Sk. Md. Anisur Rahaman vs Unknown
2022 Latest Caselaw 3148 Cal

10.06.2022.

20. Ct.No.28 as/PA (Rejected) C.R.M. (DB) 1472 of 2022

In Re:- An application for bail under Section 439 of the Code of Criminal Procedure in connection with Panskura P.S. Case No.495 of 2019 dated 08.10.2019 under Sections 302/120(B) of the Indian Penal Code and Sections 25/27 of the Arms Act.

In the matter of : Sk. Md. Anisur Rahaman.

... Petitioner.

Mr. Kalyan Bandyopadhyay, ld. Sr. Adv., Mr. Gautam Dey, Mr. Arindam Jana, Mr. Rajesh Askar, Mr. Diptendu Sarkar, Mr. Pratap Bera.

...for the Petitioner.

Mr. Saswata Gopal Mukherjee, ld. P.P., Mr. Swapan Banerjee, Mr. Suman De.

...for the State.

Mr. Sudipta Moitra, ld. Sr. Adv., Mr. Rajdeep Mazumder, Mr. Mayukh Mukherjee, Mr. Aniruddha Bhattacharyya, Ms. Namrata Chatterjee.

...for the victim.

Heard the learned Senior Counsels appearing on

behalf of the parties.

Mr. Kalyan Bandyopadhyay, learned Senior

Advocate for the petitioner submits his client is in custody

for more than 800 days. He further submits the

proceedings before the trial court was stayed by the

Hon'ble Apex Court at the behest of one Afjal Ali Sha @

Abjal Shaukat Sha, a relation of the deceased. Liberty has

been given to pray for bail by the Hon'ble Apex Court.

Elaborating his submissions Senior Advocate contends

petitioner is a victim of political machinations and has

been falsely implicated in the instant case. Most witnesses

have not supported the prosecution case. He also

contends his client has always co-operated with the

process of law and upon the prosecution being re-initiated

pursuant to an order passed by a learned Single Judge of

this Court in WPA 6315 of 2021 setting aside his acquittal,

he surrendered before the trial court and since then he is

in custody. In order to delay and dilate the proceeding, the

prayer has been made before the Apex Court for transfer of

the case to a different State and there is no possibility of

the trial progressing in future. Hence, further detention is

in breach of his fundamental right under Article 21 of the

Constitution of India. Hence, he may be enlarged on bail.

For a better appreciation of the submissions made

on behalf of the learned Senior Advocate, it may be

apposite to set out the important twists and turns in this

beleaguered prosecution:-

a) On 8.10.2019 instant case was

registered under Sections 302/120B of the Indian

Penal Code against the petitioner and other

accused persons by one Jahar She alleging that

the petitioner had entered into conspiracy with

other accused persons to eliminate his political

rival viz., one Kurban Sha. Pursuant to such

conspiracy, on 7.10.2019 in presence of the

informant some of the accused persons mercilessly

shot Kurban exhorting that he was being taught at

lesson for taking up cudgels against the petitioner.

b) In conclusion of investigation, charge-

sheet was filed against the petitioner and other

accused persons and they were put up for trial.

c) In the course of trial Jahar Sha was

examined as prosecution witness No.1 (P.W.1)

wherein he narrated the incident of murder, as

aforesaid, implicating the petitioner as a

conspirator in the murder.

d) Notwithstanding the aforesaid evidence

on record, suddenly on 26.02.2021 State of West

Bengal issued a notification under Section 321

Cr.P.C. withdrawing the prosecution. Such

notification came to be challenged by Jahar Sha

before this Court in WPA 6315 of 2021.

e) During the pendency of the writ

petition, the trial judge by the judgment and order

dated 2.3.2021 mechanically acquitted the

accused as the prosecution has been withdrawn

under Section 321 Cr. P. C. It may be pertinent to

note the withdrawal of prosecution and

consequential acquittal by the trial Court Judge is

contrary to observations of the Supreme Court in

State of Kerala Vs. K. Ajith and Others1.

2021 SCC OnLine SC 510 (see para 26)

f) On the self-same day, learned Single Judge

coming to know of the order of acquittal quashed

the impugned notification under Section 321

Cr.P.C.

g) On an appeal preferred before the Division

Bench, the Bench without going into the merits of

the matter, by order dated 13.4.2021 remanded

the case before the learned Single Judge on a

technical ground that the petitioner had not been

given an opportunity of hearing. While doing so,

the Bench clarified the status prevailing when the

learned Single Judge passed the order shall,

however, continue.

h) On 2.3.2021 petitioner was again taken into

custody. During the hearing of the writ petition

before the learned Single Judge, Jahar Sha, the

informant and original writ petitioner sought to

withdraw the petition on the ground that he was

under pressure. At that juncture, Afjal Ali Sha @

Abjal Shaukat Sha, brother of the petitioner made

an application to transpose himself as a writ

petitioner and continue the proceeding. By order

dated 28.4.2021, learned judge allowed his prayer.

