Calcutta High Court (Appellete Side)
7995/2011 on 31 January, 2012
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
485. 31.1.2012. C.R.M.7995 of 2011.
as
Mr. Milon Mukherjee,
Mr. Rana Mukherjee,
Mr. Sandipan Ganguly,
Mr. Debangan Bhattacharjee.
.....For the Petitioner.
Mr. Sabir Ahmed.
.....For the State.
Mr. Angshuman Chakraborty.
.....For the O.P.No.2.
This application under Section 439 (2) of the Cr. P. C. has been filed by Edcons Exports Pvt. Ltd., i.e., lodger of the F.I.R. (defacto complainant) praying for cancellation of bail granted to Saugata Roy Chowdhury, the opposite party No.2 in G. R. Case No.2777 of 2010 arising out of Entally Police Station Case No.292 dated 17.10.2010 under Sections 403/406/408/420/418/424/120B of the I.P.C.
The defacto complainant made attempt twice to get the bail cancelled in the Court of the learned Magistrate. In both the cases, however, the learned Magistrate rejected his prayer for cancellation of bail of Saugata Roy Chowdhury. His interim bail dated 18.2.2011 has not yet been confirmed or made absolute. In the meantime, the investigation is concluded and charge sheet has been filed.
It has been contended on behalf of the petitioner/complainant that on 18.2.2011, two applications for put up the record was filed in the Court of the learned A.C.J.M., Sealdah. The xerox copy of the order sheet dated 18.2.2011 shows that initially one order was written to the effect that the record be put up on the date fixed, i.e., on 21.2.2011 with a direction to call for C.D. on the date fixed. The photo copy of the application for put up also conforms that order. There is an endorsement by the side of the application that "call for C.D. and be put up on the date fixed". Astonishingly, on the same date, the record was put up on the basis of another put up applications filed at 10.29 A.M. There is another put up application pending in the Court of the learned Sessions Judge under Section 439 of the Cr. P. C. which was subsequently and obviously after 10.30 A.M., was not pressed. So, there was suppression of fact and the bail petition was moved by way of illegal means and fraud.
It has been submitted further on behalf of the petitioner that on 30.5.2011, the learned Magistrate while rejecting the prayer for bail, directed the opposite party Saugata Roy Chowdhury to meet the Investigating Officer regularly once in a week and not to leave the jurisdiction of Sealdah Court without prior permission until further order. But the report of the I.O., which was sought for, indicates clearly that Saugata Roy Chowdhury attended his office regularly which is situated beyond the jurisdiction of the Sealdah Court. That report was placed before the Court on 24.6.2011 and no order was passed by the learned Court on that date. The matter was taken up by the Court on 18.8.2011. The learned Court found that one of the terms of the interim bail was violated by the accused Saugata Roy Chowdhury but no action was taken by the Court which appears to be contrary to the order dated 30.5.2011 where it has been specifically mentioned that Saugata Roy Chowdhury should not leave the jurisdiction of the Court without prior permission until further order, in default, he would be taken to judicial custody.
In the background above, Mr. Mukherjee, learned Counsel appearing on behalf of the petitioner submits that bail granted to the accused Saugata Roy Chowdhury should be cancelled.
Mr. Chakraborty, learned Counsel appearing on behalf of the opposite party No.2/accused has submitted that there is no violation of the order in true sense. Saugata Roy Chowhdury is co- operating with the I.O. of the case and met him regularly as directed by the Court. He was not aware of the condition not to leave the jurisdiction of the Sealdah Court initially but whenever it came to his knowledge, he stopped going to his office. He submits further that no doubt two put up petitions were filed in the Court of the learned A.C.J.M. at Sealdah and ultimately the matter was heard by the learned Court before whom the C.D. was placed. It is not within the knowledge of the opposite party/accused Saugata Roy Chowdhury as to how and why the second put up was accepted by the Court and how the C.D was produced. It was the business of the Court. Therefore, he submitted that the bail granted to the opposite party/accused Saugata Roy Chowdhury cannot be cancelled.
Mr. Sabir Ahmed, learned Counsel appearing on behalf of the State submits that there is a violation of the terms to the interim bail and Court should have dealt with it seriously.
I have bestowed serious thought over the issue. It is true that rejection of bail and cancellation of bail are not guided by the same principle. Bail can be rejected on various grounds but once bail is granted cannot be cancelled easily, save and except on the ground of post bail conduct of the accused, fraud etc. In the instant case, the two put up petitions have been filed but I do not find that there is any embargo for any accused to file put up petitions repeatedly. There is no embargo on the part of the Court to take up one put up petition while directing initially to put up the same on the date fixed. The question is, the Court was defrauded by action of the accused or not at the time of passing bail order. It is not there. But Mr. Mukherjee questioned the manner in which the matter was taken up by the Court not the manner in which the bail was granted. The bail order was passed on perusal of the C.D. in presence of the learned P. P. and apparently, there is no illegality in the order barring the technical mistakes already mentioned. So, on that ground bail cannot possibly be cancelled. However, this Court deprecates and discourages the lawyers and courts not to entertain two consecutive put up petitions on the same day while the first one was directed to be put up on the date fixed.
As regards violation of one of the terms and conditions vide order dated 18.8.2011, the learned Magistrate found that the order passed by it on 30.5.2011 was partially violated. It has already been stated that the Court while rejecting the prayer for cancellation of interim bail directed the accused Saugata Roy Chowdhury not to leave the jurisdiction of Sealdah Court without prior permission until further order and in default, he would be taken into custody. But, that condition was violated and that was apparent on the face of the order dated 18.8.2011. The order dated 18.8.2011 appears to be confusing. The learned Magistrate did not waive that particular condition of bail in respect of Saugata Roy Chowdhury but extended ad-interim bail with a direction to follow the terms and conditions of the order dated 30.5.2011.
In fact, everything has been made confusing by the Court itself. There is clear example of violation of terms and conditions of the bail order and the Court should have taken this seriously. Instead of taking the matter seriously, it has taken very lenient view which does not confirm its earlier order dated 30.5.2011.
In the fitness of circumstances, I think it would be expedient to cancel the bail with immediate effect with a direction on the accused Saugata Roy Chowdhury to surrender in the Court of the learned A. C. J. M., Sealdah and pray for fresh bail within seven days. The learned Court is also directed not to take any harsh action against this accused Saugata Roy Chowdhury.
Considering the facts and circumstances above, this application is allowed with the directions as above.
The Officer-in-charge, Entally Police Station is, however, directed not to arrest Saugata Roy Chowdhry within this period of seven days.
The application being C.R.M.7995 of 2011 is disposed of. Let xerox plain copy of this order countersigned by the Assistant Registrar (Court) be given to the appearing parties on usual undertaking.
( Kanchan Chakraborty, J. )