Calcutta High Court (Appellete Side)
In Re : Ashok Kumar Todi vs State Of Chhatishgarh & Others). In The ... on 17 December, 2008
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1 17.12.2008
C.R.M. NO. 12380 OF 2008
In re : Ashok Kumar Todi ....Petitioner (In Jail)
Re : An application for bail under Section 439
Cr.P.C. in connection with RC.8(S)/2007-
SCU.1/CENTRAL BUREAU OF
INVESTIGATION/SCR.1/NEW DELHI
corresponding to G.R. No. 2632 of 2008 under
Sections 306/506/120B of the Indian Penal
Code
Mr. Joymalya Bagchi,
Mr. Ayan Chakraborty,
Mr. Sourav Bhagat,
....For the Petitioner.
Mr. Kalyan Bandopadhyay,
Mr. Rajdeep Majumdar
...For the Defacto
Complainant.
Mr. Ranjan Roy
... For the C.B.I.
The matter is referred to this Bench by the
Hon'ble Chief Justice in terms of Section 392 of
the Code of Criminal Procedure as the two learned
Judges of this Court divided in opinion in
disposing of an application for bail under Section
439 of the Code of Criminal Procedure.
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Before going into the merits it will be proper
to discuss in brief about the factual background of
the case, as it is evident from the charge sheet and
other materials collected by the investigating
agency.
Victim Rizwanur Rahaman, who was a
Computer Graphic Engineer, had a love affair with
Priyanka Todi, daughter of the present petitioner.
They got married on 18.8.2007 under the Special
Marriage Act. Apprehending that such marital
relationship would not be accepted by the father of
Priyanka, they wrote a letter to the Commissioner
of Police, Kolkata expressing their anxiety. It was
informed in the said letter that both of them being
major got married with their own wish and were
living peacefully. Apprehending that the present
petitioner being the father of Priyanka might create
pressure upon them and interfere with such valid
marriage, they sought for protection from the
police authority. On the basis of such letter, an
enquiry was conducted by police and it was
reported that there was a valid marriage between
Rizwanur and Priyanka and both of them were
living peacefully. Such enquiry was conducted
while Ashok Todi (present petitioner) and his
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relatives were present in the house of Rizwanur
Rahaman.
Although it was within the knowledge of the
accused petitioner that there was a valid marriage
between Rizwanur and Priyanka, a false complaint
was lodged with the police on 31.8.2007 alleging
that Rizwanur had abducted Priyanka. On such
complaint an enquiry was conducted and a report
was submitted wherein it was stated that
Rizwanur and Priyanka got married under the
Special Marriage Act as both of them were adults.
Marriage certificate was also produced before the
police and it was found to be genuine. It was also
reported that Priyanka was living with Rizwanur at
his house at 7B, Tiljala Lane, Kolkata. So, it is
clear that till such time police could not find
anything wrong with staying of Priyanka at her
husband's residence.
Brother of Ashok Todi (present petitioner)
again lodged a complaint with the police on the
following day i.e. 1.9.2007 alleging wrongful
confinement of Priyanka by Rizwanur and his
family members. Complainant Pradip Todi
(brother of the present petitioner) also suspected
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that there might be some foul play behind the
confinement of Priyanka.
On 3.9.2007 Rizwanur and Priyanka wrote a
letter to the D. C. (South) and to the Officer-in-
charge, Kareya Police Station and in the said letter
they expressed their anxiety that Ashok Todi being
the father of Priyanka might engage some anti-
socials to kidnap them. It was disclosed in the said
letter that they were being threatened by the
criminals. They sought for protection from the
police and also stated in the said letter that if
anything happened to them, the person who would
be responsible for that was Ashok Todi (present
petitioner).
Again an enquiry was conducted and a
report was submitted by the police on 5.9.2007,
but nothing untoward was found till that date.
From the materials collected by the
investigating agency it becomes evident that the
scenario was surprisingly changed thereafter.
Rizwanur and Priyanka were summoned at police
headquarters at Lalbazar, where they found Anil
Sarogi (uncle of Priyanka) present. On the false
pretext of father's illness Priyanka was taken by
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her uncle for 7 days with an undertaking in
writing that he would produce her after 7 days.
