Calcutta High Court (Appellete Side)
In Re : Lal Babu Molla @ Altu vs The State Of West Bengal & Others on 18 November, 2016
Author: Patherya
Bench: Patherya
1 18.11.2016 C.R.M. 7446 of 2016 18.11.2017 In re: An application for cancellation of anticipatory bail under section 439 (2) of the Code of Criminal Procedure filed on 09.09.2016;
And In re : Lal Babu Molla @ Altu
-vs-
The State of West Bengal & Others Mr. Phiroze Edulji Mr. Rajdeep Biswas Mr. Malay Bhattacharyya .. for the Petitioner Mr. Sandipan Ganguly Mr. Kallol Mandal Mr. Aryak Dutt Mr. Kishan Roy Mr. Dipankar Das .. for the opposite party no. 2 Mr. Prasun Dutta Mr. Subrata Roy .. for the State By this application, the de-facto complainant seeks to cancel the anticipatory bail granted to the opposite party no. 2 by order dated 12th August, 2016.
Counsel for the de-facto complainant submits that the order has been passed in connection with Bhangore Police Station Case No. 448 of 2015. The date of incident is 3rd June, 2015 and 10th June, 2015 but the initiation of the case was on 30th April, 2015. Three applications for anticipatory bail were filed - one in December, 2015 which application was rejected as not pressed. The second in June, 2016 which again was rejected as not pressed and the third was the 2 order dated 12th August, 2016 which application was filed on 18th July, 2016. There has been suppression of facts in the second application as nowhere it is mentioned therein that the first application had been rejected as not pressed. The first complaint was filed as early as in June, 2015 and the de-facto complainant of the second complaint was compelled to file an application under Section 156(3) of the Code of Criminal Procedure on 30th June, 2015. There was no reason for the opposite party no. 2 to suppress rejection of the first application in the second application since he had affirmed both the applications. The offence alleged is under Sections 382 and 386 of the Indian Penal Code both of which are non-bailable and the punishment under both is for a period of 10 years. There was no necessity for notices under Section 41A of the Code of Criminal Procedure to be issued. Nonetheless notices have been issued on four different occasions. The court below, while considering the application both under Section 438 of the Code of Criminal Procedure on 12th August, 2016, did not consider that the call from the opposite party no. 2 to one of the partners of the de-facto complainant was admitted, the reason of the call though not known. From the status report filed in W.P. No. 29424 (W) of 2015 the call made by the opposite party no. 2 to one of the partners of the de-facto complainant, namely, Gias Uddin, has been admitted. The voice sample of the opposite party no. 2 has been sent for C.F.S.L. and report of C.F.S.L. is unnecessarily being delayed as the voice can be tested and reported in about 2½ hours. In all there were four partners of APN Infrastucture Pvt. Ltd., one being the de-facto complainant + three others. One of the four 3 partners, Swarup Banerjee who had resigned on 31st March, 2016, affirmed an affidavit on 11th August, 2016 wherein he stated that there was no case of extortion in 2014-15 and 2015-16 but the affidavit of Swarup Banerjee ought not to have been looked into by the court below as interestingly it came after the order was passed by the High Court on 10th August, 2016 and it was only for this reason that on two earlier occasions the applications were not pressed and in spite of the application under Section 438 of the Code of Criminal Procedure being filed on 18th July, 2016, the same was not pursued till 12th August, 2016. In the absence of the report from C.F.S.L. Kolkata, the order dated 12th August, 2016 ought not to have been passed so also the affidavit of the erstwhile Director, Swarup Banerjee could not have been looked into. The Public Prosecutor also has not carried out his duties independently. Without adverting to the materials in the case diary, he relied on the memo of evidence filed by the Additional Superintendent of Police (A) South 24-Parganas and, in fact, did not object to the grant of anticipatory bail. Being a case of extortion, he ought to have come down heavily on the opposite party no. 2 and discouraged extortion. The court below in not scrutinizing the case diary and not considering the materials on record in its proper perspective, has acted with perversity which calls for interference with the order and thereby cancellation of the bail granted as the order is perverse, per se.
