Anisur Rahaman vs State Of West Bengal & Anr
2022 Latest Caselaw 542 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Appellate Jurisdiction
                           Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                       C.R.M. 2089 of 2021

                         Anisur Rahaman
                               Vs.
                    State of West Bengal & Anr.


For the Appellant      :   Mr. Ayan Basu, Adv.,
                           Mr. Biswajit Das, Adv.,
                           Mr. Sumit Routh, Adv.


For the State          :   Mr. Saswata Gopal Mukherjee, Ld. P.P.,
                           Mr. Arijit Ganguly, Adv.,
                           Mr. Sandip Chakraborty, Adv.

For the Opposite       :   Mr. Sandipan Ganguly, Sr. Adv.,
Party No. 2                Mr. Kusal Kumar Mukherjee, Adv.


Heard on                     :   08.04.2021, 3.02.2022,
                                 09.02.2022, 15.02.2022.


Judgment On                  :   15.02.2022


Bibek Chaudhuri, J.

This is an application for cancellation of order of bail passed by

the Learned Chief Judicial Magistrate, Barasat on 11th December, 2021

in connection with Duttapukur Police Station Case No. 36/2020 dated

14.01.2020 under Sections 420/406/506/34 of the Indian Penal Code

corresponding to G.R. Case No. 343/2020. It is alleged by the de

facto complainant that the opposite party no. 2 was previously known

to him. The wife of the opposite party no. 2 is an employee of Dr. A.

P. J. Abdul Kalam Government College at New Town. The opposite

party no. 2 exerted undue influence upon the petitioner stating, inter

alia, that his wife was having good connection with the higher officials

of Education Department, Government of West Bengal and the

opposite party no. 2 with the help of his wife would arrange a job for

the son of the de facto complainant. He also demanded a sum of

Rs.20,00,000/- from the de facto complainant stating, inter alia, that

the said sum was to be paid to the higher officials of the Education

Department as bribe to ensure employment of his son. The de facto

complainant paid a sum of Rs.20,00,000/- by Bank transfer on 19 th

July, 2018 and 30th July, 2018. In the month of September, the de

facto complainant insisted the opposite party no. 2 and his wife to

hand over the letter of appointment in the name of his son but they

delayed in handing over such letter of appointment on one pretext or

another. Subsequently, they started avoiding the de facto

complainant. The de facto complainant understood that he was

cheated by the accused persons and put pressure upon them to

return the said amount. The opposite party no. 2 issued two cheques

on 20th August, 2019 for Rs.20,00,000/- drawn on Bandhan Bank, Salt

Lake Branch. However, both the said cheques were dishonoured due

to insufficient fund. Thereafter, the de facto complainant went to the

house of the opposite party no. 2 but he refused to meet him or talk

to him. He also threatened to de facto complainant with dire

consequence. The de facto complainant again demanded the said

money on 15th December, 2019 for the purpose of medical treatment

of one of his relatives. But the accused persons abused him with

filthy language.

On the basis of the said complainant, Police registered

Duttapukur Police Station Case No. 36/2020 dated 14th January, 2020

under Sections 420/406/506/34 of the Indian Penal Code.

The Learned Advocate for the petitioner draws my attention to

the order dated 11th February, 2021 passed by the Learned Chief

Judicial Magistrate, North 24-Pargnas wherefrom it appears that on

11th February, 2021 the opposite party no. 2 surrendered before the

Court and prayed for bail. The Learned Chief Judicial Magistrate has

passed the following order granting bail to the opposite party no. 2: -

"Heard Ld. Advocate for the accused and the Ld. APP.

Ld. APP raises no serious objection against the bail prayer of the

accused.

Perused the materials on record. Considered.

It appears that the offences are triable by the Court of

Magistrate and today the accused surrenders before this Court

voluntarily. That apart, the co-accused has been granted bail in this

case.

Considering the above, I am of the opinion that there is no need

for custodial detention of the present accused and I am inclined to

enlarge the accused on bail.

Hence, the bail prayer of the accused stands allowed.

Accordingly, the accused named above may find bail of

Rs.2,000/- with two registered sureties of Rs.1,000/- each on

condition that if on bail the accused shall meet the Investigating

Officer twice a week for 3 months, i.d. to JC till date".

It is submitted by the Learned Advocate for the petitioner that

the Learned Chief Judicial Magistrate did not assign any reason for

passing the order of bail of the opposite party no. 2.

