Calcutta High Court (Appellete Side)
An Application For Bail Under ... vs Gopal Das & Ors on 30 September, 2021
Sl. September C.R.A. 425 of 1990
15. 30, 2021
In the matter of : An application for bail under Section 389 of the Code
of Criminal Procedure, 1973 filed under C.R.A.N. 2 of 2021 on January
20, 2021;
And
In the matter of : Gopal Das & ors. ...appellants/petitioners.
(in Jail custody)
Versus
State of West Bengal ...respondent/
opposite party.
Mr. Bikash Ranjan Bhattacharjee,
Mr. Jayanta Narayan Chatterjee,
Mr. Uday Sankar Chattopadhyay,
Mr. Suman Sankar Chattopadhyay,
Mr. Santanu Maji,
...for the appellants/petitioners.
Mr. Saibal Bapuli,
Mr. Narayan Prasad Agarwal,
Mr. Bibhaswan Bhattacharyya,
...for the State.
This is an application for suspension of sentence and grant of
bail in connection with the appeal preferred by the petitioners against the judgment
and order of conviction and sentence passed by the learned Additional Sessions
Judge, Third Court at Alipore, South 24-Parganas, in Sessions Trial No. 2(7) of
1986 corresponding to Sessions Case No. 71(1) of 1985.
By filing this application, the petitioners have renewed their
prayer for suspension of sentence and grant of bail pending hearing of the appeal.
The allegations against the petitioners were that they were
members of unlawful assembly and in prosecution of common object of such
assembly, they have assaulted and murdered the victim. The learned trial judge, on
consideration of the evidence adduced by the autopsy surgeon, being the
prosecution witness No. 9 and other prosecution witnesses, handed down the order
of conviction.
The learned counsel appearing on behalf of the petitioners
submits that the conviction is based on circumstantial evidence. For the purpose of
suspension of sentence, it is argued that the petitioners were in custody for over ten
years and some of them are elderly persons. He further submits that since there is
no possibility of disposal of the appeal shortly, the petitioners may be released on
bail. It is also submitted that almost all the petitioners were on parole at different
times and some of the petitioners, as of today, are on parole. Documents in this
regard are disclosed by way of a supplementary affidavit to the present application.
It is submitted on behalf of the petitioners that the appellants no. 2, 3, 4 and 13
already died during the pendency of the appeal; death certificates in support of such
submission are also disclosed in the supplementary affidavit. The learned counsel
for the petitioners, in all fairness, submits that on an earlier occasion, that is, on
November 24, 2017, a co-ordinate bench of this court rejected the prayer for
suspension of sentence made by the petitioners in view of the evidence on record
and in the light of the fact that the paper book was ready. However, the appeal
could not be heard till date.
The learned lawyer appearing on behalf of the State opposes
the prayer for. However, he admits that the petitioners were on parole and some of
the petitioners, as of today, are on parole.
We have heard the learned advocates appearing for the parties
and anxiously considered the findings of the learned trial judge at paragraphs 15
and 16 of the judgment, which prima facie support the conclusion arrived at by the
learned trial judge in passing the order of conviction. We are aware of the fact that
at this stage we are not hearing the appeal on merits, but we are in prima facie
agreement with regard to the quality of evidence that ultimately reached to the
conclusion. A co-ordinate bench of this court found the evidence to be credible. We
find no reason to differ with such observation. However, the fact remain how long a
person would be incarcerated for no fault of him.
Be that as it may, we find that during trial the petitioners were
all along on bail and after the conviction order was passed, they are in custody for
over ten years and some of the appellants have died in the meantime.
In view of the aforesaid facts, considering the age of the
petitioners and in the light of the principles enunciated by the Hon'ble Apex Court
in the case of Kashmira Singh vs. State of Punjab reported in (1977) 4 S.C.C.
291 and in the case of Babu Singh vs. State Utar Pradesh reported in (1978) 1
S.C.C. 579 and keeping in mind that the appeal could not be heard after the last
order of rejection which is almost four years as on date, we are inclined to suspend
the sentence imposed upon the petitioners and release them on bail.
We, therefore, allow the prayer for suspension of sentence of
the petitioners and direct that the sentence imposed by the trial court upon the them
shall remain suspended till disposal of the appeal and the petitioners, namely,
Gopal Das, Chittaranjan Das, Gokul Jana, Laxman @ Laksman Chandra
Mondal, Kalipada Jana, Gurupada Parua @ Pariya, Kala Chand Sardar @
Maniram Sardar, Sannyashi Maity, Bhawani Prasad Thandar and Narayan
Das, shall be released on bail to the satisfaction of the learned Chief Judicial
Magistrate at Alipore, South 24-Parganas, upon furnishing a bond of Rs.
20,000/- (Rupees twenty thousand) each only with two sureties of like amount,
one of whom must be local having landed property in the village or town, on
condition that they shall attend the officer in-charge of local police station once in a
month starting from November 1, 2021 until further order and shall remain
personally present before this court as and when the appeal would be taken up for
hearing.
We direct that the appeal is to be listed for hearing four weeks
after reopening of the court after puja vacation for the year 2021.
It is recorded that in suspending the sentence imposed upon the
petitioners, we have also taken note of the order of the division bench presided over
by former Chief Justice of this court in C.R.A. 360 of 2018 decided on February 11,
2020 where on similar considerations an appellant was granted bail pending hearing
the appeal.
The application for bail filed under C.R.A.N. 2 of 2021 is, thus,
disposed of.
dns
( Rabindranath Samanta, J. ) ( Soumen Sen, J. )
