957 vs In Re: State Of West Bengal
2022 Latest Caselaw 4724 Cal

25.07. 2022
item No.17
n.b.
ct. no. 34
                        CRM(SB) 119 of 2022
        In Re: An application for Cancellation of bail under Section
        439(2) of the Code of Criminal Procedure in connection with G.
        R. No.1072 of 2022 arising out of Islampur Police Station Case
        No.147 of 2022 dated 13.4.2022 under Section 420/120B of
        Indian Penal Code, 1860 read with 63/65 of the Copy Right Act
        1957.

                             And
        In Re:   State of West Bengal.
                                                    .....petitioner.

                 Ms. Mauyukh Mukherjee,
                 Mr. A. Mitra,
                             .....for the Defacto Complainant
                 Mr. Ranabir Roy Chowdhury,
                 Mr. Mainak Gupta,
                            .....for the State

                 Md. G. N. Imrohi,
                 Mr. Debapriya Majumder
                                   ... for the opposite party.

                 State approached this Court for cancelling the bail

        order dated April 14, 2022 in connection with Islampur Police

        Station case No.147 of 2022 dated 13.4.2022 under Section

        420/120B of the Indian Penal Code, 1860 read with 63/65 of

        the Copy Right Act 1957.

                 Mr. Roychoudhury, learned advocate appearing for the

        petitioner/State submits that the observations of the Learned

        Trial Court that since Section 41A of the Code of Criminal

        Procedure was not complied with and the accused has been

        arrested and as such he is entitled to the order of bail is

        against sprit of the judgment. In an appropriate case, the
                                       2




Investigating authority may decide to issue notice under

Section 41A of the Code of Criminal Procedure but there may

be cases where search and seizure is immediately required even

prior to Section 41 A of the Code of Criminal Procedure and it is

only after search and seizure or recovery the Investigating

Authority have to take a prompt decision whether to arrest an

accused or not. The whole prerogative is with the Investigating

Agency at the stage of investigation of the case.

         Mr. Majumder, learned advocate appearing for the

accused/opposite party submits that pursuant to the order of

bail being granted the accused persons had been diligently

complying with the same and there has been no allegation from

any corner that they have misused the liberty granted to them.

         Mr. Mukherjee, learned advocate appearing for the de

facto complainant submits that the order of the Learned

Additional Chief Judicial Magistrate, Lalbagh, Murshidabad

suffers from gross illegality as the merits of the matter was not

taken into consideration and the Learned Court on technical

issues allowed the prayer of bail.

         I have taken into consideration the submissions

advanced by each of the parties and perused the order dated

14.04.2022

, the learned Court while granting bail took into

account non-compliance of Section 41A of the Code of Criminal

Procedure and based the foundation on Section 41A for grant of

bail. I am of the opinion that the Learned Magistrate should

have considered the merits of the case. There is a fault on the

part of the Investigating Officer for not issuing Section 41A for

that there may be separate steps to be taken, but a criminal

case is to be independently considered on the anvil whether the

custodial detention of the accused is required or not, and it is

for the Court to take such a decision. Accordingly, I modify the

bail granted on 14.04.2022 to the extent that such bail will be

valid till August 31, 2022.

All the parties are present before this Court. They are

directed to be present on August 18, 2022. Learned ACJM will

hear out the facts of the case on merits. Sufficient opportunity

is to be given to each of the parties to place their case and

thereafter decide whether the petitioner should be released on

bail or his custodial detention is necessary for the sake of

investigation of the case.

Needless to state that this Court has not expressed

any opinion whether to grant bail or not to grant bail, it is

exclusive jurisdiction and discretion of the Learned Magistrate.

The Court only interfered in respect of the issue that no facts

are discussed in the order regarding the purpose for which the

petitioner is granted bail in the background of the facts

emerging and the prayer advanced by the Investigating officer

of the case.

With the aforesaid observation, CRM(SB) 119 of 2022

is disposed of.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

(Tirthankar Ghosh, J.)