Calcutta High Court (Appellete Side)
The State Of West Bengal vs Rakesh Kumar Singh on 24 June, 2015
Author: R. K. Bag
Bench: R. K. Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice R. K. Bag, J.
CRM No.2757 of 2015 The State of West Bengal V. Rakesh Kumar Singh For the Petitioner : Mr. Ayan Bhattacharjee, For the Opposite Party : Mr. Sourav Chatterjee, Mr. Pritam Chatterjee, Heard on : 15.06.2015 Judgment on : 24.06.2015 R. K. Bag, J.
The petitioner/State of West Bengal has prayed for cancellation of bail of the opposite party - Rakesh Kumar Singh by filing an application under Section 439 (2) read with Section 482 of the Code of Criminal Procedure, 1973. The bail was granted to the opposite party by Learned Single Judge of this Court on February 27, 2014 in C.R.M. No.3434 of 2014 which arises out of Hastings Police Station Case No.9 of 2014 dated 06.01.2014 under Sections 341/323 of the Indian Penal Code, 1860 and under Section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The backdrop of filing the instant application by the petitioner/State of West Bengal is as follows: On January 6, 2014 one Ajay Lal Hela filed a written complaint before the Deputy Commissioner of Police, South Division, Calcutta alleging humiliation, insult, assault and abuse by filthy language taking the name of the caste by a group of people headed by the opposite party on January 4, 2014 followed by abuse and insult by the opposite party by taking the name of caste of the de facto complainant. The said written complaint was treated as Hastings Police Station Case No.9 of 2014 dated 06.01.2014 under Sections 341/323 of the Indian Penal Code and Under Section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The police took up the investigation and charge-sheet was submitted on February 2, 2014. The opposite party was granted bail in the said criminal case by Learned Single Judge of this Court on February 27, 2014 in C.R.M. No.3434 of 2014 on condition that the opposite party shall not enter into the jurisdiction of the concerned place of occurrence without permission of the trial court and he shall not influence the witnesses and shall not leave the jurisdiction of Calcutta. On February 19, 2015 the trial court fixed the date for further examination of the de facto complainant Ajay Lal Hela. It appears from the order dated February 19, 2015 passed by the trial court in the said criminal case (SC and ST Case No.1 of 2014 arising out of Hastings Police Station Case No.9 of 2014 dated 06.01.2014) that one application was filed on behalf of the opposite party under Section 327 of the Code of Criminal Procedure alleging an incident of gesture during examination of the de facto complainant Ajay Lal Hela on the previous date of hearing i.e. February 18, 2015.
3. It appears from the copy of the application filed by the Assistant Commissioner of Police, Biswanath Chaki who happens to be the Investigating officer of the said criminal case (Annexure P4 to the revisional application) that on February 19, 2015 some miscreants under the leadership of the opposite party assaulted the companions of the prosecution witnesses including one Arvind Singh outside the court room immediately after closure of court proceedings of the said criminal case and the opposite party rushed to the Investigating Officer of the case, threatened him with dire consequences and tried to snatch the papers of the criminal case from him. This fact was brought to the notice of Learned Judge of the trial court by the Investigating Officer of the case immediately after this incident on February 19, 2015. However, Learned Judge of the trial court did not take any action on the ground that the police have already registered the criminal case and took up the investigation. The Hare Street Police Station Case No.107 of 2015 dated 19.02.2015 under Sections 307/34 of the Indian Penal Code was started against the opposite party and others on the basis of the written complaint submitted by Arvind Singh, who accompanied the de facto complainant and other prosecution witnesses before the trial court. Similarly, Hare Street Police Station Case No.108 of 2015 dated 19.02.2015 under Sections 353/506/379/511 of the Indian Penal Code was also started against the opposite party on the basis of the written complaint submitted by Biswanath Chaki, the Investigating Officer of the case in connection with which the opposite party was facing trial before the Sessions Court. Since the opposite party created reign of terror by physically assaulting the companions of the de facto complainant outside the court room on the date fixed for trial of the criminal case and since the opposite party also threatened the Investigating Officer of the said criminal case with dire consequences by giving leadership to unknown miscreants outside the court room where the trial of the criminal case took place, the petitioner/State of West Bengal has prayed for cancellation of bail of the opposite party.