It is on record that the opposite party No.2 and her husband

committed the offence of cheating and misappropriated a sum of

Rs.20,00,000/- from the petitioner. He issued two cheques in the name

of the petitioner but the said cheques were dishonoured on the ground of

insufficient fund. Thus, opposite party No.2 and her husband

misappropriated a huge sum of Rs.20,00,000/- from the petitioner. In

view of such circumstances, the learned Chief Judicial Magistrate ought

to have held that custodial interrogation of the opposite party No.2 and

her husband was absolutely necessary. The learned Chief Judicial

Magistrate committed a grave error in holding that there is no need for

custodial detention of opposite party No.2 at the stage of investigation of

the case.

It is further submitted by the learned Advocate for the petitioner

that the learned Chief Judicial Magistrate did not even consider the case

diary before granting bail to the opposite party No.2. In support of his

contention, the learned Advocate for the petitioner refers to a decision of

the Hon'ble Supreme Court in the case of Kanwar Singh Meena Vs.

State of Rajasthan & Anr. reported in (2012) 12 Supreme Court

Cases 180. In the aforesaid report, the Hon'ble Supreme Court has laid

down the principles applicable for cancellation of bail in the following

words:-

"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-recognised 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 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 learned Advocate for the petitioner has also referred to

another decision of the Hon'ble Supreme Court in the case of Neeru

Yadav Vs. State of Uttar Pradesh & Anr. reported in (2014) 16

Supreme Court Cases 508. In the said report, the Hon'ble Supreme

Court observed as follows:-

"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.

Accent on individual liberty cannot be pyramided to that extent which

would bring chaos and anarchy to a society. A society expects

responsibility and accountability from its members, and it desires that

the citizens should obey the law, respecting it as a cherished social

norm. No individual can make an attempt to create a concavity in the

stem of social stream. It is impermissible. Therefore, when an

individual behaves in a disharmonious manner ushering in disorderly

things which the society disapproves, the legal consequences are bound

to follow. At that stage, the court has a duty. It cannot abandon its

sacrosanct obligation and pass an order at its own whim or caprice. It

has to be guided by the established parameters of law."

Referring to a very recent decision of the Hon'ble Supreme Court in

Centrum Financial Services Limited Vs. State of NCT of Delhi &

Anr. (Criminal Appeal No.94 of 2022, Judgment delivered on 28th

January, 2022), it is submitted by the learned Counsel for the

petitioner that normally the High Court should not interfere with the

order of granting bail. However, where the discretion to grant bail has

been exercised without due application of mind and in contravention of

the direction of this Court, such an order of granting bail is liable to be

set aside.

Learned Advocate for the petitioner also refers to an order passed

by this Court in CRM 4414 of 2021 on 27th January, 2022 where this

Court cancelled the order of bail passed by the learned Magistrate.

Against the application for cancellation of bail, an affidavit-in-

opposition filed on behalf of the opposite party No.2. Main contention of

the opposite party No.2 is that when the cheques issued by her husband

were dishonoured, the petitioner had the right to file an application

under Section 138 of the Negotiable Instruments Act. On the contrary,

the petitioner has lodged a written complaint in the local police station at

a belated stage by suppressing the facts under which a sum of

Rs.20,00,000/- were taken and it was attempted to be repaid. It is also

submitted on behalf of the opposite party No.2 that in Ram Govind

Upadhyay Vs. Sudarshan Singh reported in 2002 SCC (Cri.) 688,

the Hon'ble Supreme Court has laid down the guideline for the grant of

bail. These are: -

(a) not only the nature of accusations but the severity of

punishment in case of conviction and the nature of the

supporting evidence,

(b) reasonable apprehension of tampering with the witnesses or

apprehension of threat to the complainant;

(c) prima facie satisfaction of the Court in support of charge,

and

(d) frivolity and genuineness of the prosecution.

It is contended by the opposite party No.2 that the order of bail

under the facts and circumstances of the case is not liable to be

cancelled.

The petitioner has reiterated the fact contained in his application

by filing affidavit-in-reply.

