Calcutta High Court (Appellete Side)
Abdus Sattar @ Abdus Sattar Mondal @ ... vs The State Of West Bengal on 20 February, 2020
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
C.R.R. 604 of 2020
Abdus Sattar @ Abdus Sattar Mondal @ Abdul Sattar
versus
The State of West Bengal
For the Petitioner : Mr. Sudipto Moitra,
Mr. Vijay Verma.
For the State : Mr. Arijit Ganguly.
Heard On : 20-02-2020.
Judgement On : 20-02-2020.
Tirthankar Ghosh, J. :
1. The present revisional application has been preferred questioning the legality of the order dated 13.02.2020 passed by the learned Additional District & Sessions Judge, Ghatal, Paschim Medinipur in connection with Criminal Misc. Case No. 199/2019 arising out of Chandrakona P.S. Case No. 201/2012 dated 25.09.2012 under Sections 465/467/474/408/409/420 of the Indian Penal Code wherein the learned Sessions Court was pleased to cancel the bail of the petitioner under Section 439(2) of the Code of Criminal Procedure.
2. The series of events which were recorded by the learned Sessions Court while arriving at its conclusion are as follows :
(i) The petitioner applied under Section 438 of the Code of Criminal Procedure before the court of learned Sessions Judge, Paschim Medinipur vide Cr. Misc. Case No. 2658/2014 dated 17.09.2014 and the same was rejected with an observation "stands rejected being not pressed".
(ii) Again the petitioner preferred an application under Section 438 of the Code of Criminal Procedure before the learned Sessions Judge, Paschim Medinipur vide Cr. Misc. Case No. 3337/2014 dated 29.09.2014 and the said order also reflects "rejected being not pressed".
(iii) The present petitioner again preferred an application under Section 438 of the Code of Criminal Procedure before the learned Sessions Judge, Paschim Medinipur vide Cr. Misc. Case No. 3682/2014 and the same was considered and rejected by the learned Sessions Judge on 13.11.2014.
(iv) The petitioner pursuant to the charge-sheet being filed on 20.08.2015 before the learned A.C.J.M., Ghatal preferred an application under Section 438 of the Code of Criminal Procedure before the Hon'ble High Court, Calcutta being C.R.M. No. 11340 of 2015 and by an order dated 20.01.2016, the Hon'ble High Court was pleased to dismiss the application for anticipatory bail.
(v) Being aggrieved, the petitioner thereafter preferred Special Leave Petition (Criminal)....... Diary No(s).9349/2019 before the Hon'ble Supreme Court and the Hon'ble Supreme Court by an order dated 02.07.2019 was pleased to dismiss the Special Leave Petition and held as follows :
"We do not find any good ground to entertain this petition, which is dismissed both on the ground of delay as well as on merits.
We, however, observe that, in event, petitioner surrenders within four weeks and apply for regular bail, the same shall be considered expeditiously."
(vi) On 22.07.2019, the petitioner filed a put up petition for presenting the records before the learned A.C.J.M., Ghatal, surrendered and on the same day was granted bail.
3. There is another part of the case which reflects that the investigation was initiated in the year 2012 and charge-sheet was submitted in the year 2015 (20.08.2015) under Sections 465/467/477(A)/408/409/420 of the Indian Penal Code.
4. Mr. Moitra, learned senior advocate appearing for the petitioner contends that the order passed by the learned Sessions Court is ex facie bad in law in view of the fact that the learned court, while cancelling the order of bail being granted by the learned Additional Chief Judicial Magistrate, Ghatal on 22.07.2019, did not take into consideration any misconduct or overwhelming circumstances which could have led to a circumstance for cancellation. Mere cancellation of anticipatory bail by the superior court is no ground for cancellation of bail which has been granted. In support of his contentions, Mr. Moitra has relied upon the following judgements :
(i) In the case of Rashbehari Karmakar Vs. Indrajit Mukherjee and another reported in 2002 CRI. L. J. 4250,
(ii) In the case of Ashok Kumar Vs. State of U.P. and Anr. reported in JT 2009 (2) SC 211,
(iii) In the case of State By The Superintendent of Police, National Investigation Agency, Kochi Vs. Shakul Hameed reported in AIR 2019 Supreme Court 3022 and
(iv) In the case of Hazari Lal Das Vs. State of West Bengal reported in AIR 2010 Supreme Court 91.
