Calcutta High Court (Appellete Side)
Vivek Kathotia vs The State Of West Bengal & Ors on 28 April, 2009
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
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Present:
The Hon'ble Justice S.P. Talukdar C.R.M. No. 6124 of 2008 Vivek Kathotia Vs. The State of West Bengal & Ors.
For the Petitioners: Mr. Sekhar Basu,
Mr. Srenik Singhvi,
Mr. Kallol Mondal,
Mr. Koushik Chatterjee,
Ms. Moumita Chatterjee.
For the Respondent No. 2 : Mr. Kalyan Bandyopadhyay,
Mr. Dipak Dey,
Mr. Rajdeep Majumder.
For the Respondent No. 3 : Mr. Y. Z. Dastoor,
Mr. Dipak Dey,
Mr. Sanjoy Banerjee.
For the Respondent No. 4 : Mr. Sudipta Moitra,
Mr. Debasish Roy,
Mr. Srijib Chakraborty.
For the State: Mr. Asimesh Goswami.
Judgment on : 28.04.2009.
S.P. Talukdar, J.: Their Lordships in the Division Bench could not reach a consensus and by order dated 15.09.2008 directed laying of the application, being C.R.M. No. 6124 of 2008 before the First Bench referring to Section 392 of the Criminal Procedure Code.
By order dated 18th September, 2008, the Hon'ble The Chief Justice directed the matter to be put up before this Bench in terms of Section 392 of Cr.P.C.
Section 392 of Cr.P.C. reads as follows:-
"392. Procedure where Judges of Court of Appeal are equally divided. - When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion:
Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be re-heard and decided by a larger Bench of Judges."
The application under consideration was not an appeal. The said application was filed by the complainant challenging the orders passed by the learned Chief Judicial Magistrate, Alipore granting bail to the accused persons and rejecting the application for cancellation of bail. In such view of the matter, the question arises as to whether Section 392 of Cr.P.C. could be an answer. Learned Counsel for the parties in response to such query from the Bench submitted that Section 392 of Cr.P.C. could not be a solution.
In this context, reference was made to Clause 36 of the Letters Patent, which reads as follows:-
"36. Single Judges and Division Courts. - And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Fort William in Bengal, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose, in pursuance of Section 108 of the Government of India Act, 1951; and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the judges, if there shall be a majority, but if the Judges should be equally divided, [they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it]."
While dealing with the scope of a reference under Section 392 of the Code of Criminal Procedure, Mr. Basu referred to the decisions in the case of State of U.P. Vs. Dan Singh & Ors., as reported in (1997) 3 SCC 747; Tanviben Pankajkumar Divetia Vs. State of Gujarat, as reported in (1997) 7 SCC 156 & Sajjan Singh & Ors. Vs. State of M.P., as reported in (1999) 1 SCC 315. It seems to be the settled position of law that while making reference of appeal to third Judge, appeal as a whole is required to be laid before him. The third Judge is required to examine independently the entire case including the points on which the two Judges of the Division Bench had concurred, his position is not that of a Judge sitting in a three Judge Bench where majority opinion prevails. His opinion is rather the material one and it is again the judgment that follows therefrom that an appeal lies under Article 136 or 134 of the Constitution of under Section 379 of Cr.P.C. The third Bench is not obliged, either as a rule of prudence or on the score of judicial etiquette, to accept the view of one of the Judges.
In the case between Babu and Three Ors. Vs. State of U.P., as reported in AIR 1965 SC 1465, the Apex Court held that the third Bench is completely free in resolving the difference as he thinks fit.
So far the present reference is concerned, as referred to earlier, the reference was not in view of any disagreement between the two Hon'ble Judges while deciding an appeal. It was a reference arising out of failure to reach a consensus while dealing with application for cancellation of bail and the like.
In this context, it is necessary to mention further that the learned Counsel, appearing for the opposite parties as well as for the State have also accepted the legal position as discussed earlier.
