In Re: Dayamoy Mahato vs K. A. Najeeb
2022 Latest Caselaw 7405 Cal

09.11.2022 Court No.32 rpan/ 02 [Assigned] C.R.M. 9431 of 2019

In Re:- An application for bail under section 439 of the Code of Criminal Procedure filed in connection with Sessions Case no.215 of 2015 (Sessions Trial Case No.XXXIV of September, 2011) pending before the learned Additional Sessions Judge, re- designated Court, Paschim Mdeinipur, under Sections 120B/302/307/323/325/326/440 of the Indian Penal Code, Sessions 150/151 of the Indian Railways Act, 1989 and Sections 16/18 of the Unlawful Activities (Prevention) Act, 1967 arising out of CBI Case no. RC 4/S/2010-KOL dated 09.06.2010.

And In re: Dayamoy Mahato

- Petitioner.

Mr. Debasish Roy, Mr. Kaushik Gupta, Ms. Mun Mun Gangopadhyay, Ms. Nipa Sarkar ... for the Petitioner.

Mr. Kallol Mondal, Mr. Amajit De ... for the CBI.

Mr. Roy, learned advocate appearing for the petitioner submits

that the petitioner is languishing in custody since 25 th August,

2010. While rejecting the petitioner's prayer for bail lastly on 30 th

March, 2016 the Court expressed its desire that examination of

remaining 154 witnesses should be completed within a year and

the learned trial court was directed to take all steps to conclude

the trial as expeditiously as possible. In spite of such direction

there was no substantive progress in the trial and as on date 68

witnesses are yet to be examined and as such, there is no

possibility towards conclusion of the trial in the near future.

He submits that the petitioner had been roped in on the basis

of suspicion and arrested immediately after the alleged offence.

He was twice granted ad interim bail by the learned trial Court on

10th April, 2019 and 10th June, 2019 and he did not misuse such

liberty. Investigation is complete and charges had been framed

way back in the year 2012. The long pendency of the trial justifies

the petitioner's prayer for bail on the anvil of delay. There is no

perception of threat towards tampering of evidence in the event he

is granted bail and there is also no possibility that he would

abscond. It is not a case that the petitioner's prayer for bail before

this Court was repeated on numerous occasions. Two accused

persons, namely, Asit Mahato and Bimal Mahato, similarly

situated with the petitioner, have already been granted bail.

Mr. Roy argues that deprivation of personal liberty without

ensuring speedy trial would not be in consonance with the right

guaranteed under Article 21 of the Constitution of India and in the

said conspectus, further detention of the petitioner is not

warranted. In support of his arguments, Mr. Roy has placed

reliance upon the judgments delivered in the cases of Union of

India Vs. K. A. Najeeb, reported in (2021) 3 SCC 713, Satender

Kumar Antil Vs. Central Bureau of Investigation & Another, reported

in AIR 2022 SC 3386, Asim Vs. NIA, reported in (2022) 1 SCC 695

and an unreported judgment of the Hon'ble Supreme Court

delivered in the case of Jahir Hak Vs. State of Rajasthan.

Mr. Roy submits that different coordinate Benches of this

Court had granted bail in cases involving death penalty and

provisions of the Unlawful Activities (Prevention) Act (in short,

UAPA, Act). In support of such argument, he placed reliance upon

unreported orders passed in the cases of Dhriti Ranjan Mahato

[CRM 6233 of 2021], Ramasi Hansda [CRM (DB) 2389 of 2022],

Indrajit Karmakar alias Khudu & Others [CRM 374 of 2020],

Prasanta Patra [CRM (DB) 2050 of 2022] and Akhil Chandra Ghosh

Vs. State [CRM 8869 of 2020].

Per contra, Mr. Mondal, learned advocate appearing for the CBI

submits that the investigation has clearly revealed that in

furtherance of a criminal conspiracy to carry out terrorist activities

and to cause loss to human lives and property, the petitioner and

other co-accused persons had damaged the railway track by

removing the pandrol clips which resulted in the death of 148

persons and injury of 170 persons. For the said incident the

Government had also incurred a loss of about Rs.29 crores.

Considering the manner in which the offence has taken place and

its gravity, the petitioner's prayer for bail needs to be refused as

his liberty would be a menace to the society.

Drawing our attention to several documents in the case diary,

Mr. Mondal has argued that the petitioner was the mastermind

and he had trained the other co-accused persons for removing the

pandrol clips. The CDRs of the mobile phone seized in course of

investigation would clearly reveal the direct involvement of the

petitioner, who happens to be a railway employee. Audio clips

pertaining to such conversations had also been exhibited which

stand supported by the forensic report.

Mr. Mondal submits that out of total 245 witnesses only 60

witnesses remain to be examined and as such, it cannot be said

that there is no possibility towards conclusion of the trial in the

near future. The delay which had occurred is not totally

attributable to the prosecution. Furthermore, the period of delay

stands intervened by a period lost due to pandemic. It also needs

to be pointed out that the concerned court was lying vacant since

the month of February, 2022 and as such, the trial could not

proceed. However, presently the presiding officer has joined and

the next date is fixed today.

