Calcutta High Court (Appellete Side)
An Application Under Section 439(2) Of ... vs Indranil Mukherjee on 16 June, 2017
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
1 2 2017 C.R.M. 10435 of 2016 In the matter of: An application under Section 439(2) of the Code of Criminal Procedure, 1973.
And
In the matter of: Indranil Mukherjee
-vs-
Ram Krishna Ghosh & Anr.
Mr. Ayan Bhattacharya
Mr. Soumya Paul ... For the Petitioner
Mr. Saryati Dutta
Mr. Antarikha Bose ... For State
Mr. Kallol Kumar Basu
Mr. Rahul Halder ... for the Opposite party no.1.
The petitioner (Defacto-complainant of Electronic Complex Police Station Case No. 142 dated 21st October, 2016) has filed this application under section 439(2) of the Code of Criminal Procedure for cancellation of bail of opposite party No. 1 (Ram Krishna Ghosh son of Sambhunath Ghosh).
The opposite party no. 1 was granted bail by learned Sessions Judge, North 24 Parganas in connection with CMC No. 5896 of 2016 on the ground that charge-sheet has already been submitted against opposite party no. 1 under sections 341/324/506/34 of the Indian Penal Code.
Learned advocate appearing on behalf of the petitioner submits that learned Sessions Judge could not appreciate the impact of injury sustained by the petitioner and has been influenced by the sections of law quoted in the charge-sheet.
2Learned advocate for the petitioner further contends that opposite party no. 1 after being released on bail, has been threatening the petitioner and accordingly another police case was started against opposite party no. 1. Therefore, considering the perversity of the order passed by learned Sessions Judge, North 24 Parganas as well as the post bail conduct of the opposite party no. 1, the order passed by learned Sessions Judge, granting bail to opposite party no. 1, ought to be cancelled.
Learned advocate for the petitioner has also referred a decision reported in 2016(1)CHN (CAL)117 (Sk. Munna Ali) in support of his contention wherein this Court has rejected the bail application of the petitioner though charge sheet was filed under sections 323/448/506 of the Indian Penal Code against the petitioner of that case.
In the case of Sk. Munna Ali (supra) though charge-sheet was submitted under sections 323/448/506 of the Indian Penal Code yet the fact of the said case is altogether different from the facts of the present case. Prayer for re- investigation was filed by the defacto-complainant in a case of murder. Pending that application, the I.O. submitted charge-sheet under sections 323/448/506 of the Indian Penal Code against the petitioner. Learned Trial Court rejected the bail application of the petitioner holding inter alia that allegation of murder against the petitioner had not yet been finally concluded. The Hon'ble High Court also accepted such observation of learned Trial Court and refused to grant bail to the petitioner. Facts of the said case are altogether different from the facts of the present case on the ground that section 308 of the Indian Penal Code was considered on the apprehension of sustaining severe injuries on the person of the de-facto complainant but on perusal of the injury report it was found that the injury was simple in nature that is why section 308 of the Indian Penal Code has been dropped from the charge-sheet and the offences become bailable. Therefore, the aforesaid decision in no way will help the contention of the learned advocate for the petitioner.
3Learned advocate appearing on behalf of the opposite party no. 1, vehemently contends that in fact de-facto complainant has been threatening the opposite party no. 1 and the opposite party no. 1 has prayed for a detailed enquiry before the police commissioner of Bidhannagar Police Commissionarate against the de-facto complainant. It is further submitted that learned Sessions Judge was perfectly justified in enlarging the opposite party no. 1 on bail since the opposite party no. 1 had suffered incarceration for about 38 days prior to his release on bail.
Learned advocate for the State draws the attention of the Court with regard to the injury sustained by de-facto complainant and supports the result of investigation.
The Electronic P.S. Case No. 142/16 dated 21st October, 2016 was started against opposite party no. 1 under sections 341/324/506/34 of the Indian Penal Code and during the pendency of investigation the I.O. prayed for adding section 308 of the Indian Penal Code.
Considering the prayer of the investigating officer, the bail application of opposite party no. 1 was rejected successively by learned Additional Chief Judicial Magistrate, Bidhannagar, as well as by learned Sessions Judge, North 24 Parganas. It is apparent from the result of the investigation that the injury report reveals that the injury sustained by defacto-complainant is simple in nature and that is why charge-sheet under sections 341/324/506/34 of the Indian Penal Code was filed against opposite party no. 1. Admittedly, all the aforesaid sections are bailable and that is why the learned Sessions Judge has granted bail to the opposite party no. 1 holding inter alia that charge-sheet has been submitted under the aforesaid sections and the said sections are bailable.
4I do not find any perversity in the order passed by the learned Sessions Judge, North 24 Parganas in granting bail to the opposite party no. 1. The subsequent event/post bail conduct has not been substantiated in material particular so as to cancel the bail granted in a bailable offence.
Learned advocate appearing on behalf of the petitioner further contends that some conditions may be imposed upon opposite party no. 1.
It goes without saying that bail in a bailable offence is granted as a matter of right and the Court cannot impose any condition while granting bail in a bailable offence.
In that view of this case, I find no merit in the application for cancellation of bail.
Accordingly, the application under section 439(2) of the Code of Criminal Procedure is dismissed.
(Debi Prosad Dey, J.) 5