The backdrop of the present case may briefly be stated as follows:-
The petitioner, as complainant, filed an application before the learned Court of Chief Judicial Magistrate, Alipore, 24-Parganas (South) with alleged offences punishable under Sections 406/420/467/468/471 of the Indian Penal Code praying for investigation under Section 156(3) of Cr.P.C. by way of treating the said application as First Information Report. The learned CJM, Alipore, in response to the same directed Officer-in-Charge of the Bhowanipore Police Station to cause an investigation. The said Police Station registered a case being No. 48 of 2008 dated 20th February, 2008 (C.G.R. Case No. 544 of 2008).
Opposite party Nos. 2, 3 & 4 filed an application under Section 438 of the Criminal Procedure Code before the learned Court of Sessions Judge, Barasat on 12th of March, 2008 and the said application was registered as C.M.C. 1006 of 2008.
Learned Sessions Judge, 24-Parganas (North) allowed the said application and ordered that in the event of arrest of the petitioners in connection with the case being C.M.C. 1006 of 2008, be granted bail of Rs. 3,000/- each with one surety of like amount each with a direction to surrender before the Ld. Court of CJM, Alipore. The opposite party Nos. 2, 3 & 4, thereafter, surrendered before the Ld. Court of Chief Judicial Magistrate, Alipore on 9.4.20008 and they were enlarged on interim bail till 22.4.2008. The said interim bail was extended from time to time. On 6.6.2008, the Investigating Officer made a prayer before the learned Court for cancellation of the interim bail. By order dated 11th June, 2008, the learned Chief Judicial Magistrate, while confirming the interim bail, rejected the prayer for its cancellation, as prayed for by the Investigation Officer. While granting bail, the learned Court imposed condition upon the accused persons to the effect that they are not to leave the jurisdiction of Kolkata.
The defacto complainant then filed an application before the High Court under Section 439(2) of the Code of Criminal Procedure.
O.P. No. 2 sought for relaxation of the aforesaid condition since he was required to leave Calcutta for Armer in connection with admission of his daughter. Such prayer for relaxation of bail was rejected by the High Court. Being aggrieved, the O.P. No. 2 approached the Apex Court. The Apex Court disposed of the Criminal Appeal No.1144 of 2008 (arising out of SLP (Crl.) No. 4661 of 2008) by order dated 24th July, 2008 thereby setting aside the order passed by the High Court in connection with A.S.T. No.1108 of 2008.
The relevant portion of the order of the Apex Court is set out as follows:-
"............The High Court shall now proceed to decide the applications filed by the complainant challenging the orders passed by the CJM, Alipore granting bail to the appellant and CJM, Alipore rejecting the application of the State for cancellation of bail in accordance with law, without being influenced by any of the observations made in the order impugned or in this order ............"
Thereafter, this matter was taken up by the learned Division Bench of this Court on various dates. By order dated 15th of September, 2008, the learned Division Bench after failing to reach a consensus directed the matter to be laid before the Hon'ble The Chief Justice. This was then assigned to this Court.
Before proceeding further, it may be necessary to mention that the factors which are ordinarily taken into consideration for granting bail are :-
(i) Nature and gravity of the offence,
(ii) The circumstances of commission of the crime;
(iii) Chance of hampering of investigation if the accused is let out on bail;
(iv) Chance of abscondence of the accused after being out on bail;
(v) The possibility of tampering of evidence and
(vi) Impact on the society and public mind.
On the other hand, the criteria for granting anticipatory bail though largely discretionary, such discretion is required to be exercised in a judicious manner and certainly, not as a matter of course. It is necessary that such an order must reflect the mind of the Court.
Mr. Sekhar Basu, as learned Counsel for the petitioner, while pressing for cancellation of bail, submitted that the order of anticipatory bail granted by the learned Sessions Judge, Barasat, 24-Parganas (North) being bad for want of jurisdiction, learned CJM, Alipore was under no obligation to grant bail entirely relying upon and referring to the said order of anticipatory bail. In this context, Mr. Basu referred to Section 9 of the Cr.P.C. According to him, it was not only improper but also illegal on the part of the learned Sessions Judge, Barasat, 24-Parganas (North) to entertain an application under Section 438 of the Code of Criminal Procedure in respect of a case, which was clearly outside its territorial jurisdiction. It cannot be disputed that the case under reference arose out of an application filed before the learned Court of CJM, Alipore, 24-Parganas (South), which was disposed of with direction upon the Bhowanipore Police Station to investigate into the offences alleged after treating the petition as FIR under Section 156(3) of Cr.P.C.
