Calcutta High Court (Appellete Side)

Priyanka Karmakar vs The State Of West Bengal & Anr on 8 February, 2022

08.02.2022 Item No.4 suman Ct.42 (Via Video Conference)

CRM 5979 of 2021

In Re. An application for cancellation of bail under Section 439(2) of the Code of Criminal Procedure.

And

Priyanka Karmakar Vs.

The State of West Bengal & Anr.

Mr. Apalak Basu Mr. Nazir Ahmed Ms. Pritha Bhaumik Basu ...for the petitioner

Ms. Anasuya Sinha Mr. Pinak Kumar Mitra ...for the State

Ms. Tanuka Basu Mr. Aparup Chatterjee ...for the opposite party

This is an application under Section 439(2) of the

Code of Criminal Procedure for cancellation of bail granted

in favour of the opposite party No.2 by the learned

Additional Chief Judicial Magistrate, Alipore on 25th August,

2021 in connection with Regent Park Police Station Case

No.86 of 2021 dated 13th May, 2021 under Sections

323/341/354/354A/354B/354C/354D/384/506 of the

Indian Penal Code read with Section 66E /67/67A of the

Information Technology Act.

On 12th May, 2021 the de facto complainant lodged

a complaint before the Officer-in-Charge, Regent Park Police

Station alleging, inter alia, that sometimes in the year 2012

she met the opposite party No.2 in her tuition class.

Gradually a relationship was established between the de

facto complainant and the opposite party. however, with the

passage of time the de facto complainant found that the

opposite party No.2 was trying to control her life and he was

overpossessing and ill tempered. The opposite party No.2

used to monitor her mobile phone. He did not allow her to

go outside of her house, mix up with other people and even

wear clothes according to her own choice. He also insisted

her to convert her religion to the faith of the opposite party

No.2. The de facto complainant mutely bore all sorts of

tortures inflicted upon her by the opposite party No.2 for the

sake of their relationship. Subsequently, she understood

that the opposite party No.2 is not the person of her choice

and tried to break up said relationship. At this the opposite

party No.2 became furious. He took some private pictures

and videos of the de facto complainant in his mobiles and

laptop and started blackmailing her on the threat that he

would make such pictures viral in social sites. He also sent

some private pictures of the de facto complainant to her

elder sister and younger brother-in-law. He also extorted

considerable amount of money from the bank account of the

de facto complainant threatening her to upload her pictures

in social network sites. On 29th April, 2021 during Covid

Pandemic, her office boss dropped her in front of her house.

The opposite party No.2 followed them and threatened the

office boss namely Gaurav Banerjee and the de facto

complainant with dire consequences. On the basis of the

said complaint police registered Regent Park Police Station

Case No.86 of 2021 dated 13th May, 2021 and took up the

case for investigation. During investigation the de facto

complainant submitted the call list and chat between her

and the opposite party to the Investigating Officer. She also

handed over the bank statements to show payment of

money to the de facto complainant. The statement of the de

facto complainant was recorded under Section 164 of the

Code of Criminal Procedure. During investigation of the case

on 25th August, 2021 the record of Regent Park Police

Station No.86 of 2021 dated 13th May, 2021 was put up on

the basis of an application filed by the opposite party No.2

before the learned Additional Chief Judicial Magistrate,

Alipore. The opposite party No.2 surrendered before the

learned Additional Chief Judicial Magistrate and he was

granted bail on the ground that he complied with the notice

under Section 41 A of the Code of Criminal Procedure and

custodial interrogation is not required for the purpose of

investigation.

The said order passed by the learned Additional

Chief Judicial Magistrate at Alipore is under challenge in the

instant proceeding at the instance of the de facto

complainant. It is submitted on behalf of the informant that

the learned Magistrate failed to appreciate the conditions for

granting bail to an accused. Therefore, his prayer for bail

ought to be rejected. It is submitted by the learned advocate

for the petitioner that the learned Additional Chief Judicial

Magistrate, Alipore did not even consider the gravity and

seriousness of the offence. He did not even consider that in

order to unearth the truth the Investigating Officer required

to seize the mobile phone, SIM card and the lap top of the

opposite party No.2. He did not go through the case diary.

He also did not give opportunity to the learned Public

Prosecutor to take part in the hearing of the application for

bail under Section 437 of the Code of Criminal Procedure.

Therefore, the learned Magistrate has violated all canons of

procedure and granted bail to the opposite party No.2

without assigning any reason. It is submitted by the

learned advocate for the petitioner that if an order of bail is

passed on consideration of irrelevant circumstances without

considering the relevant matters, such order of bail is liable

to be cancelled.

Ms. Anasuya Sinha, learned advocate for the State

submits without any unequivocal term that the order of bail

passed by the learned Additional Chief Judicial Magistrate

not only suffers from infirmity and material irregularity but

also illegal per se. Compliance of the notice under Section

41A of the Code of Criminal Procedure cannot be held to be

a ground for granting bail.

Learned advocate for the opposite party No.2, on

the other hand, submits that the opposite party No.2

appeared before the Investigating Officer in compliance of

the notice under Section 41A of the Code of Criminal

Procedure. He was duly interrogated and examined by the

Investigating Officer. The Investigating Officer seized one

mobile phone from the possession of the opposite party No.2

and sent the same for scientific examination.

It is further submitted by the learned advocate for

the opposite party No.2 that he is a business man. When he

was in relationship with the petitioner, he gave financial

loan to the elder sister of the petitioner and other relations.

So, the de facto complainant paid her money for repayment

of such loan amount. The accused never extorted the

petitioner as alleged.

