Calcutta High Court (Appellete Side)
In Re: Tajim Ali vs State Of West Bengal Reported In (2010)3 ... on 1 April, 2013
Author: Indira Banerjee
Bench: Indira Banerjee
1 C.R.M. 3993 OF 2013 In Re: Tajim Ali. . . . . . . . .Petitioner.
Re: An application under Section 438 of the Code of Criminal Procedure filed on 15th January 2013, in connection with Ranaghat Police Station Case No.25/2012 dated 15-01-2012 under Sections 147/148/149/326/37/302 of the Indian Penal Code.
Mr. Rajdip Majumdar, Mr. Abir Ranjan Neogi. . .For the petitioner.
Mr. Madhusudan Sur. . . ..For the State.
We have heard the submissions of the learned Advocate appearing for the petitioner and the learned Advocate for the State. On perusal of the materials in the case diary, it appears that on or about 15th January, 2012 at about 21.15 hours one Rakesh Prasad, S/o Sital Prasad of Ranaghat Panthapara, Police Station Ranaghat, Nadia lodged a written complaint to the effect that on 15th January, 2012 at 21.15 hours while one Tekna of Ranaghat NCRI, Debdas of Ranaghat Rathtala Colony and Patni Bachchu of Ranaghat Paschimpara were watching a function at Ranaghat Municipality Hospital field in Ranaghat Town area Salim Khan, S/o Ibrahim Khan of Ranaghat Das Para along with 15 to 20 others conjointly armed with sharp cutting weapons and fire arms attacked them and assaulted them badly and also shot them. As a result those three persons sustained serious injuries. Two of them died on the spot and one succumbed to his injury at Ranaghat Hospital.
The petitioner earlier filed an application for anticipatory bail being CRM 11434 of 2012 which was rejected by a Division Bench of this Court to which one of us ( Indira Banerjee,J) was a party, by an order dated 10th August, 2012. Having regard to the gravity of the offence and on consideration of the materials in the case diary we were not inclined to allow the prayer of the petitioner for anticipatory bail at that stage.
Subsequently, however, diverse applications for bail/anticipatory bail have been moved by different co-accused persons, all of whom are on the same footing as the petitioner. CRM 779 of 2013, filed by Irfan Sk. & Ors was allowed by an order dated 28th January, 2013 by a Bench of which one of us ( Kanchan Chakraborty, J) was a party. Thereafter an application being CRM 1748 iof 2013 was allowed by an order dated 11th February, 2013 of this Bench and another application being CRM 3127 of 2013 was allowed by an order dated 7th March, 2013 2 also of this Bench. Even though the application of the petitioner was earlier disallowed as observed above, subsequently, applications of others, who are similarly circumstanced as the petitioner have been allowed.
It appears that the attention of the subsequent Benches was not drawn to the earlier rejection of the application being CRM 11434 of 2012 filed by this petitioner. However, it was the duty of the Investigating Officer concerned/State to draw the attention of this Court to the aforesaid rejection.
It is not in dispute that charge-sheet has already been submitted on 31st January, 2013 and co-accused persons similarly circumstanced are on anticipatory bail.
No useful purpose will be served by the detention of this petitioner, treating him differently from others.
The learned Counsel appearing on behalf of the State vehemently argued that an earlier application having been rejected this Court ought not to allow this application. It is vehemently contended that others obtained anticipatory bail by suppressing the order dated 12th August, 2012 in CRM 11434 of 2012 whereby the prayer for anticipatory bail of this petitioner was rejected. However, as already observed above, it was the duty of the Investigating Officer to draw the attention of this Court to the aforesaid order. Not having done so it is not open now for the State to contend that the prayer for anticipatory bail of a similarly circumstanced person should be rejected.
In Sri Sudip Sen Vs. State of West Bengal reported in (2010)3 C Cr Lr (Cal) 314, a Special Bench of five Hon'ble Judges held that a second application for anticipatory bail may be moved but only on the ground of substantial change in the facts and circumstances of the case. In this case it cannot be said that there is no change in the facts and circumstances, in view of the subsequent developments, where all other co-accused persons similarly circumstanced have been granted anticipatory bail and the charge-sheet has also been filed.
Learned Counsel appearing on behalf of the State submitted that allowing this application anticipatory bail would amount to recalling of our earlier order. However, we have already observed above that there have been changes in circumstances. Further more, if for the ends of justice an order is required to be recalled such an order would, in our view, have to be recalled. It would not be appropriate to refuse relief just because an earlier order has been passed even though such refusal causes gross injustice to the applicant. There is no justification for discriminating between similarly circumstanced applicants.
Accordingly, we direct that in the event of arrest, the petitioner shall be released on bail upon furnishing bond of 3 Rs.10,000/- with two sureties of Rs.5000/- each, one of whom must be local, to the satisfaction of the concerned Court and subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure, 1973 and with the further condition the petitioner shall appear before the concerned Court within 7 days from the date of receipt of the certified copy of this order.
This application for anticipatory bail is, thus disposed of.
( INDIRA BANERJEE,J.) (KANCHAN CHAKRABORTY,J.)