Mr. Basu referred to the order of the learned Sessions Judge while submitting that it would clearly reflect non-application of mind. Attention of the Court was invited to the fact, as reflected from the order, that no proper effort was made even for service of copy of the application upon the prosecution and there was no scope for consideration of materials in the case diary. It was further submitted that mere fact that two civil suits relating to similar, if not identical controversy, are pending before the learned Civil Court at Barasat, could not justify entertaining the said application under Section 438 of Cr.P.C.
It was then submitted that the learned CJM, Alipore granted interim bail just referring to the fact that the accused persons/O.P. Nos. 2, 3 & 4 were equipped with an order of anticipatory bail granted in their favour.
The relevant portion of the order passed in response to the application under Section 438 is reproduced as hereunder :-
"I have gone through the petition, affidavit and all the annexures and at this stage I do not want to go into the merits of the case but it appears that there are two Civil Suits already pending regarding self-same matter in the Ld. Civil Judge (Senior Division), 2nd Court, Barasat and also it appears that a considerable amount has been paid by the accd. petitioners and it is also seen that petitioners are the resident under the Sale Lake jurisdiction. In these circumstances I think the petitioners are entitled to anticipatory bail. Accordingly it is ordered that in the event of arrest of the petitioners in connection with the above noted case they may find bail of Rs. 3000/- each with one surety of like amount each with a direction to surrender before the Ld. Chief Judicial Magistrate, Alipore, South 24- Pgns. by 15.4.2008. Petitioners are directed to comply the provision as laid down u/s. 438(2) Cr.P.C."
Referring to the order granting anticipatory bail passed by the learned Sessions Judge, 24-Parganas (North), it was submitted that such order was passed ex parte and without hearing the learned Public Prosecutor and without even service of notice upon the prosecution. Merits of the criminal case were not gone into while granting such anticipatory bail and that too, in connection with the case which indisputably was initiated outside the territorial jurisdiction of the Sessions Court 24-Parganas (North).
It was emphatically submitted by Mr. Basu that Court of Sessions for the purpose of entertaining an application under Section 438 of the Code of Criminal Procedure is the Court of Sessions of the District where offences are committed. Sessions Judge cannot entertain such an application where offence has allegedly been committed outside its territorial jurisdiction. Mr. Basu contended that the order granting anticipatory bail is non- est since the learned Sessions Judge had no jurisdiction to make such order and accordingly, no benefit can be derived from the same. It was then submitted that after surrender of the accused persons, it is for the regular Court to come to independent finding.
Deriving inspiration from the decision of the Apex Court in the case between Jarnail Singh Vs. Pitamber Singh & Ors.,as reported in 2001 (5) Supreme 470, it was submitted by Mr. Basu that the learned Sessions Judge having committed serious error by invoking the power under Section 438 of Cr.P.C. and granting anticipatory bail, the said order is liable to be set aside. The learned CJM having granted bail because of such order of anticipatory bail, the same is liable to be set aside.
Reference was also made to the decision of the Apex Court in the case between Naresh Kumar Yadav Vs. Ravindra Kumar & Ors., as reported in AIR 2008 Sc 218. It was observed that the power exercisable under Section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438. The Apex Court in the said case further observed that the power being of important nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to custody.
It was also submitted that ordinarily, arrest is a part of the process of investigation intended to secure several purposes. It may be that custodial interrogation is necessary for effective investigation. Unveiling of mystery relating to the commission of the crime may sometime be made on the basis of the information which the accused person can provide. The jurisdictional scope of interference by the Court in the process of investigation is limited. In the case of D.K. Ganesh Babu Vs. P. T. Manokaran & Ors., as reported in (2007) 4 SCC 434, the Apex Court held that the Court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.
