Calcutta High Court (Appellete Side)
Ravneet Kaur @ Ravneet Kaur Bhatia vs The State Of West Bengal on 10 March, 2022
1
IN THE HIGH COURT AT CALCUTTA
Criminal Miscellaneous Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Bibhas Ranjan De
C.R.M No. 2603 of 2021
With
IA No.: CRAN 1 of 2021, CRAN 2 of 2021
Ravneet Kaur @ Ravneet Kaur Bhatia
Vs.
The State of West Bengal
For the Petitioner : Mr. Sandipan Ganguly, Adv.
Mr. Dipanjan Dutta
Mr. Vishwarup Acharyya
For the State : Mr. Saswata Gopal Mukherji, Ld. PP
Mr. S. S. Imam
Mr. Subrato Roy
For the Opposite : Mr. Sekhar Basu, Sr. Adv.
Parties Nos. 2 to 4 Mr. Sabyasachi Banerjee
Mr. Daanish Haque
Mr. Emon Bhattacharya
Heard on : March 01, 2022
Judgement on : March 10, 2022
2
DEBANGSU BASAK, J.:-
1.
The petitioner has assailed the orders dated September 28,
2020, November 18, 2020 and February 11, 2021 passed by the
Learned Chief Judicial Magistrate, South 24-Parganas at Alipore
in C.G.R. Case No. 2156 of 2020 arising out of Karaya Police
Station Case No 237 of 2020 dated June 22, 2020 under Sections
498A/354C/384/406/467/468/471/34 of the Indian Penal
Code, 1860 in this application. By such orders the learned Chief
Judicial Magistrate had granted bail to the private opposite
parties. The petitioner has sought cancellation of the bail so
granted.
2. Learned Advocate appearing for the petitioner has
submitted that, the petitioner, is the wife of the opposite party
no. 2. She had lodged a police complaint against the opposite
parties nos. 2 to 4 with the Karaya Police Station which was
registered as a first Information Report and a police case started.
The opposite parties nos. 2 to 4 had been granted bail by the
learned Chief Judicial Magistrate on different dates. He has
referred to the orders granting bail to the opposite parties nos. 2,
3 and 4. He has submitted that the opposite parties nos. 3 and 4
who are the in-laws of the petitioner surrendered before the Chief
Judicial Magistrate on September 28, 2020. Learned Chief
Judicial Magistrate had granted interim bail to the opposite
parties nos. 3 and 4. The interim bail had been directed to
remain in force till November 18, 2020. On November 18, 2020,
the opposite party nos. 3 and 4 had applied for confirmation of
the interim bail upon which the learned Chief Judicial Magistrate
confirmed the order of bail. Thereafter, the opposite party no. 2
had surrendered before the Chief Judicial Magistrate on February
11, 2021 and applied for bail. Such prayer for bail had been
opposed on behalf of the State. The learned Chief Judicial
Magistrate had proceeded to grant bail to the opposite party no. 2
on the ground that two other co-accused persons were already
enlarged on bail after surrendering before the Court.
3. Referring to 2002 Volume 3 Supreme Court Cases 598
(Ram Govind Upadhyay Vs. Sudarshan Singh And Others)
learned Advocate appearing for the petitioner has submitted that,
there is a difference in consideration of the parameters for
cancelation of a bail and a challenge to a perverse order granting
bail. He has submitted that, all the three impugned orders are
perverse. The learned Chief Judicial Magistrate has failed to take
into consideration the parameters for granting bail. The learned
Chief Judicial Magistrate has failed to take into consideration the
gravity of the offence and the involvement of the opposite party
no. 2 therein. He has contended that, there are allegations of
forgery. In fact, the opposite party no. 2 has two different driving
licenses and two permanent account numbers with the Income-
Tax Authorities. The complaint with the police has serious
allegations with regard to forgery against at least the opposite
party no 2. He has relied upon 2009 Volume 14 Supreme Court
Case 638 (Subodh Kumar Yadav vs. State of Bihar and
Another) for the proposition that the learned Chief Judicial
Magistrate acted with undue haste in granting bail on the date of
the surrender. He has relied upon 2016 Volume 3 Calcutta
Criminal Law Reporter (Cal) 606 ( In Re: Sant Lal Gupta @
Sant Lal Ram Shaw) and 2018 SCC Online Delhi 12306
(Court on its Own Motion Vs. State) in support of his
contentions that when the order of the learned Magistrate is
without jurisdiction, the same is required to be interfered with.
