Calcutta High Court (Appellete Side)
In Re : Nasir Mallick vs Union Of India And Others on 1 June, 2021
01.06.2021
Court No.28
CP
CRM 11261 of 2020
(via video conference)
In Re:- An application for bail under section 439 of the Code of
Criminal Procedure;
And
In Re : Nasir Mallick
Petitioner
Mr. Suman De
For the Petitioner
Mr. Saibal Bapuli
Mr. Arani Bhattacharya
For the State
The present application has been preferred in connection
with Serampore Police Station Case No. 02/2018 dated
01.01.2018 under Sections 395/397 of the Indian Penal Code and
adding Section 412 of the Indian Penal Code.
Mr. De, learned advocate for the petitioner submits that the
petitioner has been falsely implicated in an alleged incident which
occurred in the month of January, 2018. Allegations were levelled
against five accused persons including the petitioner. The other
four co-accused persons have already been enlarged on bail. Upon
completion of investigation charge sheet has also been filed.
He further submits that in the charge-sheet there are 44
witnesses and, as such, there is no possibility towards early
completion of the trial. In the said conspectus, further detention of
the petitioner, who is in custody since November 17, 2018, is not
necessary.
Mr. Bapuli, learned advocate appearing for the State,
vehemently opposes the petitioner's prayer and submits that the
petitioner has antecedents and he was identified in the T.I.
parade. The petitioner's prayer was earlier rejected by a coordinate
bench of this court on June 26, 2020.
He further submits that trial has already commenced and out
of total 44 witnesses, 13 witnesses have already been examined
and that the next date before the learned trial court had been fixed
on June 10, 2021.
Heard the learned advocates appearing for the respective
parties and considered the materials in the case diary.
It appears that there are total 44 witnesses and out of which
only 13 witnesses have been examined and, as such, there is no
possibility of conclusion of the trial in the near future. From the
sequence of facts, it appears that the petitioner cannot be held
responsible for the delay which has occasioned. He is languishing
in custody for more than three years and there is no possibility
towards early conclusion of the trial. Article 21 of the Constitution
creates a right in favour of the accused to be tried speedily and
long delay may be taken as presumptive proof of prejudice. In the
present pandemic situation and rapid proliferation of the virus,
bail prayer needs to be considered liberally [See the order passed
by the Hon'ble Supreme Court in Re: Contagion of Covid-19 Virus
in prisons and the judgment delivered in the case of Shaheen
Welfare Association -Vs- Union of India and Others, reported in
(1996) 2 SCC 616].
In the said conspectus and considering the nature of
allegations and the period of detention, we are of the opinion that
further detention of the petitioner is not warranted in the facts
and circumstances of the case.
Accordingly, we direct that the petitioner, namely, Nasir
Mallick, shall be released on bail upon furnishing a bond of
Rs.10,000/- with two sureties of like amount each, one of whom
must be local, to the satisfaction of the learned Additional Chief
Judicial Magistrate, Serampore, Hooghly.
The petitioner is also directed to attend the trial court on the
dates specified for hearing.
In the event the petitioner fails to appear before the learned
trial court without justifiable cause, the trial court shall be at
liberty to cancel the bail automatically without reference to this
court.
The application for bail, being CRM No. 11261 of 2020 is,
accordingly, disposed of.
All parties shall act on the server copies of this order duly
downloaded from the official website of this Court.
(Shampa Sarkar, J.) (Tapabrata Chakraborty, J.)