Mr. Kalyan Bandyopadhyay, appearing as learned Counsel for O.P. No. 2, referring to the Apex Court order submitted that the said order does not leave the order of learned Sessions Judge granting anticipatory bail open for adjudication. He wondered as to what prompted the defacto complainant to file an application seeking investigation under Section 156(3) of Cr.P.C. before the learned Court of CJM, Alipore, 24-Parganas (South) when the entire incident took place within the territorial jurisdiction of the learned Court at Barasat and particularly when the civil suits are pending before the said Court. This prompted him to further suggest that the initiation of the criminal proceeding was itself mala fide. It was further contended that the order of the learned Magistrate directing such investigation treating the petition of complaint as FIR under Section 156(3) of Cr.P.C. was also without any application of mind and was done in a mechanical manner. Mr. Bandyopadhyay further submitted that principles of natural justice very well demand an opportunity of hearing before such investigation is directed. It was then submitted that the Division Bench judgment was assailed before the Apex Court and the same having been set aside, it does not exist in the eyes of law.
Attention of the Court was invited to the order of the Apex Court whereby the observations made earlier by the Division Bench were directed to be deleted. Mr. Bandyopadhyay then submitted that the order of Justice Banerjee does not, strictly speaking, refer to any finding as regards jurisdiction. As such, in view of order of Justice Amit Talukdar, the point of jurisdiction, according to learned Counsel Mr. Bandyopadhyay, could not be a matter for reference.
It was then submitted that the learned Sessions Judge, 24-Parganas (North), was convinced about the civil nature of the dispute and so, it was within her competence to intervene and there could not be any compulsion on the part of the Court to peruse the case diary. It was the further contention of learned Counsel Mr. Bandyopadhyay that the petitioner did not approach the Court with clean hands.
The points raised by Mr. Moitra, as learned Counsel for the O.P. No. 4, were that the petition for cancellation of bail had been made without challenging the order of grant of bail. The cancellation of bail was sought for on the ground that the order of bail being based on the order dated 12.3.2008 passed by learned Sessions Judge, 24-Parganas (North) thereby granting anticipatory bail, even without having the territorial jurisdiction, is inherently bad. Mr. Moitra then expressed his wonder while submitting that how could it be a justifiable reason for taking away the liberty granted to a citizen. It was further claimed that in view of the order of the Apex Court deleting the observation made by the Division Bench in respect of the order of the Sessions Judge, 24-Parganas (North), the ground that such order of anticipatory bail was without jurisdiction could not be open for adjudication any longer.
The decision of the Special Bench of this Court in the case of Sailesh Jaiswal Vs. The State of West Bengal & Ors., as reported in 1998 (2) CHN 81 was, in fact, referred to by learned Counsel for both parties. The majority view of the Hon'ble Bench was that the exercise of jurisdiction of anticipatory bail by any other Court namely the High Court or the Court of Sessions beyond the local limits of the jurisdiction is limited to the extent of consideration of a bail for the transitional period but it has no jurisdiction to transgress into the limits of the local jurisdiction of the Court within which offence is alleged to have been committed. The categorical assertion of Mr. Basu that the High Court or the Sessions Court having jurisdiction over the place has only the authority to exercise powers under Section 438 of Cr.P.C. does not seem to have been sought to be demolished by the majority view in the said case.
Mr. Moitra virtually echoed the submission of Mr. Bandyopadhyay while submitting that ordinarily what is relevant for considering cancellation of bail is the post release conduct of the accused person.
In Ramcharan Vs. State of M.P., as reported in (2004) 13 SCC 617, the Apex Court held that bail can be cancelled on existence of cogent and overwhelming circumstances but not on reappreciation of the facts of the case. In absence of any supervening circumstances which might warrant recalling of the order which granted bail, suo motu cancellation of bail by the High Court merely on the ground that the bail order was passed on some misapprehension of factual position is not sustainable.