The learned Advocate for the opposite party No.2 submits that

rejection of bail in a non-bailable case at the initial stage and the

cancellation of bail so granted, have to be considered and dealt with on

different basis. In support of his contention he refers to a decision of the

Hon'ble Supreme Court in X vs. State of Telangana & Anr. reported in

(2018) 16 Supreme Court Cases 511. In the aforesaid decision, the

Hon'ble Supreme Court has taken into consideration the ratio laid down

in Kanwar Singh Meena (supra), Neeru Yadav (supra) and other

cases.

In Paragraph 14 of the said report it is observed by the Hon'ble

Supreme Court -

"14. In a consistent line of precedent this Court has emphasised

the distinction between the rejection of bail in a non-bailable case at the

initial stage and the cancellation of bail after it has been granted. In

adverting to the distinction, a Bench of two learned Judges of this Court

in Dolat Ram V. State of Haryana observed that : (SCC pp. 350-51,

para 4)

"4. Rejection of bail in a non-bailable case at the initial stage and

the cancellation of bail so granted, have to be considered and dealt with

on different basis. Very cogent and overwhelming circumstances are

necessary for an order directing the cancellation of the bail, broadly

(illustrative and not exhaustive) 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. The satisfaction of the court, on the basis of

material placed on the record of the possibility of the accused

absconding is yet another reason justifying the cancellation of bail.

However, bail once granted should not be cancelled in a mechanical

manner without considering whether any supervening circumstances

have rendered it no longer conducive to a fair trial to allow the accused

to retain his freedom by enjoying the concession of bail during the trial."

15. These principles have been reiterated by another two-Judge

Bench decision in CBI v. Subramani Gopalakrishnan and more

recently in Dataram Singh v. State of U.P. (Subramani case, SCC pp.

303-04, Para 23):

23. It is also relevant to note that there is difference between

yardsticks for cancellation of bail and appeal against the order granting

bail. Very cogent and overwhelming circumstances are necessary for an

order directing the cancellation of bail already granted. Generally

speaking, the grounds for cancellation of bail 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

concessions granted to the accused in any manner. These are all only

few illustrative materials. The satisfaction of the court on the basis of

the materials placed on record of the possibility of the accused

absconding is another reason justifying the cancellation of bail. In other

words, bail once granted should not be cancelled in a mechanical manner

without considering whether any supervening circumstances have

rendered it no longer conducive to a fair trial to allow the accused to

retain his freedom by enjoying the concession of bail during the trial."

Having heard the learned Counsel for the parties and on due

consideration of the precedence relied on by the learned Counsel in

support of their respective cases, this Court likes to record that Section

437 of the Code of Criminal Procedure confers wide power to the learned

Magistrate subject to the exception contained in the subsequent sub-

section of Section 437 to grant bail to an accused. But while granting

bail, the learned Magistrate is guided by the same considerations as

other Courts. That is to say, the gravity of the crime, the character of

the evidence, position and status of the accused with reference to the

victim and witnesses, the likelihood of the accused fleeing from justice

and repeating the offence, the possibility of his tampering with the

witnesses and obstructing the course of justice and such other grounds

are required to be taken into consideration. Each criminal case presents

in its peculiar factual scenario and, therefore, certain grounds peculiar to

a particular case may have to be taken in to account by the Court. The

Court has to only opine as to whether there is a prima facie case against

the accused or not. The Court must not undertake meticulous

examination of the evidence collected by the police and comment on the

same. Such assessment of evidence and premature comments may

cause prejudice to fair trial.

In the instant case, the petitioner has prayed for cancellation of

bail of the accused on the ground that he was cheated by the accused

persons. The accused persons did not make payment of the money

which they took for giving employment of his son and secondly, custodial

interrogation of the accused is necessary.

It is true that the learned Chief Judicial Magistrate did not call for

the case diary at the time of hearing of the application for bail.

However, from the documents filed by the de facto complainant with his

objection for cancellation of bail, it is ascertained that the accused

persons already admitted the fact of receiving money from the de facto

complainant and in order to repay the said money, they issued two

cheques which were dishonoured. The said documents and the

dishonoured cheques are the most important pieces of evidence to prove

the charge against the accused persons.

Though the learned Chief Judicial Magistrate did not consider the

case diary, no supervening circumstances have been made out by the

petitioner to warrant the cancellation of the bail of the accused.

In view of such circumstances, I am not inclined to cancel the bail

of the accused persons.

Prayer for cancellation of bail, is, therefore, rejected.

(Bibek Chaudhuri, J.)