4. Learned Advocate appearing for the petitioner has relied
upon 2022 SCC online SC 30 (Manoj Kumar Khokhar vs.
State of Rajasthan and Another) and submitted that, an order
granting bail should be informed with reasons. None of the orders
assailed in the present application has any cogent reason for the
purpose of granting bail to any of the private parties.
5. Learned Public Prosecutor appearing for the State has
submitted that, custodial interrogation of the opposite party no. 2
is imperative. He has referred to the application of the police filed
before the learned Chief Judicial Magistrate in respect of the
opposite party no. 2 where the police had prayed for custody of
the opposite party no. 2. He has submitted that, the de facto
complainant had alleged that the opposite party no. 2 obtained
documents like permanent account number from the Income-Tax
Authorities and driving license on the basis of false and
fabricated documents impersonating himself as "Harsh Singh"
and used those documents for illegal gains. He has also drawn
the attention of the Court to the fact that the de facto
complainant had alleged that the opposite party no. 2 had set a
video camera camouflaged in the electric socket in her bedroom
thereby infringing her privacy.
6. Learned Public Prosecutor has referred to the case diary and
submitted that police had seized the application for allotment of
permanent account number in respect of Income-Tax made by
Harsh Singh. In such application a driving license of Harsh Singh
had been enclosed as proof of address and proof of identity. He
has submitted that a permanent account number PAN had been
allotted in favour of Harsh Singh on the basis of such application.
He has also drawn the attention of the Court to the driving
license standing in the name of Harsh Singh.
7. Learned Public Prosecutor has submitted that on obtaining
such documents, the police had sought report on the handwriting
of such documents from the Questioned Documents Examination
Bureau. The documents had also been sent for examination to
the Central Forensic Science Laboratory. The Central Forensic
Science Laboratory by a writing dated November 10, 2021 had
opined that the photographs on the application for allotment of
PAN of Harsh Singh and the application for opening a bank
account with Kotak Mahindra Bank and the application for
opening a Savings Bank Account with Axis Bank were of the
same person. He has submitted that, the Questioned Document
Examination Bureau by a writing dated August 27, 2021 had
opined that the specimen signature obtained from the opposite
party no. 2 and the writing on the application of Harsh Singh
were by the same person.
8. Learned Public Prosecutor has submitted that, there are
overwhelming evidence gathered by the police on investigation to
establish that the opposite party no. 2 had two permanent
account numbers with the Income-Tax Authorities and that he
has used both permanent account numbers for the purpose of
opening bank accounts. The opposite party no. 2 had
impersonated himself as Harsh Singh and has opened bank
account with Axis Bank and Kotak Mahindra Bank. Employees of
Kotak Mahindra Bank and Axis Bank had stated that Harsh
Singh and the opposite party no. 2 are one and the same person.
He has submitted that, custodial interrogation of the opposite
party no. 2 is imperative to unearth the quantum of forgery that
the opposite party no. 2 had indulged in by using two permanent
account numbers with the Income-Tax Authorities.
9. Learned Public Prosecutor has submitted that, the order of
bail of the opposite party no.2 has affected the investigation. He
has submitted that, the Chief Judicial Magistrate did not take
into account the parameters for consideration of grant of bail
while granting bail to the opposite party no. 2. The Chief Judicial
Magistrate has glossed the gravity of the offence and the
involvement of the private party no. 2 therein. The Chief Judicial
Magistrate has also failed to take into account the fact that
custodial interrogation of the opposite party no. 2 is imperative
given the quantum of forgery that the opposite party no. 2 has
indulged in.
10. Learned Public Prosecutor has relied upon 1997 Volume 7
Supreme Court Cases 187 (State vs. Anil Sharma) in support
of his contention that custodial interrogation is quantitatively
more result oriented than questioning a suspect who is well
ensconced with a favourable order of bail. Effective interrogation
of a suspected person is advantageous as many useful
informations and materials can be garnered which would
otherwise be suppressed by a person favoured with an order of
bail.
