Calcutta High Court (Appellete Side)
Sk. Muktader Rahaman & Others vs The State Of West Bengal on 21 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 7594 of 2021
Sk. Muktader Rahaman & Others
Vs
The State of West Bengal
The Central Bureau of Investigation
With
C.R.M 7669 of 2021
Sk. Baitul @ Sk. Baidul @ Sk. Baitul
Vs
The Central Bureau of Investigation
With
C.R.M 8058 of 2021
Sk. Emadul Islam
Vs
The State of West Bengal
The Central Bureau of Investigation
With
C.R.M 8159 of 2021
Sk. Najrul Islam
Vs
The State of West Bengal
The Central Bureau of Investigation
2
For the Petitioner :Mr. Kishore Datta, Sr. Adv.
Mr. Achintya Banerjee
Mr. Imteaz Ahmmed
Mr. Suman De
Mr. Tarun Kumar Chatterjee
Ms. Indumouli Banerjee
.......In C.R.M. no. 7594 of 2021
For the Petitioner :Mr. Sekhar Kr. Basu Sr. Adv.
Mr. Biswajit Hazra
Mr. Arif Mahammad Khan
Mr. A. Sain,
.......In C.R.M. no. 7669 of 2021
For the Petitioner :Mr. Jayanta Narayan Chatterjee
Mr. Sk. Rejaul Islam
Ms. Nandini Chatterjee
Mr. Supreem Naskar
Ms. Jayashree Patra
Ms. Sreeparna Ghosh
Mr. Souvrodeep Koley
.......In C.R.M. no. 8058 of 2021 &
C.R.M 8158 of 2021
For the CBI: Mr. Y.J. Dastoor, Ld. ASG
Mr. Phiroze Edulji
Mr. Amajit De,
Mr. Samrat Goswami
For the State : Mr. Neguive Ahmed
Ms. Amita Gaur
For The de facto Complainant : Mr. Kallol Mondal
Mr. Rajdeep Mazumder
Mr. Bilawadal Bhattacharya
Mr. Srijib Chakraborty
.......In C.R.M. no. 7594 of 2021
& C.R.M 7669 of 2021
Heard on : April 08, 2022
Judgment on : April 21, 2022
3
Bibhas Ranjan De, J.:-
1.
All four (4) applications in connection with aforesaid four C.R.M
arising out of Nandigram Police Station Case (FIR) No. 224/2021
dated 13.05.2021 under Section 147 /148/ 149 /323 /325/ 302 of
the Indian Penal Code (for short 'IPC'), are taken up together for
decisions.
2. On 03.05.2021 at about 10.30 hours one Debabrata Maity, uncle of
complainant, was severely injured and wounded due to sudden attack
by unknown miscreants. The injured Debabrata Maity was taken to
Nandigram Hospital wherefrom he was referred to Tamluk Sadar
Hospital and lastly he was further referred to P.G Hospital Kolkata
where said injured succumbed to his injuries on 13.05.2021 at about
11.30 a.m. hours. It was further alleged that miscreants indulged in
violence with deadly weapons in the village Chillagram on
03.05.2021. On receipt of a complaint from one susanta Maity,
nephew of said Debabrata Maity, Nandigram Police Station Case No.
224/2021 dated 13.05.2021 under Section 147 /148/ 149/323/325/
302 was started.
3. During investigations of this case on 19.08.2021 a Special Bench of
this Hon'ble Court passed an order in WPA No. 143 of 2021 handing
over a cluster of criminal cases including this case being no.
Nandigram police Case No. 224/2021 dated 13.05.2021 under
Section 147 /148/ 149 /323 /325/ 302 of the Indian Penal Code to
the Central Bureau of Investigation (for short CBI).
4. In CRM 7594 of 2021 Ld. Senior Advocate, Mr. Kishore Dutta has
highlighted the following circumstances in favour of granting bail to
the petitioners :
4.1 Nothing incriminating materials was found against the
petitioners before their arrest even after filing of preliminary
charge sheet.
4.2 Nature of injury of the deceased did not support the case of the
allegation of the investigation agency that miscreants attacked
the Chillagram village armed with sharp cutting weapons like
iron roads, swords, gun etc. creating a reasonable doubt in the
allegation.
4.3 There is no explanation for delay in recording statement of
witnesses particularly the statement of daughter of victim,
wherein these petitioners were involved. Non explanation of
delay of recording that statement culminates the possibility of
that statement of daughter of the victim being tutored by the
investigating agency.
4.4 CBI filed an affidavit before the Hon'ble Supreme Court stating
inter alia that Sk. Supiyan, another accused of this case, was
mastermind of entire offence. But even considering the same
Hon'ble Supreme Court granted pre-arrest bail to Sk. Supiyan.
4.5 No Test Identification (for short T.I) Parade was held on the
ground that the petitioners were all co-villagers and nothing
was seized from the possession of the petitioners.