4. Mr. Ayan Bhattacharjee, Learned Counsel appearing on behalf of the petitioner/State of West Bengal contends that the opposite party has misused the liberty of bail and violated the condition of bail by threatening the Investigating Officer of the case with dire consequences and by giving leadership to some miscreants who assaulted the companions of the de facto complainant in order to put pressure on the de facto complaint not to depose against him. According to Mr. Bhattacharjee, the fair trial cannot take place if the opposite party is allowed to remain on bail even after violation of condition of bail by threatening the Investigating Officer and physically assaulting the companions of the de facto complainant outside the court room with the help of some miscreants. Mr. Bhattacharjee has relied on the decision of the Supreme Court in "State of Punjab V. Raninder Singh" reported in 2007(3) ECrN 1257 and "Narendra K. Amin(Dr.) V. State of Gujarat" reported in (2009) 3 SCC (Cri) 813 and also "Abdul Basit V. Md. Abdul Kadir Chaudhary" reported in (2014) 10 SCC 754 in support of his above contention for cancellation of bail of the opposite party.
5. Mr. Sourav Chatterjee, Learned Counsel appearing on behalf of the opposite party has raised the issue of maintainability of the application filed by the petitioner/State of West Bengal on the ground that Learned Public Prosecutor can appear and plead without any written authority on behalf of the State under Section 301 of the Code of Criminal Procedure, but Learned Public Prosecutor has no authority to file an application on behalf of the State for cancellation of bail of an accused person. Mr. Chatterjee contends that the opposite party was granted bail by the Hon'ble Division Bench of the High Court on June 8, 2015 in C.R.M. No.3577 of 2015 in connection with Hare Street Police Station Case No.107 of 2015 dated 19.02.2015 after detention in custody for a period of 109 days. Mr. Chatterjee also contends that the opposite party was granted bail by Learned Chief Judicial Magistrate, Calcutta on March 17, 2015 in connection with Hare Street Police Station Case No.108 of 2015 dated 19.02.2015 after detention in custody for 19 days. Relying on "Shiv Mohan Kapoor V. State of UP" reported in (2012) 11 SCC 632 Mr. Chartterjee argues that the opposite party may be allowed to remain on bail as he has also suffered detention in custody for 109 days and 19 days respectively in connection with two criminal cases registered against him in respect of the incident on February 19, 2015. Mr. Chatterjee has also relied on "Abdul Basit V. Md. Abdul Kadir Chaudhary"
reported in (2014) 10 SCC 754 in order to urge that the bail granted by Learned Single Judge of this Court can be cancelled only by the Supreme Court and not by this Court.
6. Admittedly, the opposite party is facing trial in connection with SC and ST Case No.1 of 2014 arising out of Hastings Police Station Case No.9 of 2014 dated 06.01.2014 under Sections 341/323 of the Indian Penal Code and under Section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The further admitted position is that on February 27, 2014 the opposite party was granted bail by Learned Single Judge of the High Court in C.R.M. No.3434 of 2014 on condition that he will not enter into the jurisdiction of the concerned place of occurrence without permission of the trial court and he will not influence the witnesses and will not leave the jurisdiction of Calcutta. On scrutiny of the orders passed by the trial court on February 19, 2015 in SC and ST Case No.1 of 2014 and the fact of registration of Hare Street Police Station Case No.107 of 2015 dated 19.02.2015 under Sections 307/34 of the Indian Penal Code on the basis of written complaint of one Arvind Singh and registration of Hare Street Police Station Case No.108 of 2015 dated 19.02.2015 under Sections 353/506/379/511 of the Indian Penal Code on the basis of written complaint of Biswanath Chaki, the Investigating Officer of the case under trial and filing of an application by the Investigating Officer before the trial court on 19.02.2015, I find that on 19.02.2015 some miscreants under the leadership of the opposite party had threatened the companions of the de facto complainant and the prosecution witnesses outside the court room with dire consequences if anyone would depose against him and also physically assaulted one Arvind Singh mercilessly with fists and blows. It also appears from the FIR of Hare Street Police Station Case No.108 dated 19.02.2015 that the opposite party rushed to the Investigating Officer of the case threatened him with dire consequences and tried to snatch the papers of the case from him. On scrutiny of the materials available in the case diary of Hare Street Police Station Case No.107 dated 19.02.2015, I find sufficient materials indicating violent nature of the opposite party and his effort to restrain the de facto complainant and other prosecution witnesses from giving evidence against him before the trial court. The role of the opposite party in the incident which took place outside the trial court on 19.02.2015 is reflected in the registration of Hare Street Police Station Case No.107 dated 19.02.2015 and Hare Street Police Station Case No.108 dated 19.02.2015. The materials available in the case diary of Hare Street Police Station Case No.107 dated 19.02.2015 unerringly point out that the opposite party was bent on restraining the de facto complainant and other prosecution witnesses from giving evidence against him before the trial court in connection with SC and ST Case No.1 of 2014. So, the opposite party has misused the liberty granted to him by Learned Single Judge on February 27, 2014 in C.R.M. No.3434 of 2014.
