Calcutta High Court (Appellete Side)
Shekhawati Enterprises vs The State Of West Bengal & Ors on 14 March, 2023
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
C.R.M 5448 of 2021
Shekhawati Enterprises
Vs.
The State of West Bengal & Ors.
For the Petitioner: Mr. Ayan Bhattachrya, Adv.,
Mr. Aditya Ratan Tiwari, Adv.,
Mr. Suman Majumder, Adv.
For the Respondent Nos.2 to 4: Mr. Sandipan Ganguly, Sr.Adv.,
Mr. Dipanjan Dutta, Adv., Mr. Ayan Poddar, Adv., Ms. Poulami Bhowmick, Adv.
For the State: Mr. Saswata Gopal Mukherji, Ld. P.P,
Mr. Sudip Ghosh, Adv.,
Mr. Apurba Kumar Dutta, Adv.,
Mr. B. Banerjee, Adv.
Heard on: 10 February, 2022.
Judgment on: 14 March, 2023.
BIBEK CHAUDHURI, J. : -
1. This is an application for cancellation of bail under Section 439(2) of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C) granted in favour of private opposite parties No.2-4 by the learned Additional Chief Metropolitan Magistrate-2, Calcutta in Bowbazar Police Station Case No.191 of 2018 dated 25th June, 2018.
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2. The petitioner filed a complaint before the court of the learned Magistrate seeking for a direction under Section 156(3) of the Cr.P.C for investigation under chapter (XII) of the Code against the opposite parties as well as other accused persons. The private opposite parties are office bearers of M/s Amrit Hatcheries Pvt. Ltd, a company incorporated under the Companies Act. The petitioner being the sole proprietor of Shekhawati Enterprises used to supply maize to M/s Amrit Hacharies Pvt. Ltd. However, the private opposite parties being the office bearers of the accused No.1 company did not pay the petitioner its dues amounting to Rs.14,49,18,486/-. Nonpayment and perceived misappropriation of money led the complainant to lodge a complaint before the learned ACMM-2, Calcutta under Section 156(3) of the Cr.P.C. On the basis of the said complaint Bowbazar P.S Case No.191 of 2018 dated 25th June, 2018 under Sections 120B/420/506(II) of the Indian Penal Code was registered. On 17th May, 2018, the petitioner filed another complaint under Section 156(3) of the Code before the Learned Judicial Magistrate at Alipore, South 24 Pgs against the above named opposite parties and their company more or less on the same allegation for nonpayment of a sum of Rs.2,52,25,138/-. On the basis of the said complaint police registered Ballygunge P.S Case No.75 dated 20th May, 2018 under Sections 120B/420/406/506 of the IPC. In connections with Ballygunge P.S Case No.75 of 2018 the private opposite parties filed an application for anticipatory bail which was registered as CRM No.3807 of 2018 before this Court and by an order dated 19th June, 2018 the prayer for 3 anticipatory bail of the opposite parties were allowed. The opposite parties also filed another petition for anticipatory bail in connection with Bowbazar P.S Case No.191 of 2018 which was registered as CRM No.4821 of 2018. Upon certain conditions, an interim order was passed in favour of the opposite parties directing the police authority not to arrest them on condition that they would meet the Investigating Officer once in every week till the disposal of the application for anticipatory bail. The private opposite parties however did not comply with the said condition and failed to meet the I.O as directed by this court. On 11th October, 2018 the opposite parties filed supplementary affidavit explaining the circumstances as to why they were unable to attend the Investigating Officer and also giving assurance that they would deposit some amount due to the petitioner. As the opposite parties failed to comply with the directions passed by this Court, CRM 4821 and 2018 was rejected vide order dated 4th December, 2018. The opposite parties challenged the said order of rejection of the prayer for anticipatory bail by filing a special leave petition before the Hon'ble Supreme Court of India in SLP (Criminal) No.10815 of 2018. Vide order dated 15th January, 2019 the Hon'ble Supreme Court dismissed the said special leave petition.
3. Under such circumstances, the petitioner herein filed an application which was registered as CRM 1080 of 2019 of 22nd January, 2019 praying for cancellation of pre-arrest bail of the private opposite parties passed by this Court in CRM No.3807 of 2018. In course of hearing of CRM 1080 of 2019 this court by an order dated 29th March, 4 2019 directed the private opposite parties to surrender and seek regular bail within seven days. On 5th April, 2019 the opposite parties surrendered before the jurisdictional magistrate with a prayer for bail. Such prayer for regular bail was allowed by the learned Additional Chief Metropolitan Magistrate-2, Calcutta. In the mean time, charge-sheet was submitted in Bowbazar P.S Case No.191 of 2018 against the opposite parties on 13th July, 2021 showing the private opposite parties as absconders. The learned Additional Chief Metropolitan Magistrate-2, Calcutta took cognizance of offence on the basis of charge-sheet and transferred the case to the court of the learned Metropolitan Magistrate, 12th Court at Calcutta. On 15th July, 2021 the learned Magistrate, 12 Court at Calcutta issued non-bailable warrant of arrest against the private opposite parties. On the self same day, opposite parties surrender before the learned trial court by put up petition and the learned Magistrate released them on bail. The present application is for cancellation of the order of bail passed by the learned trial court on 15th July, 2021.
