Calcutta High Court (Appellete Side)
Smt. Madhumita Rahut vs State Of West Bengal & Anr on 4 February, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
CRM 5306 of 2014
Smt. Madhumita Rahut
-vs.-
State of West Bengal & Anr.
For the Petitioner : Mr. Shekhar Basu, Sr. Adv.
Mr. Siladitya Sanyal,
Mr. Arindam Jana
For the OP2 : Mr. Prangopal Das,
Mr. Navanil De,
Mr. Chiranjib Sinha
For the State : Mr. Anand Keshari
Amicus Curiae : Mr. Ayan Bhattacharyya
Heard on : 17.07.2014; 24.07.2014 & 31.07.2014
Judgement on : 04/02/2015
Subrata Talukdar, J.: By way of this application under Section 439
(2) read with Section 482 of the Code of Criminal Procedure, 1973 (for
short CrPC) the petitioner challenges the order dated 4th April, 2014
passed by the Ld. Sessions Judge, Jalpaiguri in Criminal Misc. Case
No. 1006 of 2014 corresponding to Kotwali Police Station Case No.
274 of 2014 dated 23rd March, 2014 under Sections
448/323/354/385 of the Indian Penal Code (for short IPC).
By the order dated 4th April, 2014 the Ld. Sessions Judge was
pleased to, inter alia allow an application for anticipatory bail filed
under Section 438 CrPC by the present OP2-accused in connection
with the said case. Noticing the submission of the Ld. Advocate for
the OP2-accused and the Ld. Public Prosecutor that the disputes
between the present petitioner-complainant and the OP2 is civil in
nature in respect of which a civil suit is pending between the parties
and the prayer for anticipatory bail was not opposed by the Ld. Public
Prosecutor, such prayer stood allowed. The OP2-accused was directed
to be released on furnishing a bail bord upon compliance with the
provisions of Section 439(1) CrPC with the further direction that he
shall surrender before the Ld. Magistrate within 15 days from the date
of the said order.
Shri Shekhar Basu, Ld. Senior Counsel appearing for the
petitioner-complainant, while praying for cancellation of the order of
anticipatory bail granted by the Ld. Sessions Judge raises at the
threshold a jurisdictional issue before this Court.
Shri Basu points out that the order granting anticipatory bail is
the foundational order and the subsequent order of bail granted by
the Ld. Magistrate under Section 437 CrPC pursuant to an order
under Section 438 CrPC is consequential to the foundational order.
Taking this Court to the several provisions pertaining to grant of bail
under the CrPC Shri Basu submits that in this petition praying for
cancellation of bail challenge has been thrown to the foundational
order dated 4th April, 2014 of anticipatory bail and such foundational
order can only be assailed before a Division Bench of this Court under
Section 439 (2) CrPC.
In support of his submissions Shri Basu relies upon the
following decisions:-
Shri Gurbaksh Singh Sibbia & Ors. v. State of Punjab
reported in 1980 (2) SCC 565
Siddharam Satlingappa Mhetre v. State of Mharashtra &
Ors. reported in 2011 (1) C Cr LR (SC) 488
Damayanti Majhi v. State of West Bengal & Anr. reported in
2002 C Cr LR (Cal) 823
In Re: Deepika Samanta (CRM 3418 of 2003) reported in
2004 (1) CHN 58
Drawing the attention of this Court to the decision in
Damayanti Majhi (supra) Shri Basu points out to paragraph 13
thereof which reads as follows:-
"13. If the order by which anticipatory bail was
granted to O.P. No. 2 is found to be bad and illegal
for lack of jurisdiction, the consequential relief
subsequently granted to the O.P. No. 2 b the
Sessions Judge in the form of regular bail under sub-
section (1) of Section 439 of the Code is equally bad
and illegal. Furthermore, the O.P. No. 2 was not in
custody when such order under Section 439 (1) was
passed. No application under sub-section (1) of
Section 439 opf the Code is maintainable unless the
applicant is in custody. In R. C. Goel v. State of West
Bengal, 2002 C Cr LR (Cal) 83 a Division Bench of
this Court has already expressed the same view
relying upon certain decisions of the Apex Court
apart form the decisions of the Privy Council and
other High Courts. Therefore, the learned Sessions
Judge ought not to have entertained the application
at the instance of the O.P. No. 2 under sub-section (1)
of Section 439 for granting him bail as at that point of
time O.P. No. 2 was not detained in any custody.
Therefore, the order passed by the learned Sessions
Judge granting regular bail under sub-section (1) of
Section 439 of the Code is equally bad and inexcess
of jurisdiction."
Further drawing the attention of this Court to In Re: Deepika
Samanta (supra) Shri Basu points out that the Hon'ble Division
Bench was pleased to approve the law as laid down in Damayanti
Majhi (supra) and treat the decision in Quality-Inn-Resort and
Travels Pvt. Ltd. v. State of West Bengal and Ors. reported in
2002 (1) CLT 146 (HC) as per incuriam. At paragraphs 21 & 22 of In
Re: Deepika Samanta the Hon'ble division Bench held as follows:-
"21. The decision of Quality-Inn-Resort & Travels Pvt.
