Calcutta High Court (Appellete Side)
Sunanda Das vs State Of West Bengal & Others on 1 April, 2022
1
IN THE HIGH COURT AT CALCUTTA
(Criminal Miscellaneous Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Bibhas Ranjan De
C.R.M 7296 of 2021
Sunanda Das
Vs
State of West Bengal & Others
With
CRM 8660 of 2021
State of West Bengal
Vs
Sabul Sk & Others
For the Petitioner : Mr. Sekhar Kumar Basu, Sr. Adv.
Mr. Antarikhya Basu
Mr. Sayan Mukherjee
Ms. Madhumita Basak
.......In C.R.M. no. 7296 of 2021
For Opposite party no. 1: Mr. Rudradipta Nandy
.......In C.R.M. no. 7296 of 2021
For the opposite party no. 2 and 3: Mr. Imtiaz Ahmed
Mr. Diptendu Narayan Bandopadhyay
Ms. Ghazala Firdaus
.......In C.R.M. no. 7296 of 2021
2
For the opposite party no. 4: Mr. Ali Hasan Alamgir
Ms. Riya Das
Ms. Rabia Khatun
.......In C.R.M. no. 7296 of 2021
For the opposite party no. 5 :Mr. Uday Sankar Chattopadhyay
Mr. Anindya Sundar Das
Mr. Santanu Maji
Mr. Suvauy Das
Mr. PronayBasak
Ms. Trisha Rakshit
.......In C.R.M. no. 7296 of 2021
For the Petitioner: Mr. Neguive Ahmed
Ms. Amita Gaur
.......In C.R.M. no. 8660 of 2021
For opposite party no. 1 & 2 : Mr. Imtiaz Ahmed
Mr. D Banerjee
Ms. Ghazala Firdaus
.......In C.R.M. no. 8660 of 2021
For opposite party no. 3 : Mr. Ali hasan Alamgir
Ms. Riya Das
Ms. Rabia Khatun
.......In C.R.M. no. 8660 of 2021
For opposite party no. 4 : Mr Uday Sankar Chattapadhay
Mr. Aninda Sundar Das
Mr. Santanu Majhi
Mr. Suvauy Das
Mr. Pranay Basak
Ms. Trisha Rakshil
.......In C.R.M. no. 8660 of 2021
Heard on : March10, 2022
Judgment on : April 01, 2022
Bibhas Ranjan De, J.:-
1.
The genesis of the case began with First Information Report (for short
'FIR') which was lodged by one Sunanda Das (Petitioner of CRM 7296 of
2021) with Mongalkote Police Station on 12.07.2021 alleging murder of his
father (Asim Das) leading to Registration of the case as Mongalkote Police
Station Case no. 143 of 2021 dated 12.07.2021 under Sections 302 of the
Indian Penal Code, (for short I.P.C) 1860 read with Section 25/27 of the
Arms Act 1959 corresponding to G.R case no. 618/2021.
2. It is alleged that C.I.D West Bengal, took up investigation of the case
and during investigation prima facie it has been revealed that opposite
parties, four (4) accused, cooked up a conspiracy to kill the deceased father
of the complainant and got it done by one Obaidur Rahaman @ Suraj, hired
killer, who fired the fatal gun-shot at Asim Das on 12.07.2021. Accordingly,
C.I.D West Bengal arrested said opposite parties and submitted charge sheet
being no. 190 of 2021 dated 07.10.2021under Section 302/120B/473/34 of
the IPC against nine (9) accused persons including four opposite parties,
after completion of investigation.
3. Ld. Vacation Judge, Purba Bardhaman, granted bail to all four
opposite parties on 26.10.2021 vide three criminal Misc. case nos.
2182/2021, 2185/2021 and 2193/2021 after perusal of case diary and after
hearing both sides holding inter alia that investigation was completed by
submitting charge sheet and accused were in custody for considerable
period. Ld. Judge granted bail to all four opposite parties on executing bail
bond of Rs. 10,000/- with two sureties of Rs. 5000/- each and also on
condition to report to the C.I.D once in a week keeping an eye to the
apprehension of any threat to the witness.