11. Learned Public Prosecutor has relied upon 2021 Volume 6
Supreme Court Cases 191 (Naveen Singh vs. State of Uttar
Pradesh and Another) and submitted that, the allegation of
forgery are there in the First Information Report. Considering the
fact that the de facto complainant had levelled serious allegations
against the opposite party no. 2, the learned Chief Judicial
Magistrate ought not to have released the opposite party no. 2 on
bail on the date of his surrender particularly when, the police
wanted custody of the opposite party no. 2 for interrogation.
12. Learned Public Prosecutor has relied on 2012 Volume 12
Supreme Court Cases 180 (Kanwar Singh Meena vs. State of
Rajasthan and Another) for the principles applicable for grant
of bail and for cancellation of bail. He has submitted that, in the
facts of the present case the Court should cancel the bail granted
in favour of the opposite party no. 2 and allow the police to make
custodial interrogation of the opposite party no. 2.
13. Opposing the prayer for cancellation of the bail, the Learned
Senior Advocate appearing for the private opposite parties has
submitted that, the application for cancellation of bail had been
filed 233 days from the date of the order granting the bail. All the
private opposite parties have complied with the conditions
granting the bail. Bail to the private opposite parties had been
granted in three tranches. The opposite party nos. 3 and 4 were
granted interim bail on September 28, 2020. Such interim bail
had been confirmed on November 18, 2020. Thereafter, the
opposite party no. 2 had surrendered before the Chief Judicial
Magistrate and was granted bail on February 11, 2021.
14. Learned Senior Advocate appearing for the private opposite
parties has submitted that, permanent account number is
allotted only after obtaining the biometrics of the person
concerned. Therefore, the question of the opposite party no. 2
impersonating himself as "Harsh Singh" and obtaining a
Permanent Account Number as Harsh Singh does not arise
particularly when there is a PAN in his name.
15. Learned Senior Advocate appearing for the private opposite
parties has drawn the attention of the Court to the First
Information Report. He has submitted that, the First Information
Report does not contain any materials with regard to
impersonation in the manner as presently alleged by the State
against the opposite party no. 2.
16. Learned Senior Advocate appearing for the private parties
has highlighted the conduct of the private opposite parties
subsequent to the orders granting bail to them. He has submitted
that, the opposite party no. 2 had met the investigating officer
even after the grant of bail on numerous occasions. In fact, the
opposite party no. 2 had met the investigating officer on ten
occasions subsequent to the order of bail dated February 11,
2021. All the private opposite parties are ready and willing to
meet to the investigating officer if so directed by the Court, in
such frequency and in such manner as the Court may deem it
appropriate to direct.
17. Learned Senior Advocate appearing for the private opposite
parties has relied upon 2018 Volume 16 Supreme Court Cases
511 (x vs. State of Telengana and Others) and submitted that
in the facts of the present case, cancellation of bail is not
warranted. He has contended that, once bail is granted, it should
not be cancelled unless a cogent case based on supervening
event is made out. In the same vein, he has relied upon 2020
Volume 11 Supreme Court Cases 648 (Prabhakar Tewary vs.
State of Uttar Pradesh and Another).
18. The petitioner herein had lodged a complaint with the police
on June 22, 2020 against the private opposite parties with regard
to the torture meted out to her by the private opposite parties
since her marriage. In such complaint the petitioner had alleged
that the private opposite parties did not refund money taken from
her. The petitioner had also alleged that the private opposite
party no. 2 obtained Government documents like permanent
account numbers and driving license on the basis of false and
fabricated documents impersonating himself as Harsh Singh and
has been using such documents as genuine. The petitioner had
claimed that camera had been installed in her bedroom
camouflaged in light equipments infringing upon her privacy.
19. On the basis of such complaint, a police case being Karaya
Police Station Case No. 237 dated June 22, 2020 under Section
498A/354C/384/406/467/468/471/34 of the Indian Penal Code
had been registered against the private opposite parties. The
police had commenced investigations thereon.