5. In CRM 7669 of 2021 Ld. Senior Advocate Mr. Sekhar Kr. Basu has
strenuously argued as follows:
5.1 Though name of the accused did not take place in the First
Information Report of this case CBI send a notice to the petitioner
who attended on 11.09.2021 but his attendance was not recorded by
the CBI officials with an ulterior motive;
5.2 For the second time he appeared before the CBI officials on
09.10.2021 but he was arrested without assigning any reason and
from then on he is in custody for a period of 178 days;
5.3 Name of the petitioner did not appear in preliminary charge
sheet filed by the CBI on 05.10.2021, but on 06.01.2022 CBI
submitted supplementary charge sheet for the first time against these
petitioners and others in connection with this case;
5.4 Two other co-accused of supplementary charge sheet, namely Sk.
Fatenur @ Fate and Sk. Mijanur have been enlarged on interim bail
by the Ld. Additional District and Sessions Judge, Haldia;
5.5 Sk. Supiyan, being mastermind of the entire offence of this case,
according to CBI, was granted pre-arrest bail by the Hon'ble Supreme
Court holding inter alia that though the name of Sk. Supiyan
appeared in the statement of witnesses recorded on 18th November,
2021 but not cited as witness in the charge sheets and the statement
of other two witnesses have been belatedly recorded on 24th January,
2002;
5.6 Petitioner is not involved in this case in any way and no recovery
was made from his possession that is why further detention is
absolutely unnecessary.
6. In C.R.M No. 8058 of 2021 and C.R.M no. 8159 of 2021, Ld. Advocate
Mr. Jayanta Narayan Chatterjee has contended that the petitioners are in
custody for about 270 and 180 days respectively. Co-accused namely Sk.
Mijanur and Sk. Fatenur have been enlarged on bail. It has been further
submitted that even the name of the petitioners are not in the First
Information Report. It has been further argued that son of the victim named
Sk. Attaur, Sk. Mustake and Sk. Hayatul who assaulted victim on his face
duly corroborated by Post Mortem Report. That apart, it has been further
argued that Sk. Supiyan has been granted pre-arrest bail by the Hon'ble
Apex Court. Before parting with his argument it has been submitted that the
petitioner namely Sk. Najrul Islam co-operated with investigation by
attending before investigating agency on 07.10.2021 and on 09.10.2021 in
reply to notice.
7. In reply, on behalf of the C.B.I, Ld. Additional Solicitor General Mr. Y.J.
Dastoor has vehemently submitted that preliminary charge sheet was filed
on 05.10.2021 against Sk. Mijanur Sk. Fatenur and Sk. Emadul Islam in
view of statement of witnesses recorded under Section 161 Cr.P.C and
documents seized during investigation. It has been further submitted that
during further investigation eye witnesses recorded their statements under
Section 161 Cr.P.C implicating all of the petitioners/accused involved in the
alleged violence at the Chillagram village on 03.05.2021. With regard to
accused Sk. Supiyan it has been submitted that the Hon'ble Apex Court
granted pre-arrest bail to Sk. Supiyan mainly on the ground that his name
did not appear in both the charge sheets.
8. On behalf of the defacto complainant, Ld. Advocate Mr. Kallol Mondal has
appeared and strenuously contended all the petitioners were arrested for
their direct involvement in the alleged offence on the basis of statements of
witnesses recorded under Section 161 and 164 Cr.P.C. Mr. Mondal further
submitted that all the petitioners were implicated in the supplementary
charge sheet filed on 06.01.2022. Mr. Mondal further contended that
accused Sk. Supiyan was granted pre-arrest bail by the Hon'ble Apex Court,
as he stands on the different footings as that of the petitioners in connection
with all four C.R.M. Hon'ble Apex Court granted bail as his name did not
appear in both the charge sheets and that apart, statements of witnesses
did not implicate him with regard to any overt act attributed to him thereby.
Mr. Dastoor, in support of his contention, relied on a case, reported
in (2018) 10 SCC 516 (State of Orissa Vs. Mahima nanda Mishra) and (2018)
12 SCC 129 (Anil Kr. Yadav Vs. State NCT of Delhi & Anr).
Decision
9. Anil Kumar Yadav (supra) has delineated the parameters for grant of bail.
Mahima nanda Mishra (supra) has relied upon Anil Kumar Yadav (supra). At
the very outset, it will be useful to refer to the precedents to govern the grant
of bail, without attributing an exhaustive character to them. The
considerations are as follows:
9.1. Where granting bail, the Court has to keep in mind, not only the
nature of accusations, but the severity of punishment of the accusation
entails a conviction, and the nature of evidence, in support of the
accusations.
9.2. Reasonable apprehensions of the witnesses, being tampered with, or
the apprehension of their being a threat for the complainant should also
weigh with the Court, in the matter of grant of bail.
9.3. While it is not expected to have the entire evidence, establishing the
guilt of the accused, beyond reasonable doubt, but there ought always to be
a prima facie satisfaction of the Court, in support of the charge.
