Charge of Hare Street P.S is on record that the petitioner
misused the condition for bail on 11th April, 2019. This Court clearly
stated in the order dated 11th January, 2021 that the petitioner violated
the condition for bail granted under Section 437 of the Code of the
Criminal Procedure and therefore her bail was cancelled by the learned
Chief Metropolitan Magistrate on 17th June, 2019 under Section 437(5) of
the Code.
22. It is absolutely false to suggest on behalf of the applicant that the
order of bail granted to the petitioner was not cancelled on the basis of
her post bail conduct.
23. The decisions of the Hon'ble Supreme Court as well as this Court
relied on by the learned Advocate for the petitioner is not applicable under
the facts and circumstances of this case because this Court is not
unmindful to note that an order of bail granted by the learned Chief
Judge, City Sessions Court can be cancelled by this Court under the
provision of Section 439(2) of the Code taking into account the post bail
conduct of the applicant. This Court never considered the correctness of
the order of bail granted by the learned Chief Judge, City Sessions Court
in his order dated 5th July, 2019.
24. In view of the above discussion on I firmly hold that the instant
application is devoid of any merit. The application was misconceived and
vexatious in nature. Therefore the application deserves rejection with
exemplary cost.
25. Accordingly the application for recalling of the order dated 11th
January, 2021 passed in CRM No.8638 of 2019 is rejected with cost of
Rs.10,000/- to be deposited by the applicant in the fund of the High
Court Legal Aid Service Committee within seven days from the date of this
order.
26. CRAN 1 of 2021 is thus disposed of.
(Bibek Chaudhuri, J.)