4. It is submitted by Mr. Ayan Bhattacharya, learned Advocate on behalf of the petitioner that the private opposite parties are habitual offenders. Apart from the cases pending on the basis of a written complaint filed by the petitioner in Bowbazar and Ballygunge P.S at least six other cases are pending in Calcutta and different police stations in Uttar Pradesh. Though they purchased maize from the petitioner worth crores of rupees in the names of other companies, they did not pay any 5 amount to the petitioner. It is also submitted by Mr. Bhattacharya that the private opposite parties never surrendered before the trial court during investigation of the case even after rejection of their application for anticipatory bail by this Court and the special leave petition by the Hon'ble Supreme Court. Though, the private opposite parties consistently violated the direction passed by this Court in CRM 3807 of 2018, the learned trial court failed to appreciate the said fact and granted bail in favour of the opposite parties without considering the fact that they are not entitled to enjoy the said liberty after violating the order passed by this Court directing them to meet the Investigating Officer once in every week.
5. Learned advocate for the opposite parties submits that there was a continuing commercial business transaction between the petitioner and Amrit Hatcheries Pvt. Ltd. A total of Rs. 3,22,28,80,221/- has been paid to the petitioner out of total outstanding sum of Rs. 3,24,74,38,540/-. It is further submitted that it is defamatory to the private opposite parties to refer them as 'history sheeter'. Law contemplates a history sheet only in respect of convicted offenders and by extension, a history sheeter is a convicted offender who answers to such description. However, in the instant case the opposite parties have not been convicted of any offences.
6. In the case of Ash Mohammed vs. Shiv Raj Singh alias Lalla Babu and anr. reported in (2012) 9 SCC 446 it is held that it is apt to note that a history-sheeter has a recorded past. The High Court, in toto, has ignored the criminal antecedents of the accused. What has weighed with 6 the High Court is that the accused had spent seven months in custody. That may be one of the factors but that cannot be the whole and the sole factor in every case. It depends upon the nature of the offence, the manner in which it has been committed and its impact on the society. We may hasten to add that when we state that the accused is a history- sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But it is significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked.
7. It is submitted by learned advocate for the petitioner that despite rejection of pre-arrest bail by this court which was affirmed by the Supreme Court, the opposite parties have never surrendered before the learned trial Magistrate during investigation. Charge was framed against the opposite parties under Sections 120B/420/506 (ii) of the IPC and shown as 'absconding'. It was only after issuance of non-bailable warrant (NBW), the opposite parties surrendered before the Learned Trial Magistrate to secure liberty. The Learned Trial Court allowed such prayer of the private opposite parties.
8. Learned advocate for the opposite parties submits that the chargesheet was submitted before the learned Magistrate on 13th July, 2021 and application for bail was heard on 15th July, 2021. As per terms of Regulation no. 274 of Police Regulations, Bengal 1943, at the time of granting bail, the case diary of the instant case was already a part of the 'records' before the Learned Trial Court and it was mentioned in order dated 15th July, 2021 by learned Magistrate that he "perused the 7 materials on record''. Learned advocate for the petitioner submits that the case diary was not present before the learned trial Magistrate at the time of consideration of bail. The order impugned lacks reason for granting bail whereas it has been rejected by this court and Supreme Court.
9. In support of his contention, he refers to a decision of the Supreme Court in the case of Sunil Kumar vs State of Bihar and Anr. reported in 2022 SCC OnLine SC 88 it is held that judges are duty bound to explain the basis on which they have arrived at a conclusion.
"36. Grant of bail Under Section 439 of the Code of Criminal Procedure is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail-as in the case of any other discretion which is vested in a court as a judicial institution-is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice."
25. Merely recording "having perused the record" and "on the facts and circumstances of the case" does not subserve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection, or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern 8 both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice.