9.4. Frivolity in prosecution should always be considered and it is only the
element of genuineness that shall have to be considered in the matter of
grant of bail, and in the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of events the accused
is entitled to an order of bail.
9.5. Grant of bail, though being a discretionary order, but, however, calls
for exercise of such a discretion in a judicious manner and not at a matter
of course. Order for bail bereft of any cogent reason, cannot be sustained.
10. It is well settled that, among other circumstances, the factor to be borne
in mind, while considering an application for bail are:
10.1. Whether there is any prima facie or any reasonable ground to
believe, that the accused had committed the offence;
10.2. Nature and gravity of the accusation;
10.3. Severity of the punishment, in the event of conviction;
10.4. Danger of the accused absconding or fleeing, if released on bail;
10.5. Character, behaviour, means, position and standing of the accused;
10.6. Likelihood of the offence, being repeated;
10.7. Reasonable apprehensions of the witnesses, being influenced; and
10.8. Danger, of course, of justice being thwarted by grant of bail.
11. In terms of argument, advanced on behalf of the petitioners in all four
C.R.M, it would be appropriate to recapitulate the solemn order of the
Hon'ble Apex Court, in respect of accused, Sk. Supiyan @ Suffiyan @
supisan, whereby, accused was granted pre-arrest bail. Before the Hon'ble
Court, CBI, relied on statements of five witnesses recorded under Section
164 of Cr.P.C. Hon'ble Apex Court clarified, that among the five witnesses,
two were examined on 07.09.2021 and 11.09.2021, respectively. But the
name of the accused Sk. Supiyan did not appear in the charge sheet filed on
05.10.2021, by the C.B.I. Hon'ble Apex Court, further observed, that one of
the remaining three witnesses, has not been named in the list of the charge
sheeted witness, and remaining two witnesses were examined belatedly on
24.01.2022. On those aforesaid cogent grounds, Hon'ble Apex Court could
not refuse the prayer for the pre-arrest bail.
12. In terms of argument advanced on behalf of the petitioners in all four
C.R.M, it is claimed that all the petitioners were falsely implicated in this
case for the offence alleged to have been committed on 03.05.2021 by the
involvement of a mob consisting of 100/150 persons. Petitioners seem to
have claimed parity with regard to the pre-arrest bail extended in favour of
the accused Sk. Supiyan by the Hon'ble Apex Court.
13. With regard to the claim of parity we find that C.B.I only focused on five
statements of witness recorded under Section 161 Cr.P.C before the Hon'ble
Apex Court in Criminal Appeal No. 198 of 2022/ SLP (Case) No. 9796 of
2021 in respect of accused Sk. Supiyan. Hon'ble Apex Court discarded all
those five statements of witnesses recorded under Section 164 Cr.P.C on
the ground that though out of five witnesses two statements were recorded
on 07.09.2021 and 11.09.2021 prior to filing of preliminary charge sheet but
accused Sk. Supiyan was not named in both the charge sheets filed on 05.
10. 2021 and 06.01.2022. That apart, out of remaining three witnesses one
was recorded on 18.11.2021, but his name did not find place even in the
supplementary charge sheet. And remaining two witnesses were belatedly
recorded on 24.01.2022 i.e. after filing of supplementary charge sheet.
14. Even if we exclude statement of those five witnesses recorded under
Section 164 Cr.P.C relied upon by the C.B.I before the Hon'ble Supreme
Court, we find, that the prosecuting agency got recorded other 21
statements of witnesses including five (5) witnesses recorded under Section
164 Cr.P.C prior to filing preliminary charge sheet on 05.10.2021 and also
got recorded statements of six witnesses under Section 161 Cr.P.C. prior to
submitting supplementary charge sheet. All those 27 witnesses squarely
implicate all the petitioners seeking bail under Section 439 Cr.P.C in all four
C.R.M in our hand.
15. Thus, we conclude by formulating our findings :
15.1. Offence alleged in this case is heinous one;
15.2. Petitioners are not on the same footing as that of accused Sk. Supiyan
who was granted pre-arrest bail by the Hon'ble Supreme Court;
15.3. Even excluding statement of five (5) witnesses recorded under section
164 Cr.P.C discarded by the Hon'ble Supreme Court we find prima facie
involvement of all the petitioners by the statement of 27 witnesses recorded
before filing of supplementary charge sheet;
15.4. All the petitioners are named either in preliminary charge sheet or in
supplementary charge sheet;
15.5 Likely hood of tampering of evidence, in case of granting bail, cannot
be ruled out;
16. What emerges from the above that we are unable to exercise the power
of granting bail under Section 439 of Cr.P.C. Thus, prayer for seeking bail
under Section 439 Cr.P.C in all four C.R.Ms stand considered and rejected.
17. For the foregoing reasons and discussions, C.R.M No. 7594 of 2021,
C.R.M No. 7669 of 2021, C.R.M No. 8058 of 2021 and C.R.M No. 8159 of
2021 stand disposed of.
[BIBHAS RANJAN DE, J.]
18. I Agree.
[DEBANGSU BASAK, J.]