7. Now, I would like to deal with the decisions cited by Learned Counsel of both parties. It is submitted on behalf of the opposite party that Learned Public Prosecutor has no authority to file an application on behalf of the State for cancellation of bail of the opposite party, though Learned Public Prosecutor can appear and plead on behalf of the State without any written authority in any inquiry, trial or appeal under Section 301 of the Code of Criminal Procedure. Mr. Bhattacharjee, Learned Counsel who appears on behalf of the petitioner/State of West Bengal has produced a copy of written authorisation issued by the Administrative Officer, Office of the Legal Remembrancer, West Bengal under Memo No.3010-A/HC/GA-12/15 dated March 27, 2015, which indicates that he has been authorised by the Legal Remembrancer, Government of West Bengal for filing an application for cancellation of bail in connection with this case and to assist the Learned Public Prosecutor, High Court at Calcutta. Mr. Bhattacharjee argues that Learned Public Prosecutor has authority to file an application and to move the same before the court on behalf of the State, as he is authorised to appear and plead on behalf of the State without any written authority on the ground that the whole includes the part. On perusal of the provisions of Section 301 of the Code of Criminal Procedure, 1973, I find that the Public Prosecutor can appear and plead on behalf of the State without any written authority before any court in connection with any case which is under inquiry or trial or appeal. Since, Learned Public Prosecutor can appear and plead on behalf of the State in any case without any written authority, I am of the view that Learned Public Prosecutor can also file an application for cancellation of bail of a particular accused person in connection with a case without any written authority from the State. However, in the instant case, the State has given written authority to Mr. Bhattacharjee to file this application for cancellation of bail of the opposite party. Accordingly, the present application for cancellation of bail filed by the petitioner/State of West Bengal is maintainable in law.
8. The proposition of law laid down by the Supreme Court in "State of Punjab V. Raninder Singh" reported in 2007(3) ECrN 1257 is that the State can move the High Court for cancellation of bail when the accused has violated the condition for granting anticipatory bail under Section 438(2) (i) of the Code of Criminal Procedure. In the instant case, Learned Single Judge granted regular bail to the opposite party under Section 439 of the Code of Criminal Procedure and as such this decision of the Supreme Court is not relevant for the purpose of deciding the present case.
9. In "Narendra Kumar Amin (Dr.) V. State of Gujarat" reported in (2009) 3 SCC (Cri) 813 the High Court cancelled the bail granted to the accused by Learned Additional City and Sessions Judge, Amedabad on the ground that irrelevant materials were taken into consideration by Learned Additional City and Sessions Judge in granting bail. By affirming the order of cancellation of bail passed by the High Court, the Supreme Court held that once it is found that the bail was granted on untenable grounds, the same can be cancelled even when there was no supervening circumstances for cancellation of the bail. The observation made by the Supreme Court in Paragraph 24 is worth mentioning:
"24. In Puran V. Rambilas it was noted as follows:
(SCC p. 345, para 11).
11. Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurucharan Singh V. State (Delhi Admn.). In that case the Court observed as under: (SCC p. 124, para 16).
16. ... If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à-vis the High Court."
10. In "Narendra K. Amin(Dr.) (supra) irrelevant materials were taken into consideration by Learned Additional City and Sessions Judge in granting bail to the accused and as such the said bail was cancelled by the High Court. In the instant case, the bail was granted by Learned Single Judge of the High Court on imposition of some conditions and the petitioner/State has prayed for cancellation of the bail before the High Court for misuse of liberty and violation of condition of bail by the accused person. So, the ratio of the decision of Narendra K. Amin(Dr.) (supra) will not be applicable in the facts of the present case.