10. Learned advocate for the opposite parties opposed and placed reliance in the case of Kashi Nath Roy vs State of Bihar reported in (1996) 4 SCC 539 held that the courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of "presumption of innocence of an accused" gets jeopardized; and the structural principle of "not guilty till proved guilty"
gets destroyed, even though all sane elements have always understood that such views are tentative and not final, so as to affect the merit of the matter. Here, the appellant has been caught and exposed to a certain adverse comment and action solely because in reasoning he had disclosed his mind while granting bail. This may have been avoidable on his part, but in terms not such a glaring mistake or impropriety so as to visit the remarks that the High Court has chosen to pass on him as well as to initiate action against him, as proposed.
11. From the impugned order passed by the learned Trial Magistrate, it can be seen that no reasons whatsoever have been assigned while releasing the opposite parties on bail. Learned trial magistrate has only observed that '' perused the materials on record''. Considering that the accused are surrendering voluntarily before this court bail prayer is 9 allowed. There is no further reasoning given. Neither the learned trial court considered the nature, seriousness of the offence nor considered that they were absconding, and their anti-bail were rejected.
12. In the case of Manoj Khokhar vs state of Rajasthan and Anr. reported in 2022 SCC OnLine SC 30 it was held that, an order granting bail should be informed with reasons.
''16. The Latin maxim "cessante ratione legis cessat ipsa lex" meaning " reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself", is also apposite.'' ''19. Thus, while elaborate reasons may not be assigned for grant of bail or an extensive discussion of the merits of the case may not be undertaken by the court considering a bail application, an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum. As noted in Gurcharan Singh vs. State (Delhi Admn.) 1978 CriLJ 129, when bail has been granted to an accused, the State may, if new circumstances have arisen following the grant of such bail, approach the High Court seeking cancellation of bail under section 439 (2) of the CrPC. However, if no new circumstances have cropped up since the grant of bail, the State may prefer an appeal against the order granting bail, on the ground that 10 the same is perverse or illegal or has been arrived at by ignoring material aspects which establish a primafacie case against the accused.''
13. It is submitted by learned advocate for the opposite parties that the bail has been granted on 15th July, 2021 and the application for cancellation of bail has been filed nearly after a month on 13th August, 2021. It is apparent that the application has been filed to create undue pressure upon the opposite parties.
14. To buttress his argument, learned advocate for the opposite parties relied upon the decision in the case of Ashok Kumar vs State of U.P. reported in (2009) 11 SCC 392, para-11.
''11. Since the accused is on bail for a considerable length of time, we do not think it appropriate to cancel the bail, though there appears to be some substance in the plea that the impugned order granting bail suffers from various infirmities. Let the trial be completed within three months. If the complainant or any witness seeks protection for appearance before the Court during trial, the same shall be provided by the police officials concerned. The trial court would take up the matter on continuous basis to complete the trial within the period indicated above.''
15. Rejection of bail, when bail applied is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves review of a decision already made and can be permitted only if there is supervening circumstances. 11
16. In the case of Myakala Dharmarajam and Ors. Vs State of Telengana and Anr. reported in (2020) 2 SCC 743 Supreme Court held factors to be considered while granting and cancellating bail.
''8. In Raghubir Singh v. State of Bihar [Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 : 1986 SCC (Cri) 511] this Court held that bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. The above grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.
9. It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant material indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail [Kanwar Singh Meena v. State of Rajasthan, (2012) 12 SCC 180 : (2013) 4 SCC (Cri) 614] .
10. Having perused the law laid down by this Court on the scope of the power to be exercised in the matter of 12 cancellation of bails, it is necessary to examine whether the order passed by the Sessions Court granting bail is perverse and suffers from infirmities which has resulted in the miscarriage of justice. No doubt, the Sessions Court did not discuss the material on record in detail, but there is an indication from the orders by which bail was granted that the entire material was perused before grant of bail. It is not the case of either the complainant Respondent 2 or the State that irrelevant considerations have been taken into account by the Sessions Court while granting bail to the appellants. The order of the Sessions Court by which the bail was granted to the appellants cannot be termed as perverse as the Sessions Court was conscious of the fact that the investigation was completed and there was no likelihood of the appellant tampering with the evidence.''
17. It is submitted by learned advocate for the opposite parties that the opposite parties never tried to tamper with the evidence or involve in similar offences.
18. Per contra, learned advocate for the petitioner submits that in connection with Ballygunge P.S. case no. 75 of 2018 the private opposite parties filed an application for anticipatory bail being no. CRM no. 3807 of 2018 where by an order dated 19th June, 2018, anti-bail was allowed. Another application for anti-bail was filed in connection with Bowbazar P.S. case no. 191 of 2018 being no. CRM no. 4821 of 2018 an interim order was passed in favour of the opposite parties on condition to meet the investigating officer once in every week till disposal of the application. The opposite parties did not comply with such condition which led to 13 rejection of CRM 4821 of 2018 by an order dated 4th December, 2018. The rejection order was affirmed by Supreme Court vide order dated 15th January, 2019. Chargesheet was submitted in Bowbazar P.S. case no. 191 of 2018 on 13th July, 2021 showing opposite parties as absconders.