Ltd. v. State of West Bengal and Ors., 2002 (1) CLT
146 (HC), referred to by Shri Chatterjee to which one
of us was a party (Talukdar, J.). True, it has been
held so under the fact situation of the said case but
we now have a latter Division Bench decision of our
Court operating in the field, Damayanti Majhi v. State
of West Bengal, 2002 C Cr LR (Cal) 823, in which the
Division Bench of Barman Roy (as His Lordship then
was) and De, JJ. had held that since the parent
order was not liable to be set aside and
consequential order passed thereafter on the basis of
the said order also has to be set aside as a
necessary corollary which point was not taken into
account in the decision of Quality-Inn-Resort &
Travels Pvt. Ltd. v. State of West Bengal and Ors.,
2002 (1) CLT 146 (HC) to which one of us was a
party (Talukar, J.)
22. In view of the fact that the decision of Damayanti
Majhi v. State of West Bengal, 2002 C Cr LR (Cal)
823, is latter in point of time and the point held in the
said Division Bench decision was not taken into
account by Quality-Inn-Resort & Travel Pvt. Ltd. v.
State of West Bengal and Ors., 2002 (1) CLT 146
(HC) we feel bound by the later Division Bench
decision of Damayanti Majhi v. State of West Bengal,
2002 C Cr LR (Cal) 823, and are of the view that as
the parent order No. 2 dated 24.7.03 passed by the
learned Sessions Judge was practically a non est
order - firstly, it was acted on the concession of the
learned Public Prosecutor without the learned
Sessions Judge applying his independent judicial
mind; secondly, the respondent, even if not a
member of the in-laws family of the petitioner can very well be booked under the provisions of Section 498A of the Indian Penal Code and thirdly, there were sufficient materials in the Case Diary which was overlooked by the learned Sessions Judge--the order ipso facto being bad in law, once we have decided to set it aside, it follows as a necessary corollary-- that all consequential orders passed thereafter, thereunder and based thereon has to be set aside, Also in this respect as we are duty-bound to follow the latter Division Bench decision of Damayanti Majhi v. State of; West Bengal, 2002 C Cr LR (Cal) 823,, we are sorry, that we cannot accept the argument of Shri Chatterjee in this respect." On the strength of the above noted decisions Shri Basu argues that the prayer for cancellation of bail being directed principally against the order granting anticipatory bail by the Ld. Sessions Judge and, not the subsequent order of regular bail granted by the Ld. Magistrate pursuant to the order of anticipatory bail, such relief can only be granted by a Division Bench and not by a Single Bench.
Per contra, Shri Navanil De, Ld. Counsel appearing for the OP2 argues that an order of anticipatory bail under Section 438 CrPC ceases to be operative once an order of bail is granted by the Ld. Magistrate. Shri De further argues that the petitioner has erroneously challenged the order of anticipatory bail granted by the Ld. Sessions Court.
However, according to him, at the present stage when regular bail has been granted by the Ld. Magistrate pursuant to the order of anticipatory bail challenge can only be thrown to the order granting bail. He, therefore, asserts that the prayer for cancellation of bail made in the present CRR can only be heard by a Single Bench and not before a Division Bench.
Shri Ayan Bhattacharyya, Ld. Counsel who was appointed as amicus curiae distinguishes the unreported decision in Tanusree Bhattacharjee v. State of West Bengal & Anr. in CRM No. 13444 of 2012.
Shri Bhattacharyya argues that the facts in Tanusree Bhattacharjee (supra) are not pari materia to the challenge in the present application. In Tanusree Bhattacharjee (supra) the offences complained of carry a punishment of 10 years and above and therefore the Hon'ble Division Bench was competent to consider the prayer for cancellation of anticipatory bail. According to Shri Bhattacharyya, the point with regard to the jurisdiction of either the Single Bench or the Division Bench to consider an application for cancellation of bail as sought to be canvassed by Shri Basu was not the issue in Tanusree Bhattacharjee (supra).
Also distinguishing the judgments in Damayanti Majhi (supra) and Deepika Samanta (supra) Shri Bhattacharyya points out that in both the above noted cases and similar to the facts in Tanusree Bhattacharjee (supra) the offences complained of carried punishments of 10 years and more. Thus a Division Bench became automatically competent to consider a prayer for cancellation of such bail in as much as jurisdiction pertaining to such offences stood bestowed in a Division Bench.
In support of his above noted arguments Shri Bhattacharyya draws the attention of this Court to Chapter 2 Rule 9 of the Appellate Side Rules. Chapter 2 Rule 9 Sub-rules (1) and (2), inter alia provide that offences involving a sentence of death or sentence of rigorous imprisonment for a period exceeding 7 years as well as of bail applications exceeding 7 years shall be placed for consideration before a Division Bench. Similarly, all anticipatory bail applications under Section 438 CrPC shall be heard by a Division Bench.
Chapter 2 Rule 9 provides as follows:-
"9. (1) A Division Bench for the hearing of cases on Appeal, Reference, or Revision in respect of the Sentence or Order of any Criminal court shall consist of two or more Judges.