4. Being aggrieved by and dissatisfied with the said orders dated
26.10.2021 passed by Ld. Vacation Judge, defacto complainant has filed an
application under Section 439(2) of the Code of Criminal Procedure (for
short 'Cr.P.C') being CRM no. 7296 of 2021 against all four (4) accused
(private opposite parties) granted bail by the order dated 26.10.2021 passed
by the Ld. Vacation Judge, Purba Bardhaman, and the state has also filed a
petition under Section 439 (2) of Cr.P.C against same four (4) accused
(private opposite parties) for cancellation of bail being C.R.M no. 8660 of
2021.
5. On behalf of the petitioner in C.R.M no. 7296 of 2021, Mr. Sekhar
Kumar Basu, Ld. Senior Advocate, referred to the decisions reported in the
cases as mentioned below:
5.1 Anil Kumar Yadav Vs. State (NCT of Delhi) and another (2018) 12
SCC 129
5.2 Subodh Kumar Yadav Vs. State of Bihar and another (2009) 14
SCC 638
5.3 Puran Vs. Rambilas and another with Sekhar and another Vs.
State of Maharasthra and another (2001) 6 SCC 338
5.4 Ram Govind Upadhyay vs. Sudarshan Singh and others (2002)
Calcutta Criminal Law Reporter (SC) 533
6. Mr. Basu contended that the Ld. Vacation Judge granted bail to the
opposite parties on the ground of period of detention and submission of
charge sheet ignoring the 'severity of the offence', statement recorded under
Section 164 of Cr.P.C, identification of the accused in the Test Identification
Parade, and the call records of mobile phones showing conversation among
the opposite parties at the time of commission of offence. Therefore,
according to Mr. Basu, the order of bail granted in favour of the opposite
parties should be cancelled by setting aside the order dated 26.10.2021.
7. In C.R.M no. 8660 of 2021 Ld. Additional Public Prosecutor on
behalf of the State/ Petitioner supporting the argument advanced by Mr.
Basu contended inter alia that Ld. Vacation Judge did not adhere to the
statement of witnesses recorded under Section 164 Cr.P.C as well as
identification of the accused in Test Identification Parade and came to an
erroneous finding by granting bail to the accused.
8. Ld. Advocates Mr. Imtiaz Ahmed, Mr. Ali Hasan Alamgir and Mr.
Uday Sankar Chattopadhyay on behalf of the opposite parties, have drawn
our attention to the fact that separate bail order granted by three separate
Misc. case have been challenged in both the C.R.M nos. 7296 of 2021 and
8660 of 2021 by a single application under Section 439 (2) of Cr.P.C which
is not maintainable. Next, it is contended that Ld. Vacation Judge
considered all relevant materials in the case diary and period of detention
and also submission of charge sheet after investigation. That is why, it is
contended that nothing else to be investigated to justify further detention of
the opposite parties.
9. In Anil Kumar Yadav (supra) it was observed by the Hon'ble Apex
Court:
" 17. While granting bail, the relevant considerations are:
(i) nature of seriousness of the offence; (ii) character of the
evidence and circumstances which are peculiar to the
accused; and (iii) likelihood of the accused fleeing from
justice; (iv) the impact that his release may make on the
prosecution witnesses, its impact on the society; and (v)
likelihood of his tampering. No doubt, this list is not
exhaustive. There are no hard-and-fast rules regarding
grant or refusal of bail, each case has to be considered on
its own merits. The matter always calls for judicious
exercise of discretion by the Court.