Counsel for the State produces the case diary and takes us to the statements under Section 161 of the Code of Criminal Procedure 4 at pages 21,22,23,30, 31,32,37,38,44 and 45, the seizure lists at pages 25,66 and 86. The audio clip seized has been sent to C.F.S.L for examination and it will take some time before the report is submitted. The complaint of 16th June, 2015 be also looked into.
In reply counsel for the petitioner places the order dated 5th July, 2016 wherein it has been stated that intense interrogation will be needed and mere issuance of notices under Section 41A of the Code of Criminal Procedure will not suffice. The status report be also looked into.
Having considered the submissions of the parties and on scrutiny of the case diary what emerges is that the alleged date of incident is 3rd June, 2015 and 10th June, 2015 which finds mention in the complaint application under Section 156(3) of the Code of Criminal Procedure filed on 30th June, 2015 but these two dates do not find mention in the complaint dated 16th June, 2015. It is true that three applications were filed under section 438 of the Code of Criminal Procedure and the rejection of the first application was not mentioned in the second application but nothing much will turn on this application as anticipatory bail was not granted on the second application. The second application was also not pressed and was rejected as not pressed. Therefore, the only application which is of importance is the third application filed on 18th July, 2016 on which application the order dated 12th August, 2016 has been passed and in 5 this application, the petitioner being the opposite party no. 2 has stated in paragraph 1 as follows:
"that no such bail application U/s 438 Cr.P.C. have been filed pending before any other Higher Court of Law but on two occasions was not pressed rejected before Your Honour's court.
Therefore, no suppression can be alleged in respect of the application on which the order was passed. The issuance of notices under Section 41A of the Code of Criminal Procedure was not required as in Arnesh Kumar's case, the Supreme Court has directed issuance of notices under Section 41A of the Code of Criminal Procedure for offence in which punishment is up to seven years. Section 386 and Section 382 of the Code of Criminal Procedure attract rigorous imprisonment for ten years. Therefore, there was no need for issuance of notices under Section 41A of the Code of Criminal Procedure. From the call details recorded, admittedly, calls were made by the opposite party no. 2 to one of the partners of the de-facto complainant and it will also appear from the status report, but the reason for such call is not known.
Affidavit of Swarup Banerjee on which the Court below relied on could not have been considered as the said affidavit was of a Director, who had resigned on 31st March, 2016 and no statement of Swarup Banerjee was recorded by the I.O conducting investigation at different stages. The said affidavit was also affirmed by him on 11th 6 August, 2016 i.e., just one day prior to the order being passed and one day after the order of the appeal court dated 10th August, 2016.
Looking at the argument canvassed by counsel for the de- facto complainant before the court below, it is an admitted position that payment of Rs. 10 lacs could not be substantiated as there is no mention of the denomination of the money paid or the respective numbers or means by which the said payment was made. The reason for insisting on grant of bail is endangering the safety and security of the de-facto complainant but to take such plea during the stage of investigation when no such allegation is levelled, the said allegation only finds mention in the statement under Section 161 of the Code of Criminal Procedure without any complaint being filed would be of no assistance to the de-facto complainant. The report of C.F.S.L. is awaited and a question arises in the mind of the court why 3rd June, 2015 and 10th June, 2015 does not find mention in the complaint dated 16th June, 2015 which is prior in point of time to the complaint under Section 156(3) of the Code of Criminal Procedure filed.
From the materials on record found at present in the case diary as existing at this stage, the order dated 12th August, 2016 calls for no interference except to the extent that the opposite party no. 2 besides complying with the provisions of Section 438(2) of the Code of Criminal Procedure shall not enter the jurisdiction of the local Police Station for the next six months or till report is filed in final form and keep the Investigating Officer informed of his alternate place of 7 residence. The opposite party no. 2 shall meet the Officer-in-Charge of his alternate place of residence twice a week during the time mentioned above.
In view of the aforesaid, this application is disposed of.
Certified copy of this order, if applied for, be given to the parties on priority basis.
( Patherya, J.) ( Amitabha Chatterjee, J. )