The question of cancellation of bail under Section 439(2) of the Code of Criminal Procedure is certainly different from admission to bail under Section 439(1). The approach is whether the order granting bail is vitiated by any serious infirmity for which it is right and proper for the High Court, in the interest of justice, to interfere. Ordinarily the High Court does not exercise its discretion to interfere with an order of bail granted by the Sessions Judge in favour of an accused person. (Ref: Gurcharan Singh & Ors. Vs. State (Delhi Administration), (1978) 1 SCC 118).
In State (Delhi Administration) Vs. Sanjay Gandhi, as reported in (1978) 2 SCC 411, the Apex Court observed that proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.
The Apex Court in the said case further observed:
"The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process. We might as well wind up the Courts and bolt their doors against all than permit a few to ensure that justice shall not be done."
Mr. Bandyopadhyay categorically submitted that very cogent and overwhelming circumstances are necessary for seeking an order of cancellation of the bail. After all, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment. (Ref: Bhagirathsinh Vs. State of Gujarat, (1984) 1 SCC 284).
The learned Division Bench of this Court in the case of Superintendent & Remembrancers of Legal Affairs Vs. Amiya Kumar Roy Choudhury Alias Dadaji, as reported in 1978 CWN, page 320, held that cancellation of bail is an extraordinary order and can only be based on the tests laid down by judicial decisions.
In the case between Manjit Prakash & Ors. Vs. Shobha Devi & Anr, as reported in 2008(5) Supreme 265, it was held that when a person to whom bail has been granted either tries to interfere with course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trail, bail granted can be cancelled.
The Division Bench of this Court in the case between Rashbehari Karmakar Vs. Indrajit Mukherjee & Anr., as reported in 2003(1) CHN 200, held :
"It is now quite well settled 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 and the grounds for cancellation of bail under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or 439(1) 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. Such grounds are illustrative and not exhaustive. So to succeed the prosecution must show that the activities of the accused come under either one or more of these heads or under the head of a similar nature."
It was categorically submitted by learned Counsels Mr. Moitra and Mr. Bandyopadhyay that there is no concrete material, not even any suggestion worth mentioning to the effect that the opposite parties/accused persons after being out on bail have done anything which could even remotely be construed as misuse of liberty. It was submitted that there is no allegation that the accused persons ever tried to abscond after being out on bail. It is also not the claim of the petitioner or of the prosecution that the accused persons after being out on bail have interfered with the course of investigation, or have sought to tamper with the evidence.
Referring to the Apex Court decision in the case of Puran Vs. Rambilas & Anr., as reported in (2001) 6 SCC 338, it was contended that generally speaking, the grounds for cancellation of bail are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner.
It may, however, be mentioned that the Apex Court in the said case further observed that one such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled.
In the case between Mehboob Dewood Shaikh Vs. State of Maharashtra, as reported in (2004) 2 SCC 362, the Apex Court held that when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled.
The Apex Court in the case between Dolatram & Ors. Vs. State of Haryana, as reported in (1995) 1 SCC 349, observed that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
It is well settled that where it appears to the superior Court that the Court while granting bail took irrelevant materials into consideration or there was non-application of mind or where Court does not take note of any statutory bar to grant bail, order for cancellation of bail can be made. The same was observed by the Apex Court in the case between Rizwan Akbar Hussain Syyed Vs. Mehmood Hussain, as reported in 2007 CRI.L.J. 3255.
Mr. Bandyopadhyay then submitted that even after order of anticipatory bail, the accused persons were never sought to be arrested by police. The O.P. No. 2, thus, never derived any benefit out of such order granting bail and he duly surrendered before the learned Court and got bail. In this context, he referred to the decision of this Court in the case of Sailesh Jaiswal Vs. The State of W.B. & Ors., as reported in 1998 C.Cr. LR (Cal) 342. It was then claimed that there could be no dispute regarding the power of the learned Sessions Court to grant bail for transitional period.