20. In course of investigations, the police could not find the
hidden camera claimed to have been camouflaged inside the
bedroom of the petitioner. The police, however, had found two
bank accounts of Axis Bank BBD Bagh Branch and Kotak
Mahindra Bank, Park Street Branch in the name of Harsh Singh.
Bank account opening forms had been seized under the seizure
list. One bank account opening form of the opposite party no. 2
in respect of Kotak Mahindra Bank, Ballygange Branch had also
been seized.
21. The police had also seized the original PAN Card application
form in the name of Harsh Singh from the Regional Manager UTI
Infrastructure Technology and Services, Kolkata. The police had
collected the handwriting of the private opposite party no. 2. The
police had sent the original bank account opening forms and the
PAN Card application form bearing the signature of Harsh Singh
along with his subsequent signature of the opposite party no. 2 to
the Questioned Document Examination Bureau for examination
of the handwriting to ascertain whether the handwriting of Harsh
Singh and the opposite party no. 2 matched or not. The
Questioned Document Examination Bureau had opined that the
same person had executed the handwriting of Harsh Singh and of
the opposite party no. 2. Consequently, the police has claimed
that, there are materials to establish that the opposite party no. 2
impersonated himself as Harsh Singh in opening the bank
accounts and obtaining the permanent account number with the
Income-Tax Authorities as Harsh Singh. The police has also come
across the permanent account number standing in the name of
the opposite party no. 2.
22. In the course of investigations, the police has come across
materials to suggest that, there was a nexus between the address
given by the opposite party no. 2 while impersonating himself as
Harsh Singh with the addresses occupied by the opposite party
no. 3 at given points of time.
23. In the course of investigations, the police had also learned
that the private opposite parties from time to time extorted a sum
of Rs. 10 Lakhs from the petitioner. The police had seized the
stridhan articles and subsequently handed over the same to the
petitioner on her bond.
24. In the course of investigations, the opposite party nos. 3
and 4 had surrendered before the Chief Judicial Magistrate on
September 28, 2020 when the Chief Judicial Magistrate on the
finding that the opposite party nos. 3 and 4 were not the primary
accused and after coming to a finding that the detention of
opposite party nos. 3 and 4 was not needed for the purpose of
investigation and after returning a finding that there was no
allegation of forgery against the opposite party nos. 3 and 4
granted interim bail to the opposite party nos. 3 and 4. The
interim bail had been directed to remain in force till November
18, 2020.
25. On November 18, 2020, the opposite party nos. 3 and 4 had
filed an application before the learned Chief Judicial Magistrate
praying for confirmation of the interim bail. The learned Chief
Judicial Magistrate after considering that no adverse report had
been placed against the opposite party nos. 3 and 4 and that the
opposite party nos. 3 and 4 had complied with the conditions of
the bail confirmed the interim bail in favour of the opposite party
nos. 3 and 4.
26. The opposite party no. 2 had surrendered before the Chief
Judicial Magistrate on February 11, 2021. The opposite party no.
2 had also applied under Section 437 of the Criminal Procedure
Code. Before the learned Chief Judicial Magistrate, the opposite
party no. 2 had contended that, he was not served with a notice
under Section 41A of the Code of Criminal Procedure Code. The
learned advocate for the State had raised objections to the prayer
for bail. The investigating officer had prayed for a detention of the
opposite party no. 2, inter alia, on the ground of requirement to
investigate the allegation of forgery and impersonation regarding
the permanent account numbers and the driving licenses of the
opposite party no. 2 and his impersonation as Harsh Singh. The
Chief Judicial Magistrate had also heard the advocate for the
petitioner on February, 2021.
27. By the order dated February 11, 2021, the learned Chief
Judicial Magistrate had found that co-accused persons were
already on bail after surrendering. He had also recorded that the
police case was registered on June 22, 2020 and that a period of
eight months had elapsed with nothing being there in the case
diary to show that the investigating officer had tried to apprehend
the opposite party no. 2 for the purpose of the investigation. The
learned Chief Judicial Magistrate had observed that, the case was
document based and coupled with the allegation of matrimonial
dispute and all documents in connection with the case being
seized by the investigating officer, and found no justification for
detention of the opposite party no. 2 for the sake of investigation
and custodial interrogation. Consequently, the Chief Judicial
Magistrate had allowed the prayer for bail of the opposite party
no. 2 made under Section 437 of the Criminal Procedure Code.
