Calcutta High Court (Appellete Side)
The State Of West Bengal vs Sanjay Chandak on 22 December, 2009
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1 IN THE HIGH COURT AT CALCUTTA CRIMINAL MISCELLANEOUS JURISDICTION APPELLATE SIDE ____________________________ Present:
The Hon'ble Justice Pinaki Chandra Ghose & The Hon'ble Justice S.P. Talukdar C.R.M. No. 13064 of 2009 The State of West Bengal Vs. Sanjay Chandak For the Petitioner: Mr. Asimesh Goswami.
For the Opposite Party : Mr. Vipul Kundalia,
Ms. S. Shah,
Mr. K. Shah.
Judgment on : 22.12.2009.
S.P. Talukdar, J.: The State of West Bengal, as petitioner, by filing an application under Section 439(2) of the Code of Criminal Procedure, has sought to assail the order dated 16th July, 2009 passed by the learned Chief Metropolitan Magistrate, Kolkata, in G.R. Case No. 1559/09.
By the said order dated 16th July, 2009, the learned Court, while rejecting the prayer for bail for one of the accused persons, namely, Mahesh Malani, granted bail to the present 2 opposite party, namely, Sanjay Chandak. Mr. Goswami, learned Public Prosecutor, High Court, Calcutta, while assailing the said order, submitted that the order would reflect a strange application of mind. According to Mr. Goswami, the materials in the Case Diary would reveal that both the accused persons, as named earlier, stand on identical footing. Mr. Goswami then submitted that the said order does not reflect as to why and how one of the accused persons was favoured with an order of bail, whereas the other person has been denied the same.
Learned Counsel for the O.P./accused person, however, has sought to justify the said order, which according to him, is quite elaborate and it satisfactorily explains the situation.
It is certainly not expected from any Court to adopt an attitude, which can even remotely suggest that whereas 'all are equals, some are more equal than others'. We find that the order dated 16th of July, 2009 was passed after hearing learned Counsel for both parties and on perusal of the materials in the Case Diary. In the said order, learned C.M.M. found the accused, Mahesh Malani, as the kingpin who defrauded the company for which he worked for and cheated the said company, resulting in loss of about Rs.65,00,000/-. Learned Court sought to distinguish the two accused persons with the observation regarding the present O.P. that 'the investigation does not reveal what hand he had in the disappearance of 9583 tapes or any part thereof, though he may have had a hand in manufacturing and fabricating false bills and challans.' It was also submitted on behalf of the O.P./accused person that such accused after bring out on bail complied with all the directions given by the learned Court and in absence of any abuse of liberty, there can be no justification for cancellation of bail. 3
In the case between Brij Nandan Jaiswal Vs. Munna @ Munna Jaiswal & Anr. as reported in (2009) 1 SCC (Cri) 594, the Apex Court observed :
"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........."
Generally speaking, 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. This finds support from the decisions in the cases between 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.
Learned Single Bench of this Court (J. Talukdar S.P.) in the case between Vivek Kathotia Vs. The State of West Bengal & Ors., as reported in (2009) 4 CAL LT 167 (HC), observed :
"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 4 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."
It cannot be disputed that rejection of bail stands on one footing, but cancellation of bail is a harsh order, which interferes with the liberty of the individual and does not deserve to be lightly resorted to. Such cancellation can be directed 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. (Ref: Rashbehari Karmakar Vs. Indrajit Mukherjee & Anr., 2003(1) CHN 200).
In State (Delhi Administration) Vs. Sanjay Gandhi, as reported in (1978) 2 SCC 411, the Apex Court 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 5 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."
Learned Counsel for the O.P./accused person referred to a decision of the Apex Court in the case between Manjit Prakash & Ors. Vs. Shobha Devi & Anr, as reported in 2008 CRI.L.J. 3908, while submitting that 'rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to'.
So far the present application for cancellation of bail is concerned, the petitioner, The State of West Bengal, alleged in the application that 'the order passed by the learned Magistrate is self-contradictory and this order affects the progress of investigation including chance of further search, seizure and arrest of other accused persons.' Nowhere in the application for cancellation of bail, the Petitioner/The State of West Bengal, alleged that the O.P./accused person after being out on bail conducted in a manner, which demands intervention by way of cancellation of bail. At the time of hearing, it has not been claimed that the present O.P./accused person is not cooperating with the Investigating Authority or that he has not been complying with the directions given by the learned Court.
After careful consideration of all relevant facts and materials, we, thus, find no ground worth mentioning so as to justify cancellation of the order of bail. This does not even remotely suggest that the manner in which the bail applications for the two accused persons before the learned Court were dealt with, as reflected in the order dated 16th July, 2009 by any means could inspire confidence of the Court. 6
But as discussed earlier, this by itself cannot justify cancellation of bail and the application, being C.R.M. No. 13064 of 2009 stands accordingly disposed of.
Case Diary be returned.
Criminal department is directed to supply certified copy of this judgment and order as expeditious as possible.
(S. P. Talukdar, J.) I agree, (Pinaki Chandra Ghose, J.)