But Priyanka did not return. So, Priyanka and
Rizwanur were separated from each other.
Rizwanur tried his best and approached everybody
including police authority to get back his wife
Priyanka, but all his attempts failed.
On 21.09.2007 deadbody of Rizwanur was
found on the railway tracks in between Sealdah
and Bidhannagar railway station.
A complaint was lodged with Kareya Police
Station by the brother of Rizwanur and in the said
complaint it was alleged that he suspected the
hands of Ashok Todi behind the unnatural death
of his brother. Investigation was initially
conducted by the Dumdum G.R.P.S. within whose
jurisdiction the deadbody was found and
thereafter such investigation was taken up by the
C.I.D., W.B. Since some police officers were
involved in the case, it was apprehended that a fair
and impartial investigation could not be conducted
by any investigating agency of the State. A writ
petition was moved before this Court praying for a
direction upon the Central Bureau of Investigation
to investigate into the offence. Writ petition was
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allowed by the learned Single Judge by order dated
14th August, 2008.
Challenging order dated 14.08.2008 in W.P.
No. 21563 (W) of 2007, an appeal was preferred
along with a stay petition. The stay petition was
rejected by the Division Bench by order dated
19.09.2008. Challenging such order of rejection, a Special Leave Petition being S.L.P. (Cri) 7134 of 2008 was filed in the Hon'ble Supreme Court and the same was disposed of by the Apex Court on 13.10.2008 with a direction that the writ appeal pending before the High Court be disposed of within a period of 6 months and till such time the trial before the learned Sessions Judge shall not commence.
In the meantime, warrant of arrest was issued by the learned Magistrate as the petitioner failed to appear before the learned Magistrate on the returnable date of summons. Challenging such order issuing warrant of arrest a revisional application was preferred before the learned Sessions Judge, which was admitted but no stay was granted.
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The matter was again brought to the Hon'ble Supreme Court praying for clarification of its earlier order dated 13.10.2008 and the same was disposed of by the Hon'ble Supreme Court on 23.11.2008, when it was stated before the Hon'ble Court that the petitioner would appear before the learned Magistrate on 1st December, 2008.
Accused petitioner thereafter surrendered before the learned Magistrate on 1.12.2008. A prayer for bail was made on his behalf and the same was rejected by the learned Magistrate.
Mr. Bagchi, learned Advocate appearing for the petitioner submits that this is a case under Section 306 of the Indian Penal Code, which is not punishable with death or imprisonment of life and the maximum punishment provided in the Code for such offence is imprisonment for 10 years. In such a case, according to Mr. Bagchi, after submission of charge sheet further detention of the accused is not at all necessary. It is the further contention of Mr. Bagchi that the petitioner being a renowned businessman and having sufficient property is not likely to abscond. There is no material to show that the petitioner ever tried to destroy or to tamper with any evidence. On the 8 contrary from the very beginning he has been cooperating with the investigating agency. After the investigation was taken up by the C.I.D., W.B., petitioner was summoned by the investigating officer and on number of occasions he visited the office of C.I.D. and was interrogated. In such circumstance, it is submitted by Mr. Bagchi that if bail is granted to the petitioner on any stringent condition, the prosecution will not be prejudiced in any way.
It is submitted by Mr. Bagchi that by the order dated 13.10.2008, the Hon'ble Supreme Court stayed the trial of the present case till the disposal of the appeal, which is pending before the Division Bench of this Court. The Hon'ble Apex Court also directed the Division Bench of this Court to dispose of the appeal within a period of six months from the said date. In view of the order dated 13.10.2008 passed by the Hon'ble Apex Court trial cannot commence till the disposal of the writ appeal. Since there is no chance of commencement of trial in the near future, the petitioner should be released on bail on any condition.
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It is the further submission of Mr. Bagchi, learned Advocate that in the suicidal note left by victim Rizwanur the present petitioner has been exonerated and considering this aspect the petitioner should be released on bail. Although a medical ground was taken by the petitioner while praying for bail before the other Division Bench, Mr. Bagchi does not press such ground before this Court now. After going through the medical report, this Court also does not find anything alarming at this stage.