28. In Subodh Kumar Yadav (supra), the Supreme Court has
observed that, bail once granted can be cancelled based on
conduct subsequent to the release on bail and supervening
circumstances. In given facts, if the superior Court finds that the
Court granting bail had proceeded on irrelevant material, or if
there was non-application of mind or the Court failed to take note
of any statutory bar to grant bail or there was manifest
impropriety while granting the order of bail, the same can be
cancelled. Bail can also be cancelled if the same had been
granted while taking into consideration irrelevant materials.
29. The Division Bench of this Hon'ble Court in In Re: Sant Lal
Gupta (supra) has considered Section 437 of the Criminal
Procedure Code. It has observed that when considering an
application for bail under Section 437 of the Criminal Procedure
Code, where one of the alleged offences involved is found to be
punishable either with death or imprisonment of life, the power of
the Magistrate to grant bail under Section 437 of the Criminal
Procedure Code stands completely negated, unless the opinion of
the Magistrate is to the contrary. In the facts of that case, there
was an allegation of forgery of a document which such document
was in the custody of the police. Moreover, the investigation was
over and charge sheet had been submitted. Furthermore, the
State did not express any apprehension that the accused if
remaining on bail, was likely to abscond. In such factual
background, the bail granted had not been cancelled by the
Court.
30. The Delhi High Court in Court on its Own Motion (supra)
has considered Section 437 of the Criminal Procedure Code. It
has observed that, in a case where the accused named in the
First Information Report for commission of an offence which
prescribe a sentence of death or imprisonment of life as
punishment and there appears reasonable ground for the
accused being guilty of such an offence the Court shall not
consider releasing the accused on bail under Section 437 (1)
unless one or more of the grounds stated in the first two proviso
of the Section 437(1) of the Cr.P.C had been made out.
31. In Ram Govind Upadhyay (supra), the Supreme Court has
observed that, considerations for the grant of bail and
considerations for cancellations of an order of bail are
independent and do not overlap each other. In the event, the
High Court finds that the order for bail was granted without
taking into consideration the relevant facts, the bail granted can
be cancelled.
32. Kanwar Singh Meena (supra) has dwelt on the principles
as applicable for grant of bail and principles applicable for
cancellation of bail. It has observed as follows:-
"10. ....................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."
33. In Naveen Singh (supra), the Supreme Court has observed
the seriousness of the offenses was one of the relevant conditions
while considering grant of bail. Merely because the police had
filed charge sheet, does not entitle the accused to an order for
bail.
34. In X (supra), the Supreme Court has observed that there is
a 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. It has held that very cogent and overwhelming
circumstances are necessary for an order directing cancellation of
bail already granted.
35. In Prabhakar Tewary (supra) the Supreme Court has
observed that two key factors in setting aside an order granting
bail are non-application of mind on the part of the Court granting
the bail or the opinion of the Court in granting bail is not drawn
out from the prima facie view of the evidence on record.
36. In Anil Sharma (supra) the Supreme Court has observed
that, custodial interrogation is qualitatively more effective than
questioning a suspect protected with a bail order. Custodial
interrogation has a greater chance of success. The Court has to
presume that, the police will conduct such interrogation
responsibly.
37. In Manoj Kumar Khokhar (supra), the Supreme Court has
dealt with the aspect of adequate reasons being made available
for judicial or a quasi-judicial order. It has observed as follows :-
"19. On the aspect of the duty to accord reasons for a
decision arrived at by a court, or for that matter, even a
quasi-judicial authority, it would be useful to refer to a
judgment of this Court in Kranti Associates Private
Limited v. Masood Ahmed Khan, (2010) 9 SCC 496,
wherein after referring to a number of judgments this
Court summarised at paragraph 47 the law on the point.