18. While considering the basic requirements for grant of
bail, in State of U.P. v. Amarmani Tripathi, (2005) 8 SCC
21, this Court has held as under: (SCC p. 31,para 18)
"18. It is well settled that the matters to be considered in
an application for bail are (i) whether there is any prima
facie or reasonable ground to believe that the accused
had committed the offence; (ii) nature and gravity of the
charge; (iii) severity of the punishment in the event of
conviction; (iv) danger of the accused absconding or
fleeing, if released on bail; (v) character, behaviour,
means, position and standing of the accused; (vi)
likelihood of the offence being repeated; (vii) reasonable
apprehension of the witnesses being tampered with; and
(viii) danger, of course, of justice being thwarted by grant
of bail [see Prahlad Singh Bhati v. State (NCT of
Delhi) (2001) 4 SCC 280 and Gurcharan Singh v. State
(NCT of Delhi) (1978) 1 SCC 118]. While a vague
allegation that the accused may tamper with the evidence
or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at
large would intimidate the witnesses or if there is
material to show that he will use his liberty to subvert
justice or tamper with the evidence, then bail will be
refused. We may also refer to the following principles
relating to grant or refusal of bail stated in Kalyan
Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528:
(SCC pp. 535-36, para 11)
"11. The law in regard to grant or refusal of bail is very
well settled. The court granting bail should exercise its
discretion in a judicious manner and not as a matter of
course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of
the merit of the case need not be undertaken, there is a
need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly
where the accused is charged of having committed a
serious offence. Any order devoid of such reasons would
suffer from non-application of mind. It is also necessary
for the court granting bail to consider among other
circumstances, the following factors also before granting
bail; they are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence
(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the
charge. (See Ram Govind Upadhyay v. Sudarshan
Singh (2002) 3 SCC 598 and Puran v.
Rambilas (2001) 6 SCC
338.)""
19. The test to be applied for grant of bail was also
considered in Jayendra Saraswathi Swamigal v.
State of T.N., (2005) 2 SCC 13, wherein it was held as
under: (SCC pp.21-22, para 16)
"16. ........The considerations which normally weigh with
the court in granting bail in non-bailable offences have
been explained by this Court in State v.Jagjit Singh (
[1962] 3 SCR 622 and Gurcharan Singh v. State (NCT of
Delhi) (1978) 1 SCC 118 and basically they are -- the
nature and seriousness of the offence; the character of
the evidence; circumstances which are peculiar to the
accused; a reasonable possibility of the presence of the
accused not being secured at the trial; reasonable
apprehension of witnesses being tampered with; the
larger interest of the public or the State and other similar
factors which may be relevant in the facts and
circumstances of the case."
10. In Subodh Kumar Yadav (supra) Hon'ble Apex Court opined as
follows:
"In fact it is now well settled that if a superior court finds
that the court granting bail had acted on irrelevant
material or if there was non-application of mind or failure
to take note of any statutory bar to grant bail, or if there
was manifest impropriety as for example failure to hear
the public prosecutor/complainant where required, an
order for cancellation of bail can in fact be made. (See
Gajanand Agarwal v. State of Orissa [2006 (9)
SCALE 378] and Rizwan Akbar Hussain Syyed v.
Mehmood Hussain [2007 (10) SCC 368) at (SCC p.37,
para7). Further, while cancelling bail, the superior Court
would be justified in considering the question whether
irrelevant material were taken into consideration by the
court granting bail"
11. In Puran (supra) it was decided by the Hon'ble Apex Court as
follows:
"He submitted that in view of these observations the
learned Additional Sessions Judge did not give reasons
whilst granting bail. He submitted that in these
circumstances the Additional Sessions Judge cannot be
faulted. He submitted that the High Court could not
cancel bail on this ground. We see no substance in this
contention. Giving reasons is different from discussing
merits or demerits. At the stage of granting bail a detailed
examination of evidence and elaborate documentation of
the merits of the case has not to be undertaken. What the
Additional Sessions Judge had done, in the Order dated
11- 9-2000 was to discuss the merits and demerits of the
evidence. That was what was deprecated. That did not
mean that whilst granting bail some reasons for prima
facie concluding why bail was being granted did not have
to be indicated.
