Calcutta High Court (Appellete Side)
Kailash Vijayvargiya vs Jisnu Basu on 21 August, 2023
21.08.2023 C.R.M. 6826 of 2021
SL. 3 to 5
Court No. 29
In Re: - An application for anticipatory bail under Section 438 of
Suvayan
the Code of Criminal Procedure filed in connection with
Bhawanipore P.S. case No. 221 of 2021 dated 09.10.2021
under Sections 376D/506(ii)/120B of the IPC.
And
In the matter of: Kailash Vijayvargiya
....petitioner.
With
C.R.M. 6827 of 2021
In Re: - An application for anticipatory bail under Section 438 of
the Code of Criminal Procedure filed in connection with
Bhawanipore P.S. case No. 221 of 2021 dated 09.10.2021
under Sections 376D/506(ii)/120B of the IPC.
And
In the matter of: Jisnu Basu
....petitioner.
With
C.R.M. 6828 of 2021
In Re: - An application for anticipatory bail under Section 438 of
the Code of Criminal Procedure filed in connection with
Bhawanipore P.S. case No. 221 of 2021 dated 09.10.2021
under Sections 376D/506(ii)/120B of the IPC.
And
In the matter of: Pradeep Joshi @ NG Joshi
....petitioner.
Mr. Rajdeep Mazumder
Mr. Moyukh Mukherjee
Mr. Debu Chowdhury
Mr. Pritam Roy
Mr. Abhijit Singh
...for the petitioners.
Mr. Saswata Gopal Mukherji, PP
Mr. Rudradipta Nandy, APP
Mr. Swapan Bannerjee
Mr. Suman De
Mr. Tarun Chatterjee
...for the State.
2
1.
Heard learned Counsel for both the parties.
2. As all the three anticipatory bail applications arise out of the
same FIR, they are taken up for disposal by this common
order with consent by learned Counsel for the parties.
3. Perused the judgment of Hon'ble Supreme Court passed in
Criminal Appeal No. 1581 of 2021 where in Paragraph 40 the
Hon'ble Supreme Court has passed the following order:
"40. In view of the above and for the
reasons stated above, while affirming the
impugned judgment and order passed by the
High Court remanding the matter back to
the learned Magistrate, we set aside the
subsequent order passed by the magistrate
on remand, pursuant to the impugned
judgment and order passed by the High
Court and remit the matter back to the
learned Magistrate to examine and apply his
judicial mind and then exercise discretion
whether or not to issue directions under
Section 156(3) or whether he can take
cognizance and follow the procedure under
Section 202. He can also direct the
preliminary enquiry by the police in terms of
law laid down by this Court in the case of
Lalita Kumari (Supra). Copies of the papers
and documents filed before the High Court
and this court could also be forwarded and
brought on record of the Magistrate, who
would thereupon examine and consider the
matter. As observed hereinabove, the
complainant/informant would be entitled to
question the genuineness of the contents of
the said documents."
4. From the aforesaid facts and in view of the fact that Hon'ble
Supreme Court has set aside the order passed by learned
Magistrate, no P.S. case now exists against the petitioners in
eye of law. In view of the aforequoted order of the Hon'ble
Supreme Court, the Magistrate shall now take up the matter
and decide as to whether he shall act under Section 156(3)
Cr.P.C. and refer the matter to the P.S. or take cognizance of
the offence himself by following the procedure under Section
202 Cr.P.C.
5. Though there is no pending P.S. case against the petitioners
at present but we are one in our view with the submission of
learned Counsel for the petitioners that in view of the pending
enquiry substantive apprehension looms large in the minds of
the petitioners so far as arrest is concerned, especially in view
of the fact that the outcome of the enquiry or exercise of
discretion by the learned Magistrate under Section 156
Cr.P.C. cannot be foretold at this juncture.
Mr. Mukherji, learned Public Prosecutor is fair
enough to concede the position of law that in view of
direction of the Hon'ble Supreme Court in the
aforequoted paragraph no P.S. case is pending against
the petitioners now and they should not apprehend
unnecessarily about arrest in the vacuum.
6. Regard being had to the rival submissions, we dispose of the
matters as infructuous in view of non-existence of any P.S.
case against the petitioners but direct the appropriate Police
authority or the Magistrate that in case of referral of the
complaint under Sections 156(3) Cr.P.C. and institution of
fresh P.S. case or cognizance taken by the Magistrate by
following the process under Section 200 Cr.P.C., no coercive
action shall be taken against the petitioners either by the
Police or by the competent Magistrate for a period of four
weeks from the date of receipt of notice by them (petitioners)
under Section 160 Cr.P.C. issued by the I.O. or
summons/bailable warrant issued by the competent
Magistrate to enable them (petitioners) to avail appropriate
remedy for the sake of their right to liberty (especially since
the petitioners were on interim protection throughout till
today).
During such interregnum of four weeks, however,
they (petitioners) may appear before the I.O. or the
competent Magistrate to co-operate in the investigation
or the enquiry as the case may be.
7. With the aforesaid observation the applications being CRM
6826 of 2021, CRM 6827 of 2021 and CRM 6828 of 2021 are
disposed of.
(Chitta Ranjan Dash, J.)
(Partha Sarathi Sen, J.)
