Calcutta High Court (Appellete Side)
Bharti Tamang vs C.B.I. & Ors on 8 August, 2013
Author: Nishita Mhatre
Bench: Nishita Mhatre, Kanchan Chakraborty
In the High Court at Calcutta
(Criminal Miscellaneous Jurisdiction)
Appellate Side
CRM No. 8230 of 2013
With
CRM No. 9224 of 2013
Bharti Tamang
Vs.
C.B.I. & Ors.
CORAM :The Hon'ble Mr. Justice Nishita Mhatre
&
The Hon'ble Mr. Justice Kanchan Chakraborty
For the Petitioner : Mr. Bhaskar Sen
Mr. Indranil Roy
Mr. Arnab Mukherjee
Mr. Ayan Bhattacharya
Mr. Madhurima Mukherjee
For the C.B.I. : Mr. Himangshu De
Mr. Mrityunjoy Chartterjee
For the Accused/O.P : Mr. Dipak Kumar Sengupta
Mr. Prabal Mukherjee
Mr. Kamalesh Saha
Mr. Krishnendu Bhattachatya
Mr. Ayanabha Raha
Heard on : 01.8.2013
Judgment delivered on :8th August, 2013
Two applications for cancellation of bail under section 439(2) read with
Section 482 of the Code of Criminal Procedure have been filed by Mrs. Bharti
Tamang wife of late Madan Tamang. The bail orders which have been sought to
be cancelled, were passed by the learned Sessions Judge, Darjeeling on 18.5.
2013 in Criminal Misc. Case No. 392 of 2013 and on 30.5.2013 in Criminal
Misc. Case No. 432 of 2013. Both the orders were passed in connection with
Sadar (Darjeeling) Police Station case no. 89 of 2010 corresponding to G.R.
Case 148 of 2010 under sections 147,148,149,427,506,302,32 and 120 B of
the Indian Penal Code. Since the bail orders mentioned above which are sought
to be cancelled by two applications have been passed in same case, we propose
to dispose of both the applications by this common order.
The learned Sessions Judge, Darjeeling by an order dated 18.5.2013
granted interim anticipatory bail in favour of accused Alok Kanta Mani
Thulung @ Rai, Keshav Raj Pokhrel, Puranthami and Kismat Chettri while by
another order dated 30.5.2013 accused Dinesh Gurung Karate Kaila was
granted anticipatory bail by the learned Sessions Judge, Darjeeling.
The petitioner Mrs. Bharti Tamang has taken out the applications above
praying for cancellation of their bail mainly on the grounds -
a) that while granting bail, the learned Sessions judge did not
apply his judicial mind;
b) that the bail orders are absolutely perverse and contrary to the
principles of law;
c) that the learned Sessions Judge ignored the materials and
evidence on record without giving reason; and
d) that the C.B.I. being the Investigating Agency in the case, was
not given any opportunity to be heard;
Mr. Bhaskar Sen, learned Senior Counsel appearing for the
petitioner contended that the learned Sessions Judge granted bail to the
respondent no. 2 to 5 in C.R.M. 8230 of 2013 without giving the
investigating agency i.e. C.B.I any opportunity of being heard. He contended that the reasons for granting anticipatory bail given by the learned Sessions Judge were based on entirely wrong factual aspect. The opposite parties were not in custody for 7 months but 3 months only. He contended further that the gravity of the offence, severity of the punishment, role of the opposite parties in committing the alleged offence were not taken into consideration by the learned Judge. The learned Judge was entirely wrong in observing that the investigation in the case has been concluded. This apart, Mr. Sen contended, the condition to the bail was reversed to the condition to the bail granted by this Court in respect of some of the other accused person. It has also been submitted by Mr. Sen that the prayer for bail of the respondents were rejected on 15.2.2013 but allowed on 18.5.2013 without any significant change in circumstances. The order being perverse and illegal, should be cancelled.
Mr. Roy challenged the bail order dated 30.5.2013 passed by the learned Sessions Judge in C.R.M. 432 of 2013 mainly on the ground that while granting bail, the learned Sessions Judge was completely oblivious of the fact that the earlier application for bail was rejected on 17.4.2013 on similar facts and circumstances. Rather on 30.5.2013, the Court found that the accused was discharged after treatment. On 30.5.2013, no new ground or reason was developed in favour of the accused enabling him to get bail. The order, Mr. Roy contended, was passed in a perfunctory manner without application of mind.
In support of their contention, Mr. Sen and Mr. Roy have referred to the following decisions:
1) Puran Vs. Rambilas & Ors. reported in (2001) 6SCC 338.
2) Kanwar Singh Meena Vs. State of Rajasthan & Anr. reported in (2012) 12SCC 180.
3) Subodh Kumar Yadav Vs. State of Bihar & Anr. Reported in (2009) 14 SCC 638.