Mr. Lalit next submitted that the High Court has itself not
given reasons but has mechanically set aside the order of
the bail. We see no substance in this submission. The
High Court has correctly not gone into merits or demerits
of the matter. The High Court has noted that evidence
prima-facie indicated demand of dowry. The High Court
has briefly indicated the evidence on record and what
was found at the scene of the offence. The High Court has
indicated that evidence prima facie indicated that a
demand for Rs. 1 lakh was made just a month prior to the
incident in question. The High Court has stated that the
material on record suggested that the offences
under Sections 498-A and 304-A (sic 304-B) were
prima facie disclosed. The High Court has concluded that
the material on record, the nature of injuries, demand for
Rs. 1 lakh and the other circumstances were such that
this was not a fit case for granting bail. Thus the High
Court has given very cogent reasons why bail should not
have been granted and why this unjustified erroneous
order granting bail should be cancelled.
Mr. Lalit next submitted that once bail has been granted it
should not be cancelled unless there is evidence that the
conditions of bail are being infringed. In support of this
submission he relies upon the authority in the case
of Dolat Ram vs. State of Haryana reported in 1995
(1) S.C.C. 349. In this case it has been held that rejection
of bail in a non-bailable case at the initial stage and the
cancellation of bail already granted have to be considered
and dealt with on different basis. It has been held that
very cogent and overwhelming circumstances are
necessary for an order directing the cancellation of the
bail already granted. It has been held that generally
speaking the grounds for cancellation of bail broadly are
interference or attempt to interfere with the due course of
administration of justice or evasion or attempt to evade
the due course of justice or abuse of the concession
granted to the accused in any manner. It is, however, to
be noted that this Court has clarified that these instances
are merely illustrative and not exhaustive. One such
ground for cancellation of bail would be where ignoring
material and evidence on record a perverse order granting
bail is passed in a heinous crime of this nature and that
too without giving any reasons. Such an order would be
against principles of law. Interest of justice would also
require that such a perverse order be set aside and bail
be cancelled. It must be remembered that such offences
are on the rise and have a very serious impact on the
Society. Therefore, an arbitrary and wrong exercise of
discretion by the trial court has to be corrected."
12. In Ram Govind Upadhyay it was held by the Apex Court as
follows:
"In our view, the High Court has committed a manifest
error in the matter of grant of bail when public tranquility
has been stated to be disturbed on the electionday and
when there is an obstruction for the exercise of a right
guaranteed under the Constitution and when there is an
existence of crime against the society at large.
Irrespective of different factors to be taken note of in
regard to the cancellation of the grant of bail, in our view
interest of justice seem to be over-whelmingly in favour of
the appellant herein in the matter of cancellation of the
bail. The elder brother has been brutally murdered and
the proceeding is pending before the Sessions Judge. It is
during the period when the accused persons were
enlarged on bail that another FIR was recorded and
charge-sheet having been filed, the Court ought to have
taken a serious note of these factual details. Tampering
with the evidence and threatening of the witnesses are
two basic grounds for cancellation of bail - both these two
factors stand alleged and by reason of subsequent filing
of charge-sheet therein, there should have been some
mention of it in the order for grant of bail. The factum of
the second charge-sheet has been omitted in its entirety."
13. At the very outset we may turn to the submission advanced on
behalf of the accuseds to the effect that both the C.R.M are not maintainable
because of challenging three separate orders by a single application. It has
come to our notice that accused namely Sk. Babul @ khokon filed one bail
application, Sabul Sk. And Samu Sk. filed another joint petition with a
prayer for bail and accused Najrul Sk. filed a separate bail application for
consideration before the Ld. Vacation Judge. On 26.10.2021 Ld. Vacation
Judge disposed of all three bail applications by three separate orders. Being
aggrieved defacto complainant 'Sunanda Das' filed one application for
cancellation of bail (C.R.M no. 7296) and State also file one application for
cancellation of bail against the same petitioners (C.R.M 8660 of 2021). In
these circumstances, we are of the view, that the single cancellation petition
against those three orders filed on the same day is not likely to prejudice
any of the accused in any manner. No authority has been cited on behalf of
the accused to say that a petition under Section 439(2) cannot be directed
against several orders granting bail to accuseds involved in the same police
case. Therefore, the cancellation petition cannot be said to be not
maintainable.
14. The question thus before us is as to whether there are prima facie
grounds available for cancellation of bail under Section 439(2) of the Cr.P.C
or not.
