Calcutta High Court (Appellete Side)
2633/2010 on 26 July, 2010
1 6.7.2010
b.
2/7/a C.R.A.N. 2633 of 2010 In C.R.A. 412 of 2010 In re: Bandhana Oraon Re: An application for bail under Section 389 Cr. P.C. being CRAN 2633 of 2010 affirmed on 19th July, 2010.
Mr. Sandipan Ganguly -For the appellant
Mr. Asimes Goswami, learned P.P. -For the State
Infanticide of his own son saw the appellant in the array of the accused before the learned Additional Sessions Judge, Jalpaiguri in Sessions Case No. 96 of 2002 which ended in his conviction under section 302 on 23.12. 2004. Hence this appeal from jail.
Learned State defence at first has pointed out before us that this case is covered within the sweep of section 84 of the Indian Penal Code. He has invited our attention to the evidence of P.W. 1 vis.a.vis the statement of the appellant recorded under section 164 Criminal Procedure Code. Learned State Defence, Mr. Ganguly has shown from the same that the appellant at the relevant point of time suffered from cognitive failure as such it was incumbent upon the learned Trial Court to have resorted to section 328 of the Criminal Procedure Code. Instead not having done so, the entire judgement and order under appeal stands vitiated.
Learned Public Prosecutor has opposed such submission. He has submitted that this question ought to have been raised before the learned Trial Court.
We feel since this being a preliminary question of law, there cannot be any estoppel against the same. It can be raised at any point of time. Mr. Ganguly, learned State Defence is quite right, in 2 our opinion, in submitting that the entire case is covered by section 84 of the Indian Penal Code. Not only we find the evidence of P.W. 1 but statements of the Appellant under section 164 Criminal Procedure Code and also the conduct of the appellant after the incident. If all these are taken together, we would be of the view that Mr. Ganguly is quite right. Accordingly, we suspend the sentence imposed upon the convict appellant pending hearing of the appeal and direct that he may be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Jalpaiguri.
Since this is a jail appeal, learned Registrar (V & P) is requested to communicate this order over fax.
The application for bail being CRAN 2633 of 2010 is, thus, disposed of.
(Amit Talukdar, J.) (Dr. M. K. Chaudhuri, J.)