Mr. Kalyan Bandopadhyay, learned Advocate appearing for the defacto-complainant, at the outset, submitted before this Court the factual background of the case. Referring to the facts of the case the learned Advocate pointed out how from the very beginning the petitioner along with his brother and other relatives and associates lodged false complaints one after another alleging kidnapping and wrongful confinement against Rizwanur. He also pointed out how by a false pretext of father's illness Priyanka was separated from her husband. All the attempts of Rizwanur to get back his wife turned to be futile due to highhanded activities of some high ranking police 10 officers of Kolkata Police, who are also made accused in the present case. Mr. Bandopadhyay, learned Advocate further points out how Rizwanur and Priyanka were called on number of dates at police headquarters at Lalbazar and were put under constant pressure to dissolve their marriage. Police officers acted in an over- enthusiastic manner, for the reasons best known to them, to separate Rizwanur and Priyanka and ultimately they succeeded. The offence was committed by those officers at the instance of the accused petitioner.
Mr. Bandopadhyay, learned Advocate further submitted that in such a case gravity and heinousness of the crime should be given prime consideration. Accused petitioner being a businessman have sufficient money and the defacto-complainant and his witnesses come from the poorer section of the society. So, there is every likelihood of destroying the evidence and tampering with the witnesses and polluting the process of Justice. The learned Advocate submitted that this is a case where the seriousness of the offence and the interest of the society at large are to be taken into consideration. 11
Mr. Bandopadhyay, learned Advocate of the defacto-complainant submitted that the argument advanced by the learned Advocate of the accused petitioner that there is no chance of trial being started in the near future in view of the order of the Hon'ble Apex Court, is not at all tenable, because such order was obtained by the petitioner himself from the Hon'ble Supreme Court and the prosecution cannot be held responsible for that.
There was a valid marriage between Rizwanur and Priyanka under Special Marriage Act, which was very much within the knowledge of petitioner as also the police authorities. Despite seeking protection from police authority Rizwanur and Priyanka did not get any protection. On the contrary, Rizwanur was treated in such a manner as if he committed some crime. The highhandedness of police authority putting Rizwanur under constant mental pressure, as it is submitted by Mr. Bandopadhyay, caused the death of Rizwanur and this was done at the instance of the present petitioner. So, considering the grave nature of the offence the petitioner should not be granted bail.
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Mr. Bandopadhyay, learned Advocate relies upon a judgment of the Hon'ble Supreme Court reported in (2008) 1 SCC (Cri) 660 (Satish Jaggi Vs State of Chhatishgarh & Others). In the said judgment, it is held by the Hon'ble Apex Court that it is settled law that in granting or non-granting of bail in non- bailable offence, the primary consideration is the nature and gravity of the offence. Relying upon the aforesaid judgment it is submitted by Mr. Bandopadhyay, learned Advocate that from the factual background of the case it is clear that the offence is serious in nature and considering the gravity of the offence, it will not be proper to grant bail to the accused petitioner.
Mr. Ranjan Roy, learned Counsel appearing for the C.B.I. submits with reference to the materials collected by the investigating agency that the offence is grave and serious and the materials collected are sufficient to indicate that such offence was committed at the instance of the accused petitioner. Mr. Roy adopts the argument advanced by Mr. Bandopadhyay, learned Advocate appearing for the defacto-complainant and submits that from the past conduct of the petitioner, it becomes clear that he is a very influential person having sufficient influence in the 13 society as also upon the police officers and if such a person is released on bail, the possibility of tampering with the evidence cannot be ruled out. Mr. Roy further submits that one Pappu was given Rs.11 Lacs by the petitioner only for the purpose of breaking the marriage. Mr. Roy also submits that order of stay granted by the Hon'ble Apex Court staying the trial till the disposal of the appeal, which is pending before this Court, was obtained by the petitioner himself and if the trial is delayed because of such stay order, the prosecution cannot be held responsible for that. Mr. Roy, learned Advocate finally submits that considering the grave nature of the offence as also the manner in which it was committed, the petitioner should not be released on bail. It is further submitted by Mr. Roy that copies of documents relied upon by the prosecution have already been supplied to the accused persons and 17.12.2008 is fixed for commitment of the case to the Court of Sessions.