15. The bail granted under Section 439(1) of the Cr.P.C can be
cancelled where the accused:
15.1. misuse his liberty by indulging in similar criminal activity;
15.2. interferes with the course of investigation;
15.3. attempts to tamper with evidence of witness;
15.4. threatens witness or indulges in similar activities which would
hamper smooth investigation;
15.5. is likely to flee to another country;
15.6. attempts to make himself scarce by going underground or
becoming unavailable to the investigating agency;
15.7. attempts to place himself beyond the reach of his surety etc.
These are all post bail misconduct.
16. Anil Kumar Yadav (supra) discussed elaborately the grounds to be
considered at the time of granting bail under Section 439(2) Cr.P.C. On the
other hand Subodh Kumar Yadav (supra) emphasised on the grounds
required for cancelling bail. It was observed that the superior Court, while
cancelling bail, would be justified in considering the question whether
irrelevant materials were taken into consideration by the court granting bail.
In that case judicial discretion was exercised by the Ld. Judicial Magistrate
in an arbitrary manner. Puran (supra) dealt with the reasons to be assigned
at the time of granting bail. It was further observed that cancellation of bail
may be ordered where bail order is passed in a heinous crime ignoring the
material and evidence on record and without giving any reasons. Such order
can be set aside for interest of justice. Ram Govind Upadhyay (supra) dealt
with one heinous crime like murder and cancellation of bail was ordered to
be justified on the ground of tampering with the evidence and threatening of
the witnesses.
17. To eschew the prolixity we refrain ourselves from reproducing the
entire impugned order dated 26.10.2021 passed by the Ld. Vacation Judge,
Purba Bardhaman. But on perusal of the impugned orders we find that Ld.
Judge only focused on the submission of charge sheet and period of
detention. Keeping an eye to the submission on behalf of the state Ld. Judge
also passed order directing the accuseds to report to the CID once in a week
apprehending threat to the witnesses.
18. In this conjecture, we think it appropriate to refer the case of
Sushila Aggarwal and others vs. state (NCT of Delhi) and another
(2020) 5 SCC 1(Constitution Bench) wherein Hon'ble Apex Court observed
as follows:
" 85.8 It is open to the police or the investigating agency
to move the court concerned, which granted anticipatory
bail, in the first instance, for a direction under Section
439 (2) to arrest theaccused, in the event of violation of
any term, such as absconding, non-cooperating during
investigation, evasion, intimidation or inducement to
witnesses with a view to influence outcome of the
investigation or trial, etc. The Court, in this context, is the
court which grants anticipatory bail, in the first instance,
according to prevailing authorities.
85.9 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 v. Ramprasad Vishwanath Gupta, Jai
Prakash Singh and State of U.P v. Amarmani
Tripathi). This does not amount to "Cancellation" in
terms of Section 439 (2) Cr.P.C."
19. Therefore, in Sushila Aggarwal (supra) Hon'ble Apex Court
handed down a broader ruling on applicability of section 439(2) of Cr.P.C by
expressing the view that the correctness of an order granting bail can be
considered and set aside, if required, by the Appellate Court or Superior
Court and that order cannot be said to be an order of 'cancellation' in terms
of section 439 (2) of Cr.P.C. Therefore, the Power of Cancellation of bail can
be invoked in the following two situations:
19.1. on merit of a case mainly on the ground of the order granting bail
being perverse, passed without due appreciation of merit or in violation of
any substantive or procedural law.
19.2. on the ground of misuse of liberty after the grant of bail or other
supervening circumstances.
20. The impugned orders dated 26.10.2021 clearly visualize that
though Ld. Vacation Judge heard the submission made on behalf of the
State regarding incriminating materials in the Case Diary but Ld. Judge did
not deal with any of such incriminating materials in his order. Ld Judge,
rather, focused on the fact of submission of charge sheet and the period of
detention only.
