Sk. Farid @ Fariduddin vs The State Of West Bengal
2023 Latest Caselaw 2769 Cal

                                       1


              IN THE HIGH COURT AT CALCUTTA
                Criminal Revisional Jurisdiction
Present: -     Hon'ble Mr. Justice Subhendu Samanta.
                     C.R.R. No. - 1525 of 2018
                                with
                     IA No. CRAN 1 of 2020
                                with
                       CRAN 2 of 2022


                        IN THE MATTER OF

                      Sk. Farid @ Fariduddin.
                                Vs.
                     The State of West Bengal.


For the Petitioner         : Mr. Debasish Roy, Adv.,
                                    Ms. Sonali Das, Adv.,




 For the State              :        Mr. Binoy Kumar Panda, Adv.,
                                     Mr. Narayan Prasad Agarwala, Adv.,
                                     Mr. Subham Bhakat, Adv.,
                                     Mr. Pratick Bose, Adv.




Judgment on                     :          20.04.2023



Subhendu Samanta, J.

CRAN 1 of 2022 and CRAN 2 of 2022 is disposed of with

a direction that the delay in preferring the application for

restoration is condoned. The application for restoration is

allowed. CRR is hereby restored to its original file and number.

The instant criminal revision is preferred against order

dated 8th May 2018 passed by the Additional District and

Sessions Judge, Ghatal, Paschim Medinipur, in connection

with Criminal Misc case No. 4039 of 2017 in connection with

GR No. 388 of 2017 arising out of Ghatal Police Station case

No. 118 of 2017 dated 16.06.2017 u/s

458/436/302/120B/506 of IPC.

The brief fact of the case is that the present petitioner

was arrayed as an accused along with others in connection

with the above mentioned P.S. case. During the course of

investigation the accused was arrested and taken into custody.

The prayer for bail u/s 439 Cr.P.C. was allowed by the

Sessions Judge, in favour of the petitioner vide order dated

25.09.2017.

One application u/s 439 (2) of Cr.P.C. was filed by the de

facto complainant for cancellation of the bail. Learned Sessions

Judge heard the matter from the both side and passed the

impugned order by allowing the application for cancellation of

bail and the order of granting bail in favour of the present

petitioner was cancelled.

Hence this revision.

Learned Advocate for the petitioner submitted before this

court that the Impugned Order passed by the Learned Sessions

Judge, is palpably illegal and irregular.

The opinion of the learned Sessions Judge, in passing the

impugned order is erroneous the Learned Sessions Judge, has

misread and misconstrued the provision enumerated u/s 439

(2) of the Cr.P.C. and came to an erroneous conclusion. He

further argued that other accused persons in this case are

enlarged on bail. So by cancelling the order of bail by virtue of

an application u/s 439 (2) Cr.P.C. would not serve any fruitful

purpose. He further argued that the learned Sessions Judge

has failed to appreciate the facts and circumstances of this

case. The observation of the Learned Sessions Judge regarding

the fact that on the earlier occasion the bail prayer of the

present petitioner was turned down by the Hon'ble High Court

is not logically correct. The Hon'ble High Court considered the

bail prayer of the present petitioner in CRM No. 8390 of 2017

at the stage prior to submission of the charge sheet. The order

of bail by the Sessions Court was granted in favour of the

present petitioner after submission of charge sheet on the

ground that some accused persons were already granted bail.

He further argued that petitioner never suppressed regarding

the earlier order of Hon'ble High court. Thus, he prayed for

setting aside the impugned order passed by the Learned

Sessions Judge.

Learned Advocate appearing on behalf of the private

opposite party/de facto complainant submitted before this

court that the impugned order passed by the Learned Sessions

Judge, suffers no illegality at the time of making prayer before

the Learned Sessions Judge, for bail the present petitioner

accused suppressed the fact that his bail prayer was turned

down by the Hon'ble High court. If the fact of rejection of bail

prayer was not suppressed, the prayer for bail would not have

been granted. In passing the impugned order Learned Sessions

Judge, had correctly opined that suppression of Order of a

High Court regarding rejection of pail prayer tantamount to

practising fraud upon court. He further pointed out that due to

a pendency of this instant criminal revision the criminal trial of

a barbaric murder case is stalled. The present petitioner has

adopted several dilatory tactics to vitiate the trial. Thus, he

prayed that the instant criminal revision may be rejected with

cost.

Heard the Learned Advocate, perused the impugned

order passed by the Learned Sessions Judge. It appears from

the impugned order that while submitted the bail prayer the

present petitioner on affidavit stated no application for bail has

been either rejected by the Hon'ble High Court or pending for

disposal before the Hon'ble High Court. On the basis of such

declaration the order of bail was granted. Learned Sessions

Judge, in passing the Impugned Order is of view that the

suppression of earlier rejection of bail prayer by the Hon'ble

High court is a fraud practice upon a court.

It is true that the bail prayer of the present petitioner was

rejected by the Honb'le High Court when the investigation of

the case was in progress. The Sessions Judge has granted the

bail prayer of the present accused petitioner after submission

of charge sheet. It is the dictate of the law that the application

for bail u/s 439 Cr.P.C. should be filed with an affidavit of the

applicant regarding the fact that whether his earlier bail prayer

was pending or rejected by the upper court.

The power of granting bail u/s 439 Cr.P.C. is within the

concurrent jurisdiction of High Court and Court of Sessions.

Thus, to maintain the judicial discipline as well as to avoid

difference of finding of opinion, the applicant is duty bound to

mentioned whether his earlier bail prayer was either pending or

rejected by the High Court or not. Its solemn authority of the

Sessions Judge, to consider the bail prayer of an accused u/s

439 Cr.P.C. independently. At the same time it is the duty of

the applicant to inform the Learned Sessions Judge, regarding

the fate of his earlier application of bail.

The power u/s 439(2) Cr.P.C. for cancellation of bail

granted earlier is discretionary.

In the instant case it appears to me that the Sessions

Judge has exercised its jurisdiction very correctly. There

appear no illegality in the impugned order. I further opined

that I find no justification to entertain the instant criminal

revision for rejection of the impugned order passed by the

Learned Sessions Judge, u/s 439 (2) Cr.P.C. In result thereof

the instant criminal revision being devoid of merit is rejected.

CRR is disposed of.

Connected CRAN applications if pending are also

disposed of.

Any order of stay passed by the court during the

pendency of the instant criminal revision is also vacated.

(Subhendu Samanta, J.)