Calcutta High Court
The State Of West Bengal vs Nebulal Shaw on 20 December, 1996
Equivalent citations: (1997)1CALLT302(HC)
JUDGMENT Rabin Bhattacharyya, J.
1. The taste of the pudding is in the eating. The propriety of a judicial order or the judgment is, therefore, to be tested in the light of the law and fact. It is the judicial seal which makes an order or judgment sacrosanct. Following from the above concept, the application of judicial mind is the pole star to determine its objectivity.
2. The prosecuting agency has widely challenged the impugned order of bail granted to Nebulal which suffered rejections by the High Court from time to time by different Benches. Ultimately, Nebulal was admitted to bail by the Division Bench on certain conditions that pushed the prosecuting agency to the apex court where it challenged the viability of bail. The apex court, upon hearing the parties, transmitted the case for consideration of bail in accordance with law. The learned Public Prosecutor became very much sore over the granting of bail dated 28.3.96. In the context, the prayer for cancellation of bail has been lit up by the prosecuting agency on the ground that the enlargement of the petitioner on bail in the face of overwhelming materials is short of law. The rejection of prayer for bail on 13.3.96 before commitment and enlarging the petitioner on bail after commitment at an interval of fortnight on 28.3.96, according to the prosecuting agency, does not constitute any new and important circumstances which could pave the way for the petitioner to be enlarged on bail. The reflection of judicial mind is conspicuously silent while admitting the petitioner to bail. The above has led to a judicial conflagration.
3. The prayer has been studiously opposed by the learned Counsel Mr. Dutta for the petitioner on the count that there was total absence of application of judicial mind which is glaring from the order that prevailed upon the learned Session Judge to enlarge the petitioner on bail. The conduct of the petitioner is/was virgin after he was bailed out. In the premise, it is a futile exercise of the state to pray for cancellation of bail.
4. Reverting back to examine the potentiality of the claim, we find at the first glance for the manifestation of the materials on record that the case epitomises, fluster and fury. The victim suffered an ignoble death for the machination of the petitioner who was the friend, philosopher and guide of the co-accused. Victim was done to death when he became the target of brutal acid assault and made him to succumb to injuries. The commission of the offence appears to be prima facie a horrible horror, for which words are absent for its description. Without attaching any premium to the fatality of the occurrence, the impugned order has to be considered in the perspective of the well established and well defined guidelines provided by many courts of our country amongst which the apex court is one, although there may be a few other factions which may flavour the judicial mind for consideration of bail. They are catalogued below:--
(a) When the accused was found tampering with the evidence during the investigation or during the trial.
(b) When the person on bail commits similar offence or any heinous offence during the period of bail.
(c) When the accused has absconded and trial of the case gets detailed on the account.
(d) When the offence so committed by the accused, that had created serious law and order problem in the society and accused had become a hazard on the peaceful living of the people.
(e) If the High Courts finds that the Lower Court granting bail has exercised its judicial power wrongly.
(f) If the High Courts or session courts find that the accused has misused the privilege of bail and if the life of the accused itself being danger.
5. The above constitutes the parameters for cancellation of bail, although an exhaustive list cannot be detailed as the circumstances vary from case to case. We are only concerned, if the learned court has exercised the judicial wisdom in enlarging the petitioner on bail.
6. It is noteworthy that the things were in ferment across the line of the defence claim for bail for the prima facie adverse materials on record which, according to the learned court highly answered against the claim for bail. It is manifest from the order sheet of 13.3.96 that the statements of the witness recorded under Section 161 of the Cr PC and other associated materials plus attending circumstances, in fact, imprinted on the mind of the court to reject the prayer for bail.
7. But it is preposterous to find from the order impugned dated 28.3.96 that the court took a soft view of the case of the defence for bail and admitted him on certain conditions. But the learned court made an observation that the petitioner "remotely" and "may be viably connected with offence". This view of the learned court does not find favour with law.
8. It is needless to repeat that circumstances did not occur any considerable change in the earlier application for bail which, however, rejected by the same learned court. There is no nexus In between the first order dated 13.3.96 and the last order dated 28.3.96. The above two orders, in our view, are irreconcilable and has raised a gulf. To adjudge the viability of the order impugned, we are constrained to look back to the order of 13.3.96.
9. We do not express in the least that the petitioner is not entitled to bail but we leave on record that the circumstances listed above could not afford to release him on bail. The impugned order according to us must stand to the test of exercise of judicial power. The employment of the words "remotely" and "may be viably connected" explodes the application of judicial mind in admitting the petitioner to bail considered with the earlier order dated 13.3.96. In the state of materials, it bears no profile.
10. Further, the reprehensible conduct of the other accused enlarged on bail and the fair trial were also available when the prayer for bail was rejected by the learned Session Judge and, therefore, there could be no new ground available on record to enlarge him on bail.
11. There is another important factor which should not be over-looked or ignored for the bail being accorded to the petitioner. The question arises in this way.
12. It is towering from the annexures where the superior court rejected the prayer for bail of the accused. The bail granted by the superior court fell for decision of the apex court which rejected the prayer for bail with a direction to dispose of the same in accordance with law. We never indicate in our order that the accused is not entitled to bail. But when the bail has been granted by the learned Session Judge, the superior court is to consider that justice should be meted out to both parties.
13. It is a governing factor warranting the meticulous judicial exercise in its judicial wisdom. The order was hit or affected by infirmities when complained of it is the duty of the High Court in the interest of Justice to interfere with the order impugned in granting the bail. This is one aspect of the matter and we in our judicial wisdom cannot agree with the order passed by the learned Session Judge who accorded the prayer for bail and by the reason of his own observations, it we hark back, it, however, fell to conform to the legal elements blended with facts.