21. We have gone through the case diary and prima facie it appears
that the offence is very serious one and relating to an incident of murder
and that too by one hired killer following a conspiracy. It appears that the
deceased was the Anchal Sabhapati and opposite party no. 2, Sabul Sk, is
Anchal Saha Sabhapati and it is alleged to have a dispute between Anchal
Sabhatpati and Anchal Saha Sabhapati.
22. Case diary reflects series of statements of witness under Section
161 Cr.P.C and also statements under Section 164 Cr.P.C implicating all the
accused/ opposite parties in the murder. The witnesses also identified all
the opposite parties during Test Identification Parade. From the charge sheet
we find that during investigation IO collected 'connectivity map' of mobile
phone calls of all accused/opposite parties and also accused Obidur
Rahaman who is alleged to be a hired killer. That connectivity map of mobile
phone show the communication for the day of 12th July, 2021 in between
5.30 p.m. and 7.30 p.m. when incident leading to the murder is alleged to
have been taken place.
23. Bail in the first type (para 19.1) of cases can be cancelled by
Superior Courts only, whereas in the second category (para 19.2) of cases
bail can be cancelled by the Court which has granted the bail also.
24. Now, we propose to come to the parameters of law to be considered
before granting bail in a case of non-bailable offence. While granting bail
Court should keep in mind the following:
24.1. nature of accusations;
24.2. severity of punishment, if accusation entails a conviction;
24.3. nature of evidence in support of the accusations;
24.4. reasonable apprehension of witness being tampered with;
24.5. apprehension of there being a threat for complainant.
25. It is true that no discussion of entire evidence to form an opinion
whether evidence would established guilt beyond reasonable doubt is
expected at the stage of considering matter of bail. However, prima facie
satisfaction of Court in support of charge must be there. As it is trite law
that power of granting bail cannot be exercised in capricious or injudicious
manner. Heinous nature of crime warrants more caution.
26. In our case, taking the risk of repetition, centre of attention of Ld.
Vacation Judge was only on the fact of submission of charge sheet and
period of detention at the time of granting bail to the accused/opposite
parties in a case of criminal conspiracy for killing persons, ignoring the
parameters of law we discussed in para 24.
27. After rummaging through the case diary we found that witnesses
recorded statement both under Section 161 and 164 Cr.P.C implicating all
accused/opposite parties who were also identified by the witnesses during
the Test Identification Parade. Not only that, investigating Officer, during
investigation also collected 'connectivity map' of mobile phones of the
accused/opposite parties and therefore, it was found that at the time of
commission of offence of murder accused/opposite parties talked to each
other and even with alleged hired killer. That apart, Sabul Sk. one of the
accused/opposite parties is " Anchal Saha Sabhapati" being an influential
person of the locality.
28. Therefore, position, influence and resources of the
accused/opposite parties are also relevant factors to adjudge whether the
accused/opposite parties are likely to interfere with administration of
justice, trial or tamper with witnesses or evidence.
29. We are not oblivious of the fact that the liberty is priceless treasure
for a human being. We are also not oblivious of the fact that the liberty of an
individual is not absolute. The society by its collective wisdom through
process of law can withdraw the liberty that it has sanctioned to an
individual when an individual becomes a danger to the collective and to the
societal order.
30. Ld. Vacation Judge, with due respect, seems to have ignored the
overwhelming prima facie evidence appearing in the case diary as we
discussed in para 27 and 28, rather took into consideration irrelevant
materials i.e submission of charge sheet and period of detention.
31. In aforesaid view of the matter, we find it necessary to interfere
with the orders passed on 26.10.2021 by the Ld. Vacation Judge, Purba
Bardhaman. Such vulnerable order granting bail needs to be set aside in the
interest of justice.
32. In the result, both the applications for cancellation of bail under
Section 439(2) of the Cr.P.C stand allowed. Thereby, CRM no. 7296 of 2021
and 8660 of 2021 stand disposed of with a direction upon the opposite
parties to surrender before the Jurisdictional Court within seven days from
the order failing which jurisdictional Court will take appropriate steps for
their arrest.
33. Case dairy be returned.
[BIBHAS RANJAN DE, J.]
34. I Agree.
[DEBANGSU BASAK, J.]
