Calcutta High Court (Appellete Side)
Niranjan Sarkar @ Chhabi vs The State Of West Bengal on 27 August, 2013
Author: Jayanta Kumar Biswas
Bench: Asim Kumar Ray, Jayanta Kumar Biswas
1 In The High Court At Calcutta Criminal Miscellaneous Jurisdiction Appellate Side Present : The Hon'ble Mr Justice Jayanta Kumar Biswas and The Hon'ble Mr Justice Asim Kumar Ray C.R.M. No.11476 of 2013 Niranjan Sarkar @ Chhabi
-vs-
The State of West Bengal
Mr. Milon Mukherjee
Mr. Subhashis Dasgupta ...for the petitioner
Mr. Kallol Mondal ... for the State
Heard on : August 27, 2013
Order on :August 27, 2013
Jayanta Kumar Biswas, J : The petitioner accused of offences under ss.420/326 IPC, ss.27/35 West Bengal Clinical Establishments Act and s.14A(b) Foreigners Act and in custody from April 30, 2013 is seeking bail under s.439 CrPC.
Seeking bail the petitioner moved the court of session under s.439 CrPC. The Sessions Judge, Raiganj granted the petitioner bail on July 29, 2013 in Crl. Misc. Case No.1435/2013. By an order dated August 5, 2013 the Sessions Judge cancelled the bail.
The order of the Sessions Judge dated August 5, 2013 is quoted below:-
"It has been brought to the notice of this Court that charge sheet in the instant case has been submitted U/S 14A (b) of the Foreigners Act which, however, not found in the caption of the Crl. Misc. case No. 1435/2013 as well as in the application U/S 439 of Cr.P.C. filed in the aforesaid Crl. Misc. case.
Ld. Lawyer for the prosecution submitted hat due to mistaken oversight this relevant fact was not brought to the notice of this Court on 29-07-2013. Ld. Lawyer for the accd. petitioner submitted that Sec. 14A(b) of the Foreigners Act was subsequently added in the charge sheet which was not within the knowledge of the accd. petitioner.
Considering the fact of the alleged offence U/S 14A(b) of the Foreigners Act being on record ad prima facie incriminating materials, the order No. 2 dated 29-07-2013 is hereby cancelled and accordingly, the prayer for bail as granted therein stands rejected.
Let a copy of this order be sent to the Ld. C.J.M., Raiganj for information and taking necessary action. Inform the concerned P.S. accordingly."2
Mr Mukherjee appearing for the petitioner has submitted that the Sessions Judge cancelled the bail without serving the petitioner any notice. Mr Mondal appearing for the State has submitted that the order of the Sessions Judge cancelling the bail will reveal that the petitioner's lawyer present in court was heard by the Sessions Judge.
The order of the Sessions Judge reveals that he exercised power to cancel the bail suo motu. Whether he could do that is not a question to be examined in this CRM. The question here is whether he could cancel the bail without serving the petitioner notice.
There is nothing to show that any notice was issued to the petitioner asking him to show cause why bail granted to him on July 29, 2013 should not be cancelled. Simply because the petitioner's lawyer, stated to be present in court, was heard, it cannot be said that that amounted to service of notice on the petitioner asking him to show cause why bail granted to him should not be cancelled. In our considered opinion, the Sessions Judge illegally cancelled bail. On the facts, we are of the opinion that bail granted to the petitioner should be restored.
For these reasons, we allow the CRM and direct that the petitioner shall be released on bail on the same terms and conditions on which he was granted bail by the Sessions Judge on July 29, 2013. Nothing herein shall prevent the Sessions Judge from examining the question of cancellation of bail, if permissible in law, after serving a notice on the petitioner. Certified xerox.
(Jayanta Kumar Biswas, J) (Asim Kumar Ray, J) sb