The learned advocate for the opposite party No.2

refers to an order passed by a Co-ordinate Bench on 10th

December, 2021 in CRM 9457 of 2020 being a proceeding

under Section 439(2) of the Code of Criminal Procedure. It is

submitted by the learned advocate for the opposite party

No.2 that in view of the above order passed by a Co-ordinate

Bench the order of bail granted by the learned Additional

Chief Judicial Magistrate can at best be modified treating

the same as interim bail. In the meantime, the Additional

Chief Judicial Magistrate, Alipore may be directed to fix a

date for production of the case diary and thereafter dispose

of the application for bail after hearing the parties and the

learned Public Prosecutor.

Having heard the learned Counsels for the petitioner

and the opposite parties and having due regard to the

factual aspects of the case, this court is of the view that it is

inconvenient to narrate the principles laid down by the

Hon'ble Supreme Court for cancellation of bail.

In Kanwar Singh Meena -vs- State of Rajasthan &

Anr. (2012) 12 SCC 180, it is held by the Hon'ble Supreme

Court in paragraph 10 of the said report as hereunder:-

"While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice.

But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence,

to flee from justice, etc. would not deter the Court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution 3 case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail"

The High Court has the power to cancel bail even in

cases where the order of granting bail suffers from serious

infirmities resulting in miscarriage of justice. In Myakala

Dharmarajam & Ors. vs. The State of Telengana & Anr.

(Criminal Appeal Nos.1974-1975 of 2019, decided on

7th January, 2020), the Hon'ble Supreme Court relying

on the ratio laid down in Raghubir Singh vs. State of

Bihar reported in (1986) 4 SCC 481 formulated the

following guidelines where bail can be cancelled.

"In Raghubir Singh -Vs.- State of Bihar this Court held that bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. The above

grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence, it must not be lightly resorted to".

In Kanawar Singh Meena (supra) it is held by the

Hon'ble Supreme Court that an order of bail may be

cancelled if the Court granting bail ignores relevant

materials indicating prima facie involvement of the

accused or takes into account irrelevant material,

which has no relevance to the question of grant of bail

to the accused. In the instant case the learned A.C.J.M,

Alipore granted bail to the accused because he

complied the notice under Section 41A of the Cr.P.C.

This Court called for a report from the Officer-in-

Charge of Regent Park P.S as to whether case diary was

produced before the learned A.C.J.M, Alipore. The

officer-in-charge, Regent Park P.S submitted a report

stating, inter alia, that the learned A.C.J.M did not pass

any order directing the investigating officer to produce

the case diary, nor he called for the case diary at the

time of hearing of the said application. It is needless to

say that even in Satender Kumar Antil vs. Central

Bureau of Investigation & Anr. [Special Leave to

Appeal (Crl) No.5191 of 2021], it is held by the

Supreme Court that sole consideration of compliance of

Section 41A of the Code of Criminal Procedure without

considering the case diary, and the memo of evidence of

the case cannot be a ground for passing an order of

bail.

The learned Advocate for the opposite party No.2

has placed his reliance to an order dated 10th

December, 2021 passed in CRM No.9457 of 2020 (Smt.

Manishi Das vs. The State of West Bengal & Anr.)

and submitted that the impugned order of bail dated

25th August, 2021 may be converted to an ad-interim

order of bail and the learned court below may be

directed to hear out the application for bail filed by the

accused under Section 437 of the Code of Criminal

Procedure afresh on the basis of the materials available

in the case diary.

I have carefully perused the case diary. In view of

the specific complaint made by the defacto complainant

and considering its nature and gravity, this Court is of

the view that custodial interrogation of the

accused/opposite party No.2 is absolutely necessary in

order to unearth the truth behind the dispute between

the parties. The allegation reveals that the accused not

only tried to destroy the future prospect of the defacto

complainant, he has already portrayed the defacto

complainant as a woman of questionable character by

uploading some intimate pictures in social networking

sites. Considering such gravity of offence, I am inclined

to cancel the order of bail passed by the learned

A.C.J.M, South 24 Parganas at Alipore.

The learned A.C.J.M, Alipore is directed to issue

warrant of arrest against the accused immediately on

receipt of the server copy of this order.

Before I part with, it apparently appears that the

learned A.C.J.M, Alipore while passing the order dated

25th August, 2021 did not apply his mind and in a typed

copy of the order, he filled up some gaps and passed the

order. Even the said order is not signed by him securing

the fact that it was dictated and corrected by him. It

appears from the certified copy of the order that the order

of acceptance of bail bond was also previously typed and

the name of the surety was written by some persons other

than the learned A.C.J.M, Alipore.

In Sharmistha Chowdhury & Anr. Vs. The State

of West Bengal & Ors. reported in 2018 Cri LJ 359, a

Co-ordinate Bench of this Court placing reliance of Rule

183 of the Criminal Rules and Order observed:-

"35. I have noted with grave concern the practice of

recording orders with the assistance of police

personnel attached to the General Registrar section

or otherwise is not only illegal but affects the

independence of judiciary and the constitutional

mandate of separation of judiciary from the

executive. Rule 183 of Calcutta High Court Criminal

(Subordinate Courts) Rules, 1985 lays down the

procedure for recording judicial orders which reads as

follows:-

"R.183. Orders requiring the exercise of

judicial discretion and the final order shall be

recorded by the Magistrate in his own hand or

typed by him, 15 others may be recorded under

his direction by the Bench Clerk."

36. Accordingly, I deem it necessary to pass the

following directions in exercise my powers of

superintendence for future guidance of the criminal

courts:-

(a) Judges/Magistrates shall record orders

strictly in terms of Rule 183 of the Criminal Rules

and Orders (Sub-ordinate Court Rules), 1985.

(b) Alternatively, in view of the technological

advancement and the availability of personal

computers/laptops to the judicial personnel, they

may also transcribe their orders on the computers

and take a printout thereof and upon affixation of