Calcutta High Court (Appellete Side)
In Re : Gouri Chowdhury vs Ram Bilas) on 7 March, 2016
Author: Patherya
Bench: Patherya
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2016 C.R.M. 1725 of 2015.
owed
In re: An application for cancellation of bail.
And
In re : Gouri Chowdhury
...Petitioner.
Mr. Avik Datta
Mr. Syed Zulfikhar Ali
.....For the petitioner.
Mr. A Chakraborty
Mr. A. Chaudhury
Mr. Debabrata Roy
... for the Opposite Party no.1.
Mr. Prasun Dutta
Mr. Aniket Mitra
...for the State.
This application has been filed for cancellation of anticipatory bail granted
by order dated 4th September, 2014. Anticipatory bail was granted by the
Sessions Judge-in Charge, North 24-Parganas in Bidhannagar North P.S. Case
No.137 of 2014 dated 13th July, 2014 under Sections 420/465/468/471/120B of
the Indian Penal Code to the opposite party Nos.1 and 2. After the filing of this
application, charge sheet has been submitted on 31st May, 2015 wherein the
opposite party no.2 has not been charge-sheeted and exonerated from the
charges levelled against him. Therefore, it is only on behalf of the opposite party
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no.1 that this application is being considered. The petitioner is the de-facto
complainant sister, who has alleged that her father Pran Ballav Mondal died in
1995. An application for modified plan was submitted on 9.9.2005 by the
opposite party no.1 wherein the signature of Pran Ballav Mondal, father appeared
along with that of the opposite party no.1. The Memo of Completion dated 20th
April, 2006 also bears the signature of the deceased father. In the petition of
complaint filed under Section 156(3) of the Code of Criminal Procedure, it was
alleged that the opposite party no.1 had let out some portions of the house
property to one Chandrani Pearls and Rohini Steel. The said actions were
without the consent of the de-facto complainant and her other two sisters. The
opposite party no.1 was earning huge money out of the said deal without making
any payment to the de-facto complainant and other co-owners of the said
property. On the basis of the said allegations, Bidhannagar North P.S. Case
No.137 of 2014 dated 13th July, 2014 under Sections 420/465/468/471/120B of
the Indian Penal Code was started.
In the said case an application being C.M.C. 5641 of 2014 was filed before
the court below by the opposite party nos. 1 and 2. The court below on perusal
of the materials in the case diary and holding that the dispute was civil in nature
and the process of investigation would not suffer, granted anticipatory bail to the
opposite party nos. 1 and 2. The said could not have been granted as Pran
Ballav Mondal(father) had died in 1995 and his signature could not have been
appended to documents in 2005. This, therefore, calls for cancellation of the
anticipatory bail granted.
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Counsel for the opposite party no.1 submits that the application was filed
under Section 438 of the Code of Criminal Procedure and the order was passed
on 4th September, 2014. It is pursuant to the order that the opposite parties
surrendered and were thereafter released on furnishing of bond. Therefore, it
was pursuant to order of court that the surrender was made and the question of
cancelling the anticipatory bail granted will not arise more so, in view of the
decision reported in (2011) 1 SCC 694. Whether the signature of Pran Ballav
Mondal was forged by the opposite party no.1 is the subject matter of trial which
is to commence in April, 2016. The said application has also been filed belatedly
and this ought to be another reason for rejecting the said application.
Counsel for the State produces the case diary and takes us to pages 20, 21
and 22 of the case diary. The statement recorded under Section 161 of the Code
of Criminal Procedure at pages 15 and 16 be also looked into. The charge sheet
has also been filed on 31st May, 2015 and the opposite party no.1 has been
charge sheeted while the opposite party no.2 has been discharged.
Having considered the submissions of the parties the order by which
anticipatory bail was granted to the opposite party no.1 is dated 4th September,
2014. From a reading of the said order, it appears that the material in the case
diary was considered by the court below. The parties were also heard. The main
reason for the said order was existence of the civil dispute and process of
investigation not suffering any prejudice, in case anticipatory bail was granted.
The court below while perusing the case diary did not consider pages 20, 21 and
22 therein. Page 20 is an application filed under the R.T.I Act, 2005 by the de-
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facto complainant seeking copies of certain letters. In answer to the said
information sought in September, 2013, the Bidhannagar Municipality, as will
appear from page 21 of the case diary, informed the de-facto complainant that
the signatories were one Pran Ballav Mondal and Mrityunjoy Mondal. Further
information was also given on 4th September, 2013 informing the de-facto
complainant that possession certificate was given in favour of Pran Ballav
Mondal and Mrityunjoy Mondal by the opposite party no.1 by Memo dated
5.4.1977. The first plan was sanctioned in January, 1979 and the last plan was sanctioned in 2005. This is the bone of contention as will appear from the case diary. The signature of Pran Ballav Mondal who died in 1995 was not forged by the petitioner as has been submitted by counsel for the opposite party no.1 may be true. The opposite party no.1 had no role to play in the act of forging the signature but the signature of the opposite party no.1 appears on the document dated 9.9.2005 and along with his signature, the signature of the father Pran Ballav Mondal also appears. It cannot be said, therefore, that the signature of Pran Ballav Mondal was appended to the document dated 9.9.2005 without the knowledge of the petitioner no.1.