(2) All Appeals, Reference or Revision in respect of Sentence or Order of any Criminal court shall be heard by a single Judge:
Provided, however, that the following matters shall be placed before a Division Bench consisting of two or more Judges:
(i) All Appeals or Reference relating to an Order of Sentence of death and Sentence of Rigorous Imprisonment for a period exceeding 7 years and all Appeals from Order of Acquittal from offences where the Sentence may be of death, Imprisonment for life or any term of Imprisonment exceeding 7 years.
(ii) All Bail Applications pertaining to Terrorist and Distruptive Activities Act, Narcotic Drugs & Psychotropic Substrances Act, 1986 and Foreign Exchange Regulation Act;
(iii) All Bail Applications at the preconviction stage involving offence where sentence may exceed imprisonment for 7 years;
(iv) Bail Applications relating to Appeals involving a Sentence of death or Imprisonment for life or Imprisonment for a period exceeding 7 years;
(v) Anticipatory Bail Applications under Section 438, CrPC." Shri Bhattacharyya therefore submits that irrespective of the foundational nature of granting anticipatory bail the offences involved in the present case carry punishments not exceeding 7 years and are therefore eligible to be heard by a Single Bench. Furthermore, even assuming but not admitting for the sake of argument that the foundational order is one of anticipatory bail, such order has been passed by the Ld. Sessions Judge.
Therefore having regard to the allocation of business pertaining to criminal matters the order passed by a Ld. Sessions Judge pertaining to offences carrying punishments not exceeding 7 years are eligible to be heard by a Single Bench. The Single Bench is also empowered to grant bail in connection with such offences not carrying punishments exceeding 7 years. Therefore, ipso facto it also has the power of cancelling such bail.
Having heard the parties and considering the materials on record this Court is of the considered view that the clinching issue is not the foundational order of anticipatory bail granted by the Ld. Sessions Judge but the challenge to an order of bail in respect of offences carrying punishments not exceeding 7 years before a competent bench in terms of allocation of criminal business. The demarcation of the jurisdiction of the Division Bench to hear criminal matters is with regard to offences which carry punishments exceeding 7 years and above. In the other categories of offences carrying punishments not exceeding 7 years fall within the domain of the Single Bench.
In the usual course of its allocated business, the Single Bench has regularly exercised jurisdiction of hearing applications for grant of bail, modification of bail conditions and bail in connection with appeals as also applications for cancellation of bail in respect of offences carrying punishments not exceeding 7 years and below. Therefore, judicial propriety and hierarchy does not debar the Single Bench from considering the prayer for cancellation of bail made in the present application by way of a challenge to an order of the Ld. Sessions Judge dated 4th April, 2014.
As rightly pointed out by the Ld. Amicus Curiae the point with regard to exercise of jurisdiction qua a foundational order and a subsequential order of bail was not in issue in the cases relied upon by Shri Basu. Undeniably the Division Bench exercised jurisdiction in Tanusree Bhattacharjee, Damayanti Majhi and the Deepika Samanta (supra) on the premise that the offences carry punishments exceeding 7 years and above. In such context the Hon'ble Division Bench did not consider the judgment in Quality-Inn (supra) to be appropriate and, instead relied upon the later decision in Damayanti Majhi (supra).
This Court is further sufficiently persuaded by the fact that irrespective of the nuances argued by Shri Basu on the propriety of challenging a foundational order, the allocation of criminal business does not limit the Single Bench from hearing an application for cancellation of bail in respect of offences carrying punishment of 7 years and below.
However, from the pleadings in CRM 5306 of 2014 the solitary challenge is to the grant of pre-arrest bail by the Ld. Sessions Judge. The grounds made out by the petitioner for cancellation of the pre- arrest bail granted vide order dated 4th April, 2014 essentially relate to the argument that the Ld. Sessions Judge did not apply his judicious mind to the fact that the petitioner was yet to receive any summons with regard to any civil suit pending between the parties, that is the petitioner and the OP2.
It has also been pleaded that the impugned order granting pre- arrest bail is devoid of reasons and was not properly opposed by the Ld. Public Prosecutor.
Therefore, the petitioner is aggrieved by the alleged non- application of mind by the Ld. Sessions Judge in granting pre-arrest bail.
Although, this Court is not persuaded, for the reasons recorded above in this order, with the argument upheld by an Hon'ble Single Bench In Re: Sudakshina Chowdhury (reported in 2013 (3) CLJ (Cal) 478) that in all cases of pre-arrest bail the cancellation of such bail is required to be heard by the Hon'ble Division Bench since the allocation of criminal business read with the Appellate Side Rules of the High Court and the Code of Criminal Procedure enable the Single Bench to hear matters in connection with offences carrying punishment of 7 years and below including cancellation of bail, however, in the particular facts of this case since the challenge thrown by the petitioner pertains to only (emphasis supplied) the illegality alleged in the grant of pre-arrest bail; this Single Bench finds itself unable to hear the application for cancellation of the anticipatory bail.
For the reasons above CRM 5306 of 2014 is disposed of with the direction to place the matter before the appropriate Hon'ble Division Bench.
There will be, however, no order as to costs.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)