4) Prasanta Kumar Sarkar Vs. Ashis Chatterjee & Anr. Reported in (2004) 14 SCC 496
5) Kalyan Chandra Sarkar Vs. Rajesh Ranjan & Anr. Reported in (2004) 7SCC 528.
6) Kalyan Chandra Sarkar Vs. Rajesh Ranjan & Anr. Reported in (2005) 2SCC 42
7) Ajay Kumar Sharma Vs. State of U.P. & Ors. Reported in (2005) 7 SCC 507.
8) Deepak Singhchi Vs. State of Rajesthan & Anr. Reported in (2007) 14SCC 583.
9) Akhilesh Kumar Singh Vs. State of U.P. & Anr. Reported in (2008) 4 SCC 449.
10) Ram Govind Upadhyay Vs. Sudarshan Singh & Ors. Reported in (2002) 3SCC 598.
11) Brij Nandan Jaiwal Vs. Munna reported in (2009) 1SCC 678.
12) State of West Bengal Vs. Noor Ahmed & Anr. Reported in (2002) 1 CHN 227.
Mr. Sengupta, learned Counsel on behalf of the opposite parties in both the applications contended that bail once granted, ordinarily, should not be cancelled unless there are very cogent, supervening and overwhelming circumstances. In the instant case, Mr. Sengupta contended, the learned Sessions Judge assigned sufficient reasons in support of the orders granting bail to the opposite parties. There were no cogent, supervening and overwhelming circumstances warranting cancellation of bail. He has brought our notice to the orders passed by this Court whereby some co-accused were granted bail and submitted that this Court also found that the investigation into the case was over and charge-sheet was filed. The opposite party were in custody for quite a long period and there was no possibility of commencement of trial within a short period. Therefore, the bail orders sought to be cancelled are not suffering from any illegality. Therefore, those are not required to be interfered with.
In support of his contention Mr. Sengupta has referred to the following decisions :
1) State Vs. Sanjay Gandhi reported in AIR 1978 SC 961
2) Dolat Ram Vs. State of Haryana reported in AIR 1995 (1) SCC 349.
3) Mehboob Dawood Shaikh Vs. State of Maharashtra reported in AIR 2004(2) SCC 362.
4) Sukhwant Singh Vs. State of Punjab reported in AIR 2009 (7) SCC 559.
5) Union of India Vs. Hassan Ali Khan & Anr. Reported in AIR 2011 (10) SCC 235.
Mr. Himangsu De, learned Counsel on behalf of C.B.I/respondent contended that the bail orders sought to be cancelled by the petitioner are illegal and erroneous. That being so, those are liable to be cancelled. He, however, submitted that as the bail orders were interim in nature, it would be proper to remit back the matter to the learned Sessions Judge for final disposal of the application after giving the C.B.I an opportunity of being heard.
We have carefully gone through all the decisions referred to above. There is no dispute as to the principles of law propounded by the Apex Court in the matter of granting/rejecting bail and cancellation of bail.
It is trite law that unless there are very cogent and overwhelming circumstances an order granting bail should not be interfered with. The consideration which would weigh while dealing with an application for grant of bail cannot be the same for the purpose of cancellation of the same. Cancellation of bail is a very harsh order since it takes away the liberty of an individual and it should not be lightly resorted to. Even if some defects are found in the order of bail, it should not be interfered with and set aside by way of cancelling it. At the same time, it is also a settled principle of law that besides violation of condition to the bail order, bail granted can well be cancelled when the order appears ex facie perverse and contrary to the principles of law. An order granting bail passed by ignoring materials and evidence on record, without considering the gravity of offence, severity of punishment, role of the accused concerned would be perverse and obviously contrary to the principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. This ground is different from the ground that the accused misconducted himself or some new facts call for cancellation. It is needless to mention that the prosecution side has to be given fair opportunity to be heard before an order of bail is passed.
We have heard ld. Counsels for the parties. We feel it appropriate to look at the orders passed by the learned Sessions Judge in both the applications. Those are set out bellow:-
1) Alok Kanti Manti Thulung @ Rai & 3 Others.
Vs. State of West Bengal Order No. 01 "This is an application under section 439 Cr.P.C. filed Dt. 07.05.2013 by the above named petitioners praying for bail in connection with Sadar P.S. Case No. 89 of 2010 dated 21.05.2010 under sections 147/148/149/427/506/302/120B and added section 34 of I.P.C. (CBI Special Crime Branch, Kolkata case No. RC. 1(S)/11 Kol. Dated 19.01.211, corresponding to G.R. Case No. 148 of 2010 now pending before ld. Chief Judicial Magistrate, Darjeeling.
Register the application as Criminal Misc. Case. Copy served upon the State though Ld. P.P., Darjeeling. Perused heard. Both sides.
Call for L.C.R. and C.D. fixing 18.05.2013 for hearing the Misc. Case."
