Calcutta High Court (Appellete Side)
409/34 Of The Indian Penal Code vs In Re : Milan Ghosh on 20 January, 2023
20.01.2023 55 sdas interim bail C.R.M. (DB) No. 279 of 2023 In Re:- An application for bail under Section 439 of the Code of Criminal Procedure in connection with Manikchak Police Station Case No. 142 of 2019 dated 29.05.2019 under Sections 409/34 of the Indian Penal Code.
And In Re : Milan Ghosh ..... petitioner Mr. Sandipan Ganguly, Sr. Adv.
Mr. Arkadeb Bhattacharya ... for the petitioner Mr. Rudradipta Nandy, learned APP Mr. Subroto Roy ... for the State Mr. Ganguly, learned senior Counsel for the petitioner submits his client was granted pre-arrest bail in CRM (A) 5882 of 2022.
Initially by order dated 21.12.2022 a co-ordinate Bench gave liberty to the petitioner to deposit a sum of Rs.10,00,000/- with the trial court within 23rd December, 2022 and thereafter deposit another sum of Rs.40,00,000/- on or before 5th January, 2022. It was further directed said the sums shall be kept in an interest bearing fixed deposit account in a nationalised bank subject to the directions of the jurisdictional court. In terms of the aforesaid order petitioner made the deposits by bank drafts. Thereafter, by order dated 06.01.2023 he was granted anticipatory bail. In the said order the co-ordinate Bench 2 reiterated that the deposits shall be kept in an interest bearing fixed deposit account maintained in a nationalised bank.
When petitioner surrendered before the jurisdictional court, the court expressed its inability to work out the condition i.e. to deposit the amounts in a natinalised bank unless the sum was paid in cash. It would not be out of place to refer to Rule 507(1)1 of Calcutta High Court Criminal (Subordinate Court) Rules, 1985 which, inter alia, states money under heads (b) to
(h) of Rule 502 shall ordinarily be received in cash in all courts. Rule 502 enumerates the nature of receipts as follows:-
"R. 502. The following are the heads of accounts under which the money received and paid by Judicial Officers are under their orders is classified:
(a) Criminal deposits including compensation fines and costs in criminal cases not paid on the spot in open court.
(b) Fines (judicial) and the refund of the same.
(c) Stamp duty and penalties realised in court.
(d) Value of unclaimed property credited to Government.
(e) Other general fees fines and forfeitures i.e. general forfeitures and forfeitures of earnest money by defaulting bidders.
(f) Record room receipts i.e. searching fees, copying fees and comparing fees.
(g) Miscellaneous receipts i.e. other items.
(h) Peremptory receipts i.e. witnesses' expenses, prisoners' diet money, costs of adjournments and other peremptory receipts."
A receipt made pursuant to a court order would fall in clause (g) of the aforesaid Rule. It is also relevant to note the co- ordinate Bench did not direct the petitioner to make deposits through bank instruments.
However, we do not support the observations made by the Special Court as follows:-
"This unscrupulous accused intentionally implicated this Court and this Judicial Officer, in the financial aspects of the Criminal Misappropriation Case. He also practiced 1 Money under heads (b) to (h) of rule 502 shall ordinarily be received in cash in all courts.3
fraud upon the Hon'ble High Court by misleading with the facts."
*** *** *** "From the conduct of the accused Milon Ghosh, it appears that he did not comply the condition of Hon'ble High Court and misleaded, practiced fraud upon the Hon'ble High Court and also tried to implicate one of the Judicial Officers of Hon'ble High Court, who are bound to do their Judicial work under the supervision and protection of Hon'ble High Court and he has made unnecessary, peculiar complication in this matter which shows his malafide intention and tendency to avoid the legal prosedure."
These observations appear to be wholly unfounded and not supported by materials on record. If the condition of bail as directed by the co-ordinate Bench was unworkable in the estimation of the learned Judge he ought to have permitted the petitioner to approach the Court for clarification/modification of the said condition. To take the petitioner into custody in the interregnum was wholly unwarranted. We disapprove this approach of the learned Judge.
In the light of the aforesaid observations, we are inclined to grant interim bail to the petitioner.
We give liberty to the petitioner to take back the bank drafts and redeposit the amount of Rs.50,00,000/- in cash before the trial Court by 8th February, 2023. Upon the deposit being made, learned Judge shall keep the said amount in an interest bearing fixed deposit account maintained in a nationalised bank subject to further orders passed by the said court.
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Petitioner shall be granted interim bail which shall continue till 28th February, 2023 upon furnishing a bond of Rs.10,000/- with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Judge, Special Court, 1st Court, Malda, subject to condition that petitioner shall appear before the trial court on every date of hearing until further orders and shall not intimidate the witnesses and/or tamper with evidence in any manner whatsoever.
In the event the petitioner fails to appear before the trial court without justifiable cause, the trial court shall be at liberty to cancel his bail in accordance with law without further reference to this Court.
Let the matter appear on 22nd February, 2023. Report be filed on the adjourned date.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)