Calcutta High Court (Appellete Side)
An Application For Bail Under Section ... vs An Application For Cancellation Of Bail ... on 6 June, 2016
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 2016 CRM No.2635 of 2016 With CRM 2907 OF 2016 In the matter of an application for bail under Section 439 of the Code of Criminal Procedure filed on 01.04.2016 in connection with Digha Police Station Case No.52 dated 12.10.2015 under sections 376D/506/120B of the Indian Penal Code and section 6 of the Protection of Children from Sexual Offences Act, 2012.
And In the matter of an application for cancellation of bail under section 439(2) of the Code of Criminal Procedure filed on 09.05.2016.
In Re:- Sk.Mukul vs. The State of WB (CRM No.2635 of 2016) And The State of WB vs. Lashmi Dhara & Ors.
(CRM No.2907 of 2016).
Mr.Suman De. .. for the petitioner (CRM No.2635 of 2016) Mr.Manjit Singh, Ld.PP Mr.Ranadeb Sengupta. .. for the petitioner/State (CRM No.2907 of 2016) Mr.Saunava Basu. .. for the OP No.1 (CRM No.2907 of 2016) Mr.Joy Sengupta Mr.Sk.Sahjahan Ali Mr.Arnab Sengupta. .. for the OP No.2 (CRM No.2907 of 2016) Mr.Navanil De Mr.Amal Krishna Samanta .. for the OP No.3 (CRM No.2907/2016) Leave is granted to the learned counsel for the petitioner (CRM No.2635 of 2016) to correct the cause title.
After completion of investigation of the case relating to Digha Police Station Case No.52 of 2015, police submitted charge-sheet against total six (6) accused persons. So far as the accused Sk. Mukul is concerned, he has been charge- sheeted under sections 376(i)/366A IPC and section 6 of the Protection of 2 Children from Sexual Offences Act, 2012 and the co-accuseds, viz. Sk.Md., Lashmi Dhara, Bijoy @ Mithun Ghorai and Sk.Shahabul were charge sheeted under sections 366/506/120B IPC and the only other co-accused, viz. Bapi @ Goutam Ghorai has been charge sheeted under sections 506/120B IPC.
Out of those six (6) accused persons, three (3) accused persons have been granted bail by the learned Additional Sessions Judge, 2nd Court at Tamluk, Purba Medinipur on January 29, 2016 after their detention in custody for about 89 days and submission of charge sheet, whereas two (2) co-accused persons, viz. Bijay @ Mithun Gharai and Sk.Md., surrendered before the self-same court on March 10, 2016 and March 29, 2016 and on the self-same day, they were released on bail. The only other co-accused person, viz. Sk.Mukul, is in custody for about 217 days.
Now, the State, being aggrieved with the order of granting bail to the co- accused persons, viz. Lashmi Dhara, Bapi @ Goutam Ghorai and Sk.Shahabul (who were granted bail after their detention in custody for about 89 days), has approached this court for cancellation of their bail by filing an application, being CRM No.2907 of 2016. At the same time, Sk.Mukul (who is in custody for about 217 days) has come up for his release on bail.
Since both the applications are arising out of self-same FIR, both are taken up for hearing and are disposed of by this common order.
The learned Public Prosecutor, High Court, Calcutta appearing in support of the application for cancellation of bail (CRM No.2907 of 2016) vehemently 3 contends that this is a case, where a minor girl was kidnapped and raped by the miscreants confining her in a hotel room and the learned court below granted bail only on the consideration that investigation is over and charge sheet has been submitted without considering the nature and gravity of the offence.
He, thereafter, produces the case diary and draws our attention to the statement of the victim recorded under section 164 CrPC.
Now, going through the above materials to which our attention has been drawn together with the other materials collected during investigation, we find, according to the prosecution case, the victim-girl was kidnapped on August 21, 2015 and after confining her for one night, on the next day she was released.
However, the FIR (page 1 of the case diary) was lodged after four (4) days, i.e. on August 26, 2015, and on the very next day, she was medically examined (page 18 of the case diary) and, thereafter, her statement was recorded under section 164 CrPC (page 36 of the case diary).
Now, going through the medical report, we find that the doctor has not found any marks of sexual assault on the person of the victim. However, in her 164 statement, she made categorical allegation that she was raped by Sk.Mukul.
It be noted that all the accused persons were identified in TI Parade. Going further through the 164 statement of the victim, we find that there is no allegation against any one of accused persons that she was raped by them. 4
Having regard to the facts as above, we are not inclined to cancel the bail granted about 4 and half months ago to the accused persons, viz. Lashmi Dhara, Bapi @ Goutam Ghorai and Sk.Shahabul and more particularly when no allegation is forthcoming against them that after being released on bail they have misused their liberty in any manner whatsoever.
However, we direct that henceforth they shall report to the Officer-in- Charge, Digha Police Station thrice in every week between 12.00 noon to 2.00 PM till the trial is over and shall be present before the trial court on each date of hearing.
We make it clear that if there is any violation of the condition, imposed by us, the trial court shall have every liberty to cancel their bail and take them into custody without any further reference to this court.
So far as the prayer for bail of Sk.Mukul is concerned, considering his period of detention and the above materials, more particularly the medical report and when no case is made out from the side of the State that, if released, he is likely to abscond or he has any criminal antecedent, we allow his prayer for bail.
Let the accused (Sk.Mukul) be released on bail upon furnishing a bond of Rs.20,000/- with two sureties of Rs.10,000/- each, one of whom must be local, to the satisfaction of the learned Additional Sessions Judge, 2nd Court, Tamluk, Purba Medinipur and on further condition that after release, he shall report to the Officer-in-Charge, Digha Police Station thrice in every week until further order and shall be present before the trial court on each date of hearing and the trial court 5 shall have the liberty to cancel the bail and take him into custody in event he is not available before the trial court without any further reference to this court.
Last, but not least, we direct that the trial must be completed strictly in terms of section 35 of the Protection of Children from Sexual Offences Act, 2012.
Accordingly, both the applications stands disposed of.
(Ashim Kumar Roy, J.) (C.S.Karnan, J.)