11. In "Abdul Basit V. Md. Abdul Kadir Chaudhary" reported in (2014) 10 SCC 754 the High Court granted bail to the accused person during further investigation of the case on wrong appreciation of the facts that the earlier charge-sheet submitted by the police had become infructuous and the accused was entitled to bail under Section 167(2) proviso a(i) of the Code of Criminal Procedure. Subsequently, the High Court cancelled the unjustified and illegal order of bail without any misuse of liberty of the said bail by the accused person and without any existence of supervening circumstances regarding post bail conduct of the accused person. By setting aside the order of cancellation of bail granted by the High Court it is held by the Supreme Court that the concept of setting aside an unjustified, illegal or perverse order granting bail is different from the concept of cancellation of a bail on the ground of misconduct of the accused or new adverse facts having surfaced after the grant of bail which require such cancellation. It is also held by the Supreme Court that an order granting bail can only be set aside on the grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court. It is relevant to quote paragraphs 17 and 18 from the judgment of Abdul Basit (supra):
"17. In this context, it is profitable to render reliance upon the decision of this Court in Puran V. Rambilas. In the said case, this Court held (SCC p. 345, para
11) that the concept of setting aside an unjustified, illegal or perverse order is absolutely different from cancelling an order of bail on the ground that the accused has misconducted himself or because of some supervening circumstances warranting such cancellation. In "Narendra K. Amin V. State of Gujarat" the three-Judge Bench of this Court has reiterated the aforesaid principle and further drawn the distinction between the two in respect of relief available in review or appeal. In this case, the High Court had cancelled the bail granted to the appellant in exercise of power under Section 439(2) of the Code.
In appeal, it was contended before this Court that the High Court had erred by not appreciating the distinction between the parameters for grant of bail and cancellation of bail. The Bench while affirming the principle laid down in Puran case has observed that when irrelevant materials have been taken into consideration by the court granting order of bail, the same makes the said order vulnerable and subject to scrutiny by the appellate court and that no review would lie under Section 362 of the Code. In essence, this Court has opined that if the order of grant of bail is perverse, the same can be set at naught only by the superior court and has left no room for a review by the same court.
18. Reverberating the aforesaid principle, this Court in the recent decision in "Rajnit Singh V. State of M.P." has observed that (SCC p. 806, para 19).
"19. ... There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court."
12. In view of the above proposition of law laid down by the Apex Court, the order of illegal, unjustified, perverse order of bail can be cancelled only by the superior court and not by the same court which granted the order of bail. However, the order of granting bail can be cancelled by the same court if the accused has misconducted himself or certain supervening circumstances warrant such cancellation. In the case at hand, the accused misconducted himself by misusing the liberty and by violating the condition of the bail and as such the High Court can invoke the power under Section 439(2) of the Code of Criminal Procedure for cancellation of the said bail.
13. In "Shiv Mohan Kapoor V. UP" reported in (2012) 11 SCC 632 the bail was granted to the accused on the ground of parity by the High Court, but the said bail was cancelled when the accused threatened the informant for withdrawing the allegation and had beaten up the informant and his colleagues in the court room on the date fixed for hearing of the case. This order of cancellation of bail was set aside by the Supreme Court and the accused was granted bail on some conditions. The Supreme Court considered the fact that the accused remained in jail for more than three months after cancellation of bail and the trial court was given the liberty to watch the conduct of the accused and to cancel the bail if required in future. In this case the Supreme Court has not laid down any proposition of law either for cancellation of bail or for refusal to cancel the bail. The paragraphs quoted in the report from 7 to 24 are from the order of the High Court. In the absence of any proposition of law laid down by the Apex Court in the said decision, I am unable to accept the contention made on behalf of the opposite party that the opposite party should be allowed to remain on bail as he was in custody for a period of 109 days and 19 days respectively in connection with the two cases started against him for his post bail conduct.
14. I have already observed that the opposite party threatened the Investigating Officer of the case and led the miscreants to physically assault the companions of the de facto complainant and the prosecution witnesses outside the court room on 19th February, 2015 and thereby he violated the condition of bail imposed on him and also blatantly misused the liberty granted to him by the court. This is not a case where the State has prayed for cancellation of bail on the ground that the order is unjustified or illegal or perverse. This is a case where the State has prayed for cancellation of bail of the accused who misused the liberty and who violated the condition of bail and who misconducted himself after obtaining bail. Accordingly, I am inclined to cancel the bail of the opposite party by invoking my power under Section 439 (2) of the Code of Criminal Procedure read with Section 482 of the Code of Criminal Procedure. The bail granted to the opposite party on February 27, 2014 in C.R.M. No.3434 of 2014 in connection with Hastings Police Station Case No.9 of 2014 dated 06.01.2014 under Sections 341/323 of the Indian Penal Code read with Section 3(1) (x) of the Scheduled Casters and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is hereby cancelled with immediate effect. The opposite party is directed to surrender before the trial court within a period of three days from the date of this order in default, the trial court is at liberty to issue warrant of arrest for committing the opposite party to custody during the trial of the case. The application is, thus, disposed of.
Let a copy of this judgment and order be sent down to the learned Court below forthwith for favour of information and necessary action.
Urgent certified Photostat copy of the judgment and order, if applied for, be supplied to the parties as expeditiously as possible after compliance with necessary formalities.
(R. K. Bag, J.)