Calcutta High Court (Appellete Side)
Kashinath Dey @ Kashi vs The State Of West Bengal on 17 May, 2022
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
C.R.R. 1609 of 2022
Kashinath Dey @ Kashi
Vs.
The State of West Bengal
For the Petitioner : Mr. Sudip Ghosh Chowdhury
For the State : Mr. Madhusudan Sur, Ld. APP
: Mr. Manoranjan Mahata
Heard on: 17.05.2022
Judgment on : 17.05.2022
The Court:
This is an application challenging a proceeding being NGR
(E)/148/2022 under Section 110 of the Code presently pending before
the learned Special Executive Magistrate, Chandannagar Division,
Chandannagar Police Commissionerate.
2
Learned counsel appearing on behalf of the petitioner submits
as follows. The petitioner is an accused in several cases including ones
under the N.D.P.S. Act and under Section 302 of the Indian Penal
Code. He is in custody since 2017. There is no allegation whatsoever
that he is operating any criminal activity from inside custody. In spite
of this, in 2022 the present proceeding was instituted under Section
110 of the Code of Criminal Procedure. The petitioner is facing trial in
some of the cases and in a few of the cases under the N.D.P.S Act, he
is still in custody and he was produced from the Correctional Home
therein for that purpose. By an order dated 16.02.2022, the learned
Executive Magistrate directed the petitioner to submit show-cause as
to why he shall not be bound down for good behaviour bond under
Section 110 of the Code and should furnish an amount of Rs.
1,00,000/- each with two reputed Gazetted Officers as sureties for his
good behaviour for such period, not exceeding three years. The
petitioner is an ordinary man. It is not possible to have a Gazetted
Officer to stand as a surety for him. It is also difficult for him to find
out Gazetted Officer of repute because that is a subjective description.
In the interest of justice, the condition as given in the order dated
16.02.2022
may be modified. A show-cause has already been filed and
accepted by the learned Executive Magistrate.
Learned counsel appearing on behalf of the State submits as
follows. The petitioner is an accused in several cases, some under the
N.D.P.S Act and some under the Indian Penal Code. He is a habitual
offender. He needs to be bound down to certain stringent conditions.
As such, the learned Executive Magistrate was not in error in
requiring two Gazetted Officers to stand a surety from him.
I have heard the submissions of the learned counsels appearing
on behalf of the petitioner and the State and have perused the revision
petition.
It is a settled law that such onerous condition cannot be put
either in an order granting bail or in a proceeding requiring execution
of bond for good behaviour that cannot be fulfilled by the person on
whom such direction is passed. On this, reliance placed on Dipu
Singh vs. State of West Bengal, 2020 SCC Online Cal 932.
More than that the condition imposed by the learned Executive
Magistrate is suffers from lack of clarity. It is not clear what is the
meaning by using the term "reputed Gazetted Officer", as if some
Gazetted Officers may not be much repute.
Therefore, the onerous condition imposed by the learned
Executive Magistrate cannot be sustained.
In view of the above, the order dated 16.02.2022 is modified to
the following extent. The petitioner shall appear before the learned
Executive Magistrate on a subsequent date to be fixed by the learned
Magistrate, which will be within a month from the date of
communication of this order, and submit show-cause as to why he
shall not be bound down with good behaviour bond under Section 110
of the Code for an amount of Rs. 1,00,000/- each with two local
sureties for his good behaviour for such period, not exceeding three
years, as the learned Magistrate would think fit.
However, if the petitioner is in custody in connection with any
other case, he shall only be notionally released in respect of the
instant proceeding, but shall not be physically released and shall be
referred to the authorities in respect of the said case.
With these observations, the revisional application is disposed
of.
Urgent photostat certified copies of this order may be delivered
to the learned Advocates for the parties, if applied for, upon
compliance of all formalities.
(Jay Sengupta,J.)
ssi