14. The learned Public Prosecutor has cited a decision of the Supreme Court to fuel his claim for cancellation of bail where the apex court in State of Maharashtra v. Captain Buddhikota Subba Rao made costic remark about the granting of bail by a court of sub-ordinate jurisdiction when rejected by superior court. Accordingly, he has contended that there was infraction of law, rules and convention when the learned Session Judge assumed jurisdiction to consider the prayer for bail, although the learned Session Judge had notice that the bail was cancelled by the superior court. For better appreciation, we quote below the observations of the apex court:--
"The order granting bail was not proper and liable to be set aside. Judicial discipline, propriety and comity demanded that the order granting bail should not have been passed reversing all earlier orders including the one rendered by the single Judge of the same High Court only a couple of days before, in the absence of any substantial change in the fact situation. In such cases it is necessary to act with restraint and circumspection so that the process of the court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one Judge or selected another to secure an order which had hitherto eluded him. In such a situation the proper course, is to direct that the matter be placed before the same Judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conducive to judicial discipline and would also save the court's time as a Judge familiar with the facts would be able to dispose or the subsequent application with despatch. It will also result in consistency."
15. He has oddly argued that granting of bail ignoring the rejection of bail by the High Court goes against all the canons of the judicial discipline. The Session Judge, according to him, cannot sit on the order of the High Court. It has resulted in a legal catastrophe both overtly and covertly.
16. It is trite saying that a person when admitted to bail by the High Court could only be committed to custody only by the High Court. Therefore, a person suffered rejection of bail could only agitate his claim to the very court which rejected the prayer for bail. However, the court cannot ignore the co-ordinate Jurisdiction in entertaining an application for bail as argued by Mr. Dutt. But we do refrain ourselves from making any comment as Article 141 of the Constitution is absolutely operative in the judicial field where High Court is no exception. With utmost respect, we must obey the decision of the apex court.
17. Thus, on consideration of the overwhelming materials on record, we accept the contention of the learned Public Prosecutor of the Slate and reject the submission of the learned counsel for the petitioner as it bears no force.
18. Having considered the respective submissions, we do not find any merit in the order for bail dated 28.3.96 granted by the learned Session Judge and accordingly, we allow the prayer for cancellation of bail after setting aside the order impugned. In fine, we direct the petitioner to surrender himself to custody forthwith.
19. The application is accordingly, disposed of.
Samir Kumar Mookherjee, J.
20. I respectfully agree with the well considered view of my learned brother, Bhattacharyya, J. I would only like to express my reasons for such concurrence by way of supplementing the reasons given by him. It is firmly established that rejection of bail upon consideration of an application for bail calls for an approach which must necessarily be different when an application for cancellation of bail is to be considered. The decision of the apex court in the case of Delhi Administration v. Sanjay Gandhi, , is often interpreted to sustain a view that a bail can be cancelled only on availability of restricted grounds as fell for consideration of the apex court in that case, namely, that supervening circumstances had come into existence for which it would no longer be conducive to a fair trial to allow the accused to retain his freedom during the trial. In other words, it is often thought that the said decision laid down a principle for cancellation of bail by taking into consideration the conduct of the accused person after the bail only and in no other circumstance. A careful reading of the said decision, however, shows that in it was unbuilt a proposition that cancellation of bail involved a review of a decision already made and that it never prevented the courts, in exercise of their powers under Section 439(2) of the Code of Criminal Procedure, in a case where bail was improperly granted, to cancel the same. To construe the decision otherwise would be militating against the basic concept of justice and would render even a perverse order by which a bail is granted to remain un-disturbed.
21. Indeed, the aforesaid interpretation of the Judgment of the apex court finds support from the ratio laid down in the case of Gurcharan Singh and Ors. v. State (Delhi Administration) reported in the same volume of the AIR Supreme Court at page 179. The said decision summarised the over-riding considerations in the matter of grant of bail which are common both in the case of Section 437(1) and Section 439(1) of the Code of Criminal Procedure as follows:--
(i) The nature and gravity of the circumstances in which the offence is committed;
(ii) The position and the status of the accused with reference to the victim and the witnesses;
(iii) The likelihood of the accused fleeing from justice;
(iv) The likelihood of the accused repeating the offences of jeopardizing his own life being faced with a grim prospect of possible conviction in the case;
(v) The likelihood of tampering with witnesses;
(vi) The history of the case as well as of its investigation;
(vii) Other relevant grounds amenable to variable factors. The apex court went on to find further that in the new Code under Section 439(2), a High Court might commit a person, released on bail under chapter XXXIII by any court including the court of Session, to custody if it thinks appropriate to do so.
22. Applying the aforesaid tests and taking into consideration the rindings made by different courts at earlier stages or proceedings in rejecting the prayers for bail, which state at the face, it is, in my view, well within the jurisdiction of this court to adjudge the propriety of the order of the learned Sessions Judge granting bail in the present case to the accused person and if necessary, to reverse the same. The grounds given by my learned brother amply establish that the grant of bail was itself improper and, therefore, he is right in concluding that the bail ought to be cancelled. I have no hesitation to state that the bail has rightly been directed to be cancelled and the accused has been rightly directed to be taken into custody.
23. With the aforesaid observations, the application stands disposed of.
Court There is a prayer for stay of operation of the judgment and order passed today. But we refuse the same since we have proceeded on the basis of the principles well-settled by the apex court in the Country in directing the cancellation of the bail.
If an urgent certified copy of this order is applied for, the Criminal Section is directed to deliver the same before the X-mas holidays.