Dev Sarker vs Unknown
2023 Latest Caselaw 6723 Cal

04.10.2023.
49.
Ct.No.28.
as

                                      C.R.M. (DB) 2819 of 2023

                   In Re: An application for cancellation of bail under Section
                   439(2) of the Code of Criminal Procedure.

                   In the matter of : Dev Sarker.
                                                                 ... Petitioner.

                   Mr. Ayan Bhattacharyya,
                   Mr. Meghajit Mukherjee,
                   Ms. Mobina Ali.
                                                            ...for the Petitioner.


              1.

Learned Counsel for the petitioner contends his client is

the defacto complainant and victim in the case. He was denied

an opportunity of hearing when anticipatory bail order was

passed. Secondly, the order was passed without taking into

consideration relevant factors that is prevaricating stance of the

petitioner in collateral proceedings. Hence, the said order be set

aside.

2. Anticipatory bail has been granted by a Co-ordinate Bench

of this Court. In Abdul Basit alias Raju and Ors. Vs. Mohd.

Abdul Kadir Chaudhary and Anr.1 the Apex Court held bail

granted by High Court cannot be reviewed by itself on the ground

it is illegal or perverse. The Court may entertain a prayer for

cancellation on subsequent conduct only. Petitioner urges this

Court to do exactly what is forbidden in Abdul Basit (supra). He

contends the bail granted by the Co-ordinate Bench without

(2014) 10 SCC 754

considering relevant materials including prevaricating stance of

the opposite party nos. 1 and 2.

3. To do so this Court would be called upon to sit a judgment

and review the bail order passed by a Co-ordinate Bench which

is impermissible in law. Remedy of the petitioner lay in assailing

the order before the Hon'ble Apex Court which he has chosen not

to do. The present application for cancellation before the same

forum cannot be a surrogate for such relief.

4. The other issue raised is that petitioner who is a victim

was not heard at the time of granting of anticipatory bail. This

argument is wholly misconceived. Apart from certain Special

Laws2 or offences including rape/gang rape of minors3, law does

not enjoin notice/presence of the victim prior to disposal of a

bail/anticipatory bail application.

5. In Jagjeet Singh and Ors. Vs. Ashish Mishra @ Monu

and Anr.4 the Apex Court recognized the right of a victim to be

heard during disposal of a bail application. But in para 24.2 of

the said report the Court clarified when the victims themselves

had come forward to participate, they must be heard.

6. In light of this observation, we are unable to hold the ratio

in Jagjeet Singh (supra) mandates prior to considering a bail

prayer a Court must issue notice on a victim save and except in

cases under Special Laws where such procedure is a part of the

statutory scheme.

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

Section 439(1A) CrPC

(2022) 9 SCC 321

7. Needles to mention prior to disposal of the anticipatory

bail application, Public Prosecutor was heard and materials

collected during investigation had been considered. Thus, the

procedure adopted by the Co-ordinate Bench in disposing of the

anticipatory bail application cannot be said to be contrary to law

or fair procedure.

8. For these reasons, we hold the application is misconceived

and accordingly dismissed.

(Gaurang Kanth, J.)                       (Joymalya Bagchi, J.)