Learned Advocate for opposite party No.1 raises some legal questions in respect of the maintainability of the instant application under Section 439(2) Cr. P.C. Learned Advocate for opposite party No.1 contended that there is absolutely no provision for cancelling anticipatory bail since pursuant to the order of anticipatory bail granted by learned Sessions Judge, OP No.1 had surrendered before learned Additional Chief Judicial Magistrate and thereafter has been 5 released on regular bail under Section 437 of the Criminal Procedure Code. In fact, learned Advocate for OP NO.1 contended that this Court cannot cancel the bail by invoking the jurisdiction under Section 439(2) Cr.P.C. Learned Advocate also drew our attention to the decision reported in 2011(1) SCC 694(paragraph
109).
The decision referred to herein above stipulates the manner and mode of granting pre arrest order under Section 438 Cr.P.C.
Admittedly the order passed by learned Sessions Judge has merged with the order passed by learned Additional Chief Judicial Magistrate. There is absolutely no doubt that pursuant to the order of learned Sessions Judge under Section 438 Cr.P.C, learned Additional Chief Judicial Magistrate, Bidhannagar has entertained and allowed the bail application of opposite party No.1.
In the decision reported in AIR 2001 SC 2023 (Puran Vs. Ram Bilas), the Apex Court has specifically observed that one of the grounds for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in heinous crime in 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. The Apex Court further observed that 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 accused has misconducted himself or because of some new facts requiring such cancellation. This position of law has been fortified by the decision reported in (Gurucharan 6 Singh Vs. State of Delhi Administration) AIR 1978 SC 179. In that case the Court observed as under (Para 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 arise 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 S.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 existed, 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."
It has also been observed in the said decision that under Section 439(2) Cr.P.C., the approach should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere. The Apex Court further observed in Puran Vs. Ram Bilas(Supra), to the following effect:
"In the hierarchy of Courts, the High Court is the Superior Court. A restrictive interpretation which would have effect of nullifying Section 439(2) cannot be given. When Section 439(2) grants to the High Court the power to cancel bail, it necessarily follows that such powers can be exercised also in respect of the Orders 7 passed by the Court of Session. Of course cancellation of bail has to be on principles set out hereinabove and only in appropriate cases.
Further, even if it is an interlocutory order, the High Court's inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified.(Re. Madhu Limaye v. State of Maharashtra, (1977)4 SCC 551 : (AIR 1978 SC 47: 1978 Cri LJ 165) and Krishnan v. Krishnaveni, (1997) 4 SCC 241:
(1997 AIR SCW 950 : AIR 1997 SC 987 : 1997 Cri LJ 1519)."
It is therefore apparent from the discussions made herein above that though the order of learned Sessions Judge has merged with the order passed by learned Additional chief Judicial Magistrate, Bidhannagar yet on the strength of Section 439(2) of the Code of Criminal Procedure, the High Court has the jurisdiction to interfere with the said order. Learned Sessions Judge simply observed that the offence levelled against opposite party No.1 appeared to be civil in nature. We find from the materials on record that by forging the signature of Pran Ballav Mondal the opposite party No.1 had obtained the necessary clearance from the concerned corporation for raising construction and thereafter had also obtained necessary clearance by forging the signature of his dead father towards the completion of that building and thereafter let out the building to third parties for his own benefit. The offence, as unfolded in the first information 8 report, squarely falls within the purview of specific Sections as contained in the Indian Penal Code and does not come within the purview of civil dispute. Learned Sessions Judge also did not consider the materials available in the case diary and has simply overlooked the materials collected by investigating officer during investigation. We find from the case diary that the signature of Pran Ballav Mondal appears along with the signature of the opposite party No.1 on some documents of 2005 and subsequent there to. In that view the submission of learned Advocate for opposite party No.1 regarding jurisdiction of this Court cannot be accepted.
It was the death of Pran Ballav Mondal in 1995 which was not considered by the court below and this finds mention in paragraph 4 of the F.I.R. which for convenience is set out below:
"4. That the said Pran Ballav Mondal died intestate on 10.1.1995(as per Death Certificate issued by KMC) leaving behind him his wife and three daughters and one son, including complainant & accused no.1 herein, as his legal heirs & successors. The Xerox copy of Death certificate is annexed herewith".
In the light of the said averment, the facts of the case ought to have been considered and the case diary perused and it is only for not doing so renders the order dated 4th September, 2014 perverse, per se and accordingly, the anticipatory bail granted to the opposite party no.1 by the order dated 20th September, 2014 is cancelled.
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In view of the aforesaid, this application is disposed of. No order is passed in respect of opposite party no.2 as he stands discharged.
The Court below will take steps in respect of opposite party no.1 in accordance with law in view of the order passed this day.
It is made clear that while considering the bail application of opposite party no.1, if occasion arises, learned trial Court shall not be influenced by any of the observation made by us in the foregoing paragraphs.
Certified copy of this order, if applied for, be given to the parties on priority basis.
(Patherya, J.) (Debi Prosad Dey, J.) 10