In this context reference was made to the decision in the case between Mahesh Kumar Sarda @ Maheswari Vs. Union of India, as reported in 2000 C.Cr.LR (Cal)
183. Mr. Dastoor, appearing as learned Counsel for O.P. No. 3, submitted that the investigating officers sought for cancellation of bail on the ground that custodial interrogation was necessary. Such application was dismissed and the order of dismissal was never challenged. Mr. Dastoor, thus, claimed that it is only the complainant, who is eager in getting the order of the bail cancelled and the controversy cropped up when the accused person sought for relaxation of bail. It was further contended that there is no allegation as against such O.P. No. 3 in the case itself except that she is a Director. It was further submitted that both parties having filed cases against one another before the learned Court at Barasat, there is no scope for raising dispute regarding territorial jurisdiction. It may, however, be said in this connection that consent of parties cannot confer jurisdiction and submission of Mr. Dastoor in this regard cannot be accepted.
Mr. Moitra, in course of his submission, laid emphasis on the fact that there is no allegation that the opposite parties/accused persons after being out on bail abused the liberty in any manner whatsoever. There is no allegation that there had been any attempt on their part to tamper with the evidence or hamper the investigation. They have been complying with the order of the learned Court in its letter and spirit. Mr. Moitra, thus, wondered as to how there could be any justification for cancellation of bail.
In absence of any allegation of any adverse conduct after being released on bail, Mr. Moitra added, the prayer for cancellation is a reflection of a vindictive, if not perverted mind of the defacto complainant.
It cannot be denied that liberty of a person is as important as his life and limb. It is said that a person, who can sacrifice his liberty for the sake of security, perhaps, deserves neither liberty nor security. It is, perhaps, not necessary to mention that bail is only to ensure attendance. A prayer for bail cannot be refused by way of punishment. Unless there are statutory restrictions, Court can grant bail in favour of accused persons even in cases of serious nature - of course, subject to consideration of certain relevant factors as referred to earlier.
In the present case, this Court is concerned about the prayer for cancellation of bail as made on behalf of the defacto complainant. Learned Sessions Judge, Barasat, 24- Parganas (North) while granting anticipatory bail in favour of the present opposite parties took into consideration the fact that there are civil cases pending within the jurisdiction of the Court at Barasat, 24-Parganas (North). This could be no justification for entertaining an application under Section 438 of Cr.P.C. The fact that such order under Section 438 of Cr.P.C. was passed without proper and effective service of notice upon the prosecution and without affording an opportunity of hearing to the prosecution and then again, without even proper consideration of the case diary - cannot be lost sight of. So far territorial jurisdiction is concerned, as discussed earlier, there could at best be some transit arrangement. This, however, applies in cases where an accused wanted in State 'A', files an application for anticipatory bail in State 'B'.
In such circumstances, the learned Court in 'B' State can make an interim order and this is for a transitional period. In the present case, that question does not arise. The police station which started the case against the present opposite parties is outside the territorial jurisdiction of the learned Sessions Court at Barasat, 24-Parganas (North) and there could be no justification for not approaching the learned Sessions Court, Alipore, 24-Parganas (South) with such prayer for anticipatory bail. Though it was repeatedly submitted by learned Counsel for the opposite parties that the order of learned Sessions Judge, 24- Parganas (North) is not a subject matter for adjudication at this stage, this Court cannot ignore the fact that the interim order of bail as granted by the learned CJM, 24-Parganas (South) had its foundation in the order of the learned Sessions Judge, 24-Parganas (North) in response to the said application under Section 438 of Cr.P.C.
The foundation being wrong, the order which derived its strength and support from such foundation cannot also pass the test of judicial scrutiny.
True, there is no allegation of any abuse of liberty. But this Court is certainly called upon to decide whether the order of bail as granted by the learned CJM, Alipore, 24- Parganas (South) is based on consideration of relevant materials.
Section 177 of the Code of Criminal Procedure lays down that every offence shall ordinarily be enquired into and tried by a Court within whose local jurisdiction it was committed.
In the case of State of Assam & Anr. Vs. R. K. Krishna Kumar & Ors., as reported in (1998) 1 SCC 397, the Apex Court dealt with the situation where an application for anticipatory bail, for a person who was allegedly connected with the offences committed within the territorial jurisdiction of the High Court of Guwahati, was transferred from the High Court of Bombay and directed to be placed before the Division Bench of the High Court of Guwahati.