The relevant principles for the purpose of this case are
extracted as under:
"(a) Insistence on recording of reasons is meant to
serve the wider principle of justice that justice must not
only be done it must also appear to be done as well.
(b) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of judicial and
quasi-judicial or even administrative power.
(c) Reasons reassure that discretion has been exercised
by the decision-maker on relevant grounds and by
disregarding extraneous considerations.
(d) Reasons have virtually become as indispensable a
component of a decision-making process as observing
principles of natural justice by judicial, quasi-judicial and
even by administrative bodies.
(e) The ongoing judicial trend in all countries committed
to rule of law and constitutional governance is in favour of
reasoned decisions based on relevant facts. This is
virtually the lifeblood of judicial decision-making justifying
the principle that reason is the soul of justice.
(f) Judicial or even quasi-judicial opinions these days
can be as different as the judges and authorities who
deliver them. All these decisions serve one common
purpose which is to demonstrate by reason that the
relevant factors have been objectively considered. This is
important for sustaining the litigants' faith in the justice
delivery system.
(g) Insistence on reason is a requirement for both
judicial accountability and transparency.
(h) If a judge or a quasi-judicial authority is not candid
enough about his/her decision-making process then it is
impossible to know whether the person deciding is faithful
to the doctrine of precedent or to principles of
incrementalism.
(i) Reasons in support of decisions must be cogent,
clear and succinct. A pretence of reasons or "rubber-stamp
reasons" is not to be equated with a valid decision-making
process.
(j) It cannot be doubted that transparency is the sine
qua non of restraint on abuse of judicial powers.
Transparency in decision-making not only makes the
judges and decision-makers less prone to errors but also
makes them subject to broader scrutiny. (See David
Shapiro in Defence of Judicial Candor [(1987) 100 Harvard
Law Review 731-37)
(k) In all common law jurisdictions judgments play a
vital role in setting up precedents for the future. Therefore,
for development of law, requirement of giving reasons for
the decision is of the essence and is virtually a part of
"due process".
38. Three orders of the learned Chief Judicial Magistrate have
been assailed in the present petition by the petitioner. By the
three orders that have been assailed, the first of the two have
initially granted interim bail to the private opposite parties nos. 3
and 4. The second order has confirmed the interim bail granted
in favour of the opposite parties nos. 3 and 4 by the first order.
39. In adversarial proceedings, when the decision of the
Adjudicating Authority impacts the rights of any of the parties to
the proceedings or even when a third party rights stand affected,
the Adjudicating Authority is obliged to ascribe reasons for the
decision taken. The Adjudicating Authority has an obligation to
state the reasons for which the decision has been arrived at.
Reasons have been considered as the 'heart beat' of the decision
of the Adjudicating Authority. Absence of reasons in the decision
of the Adjudicating Authority renders the decision susceptible to
challenge. Presence of reasons, ipso facto does not render the
decision infallible. The decision along with the reasons for arrival
at the decision can still be scrutinize, if the law governing the
decision making process permits, on the ground of adequacy
thereof.
40. In the facts of the present case, all the orders of the learned
Chief Judicial Magistrate as has been assailed herein contains
reasons for the decision to grant bail to the private opposite
parties. Whether or not the reasons as has been ascribed by
learned Chief Judicial Magistrate in his orders withstand the
scrutiny of challenge under Section 439(2) of the Criminal
Procedure Code is a different issue altogether.
41. As has been observed in the various authorities cited at the
bar on the parameters of Section 439(2), there has to be cogent
and overwhelming circumstances for the order of bail to be
cancelled. The Court has to consider factors such as the
possibility of the tampering with the evidence by the accused or
the accused interfering or attempting to interfere with the course
of justice or the possibility of the accused evading the course of
justice. Under Section 439(2) of the Criminal Procedure Code, the
Court can set aside an order granting bail, if such order manifest
non-application of mind on the part of the Court granting the bail
or if the materials on record do not justify the ground of the
same. Bail can also be cancelled if the order suffers from serious
infirmities resulting in miscarriage of justice.