As petitioner had been taken into custody in the

meantime, the learned Single Judge observed that

he would continue in such custody unless order to

the contrary is passed by an appropriate Court till

15.6.2021 or until further orders.

i) Thereafter the State (notwithstanding

supporting its stance of withdrawal of prosecution)

proceeded with the trial and examined the number

of witnesses. During trial, most of the witnesses

turned hostile.

j) At this stage, the said Afjal Ali Sha approached

the Apex Court and prayed for transfer of the

prosecution to a different State. By order dated

5.10.2021, the Apex Court issued notice in the

matter and stayed the prosecution conducted by

the State of West Bengal. Subsequently, by order

dated 2.5.2022, the Court clarified that the

petitioner may pursue his bail prayer before this

Court.

The aforesaid narration of events clearly discloses a

prevaricating stance on the part of the State of West

Bengal. While on one hand, the State proceeded to bury

the prosecution by resorting to its withdrawal under

Section 321 Cr.P.C., on the other hand it purported to

continue the prosecution against the petitioner and other

accused persons by examining witnesses. In spite of

repeated queries from this Court, learned Public

Prosecutor is unable to enlighten us whether the State has

chosen to recall its decision to drop the prosecution or not.

We chose not to make any further comment in this regard

as the issues relating to withdrawal of prosecution as well

as transfer of such prosecution are subject matters in

collateral proceedings.

Be that as it may, it is relevant to note in the

prosecution conducted by the State, most of the witnesses

have resiled from their earlier statements to police and

have turned hostile. It is also pertinent to bear in mind

even the informant Jahar Sha, the original writ petitioner

in WPA 6315 of 2021 expressed apprehension and was

unwilling to proceed with the said proceeding challenging

withdrawal of prosecution.

These circumstances give rise to a serious

apprehension in the mind of this Court as to the

overwhelming and malevolent influence on the witnesses

as well as the informant which had prompted them from

either withdrawing from the writ petition or resiling from

their earlier statements before police during deposition in

Court.

Mr. Bandyopadhyay, strenuously contends the

blame cannot lie at the door step of his client who is in

custody. We are not unmindful of such fact. However, it is

also apposite to note that the petitioner appears to be an

influential personality having strong connections with

political elements. During arguments it was brought to our

notice that on 2.3.2021 i.e. when the order of acquittal

was set aside by the learned Single Judge and the

petitioner was arrested, his henchmen and/or associates

tried to snatch him from police custody and a criminal

case came to be registered against them. These disturbing

features persuade us to hold that release of the petitioner

on bail pending adjudication before the Hon'ble Apex

Court relating to the fate of the present prosecution may

add clout to the petitioner and his henchmen who may

resort to various wrongful acts including threats and/or

intimidation to dissuade witnesses from coming out with

the truth relating to the murder of Kurban.

We have also given anxious thought to the

contention of Mr. Bandyopadhaya that detention of the

petitioner at this stage when the prosecution is stayed by

the Hon'ble Apex Court is in breach of his fundamental

right under Article 21 of the Constitution of India. A fair

prosecution requires to address not only the rights of the

accused but also the rights of the victims in particular and

the public confidence in criminal justice administration in

general. Manner in which the prosecution is sought to be

jettisoned gives rise to grave doubt with regard to the bona

fides of the State in effectively prosecuting the petitioner

and the other accused persons. As noted above, while on

one hand the State chooses to support its stance of

withdrawal of prosecution, on other hand it appears to be

conducting a 'lip-service' trial wherein most witnesses

have turned hostile.

An aura of fear and apprehension seems to pervade

the minds of the witnesses and the relations of the victim.

In fact, Jahar Sha (informant in the case) was constrained

to withdraw himself from the writ proceeding challenging

the withdrawal of prosecution. This calls for a balancing

act between rights of victim i.e., access to justice and

witness protection and the right of the petitioner-accused

under Article 21 of the Constitution of India.

In view of the painful state of affairs where the bias

of the State is heavily loaded in favour of the petitioner-

accused, it would be prudent for us to tilt in favour of

protection of the witnesses and family members of the

deceased and ensure a fair and just prosecution. Hence,

we are not inclined to release the petitioner on bail.

On merits too we are not impressed to release the

petitioner on bail. We have gone through the evidence on

record. Evidence of the informant of Jahar Sha as well as

P.W.8, Uttam Mondal @ Bapi Mondal show the miscreants

who fired at the victim had taken the name of petitioner.

Hence, evidence has come on record in support of the

charge of conspiracy.

For these reasons, we are of the opinion that this is

not a fit case to grant bail to the petitioner at this stage.

Accordingly, the prayer for bail of the petitioner is

rejected.

We clarify that the observations made by us in this

order are for the purpose of disposal of this bail

application and shall not have any bearing in collateral

proceedings or in any ensuing trial as may be directed by

the Apex Court.

(Ananya Bandyopadhyay, J.) (Joymalya Bagchi, J.)