D/C by me
Sessions Judge-In-Charge, Sessions Judge-In-Charge,
Darjeeling Darjeeling
"Order no.02
Dt. 18.5.13 The application under section 439 Cr.p.c. is taken up
for hearing.
Bail petition is moved on behalf of the petitioners. Perused the LCR, and other materials on record. Considered all these.
Ld. Lawyer appearing for the petitioners has submitted that the investigation in the case has been completed. That some other accused persons have been granted bail by Hon'ble High Court and these petitioners have remained in custody for about 7 months. So according to him, there will be no purpose served, by putting the accused persons in custody, especially when there is no probability of the accused persons fleeing away from justice. None appears on behalf of CBI.
It is true, that the investigation in the case has been completed and the charge sheet is submitted against the accused persons. It is true, that some other accused persons have been granted bail by Hon'ble High Court and some other by this Court also. The petitioners have remained in custody for about 7 months. There is no adverse report against them to the effect that they may flee away from justice if once they are released on bail. The case is yet to be committed for trial and it is the Ld. Court below who knows very well why the case is not committed for trial. Having regard to all these, I am of the opinion that the accused persons may be enlarged on bail subject to certain conditions. The accused namely 1) Alok Kanti Mani Thulung @ Rai, 2) Keshav Raj Pokhrel, 3) Puran Thami and 4) Kistmat Chettri may find Interim Bail of Rs. 3,000/- each with one surety of like amount to the satisfaction of Ld. CJM, Darjeeling on condition that they will file under- taking before the Court to the effect that they would not leave the jurisdiction of Court without prior permission of the Court and they would continue to meet the I.O. once in a fortnight until further order.
Return the L.C.R. To 18.06.2013 for appearance of the accused persons Let a copy be sent to the Ld. CJM, Darjeeling.
Dicttd. & Corrtd.
By me:
Sessions Judge, Sessions Judge
Darjeeling Darjeeling"
"Order No. 3
Dt. 14.03.13 The application under section 439 Cr.p.c. is taken up for
hearing
Heard the submission of Ld. Lawyer appearing for the petitioner and Ld. A.P.P. appearing for the CBI, Special Crime Branch, Kolkata.
Perused the materials kept in the LCR.
Considered all these.
Ld. Lawyer appearing for the petitioner has submitted that the petitioner has undergone liver transplantation and therefore he requires periodical checkup by the doctor. According to him, the petitioner will not abscond and for the purpose of periodical checkup of his health, he should be released on bail. It is further submitted on behalf of the petitioner that some of the accused persons have already been granted bail by the Hon'ble High Court and the instant petitioner being the person standing on the same footing is also entitled to get bail and others and the petitioner kept absconding for a long time. Some other accused persons are still absconding and they are yet to be arrested by the police. According to him, the bail should be refused to the accused person, considering his conduct of long abscondence.
In the instant case, the charge sheet has been submitted against the instant petitioner and others. This petitioner absconded and he was only arrested on 15.02.2013. Since then he has remained in custody Ld. Lawyer for the petitioner has submitted that this petitioner stands on the same footing of the accused persons who have been granted bail by Hon'ble High Court. I cannot accept the submission of Ld. Lawyer. The accused persons who have been granted bail by Hon'ble High Court were in custody for more than 2 years. Only one bail by Hon'ble High Court were in custody for more than 2 years. Only one accused person namely Dipen Malay who has been granted bail by Hon'ble High Court was in custody for 16 months. So far as the instant accused person is concerned, he has remained in custody for 2 months only. Having regard to this aspect, I do say that this petitioner does not stand in the same footing of the accused persons who have been granted bail by the Hon'ble High Court. It has been urged on behalf of the petitioner that the petitioner that the petitioner has undergone liver transplantation, that he needs periodical checkup for that reason and therefore, he should be enlarged on bail on that ground. But, no report form the jail authority is filed to the effect that the accused person has experienced by complain whatsoever during his stay in the custody for 2 months. On the other hand, the conduct of the accused person admits no excuse. He remain absconded for considerably a long period after submission of charge sheet in a case of gravest nature like this one. Regard being had to the conduct of the petitioner/accused. Prayer for bail is rejected.
Return the L.C.R. and CD.
The Criminal Misc. is thus disposed of.
Dicttd. & Corrtd.
By me:
Sessions Judge, Sessions Judge
Darjeeling Darjeeling."
"Order No. 2
Dt. 30.05.2013 "The application under section 439 Cr.p.c. is taken up
for hearing.
Bail has been prayed for on behalf of accused Sri Dinesh Gurung @ Karate Kaila.
Perused the LCR, and other materials on record. Considered all these.