42. The learned Chief Judicial Magistrate had granted interim
bail to the opposite parties nos. 3 and 4 on September 28, 2020
on their surrender. He had stated in his order that the opposite
parties nos. 3 and 4 were not the principal accuseds, there were
no allegation of forgery against them and that their custodial
detention was not needed. On November 18, 2020 he had
confirmed the interim bail after finding that there no adverse
report against them and they had complied the conditions for
bail. The reasons contained in such two orders being adequate
and there being no ground to set aside the same, no interference
is called for in respect of them.
43. In the order dated February 11, 2021, the learned Chief
Judicial Magistrate has ascribed the following reasons for
granting bail to the opposite party no.2 :-
(i) Co-accuseds were already on bail after
surrendering before the Court,
(ii) A period of eight months had elapsed from
June 22, 2020 when the FIR was lodged till February
11, 2021 with nothing being in the case diary to show
that the investigating officer tried to apprehend the
opposite party no. 2 for the purpose of investigation,
(iii) The case was document based and was
coupled with the allegations of matrimonial disputes,
(iv) All documents in connection with the case
had been seized by the investigating officer.
44. As has been noted in paragraph 43 above, the learned Chief
Judicial Magistrate has ascribed four primary reasons for
granting bail to the opposite party no. 2. First reason that the
learned Chief Judicial Magistrate has ascribed is that the co-
accuseds were already on bail after surrendering before the
Court. Such a ground, cannot be sustained in the facts of the
present case, as the order granting bail to the co-accuseds had
been premised on the ground that, the co-accuseds were not the
principal accused. Here, the opposite party no. 2 as the husband
of the de facto complainant has been arranged as the principal
accused. Therefore, the consideration simpliciter that, co-
accuseds had been granted bail is of no consequence in granting
bail to the opposite party no. 2.
45. The learned Chief Judicial Magistrate has taken into
consideration the quantum of time taken by the investigating
agency from the date of the lodgment of the FIR till the date of the
application for bail and the lack of effort on the part of the
investigating agency to apprehend the opposite party no. 2 in the
meantime as a ground to grant bail to the opposite party no. 2.
The learned Chief Judicial Magistrate has failed to take into
consideration relevant materials in the case diary relating to the
seizure of the documents in respect of the forgeries alleged. There
are seizure lists in the case diary which suggest that the police
had been seizing various documents from various authorities
relating to the driving license, PAN application form and the bank
account opening form executed by the opposite party no. 2
impersonating himself as Harsh Singh. The learned Chief
Judicial Magistrate has failed to appreciate that unearthing,
collecting and seizing such documents was a time consuming
affair particularly when the opposite party no. 2 was not
providing any information with regard thereto.
46. The 3rd and the 4th reasons which the learned Chief Judicial
Magistrate has ascribed for grant of bail to the opposite party no.
2 on February 11, 2021 are that the case was document based
coupled with allegations of matrimonial dispute and that all
documents in connection with the case were seized by the
investigating officer. Again, with deepest respect, the Chief
Judicial Magistrate has failed to take into account the gravity of
the offence of forgery alleged in the present case. The allegations
levelled against the opposite party no. 2 are that he had
impersonated himself as Harsh Singh, forged documents and
obtained PAN card and open bank accounts on such basis. The
learned Chief Judicial Magistrate has failed to take into account
that the nature of forgery was such that its impact was not
limited to private individuals and that there was an angle of
impact on the state exchequer by reason of such impersonation
and dual identities of the opposite party no. 2.
47. The learned Chief Judicial Magistrate has failed to take into
account the materials that were in the case diary on the dates on
which he granted bail to the private opposite parties. Therefore,
in our view, since the learned Chief Judicial Magistrate has
proceeded on irrelevant considerations and failed to take into
account the relevant materials in the case diary, the gravity of the
offence and the involvement of the private opposite party no. 2
therein we are of the view that the orders granting bail to the
private opposite party no. 2 needs to be cancelled.
48. The learned Chief Judicial Magistrate has exercised powers
under Section 437 of the Criminal Procedure Code in granting
bail to the private opposite parties. The legality and validity of
exercise of such powers in the facts and circumstances of the
present case have been questioned in the instant proceedings.
