Calcutta High Court (Appellete Side)
Smt. Manashi Das vs The State Of West Bengal & Anr on 10 December, 2021
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
D/L6 C.R.M. No.9457 of 2020
December (Via Video Conference)
10, 2021
Bpg.
In Re: An application under Section 439(2) of the Code of Criminal
Procedure, 1973.
Smt. Manashi Das
Versus
The State of West Bengal & Anr.
Mr. Kamalesh Chandra Saha,
Ms. Payel Mitra,
Mr. M. Saha.
...for the petitioner.
Mr. Saswata Gopal Mukherjee, Ld. P.P.,
Ms. Sonali Das.
...for the State.
Affidavit-of-service filed by the petitioner be kept with the
record.
Pursuant to the order dated 08.12.2021, a report has
been submitted by the concerned Officer of Madhyamgram Police
Station dated 09.12.2021. Let the report be kept with the record.
The earlier order of this Court directed the State to clarify
whether the case diary was produced on 5th October, 2020.
Today, a report has been received which states the
following:-
"(iii) It is worth to be mentioned here that no message as
well as no other order sheet was received from Ld. Court
to produce the case diary on 05.10.2020. As such the
case diary was not produce before the Ld court on
05.10.2020."
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In view of the directions and guidelines set out by the
Hon'ble Supreme Court in an unreported case of Satender Kumar
Antil Vs. Central Bureau of Investigation & Anr. in Special Leave
to Appeal (Crl.) No(s).5191 of 2021, I hereby direct all the Chief
Judicial Magistrates, Additional Chief Judicial Magistrates and the
Magistrates who would be considering bail application on
appearance and surrender of the accused either during pendency of
the investigation or after submission of the charge-sheet to follow
the guidelines specified therein. To that effect, the following
paragraphs of the said judgement is quoted:
"After filing of charge-sheet/complaint taking of
cognizance
(a) Ordinary summons at the 1st instance/including
permitting appearance through Lawyer.
(b) If such an accused does not appear despite service of
summons, then Bailable Warrant for physical
appearance may be issued.
(c) NBW on failure to failure to appear despite issuance of
Bailable Warrant.
(d) NBW may be cancelled or converted into a Bailable
Warrant/Summons without insisting physical
appearance of accused, if such an application is moved
on behalf of the accused before execution of the NBW
on an undertaking of the accused to appear physically
on the next date/s of hearing.
(e) Bail applications of such accused on appearance may
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be decided w/o the accused being taken in physical
custody or by granting interim bail till the bail
application is decided.
We may also notice an aspect submitted by Mr. Luthra
that while issuing notice to consider bail, the trial court is
not precluded from granting interim bail taking into
consideration the conduct of the accused during the
investigation which has not warranted arrest. On this
aspect also we would give our imprimatur and naturally
the bail application to be ultimately considered, would be
guided by the statutory provisions."
It is clarified henceforth that when an accused appears or
surrenders before the learned Magistrate and the court is of the
opinion that the custody is unwarranted in particular
circumstances of the case, it would grant interim bail and fix a date
calling for the case diary and it is only after perusal of the case
diary, the court should confirm the interim bail. In both the
circumstances, the court should give an audience to the public
prosecutor concerned. The court should also insist for scrutiny as
to whether the person who is surrendering, his previous application
for anticipatory bail has been rejected by any higher forum. Sole
consideration of compliance of Section 41A of Cr.P.C. without
considering the case diary, the development of the case cannot be a
ground for confirming the bail or passing a permanent order of bail.
The learned courts are directed to strictly adhere to the guidelines
set out by the Hon'ble Supreme Court. In the aforesaid judgment
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as it has been categorically stated that bail should be granted on
merits of the case and the post bail conduct or compliance of
Section 41A Cr.P.C. are only additional factors for final
consideration of bail application.
The Registrar (Judicial Service), High Court, Calcutta is
directed to circulate this order to all the Magistrates who are taking
up bail matters in the State of West Bengal.
In this particular case, I find in the order dated
5.10.2020, the learned ACJM, Barasat was pleased to finally dispose of the bail application and the same was without perusal of the case diary.
In view of the aforesaid, the order dated 5.10.2020 is modified to the extent that the bail order may be treated as an interim order which will be existing till 31st January, 2022.
In the meantime, the Inspector-in-Charge, Madhyamgram Police Station will serve a notice upon the accused person for appearance before the learned ACJM, Barasat.
The learned court would fix a date after informing the public prosecutor regarding the production of the case diary and thereafter dispose of the application for bail.
Needless to state, I have not gone into the merits of the case neither I have considered the post bail conduct. There is no bar for the learned Magistrate to again grant bail to the accused persons, but the same should be after perusal of the case diary and on the merits of the case.
With the aforesaid observations, CRM 9457 of 2020 is 5 disposed of.
Pending application, if any, is also disposed of. All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
(Tirthankar Ghosh, J.)