Ld. Lawyer appearing for the petitioner submits that this accused person is a patient of liver transplantation and that he is to attend his physician on a regular interval. The investigation in the case is closed and the trial of the accused person is yet to be commenced. It is further submitted by Ld. Lawyer for the petitioner that other accused persons have already been granted bail and that the accused person is also entitled to be released on bail, as there is no adverse report against him that he is likely to flee away from justice or that he will not be able to face the trial. None appears to make any submission on behalf of the CBI.
Two Discharge Certificates (Xerox Copy) have been filed on behalf of the petitioner/accused person. It is seen therefrom that the accused person namely Dinesh Gurung underwent a liver transplantation on 01.02.2010 and that he was discharged from Indraprastha Apollo Hospital on 21.02.2010. From the order sheets of Lower Court Record, it is also found that the accused person has been shifted to North Bengal Medical College and Hospital during his detention period for his treatment. The accused person has remained in custody for about 105 days. Investigation in the case has been completed and there is no allegation against the petitioner/accused person that he is likely to flee away from justice or temper the evidence of the prosecution. Some other accused persons have already been granted bail. The trial is yet to be commenced in the case. Having regard to all these facts and circumstances, I am of the opinion that there will be no purpose served if the accused person is kept detained in custody for nothing especially when there is no chance of him fleeing away from justice or tempering the evidence of the prosecution.
The accused person namely Sri Dinesh Gurung @ Karate Kaila may find Interim Bail of Rs. 3,000/- with one surely of like amount to the satisfaction of Ld. CJM. Darjeeling, subject to condition provided under section 439 (2) Cr.P.C.
To 17.06.2013 for appearance of the accused person. Let a copy be sent to the Ld. CJM, Darjeeling."
Dicttd. & Corrtd.
By me:
Sessions Judge, Sessions Judge
Darjeeling Darjeeling."
A cursory perusal of the order dated 7.5.2013 it appears to us that the prosecution, i.e., C.B.I. was not served with any notice whatsoever, in the matter of hearing of the bail application. Naturally, on 18.5.2013 when the bail application was taken up for consideration none on behalf of the C.B.I. was present. The learned Sessions Judge has made a grave mistake in doing so and passing the order in favour of the accused without hearing the C.B.I. Again, we find that the learned Sessions Judge did not consider the factual aspect properly. The petitioner/accused who were not, in fact, in custody in 7 months but 3 months only. The learned Court did not consider the gravity of the offence, severity of the punishment and impact of the order granting bail atall. The condition to the bail imposed was reverse to the condition to the bail granted by this Court to other accused persons. It is manifest that the learned Court neither applied his judicial mind nor followed the principles of law while passing the order dated 18.5.2013. Although investigation was concluded and one charge-sheet was submitted, the further investigation into the case was continuing. Therefore, the learned Judge ought to have called for the C.D. of the case and considered it prior to passing of the order but that was not done also.
In the circumstances above, we are of the view that the interim bail order passed by the learned Court on 18.5.2013 is required to be interfered with. It stands cancelled.
So far as interim bail order dated 30.5.2013 is concerned, we find that learned Judge had taken into consideration the fact that accused Dinesh Gurung had undergone a liver transplantation on 1.2.2010 and that he was discharged on 21.2.2010. He remained in custody for 105 days. So, bail was granted by the learned Judge keeping in mind that investigation was closed and it was uncertain as to when the trial would commence. Astonishingly, on 17.4.2013 same circumstances were prevailing as on 30.5.2013. But the learned Judge rejected the prayer for bail on 17.4.2013. There was no change in the circumstances when the bail was allowed on 30.5.2013. On 30.5.2013 the C.B.I. was not also given any opportunity to be heard while on 17.4.2013 learned Prosecutor on behalf of C.B.I. was present. These, in our opinion, are not mere irregularities but total violation of the principles of law. Therefore, we find it proper to cancel the interim bail order dated 30.5.2013 also.
It is admitted position that a charge-sheet has been filed against some of the accused persons including the respondents herein. Further investigation by the C.B.I. is continuing. A good number of accused persons are yet to be arrested. The case has been committed to the Court of Sessions for trial. The respondents have been granted interim bail and their applications under section 439 of the Cr.P.C. are yet to be disposed of finally. Taking the facts above, we find it expedient that the respondents should surrender in Court within a period of fortnight from today and upon their surrender, learned Judge should take up their bail applications under section 439 Cr.P.C. for final disposal after giving opportunity to the C.B.I. of being heard.
We make it clear that we have not gone into the merit of the case. The ld. Judge, is, therefore, to act independently without being swayed or influenced by any observation made in this order.
Accordingly CRM No. 8230 of 2013 with CRM No. 9224 of 20013 are disposed of.
Urgent photostat certified copy of the judgement, if applied for, be handed over to the parties on compliance of necessary formalities.
A copy of order be sent to the learned Court concerned. (Kanchan Chakraborty,J) (Nishita Mhatre,J)