He argues that Section 436-A of the Code of Criminal

Procedure (in short, the Code) has prescribed a period for half of

the maximum sentence for which an undertrial prisoner can be

detained. The petitioner does not fulfil such condition under

Section 436-A of the Code since the incident involves death

penalty and attracts the provisions of UAPA, Act.

Mr. Mondal submits that the judgments upon which reliance

has been placed on behalf of the petitioner are distinguishable on

facts. Considering the magnitude of the offence and the

incriminating materials on record, the petitioner should not be

enlarged on bail.

Pursuant to an earlier direction, Mr. Mondal has placed before

this Court two reports dated 17th July, 2022 and 12th September,

2022. A perusal of the said reports would reveal that 60 witnesses

are yet to be examined. The enclosed chart shows that on an

average 17 witnesses were examined per year since the initiation

of the trial in the year 2013 till date. In view thereof, we are of the

opinion that there is no possibility towards conclusion of the trial

in the near future. The fact that there had been laches on the part

of the prosecution to conduct the case stands recorded in the

order passed by the learned court below dated 10 th April, 2019.

The observations contained in the order of this Court dated 30 th

March, 2016 had also not been granted appropriate weightage. In

the report, filed on 17th July, 2022, it was inter alia stated that the

C.D. containing CDRs and transcripts shall fix the role of the

petitioner in the offence and the witnesses, namely, Khagendra

Mahato, Aloke, Kumud, Shri Parimal, Shri Uday would prove the

said facts. In answer to our query, it has been submitted that the

examination of the said witnesses is already complete.

From the sequence of facts, it appears that the petitioner

cannot be held responsible for the delay which has occurred. The

directions contained in the order dated 30 th March, 2016 had also

not been followed.

It is no longer res integra that even in cases involving offences

under the statutes UAPA, Act and NDPS, Act which provide

restrictions, bail can be granted to an undertrial prisoner, who has

suffered half of the minimum punishment prescribed and when

the delay which has occurred is substantially attributable to the

prosecution. More the rigour the quicker the adjudication ought

to be. The exposition of Article 21 of the Constitution in the case

of Hussainara Khatoon Vs. Home Secretary, State of Bihar, Patna

reported in 1980 (1) SCC 98 was exhaustively considered afresh in

the case of Abdul Rehman Antulay & Others Vs. R. S. Nayak &

Another, reported in 1992 (1) SCC 225 and it has inter alia been

observed that a fair, just and reasonable procedure implicit in

Article 21 creates a right in favour of the accused to be tried

speedily and long delay may be taken as presumptive proof of

prejudice. For computing half of the sentence for life, the sentence

may be deemed as imprisonment for 20 years and in the present

case the petitioner had already suffered long incarceration for

more than ten years. The provisions of Section 436 -A of the Code

cannot stand in the way towards grant of bail where the delay

towards conclusion of trial had occasioned due to no fault on the

part of the accused. In a very recent judgment delivered by the

Hon'ble Supreme Court in the case of Satender Kumar Antil

(supra) detailed guidelines have been laid down for grant of bail

without fettering the discretion of the court concerned and keeping

in mind the statutory provisions it has been observed that once a

trial starts, it should reach the logical conclusion and even though

court alone cannot be faulted for the adjournment given but even

such delay on the part of the court would certainly violate Article

21. Whatever may be the nature of the offence, a prolonged trial

against an accused would be violative of Article 21.

Applying the proposition of law as laid down in the judgments

discussed above, to the facts of this case, we are of the opinion

that further detention of the petitioner is not warranted.

Accordingly, we direct that the petitioner, namely, Dayamoy

Mahato shall be released on bail upon furnishing a bond of

Rs.20,000/- with two sureties of like amount each, one of whom

must be a local, to the satisfaction of the learned Additional

Sessions Judge, re-designated Court, Paschim Mdeinipur with a

further condition that he shall report to the Officer-in-Charge,

Jhargram Police Station once a fortnight until further orders.

The petitioner shall also not leave the jurisdiction of Jhargram

Police Station, save and except for attending the learned trial court

on all the dates specified for hearing.

He shall intimate his mobile number and the address where he

would be residing to the Officer-in-Charge, Jhargram Police

Station immediately.

It is further directed that the petitioner shall not tamper with

the evidence and/or intimidate the witnesses in any manner

whatsoever.

In the event the petitioner fails to comply with the aforesaid

directions, without any justifiable cause, the learned court below

shall be at liberty to cancel his bail, in accordance with law,

without further reference to this Court.

With the aforesaid observations, the application for bail,

being CRM 9431 of 2019 is disposed of.

It is made clear that the observations which have been made

in this order are for the purpose of deciding the bail application

and shall have no effect in the trial.

All parties shall act on the server copies of this order duly

downloaded from the official website of this Court.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)