I have heard the learned Advocates of the respective parties. I have also gone through the materials collected by the investigating agency. This court is not oblivious of the fact that while dealing with an application for bail at pre-trial 14 stage, the court should not enter into technical questions, analysethe case and appreciate the evidence. The only thing, which is required to be seen, is whether there is a prima facie case and whether such prima facie case is corroborated by the materials collected by the investigating agency.
It is now well settled that following factors are required to be taken into consideration while dealing with an application for bail :
(a) The gravity and seriousness of the offence and the nature of evidence collected.
(b) The punishment to which the accused is liable, if convicted.
(c) The nature and gravity of the circumstances in which the offence was committed.
(d) The position and status of the accused with reference to that of the victim and the witnesses.
(e) The reasonable possibility of the presence of the accused not being secured at the trial.
(f) Any likelihood of tampering
with the witnesses.
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(g) Similar other
circumstances depending upon the facts of each case.
After going through the materials in the case diary I find that the investigating agency has collected sufficient incriminating materials against the present petitioner to make out a strong prima facie case against him. In my considered view, among other considerations, which this Court has to take into account while dealing with a bail application, the most important in such a case is the nature and gravity of the offence. The manner in which the offence was committed and the circumstances in which the offence was committed, as it appears from the materials collected, clearly indicate the seriousness of the offence.
Merely because the accused petitioner is the owner of large property, movable or immovable, would be no ground to presume that the presence of the accused would be secured at the trial.
The submission made by the learned Advocate of the petitioner that there is no likelihood of tampering with the witnesses, is also 16 not tenable. This also depends upon the nature and seriousness of the offence. The position and status of the accused with reference to that of the complainant and his witnesses and the events leading to the incident are also to be taken into account. Considering the social status and position of the accused and the past conduct, the possibility of tampering with the witnesses cannot be ruled out.
The submission of the learned Advocate of the accused petitioner that after submission of charge sheet further detention of the accused in custody is not necessary, cannot be accepted as submission of charge sheet cannot be a ground for granting bail in such a case where the nature of the offence is so grave. What is required to be considered at the stage of granting bail in such a case is the nature of the offence and whether there is a prima facie case against the petitioner supported by the materials collected by the investigating agency. After going through the materials in the case diary I find that sufficient incriminating materials have been collected by the investigating agency.
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The argument advanced by the learned Advocate of the petitioner that there is no chance of the trial being commenced in the near future in view of the order of stay granted by the Hon'ble Supreme Court on 13.10.2008, is also not tenable because such order of stay was obtained by the petitioner himself and the prosecution cannot be held responsible for that.
The submission made by Mr. Bagchi that the present petitioner was exonerated from the charge in the suicidal note left by victim Rizwanur, cannot be accepted. It appears from the said suicidal note that Rizwanur was good and kind enough to forgive his father-in-law Ashok Todi. This in my view cannot be said to be exoneration.
Since Mr. Bagchi, learned Advocate has not pressed the medical ground, it is not necessary to make any comment on that. However, it is directed that in future if any medical assistance is required, the jail authority will take immediate steps to provide such medical assistance.
Rizwanur and Priyanka got married and it was a valid marriage under the Special Marriage Act. This was within the knowledge of the present 18 petitioner. But in spite of that false complaints were lodged one after another alleging kidnapping, abduction, wrongful confinement against Rizwanur. Some officers of Kolkata Police, who are also made accused in the present case, treated Rizwanur in such a way as if he committed some crime. The manner and circumstances in which the offence was committed clearly indicate the grave and serious nature of the offence.
Since court should not analyseand appreciate the evidence at this stage when a bail application is under consideration, I refrain from discussing about the particulars of the materials collected by the investigating agency. In my considered view, sufficient incriminating materials have been collected by the investigating agency against the present petitioner and it will not be proper for this court to grant bail to the petitioner at this stage.
After hearing the learned Advocates of the respective parties and considering the materials in the case diary, I find sufficient merit in the submission made by the learned Advocates of the defacto-complainant and the C.B.I. 19 I agree with the view of my learned brother Justice Prabuddha Sankar Banerjee and hold that this is not a fit case for granting bail at this stage.
Prayer for bail is accordingly rejected at this stage.
(Debiprasad Sengupta, J.)