Unless our Courts follow this aspect relating to jurisdiction strictly, it may lead to antagonistic contradiction, if not in total disharmony and absurdity. There may be cases involving more than one accused persons. This certainly will not permit the accused persons to approach the High Courts or the Courts of Sessions according to their own convenience and this may result in conflicting decisions as well.
Then again, accused persons, who otherwise stand on identical footing, may be dealt with in different manner.
In support of the contention that an order of bail once granted can only be interfered with taking into consideration the conduct of the accused after being so out on bail, Mr. Moitra referred to the decisions in the case of Nityanand Rai Vs. State of Bihar & Anr., (2005) 4 SCC 178, Mahant Chand Nath Yogi & Anr. Vs. State of Haryana, (2003) 1 SCC 326 & Samarendra Nath Bhattacharjee Vs. State of W.B. & Anr., 2004 (2) CLJ (SC) 240.
The principles governing grant of bail and anticipatory bail have naturally undergone changes from time to time. Law is not static. Quite unlike arithmetic where two plus two always make four, the laws of land are largely regulated by the need of the time and social aspirations of the people and interpretation of the same also demands an activist and progressive approach. No doubt, liberty of a citizen is of utmost importance. But no less important is the liberty and security of a victim. There is, thus, a continuous struggle between two opposite interests. Our administration of justice demands striking of a balance.
Over and above everything else, the people of the country must be made to feel that our system of administration of justice does not intend a person to cry in wilderness. Our Courts are under obligation to take care of all these factors, sometime non-antagonistic in nature and sometime even antagonistic to one another.
In the backdrop of the present case, it may very well be said that the prosecution did not get the proper opportunity to place its stand. Mr. Goswami, learned Public Prosecutor, contended that the investigating agency has been denied the opportunity to have custodial interrogation. This, in his opinion, may affect the interest of investigation and thereby, the cause of justice. The fact that the prosecution did not assail the order whereby the prayer of the investigating agency for cancellation of bail was turned down undoubtedly dilutes the urge, as ventilated by Mr. Goswami.
Mr. Basu seems to be perfectly justified in submitting that the voice of the defacto complainant continues to remain unattended and unheard.
Deriving inspiration from the Apex Court decision in the case of Brij Nandan Jaiswal Vs. Munna Alias Munna Jaiswal & Anr., as reported in (2009) 1 SCC (Cri) 594, it was contended that the days are gone when bail once granted could only be cancelled on the ground of its misuse. The relevant observation of the Apex Court in the said case is :-
"It is now a settled law that the complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any Court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter........"
Considering all such facts and circumstances, I am of the view that here is an instance where the order of bail, as passed by the learned CJM, Alipore, 24-Parganas (South), suffers from inherent hollowness and latent impropriety. Thus, the said order cannot be sustained.
It appears that the learned Presiding Judge disposed of the application being C.R.M. No. 6124 of 2008 by order dated 15.9.2008 with certain directions and the learned companion Judge, Banerjee, J. set aside the order of the learned Sessions Judge as well as the subsequent orders passed by the learned CJM, Alipore and this led to reference of the matter to the Hon'ble The Chief Justice.
Keeping in mind that the opposite parties have been enjoying liberty and there is no specific allegation of any abuse or misuse of liberty against them, this Court considers it necessary to permit them to enjoy such liberty till their prayer for bail is considered by the regular Court in its proper perspective and in accordance with law.
Accordingly, the present opposite parties are hereby directed to surrender before the learned Court of Chief Judicial Magistrate, Alipore, 24-Parganas (South) within a period of four weeks from this date. Upon surrender they will certainly be at liberty to apply for bail and in that event the learned Chief Judicial Magistrate, Alipore, 24-Parganas (South) must consider the same in accordance with law and after giving opportunity of hearing to both sides and, of course, without being influenced by any observation made herein.
Such 'reference' stands accordingly disposed of.
Criminal department is directed to supply certified copy of this judgment, if applied for, to the learned Counsel for both parties after due compliance with the formalities as expeditiously as possible.
(S.P. Talukdar, J.)