49. The parameters for grant of bail by a Court other than the
High Court or the Court of Sessions in case of non-bailable
offence has been prescribed in Section 437(1) of the Criminal
Procedure Code. Section 437(1) of the Criminal Procedure Code
has compartmentalized the power to grant bail by a Court other
than the High Court or the Court of Sessions based on the
severity of the punishment prescribed for the offence alleged
against the accused.
50. In the facts of the present case, the learned Chief Judicial
Magistrate by the order dated February 11, 2021 did not grant
bail to the opposite party no. 2 on the ground of the opposite
party no. 2 being sick or infirm.
51. As has been recognized in In Re: Sant Lal Gupta (supra),
the power of the Magistrate to grant bail under Section 437 of the
Criminal Procedure Code stands completely negated when one of
the alleged offences involved is found to be punishable either with
death or imprisonment for life unless the first proviso to Section
437(1) of the Criminal Procedure Code stands attracted. The
remedy available to such an accused is under Section 439 of the
Criminal Procedure Code, in the event he was arrested for such
offences, was to approach the Court of Sessions or the High
Court.
52. The embargo under Section 437(1) in respect of offences
punishable either with death or imprisonment for life comes into
operation upon the formation of the opinion of the Court, on the
basis of materials produced before it, that there are reasonable
grounds for believing that the accused is guilty of such offences.
53. In the facts of the present case, all the private opposite
parties have been accused of offences inter alia under Section
467 of the Indian Penal Code, 1860 which is punishable with
imprisonment for life. The learned Chief Judicial Magistrate has
returned a finding that the opposite parties nos. 3 and 4 were not
the principal accuseds. The materials in the case diary presently
available does not prima facie establish a nexus between the
opposite parties nos. 3 and 4 with the offence under Section 467
of the Indian Penal Code, 1860. Consequently the learned chief
Judicial Magistrate did not act in excess of jurisdiction which
granting interim bail to the opposite parties nos. 3 and 4 on
September 28, 2020 and subsequently confirming the same on
November 18, 2020.
54. So far as the order dated February 11, 2021 is concerned
the case diary contains sufficient materials to reasonably believe
that the opposite party no. 2 can be justifiably accused of an
offence under Section 467 of the Indian Penal Code, 1860.
55. However, in respect of the opposite party no. 2 the case
diary has sufficient materials for believing, off course at a prima
facie level, that he is complicit in the offences inter alia under
Section 467 of the Indian Penal Code, 1860. The case diary had
sufficient materials on February 11, 2021 when the bail was
granted to form a prima facie opinion as to the complicity of the
opposite party no. 2 in the offences inter alia under Section 467
of the Indian Penal Code, 1860. Therefore, the learned Chief
Judicial Magistrate had acted in excess of jurisdiction in granting
bail to the opposite party no. 2 when there were reasonable
grounds for believing that the opposite party no. 2 was guilty of
offences under Section 467 of the Indian Penal Code, 1860. On
the anvil of Section 437 of the Criminal Procedure Code, the
order of the learned Chief Judicial Magistrate dated February 11,
2021 granting bail in favour of the opposite party no. 2 is
therefore without jurisdiction and consequently a nullity.
56. In view of the discussions above, we find no grounds to
interfere with the orders dated September 28, 2020 and
November 18, 2020 of the learned Chief Judicial Magistrate. We
however, set aside the order dated February 11, 2021 of the
learned Chief Judicial Magistrate granting bail to the opposite
party no. 2. The bail granted to the opposite party no. 2 stands
cancelled. The opposite party no. 2 shall surrender before the
jurisdictional Sessions Court within a fortnight from date. The
Sessions Court, if approached with a prayer for bail is at liberty
to consider the same being uninfluenced by the observations
made herein. In default of the opposite party no. 2 not
surrendering within the time stipulated herein, the learned Chief
Judicial Magistrate and the police are at liberty to proceed
against the opposite party no. 2.
57. CRM 2603 of 2021 along with CRAN 1 of 2021 and CRAN 2
of 2021 are disposed of accordingly. The certified true copy of the
case diary kept with records on March 1, 2022 be returned
forthwith.
[DEBANGSU BASAK, J.]
58. I Agree.
[BIBHAS RANJAN DE, J.]
