Calcutta High Court (Appellete Side)
Mafuja Khatun & Ors vs Unknown on 26 December, 2022
26.12.2022.
Sws.M/Tbsr
Ct. No.08
CRM(A) 6099 of 2022
In Re:- An application for anticipatory bail under Section 438
of the Code of Criminal Procedure, 1973.
In the matter of : Mafuja Khatun & Ors. ... petitioners
Mr. Sourav Chatterjee
Mr. Soumya Nag
Ms. Adity Tiwari
Mr. Priyom Biswas
Ms. Namrata Chatterjee
...for the petitioners.
Mr. Swapan Banerjee
Ms. Purnima Ghosh
.....for the State.
This is a second application for anticipatory bail in
connection with Gangarampur Police Station Case No. 211
of 2019 dated 08.06.2019 under
sections143/147/148/149/186/188/332/353/325/326/307 of
the Indian Penal Code, section 3 of the Prevention of
Damage to Public Property Act, section 8B of the National
Highways Act read with section 9 of the West Bengal
Maintenance of Public Order Act.
Learned counsel appearing on behalf of the petitioners
submits as follows. The petitioner nos. 1 to 3 are the post
holders and the petitioner nos. 4 to 11 are the workers of a
particular political party, respectively. So far as the issue of
maintainability is concerned, the application for anticipatory
bail of their leaders similarly arraigned as accused in the
present case was allowed by a Co-ordinate Bench of this
Court on 03.07.2019 in CRM No. 5333 of 2019.
Subsequently, the application for anticipatory bail of the
present petitioners was dismissed by this Court. However, a
similarly circumstanced accused whose application for
anticipatory bail was also rejected by this Court moved the
Hon'ble Apex Court. By an order dated 22.07.2021 passed
in SLP (Crl.) No. 5018 of 2021, a direction was passed not to
arrest him. On 22.08.22 a final order was passed directing
that since a charge-sheet and a supplementary charge-
sheet had been filed, the appellant would apply for regular
bail before the trial Court, which would be examine keeping
in mind the orders of the Supreme Court in the judgments
reported at (2022) 1 SCC 676 titled "Siddharth Vs. State of
Uttar Pradesh" and at 2021 SCC Online SC 941 titled "Aman
Preet Singh vs. CBI". Therefore, the present petitioners are
also entitled to similar benefits till the matter could be finally
heard out. An interim order of not to arrest may be granted
for the present and in the event the matter is finally heard
out, a similar relief may be granted as was ordained by the
Hon'ble Apex Court in the final order. On merits, the
petitioners are on the same footing and perhaps on a better
footing than that of the leaders of the party who were earlier
granted anticipatory bail. No medical person has been
shown as a witness in the charge sheet.
Learned counsel representing the State submits as
follows. The present petition is not maintainable because
the Hon'ble Apex Court did not grant anticipatory bail to the
other co-accused and the present petitioners are not
similarly placed as the one who got relief before the Hon'ble
Apex Court. It is to be seen from the statements of the
injured witnesses whether the name of the person getting
relief before the Hon'ble Apex Court has also been taken by
the injured like the names of the present petitioners.
However, the entire case diary is not available. Only parts of
it including the statements of three injured witnesses and the
injury reports are available.
It appears that after the rejection of anticipatory bail
application of the present petitioners, a rejection of such an
application of a similarly placed co-accused was challenged
before the Hon'ble Apex Court. First, an order of not to
arrest was granted for some time. Finally, the accused were
granted a relief of surrendering before the learned trial court
and praying for bail so that the same could be decided in
view of the decisions of the Hon'ble Supreme Court in
Siddharth Vs. State Uttar Pradesh (supra) and Aman Preet
Singh Vs. CBI (Supra).
It appears that the present petitioners are quite
similarly circumstanced as the accused Ashok Bardhan who
had challenged the order of rejection of anticipatory bail
before the Hon'ble Apex Court and who was granted certain
reliefs. The injured witnesses have purportedly taken the
names of all of them.
In our view, the petitioners have thus made out a case
that there is a material change in circumstance for
entertaining a second application for anticipatory bail.
The entire case diary is not available with the State.
However, the vital statements of three injured persons and
the injury reports are available.
Perused the same.
The injured witnesses seem to have taken the names
of all the present petitioners as well as the said Ashok
Bardhan. Moreover, from the available injury reports it is not
clear whether the grevious charge of Section 326 of the
Penal Code could be made out.
However, till the original case diary is perused, it will
not be proper to pass a final order in this case.
List this matter on 29th December, 2022.
The State shall produce the original case diary on the
next date.
In the meantime i.e., till the matter could be taken up
for hearing before this Court and for the reasons as
discussed above, the investigating agency shall not arrest
the petitioners.
Parties shall act on a server copy of this order
obtained from the official website of High Court at Calcutta.
Liberty is granted to the parties to communicate a gist
of this order.
(Jay Sengupta, J.)
(Apurba Sinha Ray, J.)
