Calcutta High Court (Appellete Side)
Gouri Shankar Mishra vs The State Of West Bengal on 28 October, 2009
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.R. No. 3354 of 2009 Gouri Shankar Mishra versus The State of West Bengal For Petitioner : Mr. Asraf Ali For State : Mr. Aloke Roy Chowdhury Heard On : September 8th, 2009.
Judgment On : 28-10-2009.
The present petitioner apprehending arrest in connection with a case relating to the offence punishable under Sections 406/420/506/504/34 of the Indian Penal Code applied for anticipatory bail before the Learned Sessions Judge at Howrah. When the Learned Judge directed that in the event of his arrest the petitioner shall be released on interim bail subject to the condition of payment of Rs. 50,000/- to the defacto-complainant. It was further directed that within 10 days the petitioner shall surrender before the regular Court and the matter shall be listed for further orders and for confirmation of bail on the day till which the interim bail shall remain valid if such payment is made.
2. Mr. Ali vehemently assailed the aforesaid order so far that relates to the imposition of condition of payment of Rs. 50,000/- to the defacto- complainant and according to him that such condition is wholly irrelevant and not in accordance with law.
The Learned Counsel for the State Mr. Alok Roy Chowdhury also conceded that imposition of such a condition is not at all called for.
3. Heard Mr. Asraf Ali, the Learned Counsel, appearing on behalf of the State. Perused the impugned order as well as the other materials on record.
4. It is of course open to a Court to grant or refuse the prayer for anticipatory bail of an accused depending on the facts and circumstances of each particular case, but it is not at all proper or justified to assume that the offence alleged has been committed at the stage when Court is considering the question of granting anticipatory bail and to direct payment of alleged misappropriated money to the defacto-complainant. A Court cannot be expected to act as a recovery agent. A Criminal Court can very well decide whether an offence has committed by an accused or not only at the conclusion of the trial and certainly not at the stage when court is considering the question of bail. The liability of any person as regards to the repayment of the alleged misappropriated amount even if he is found guilty of an offence by a Criminal Court is a matter should be left to be decided by a competent Civil Court in an appropriate proceeding and not by a Criminal Court.
5. Furthermore, while exercising discretion to release an accused on anticipatory bail a Court is always empowered to impose such conditions which are enumerated in sub-section (2) of Section 438 and sub-section (3) of Section 437 of the Code, but it cannot transgress its jurisdiction or power by imposing conditions excess to the conditions mentioned therein.
6. The conditions may be imposed to secure the presence of the accused before the Investigating Officer or before the Court during the trial and to prevent him from fleeing away from the course of justice and from tampering with the evidence and from inducing or intimidating the witnesses so as to dissuade them from disclosing the truth to the police or court. The movement of the accused can also be restricted in a particular area or locality to maintain law and order and to prevent any repetition of crime. However, the direction of payment of the alleged misappropriated money or any part thereof as a condition of anticipatory bail is the beyond of jurisdiction upon a Court conferred under Section 438 of the Code.
It is the duty of the Court while considering the prayer of anticipatory bail of an accused to decide the question as to the entitlement of such relief sought for by the accused on the basis of the materials available from the Case Diary and when a Court found a case for anticipatory bail has been made out it is not open to it to direct repayment of alleged misappropriated money to the defacto-complainant.
For the reasons stated above, the order impugned cannot be sustained and same is set aside. The Learned Sessions Judge is directed to consider afresh the petitioner's prayer for anticipatory bail in accordance with law after giving reasonable opportunity of hearing to both the parties. The Court must not be swayed by any observation made in this order.
The Office is directed to communicate this order to the Court below at once and the Learned Sessions Judge shall dispose of the petitioner's application for anticipatory bail within 7 days from the date of receipt of such communication.
Both the petitioner as well as the State are directed to taken necessary steps in this regard.
Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
( Ashim Kumar Roy, J. )