19. Learned Trial Court failed to appreciate the fact that the opposite parties did not comply with the order in the case of CRM no. 4821 of 2018 and the anticipatory bail was rejected. Supreme Court also rejected their application. The opposite parties are shown as absconders in the chargesheet. The trial court issued warrant of arrest and on the self-same day released them on bail upon voluntary surrender by the opposite parties. The learned trial court failed to consider the above factors while granting bail. In the case of Virupakshappa Gouda and Anr. vs State of Karnataka reported in (2017) 5 SCC 406, it was held that when a chargesheet is filed it amounts to change of circumstance. Needless to say filing of chargesheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the chargesheet establishes that after due investigation the investigating agency, having found materials, has placed the chargesheet for trial of the accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal Sessions Judge after filing of the charge-sheet which was challenged in the High Court and that had travelled to this Court. These 14 facts, unfortunately, have not been taken note of by the learned trial Judge. He has been swayed by the observations made in Siddharam Satlingappa Mhetre.
20. In the case of Bimla Devi vs State of Bihar and Ors. reported in (1994) 2 SCC 8 it was held that the grant of provisional bail by Magistrate despite rejection of two earlier bail applications in the High Court not only contrary to settled principles of judicial propriety but also contrary to the statutory provision. In the present case opposite parties filed anticipatory bail in connection with P.S. case no. 191 of 2018 registered as CRM no. 4821 of 2018 which got rejected due to non- compliance of the order. The same order was affirmed by the Supreme Court in SLP (criminal) no. 10815 of 2018 vide order dated 15th January, 2019. Despite rejection of two bail application learned Trial Court erred in law in granting bail to opposite parties.
21. The opposite parties placed reliance in the case of M.C. Abraham vs State of Maharashtra reported in (2003) 2 SCC 649 where it has been held that it was not mandatory for the police to arrest a person only because his/her anticipatory bail had been rejected. That apart, an accused is not required under the law to surrender before the learned trial court during the pendency of investigation or at a stage prior to the taking of cognizance by the learned Court, since there is no proceeding against the accused before a court of law, prior to taking of cognizance. Equally, the prior rejection of anticipatory bail of an accused at the investigation stage, does not fetter the learned trial court in the exercise of its 15 discretion, in the matter of grant of bail, at a stage after the submission of charge-sheet and taking of cognizance.
22. It is trite law that bail once granted should not be cancelled in a mechanical manner without considering any supervening circumstances have rendered it no longer conductive to a fair conduct of the proceedings, to allow the accused to retain their freedom by enjoying the concession of bail during the pendency of the proceeding. No such supervening circumstances have been pleaded by the petitioner.
23. The criteria/parameters for cancellation of bail are different from the one for grant of bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. The court is required to exercise such discretion with circumspection and care and not in a mechanical way. There is no allegation against opposite party that they misused the liberty or bail. The private opposite parties are aged and have deep roots in society and there is no chance of them absconding. In this regard learned Counsel for the opposite parties placed reliance of the Hon'ble Apex Court in Daulat Ram vs State of Haryana reported in (1995) 1 SCC 349 and Ms. X vs State of Telangana reported in 2018 (16) SCC 511.
24. In Kanwar Singh Meena vs State of Rajasthan & Anr. reported in (2012)12 SCC 180 held that ''10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and 16 status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well- recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail.''
25. In the case of State (Delhi Admin.) vs Sanjay Gandhi reported in (1978)2 SCC 411 Apex court observed that rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. This is because cancellation of 17 bail interferes with the liberty already secured by the accused either on the exercise of discretion by the court or by the thrust of law. This court therefore observed that the power to take back in custody an accused, who has been enlarged on bail has to be exercised with care and circumspection. That does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand.
26. However, courts have the power and discretion to cancel bail even when there are no supervening circumstances where order granting bail was passed by ignoring material evidence on record and without giving reasons or where bail has been granted on untenable grounds; or where the order granting bail suffers from serious infirmities resulting in miscarriage of justice.
27. In view of the above decision, bail granted to the opposite party nos.2 to 4 by the Learned Additional Chief Metropolitan Magistrate -2, Calcutta dated 25th June, 2018 is cancelled.
28. The learned Trial Court is directed to recall the order dated 25th June, 2018 and decide it according to the guidelines given in Neeru Yadav Case.
29. Accordingly, the instant application is disposed of.
(Bibek Chaudhuri, J.)