5. Mr. Arijit Ganguly, learned advocate appearing for the State produces the case diary and draws the attention of this Court to the role of the petitioner as well as the conduct of the petitioner who according to him, was fleeing from the process of law for a period of seven years since the initiation of the case. He further contends that after the charge-sheet was laid down before the learned Additional Chief Judicial Magistrate, several raids were conducted and in spite of that, the present petitioner could not be traced.
6. I have taken into account the order passed by the learned Additional Chief Judicial Magistrate, Ghatal wherein the primary consideration before the court was submission of charge-sheet and similarly placed accused persons being on bail and no argument being advanced on behalf of the State that there is scope of the accused person to abscond.
7. In Rashbehari Karmakar's case (supra), the prayer of the accused for anticipatory bail was rejected by the Sessions Court, High Court and also the Hon'ble Supreme Court. Thereafter, the accused surrendered before the learned Magistrate and the learned Magistrate was pleased to remand the accused to jail custody. However, on the same date the accused preferred an application under Section 439 of the Code of Criminal Procedure before the learned Sessions Court and the learned Sessions Court on the next date was pleased to grant interim bail to the accused. Thereafter, an application was preferred for cancellation of bail which, inter alia, contended amongst others the misuse of the liberty while the accused was on bail. It would not be out of place to state that the accused was granted interim bail on 23.12.1997 and the cancellation application was heard by the High Court on 12.07.2002 i.e. after four years of the accused enjoying the liberty and as such, the issue of misuse attained a primary consideration. The suppression of facts regarding earlier anticipatory bail of the accused was held to be merely an omission.
8. In Ashok Kumar's case (supra), it has been categorically observed in paragraph 8 that the accused was on bail for considerable length of time and as such, the Hon'ble Apex Court did not find it appropriate to cancel the bail, though it was observed that there appeared certain circumstances in the impugned order granting bail and the infirmities contained therein.
9. In State By The Superintendent of Police, National Investigation Agency, Kochi's case (supra) the Hon'ble Apex Court was considering the issue of default bail and the applicability of the same at the time when the prayer for bail was made and the prayer for extension being advanced by the prosecution. However bail being granted on 12.09.2018 by the High Court. In paragraph 19, the Hon'ble Apex Court was pleased to hold that in spite of not agreeing with the conclusions arrived at by the High Court in the impugned judgement dated 12.09.2018 but taking into consideration the developments and the supporting facts which were brought to the notice of the Court, the Hon'ble Apex Court refused to interfere with the final relief of default bail being granted to the accused.
10. In Hazari Lal Das's case (supra), the Hon'ble Apex Court was pleased to reiterate the principles of Dolat Ram And Ors. Vs. State of Haryana reported in (1995) 1 SCC 349 and held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Mr. Moitra, learned senior advocate by relying upon such ratios laid down by the Hon'ble Apex Court submitted that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted and according to him, it is only interference or attempt to interfere with the due course of administration of justice or abuse of the concession granted to the accused in any manner should be the prime consideration while cancelling an order granting bail.
11. The order dated 22.07.2019 passed by the learned Additional Chief Judicial Magistrate, Ghatal, Midnapur (W) was within a period of 20 days after the Special Leave Petition was dismissed by the Hon'ble Apex Court on 02.07.2019. The said order does not reflect that the case diary was produced before the court. Mr. Moitra, learned senior advocate, on instruction, submits that as the charge-sheet was submitted, whole of the records which included the charge-sheet along with papers under Section 207 of the Code of Criminal Procedure were available along with the records and as such, there was no requirement for calling for the case diary. Be that as it may, no reflection is there in the order so far as what were the steps taken after the charge-sheet was submitted in the year 2015; whether any warrant of arrest was pending against the accused at the relevant time when the bail was considered; if the same was pending, at least for how many years the same was pending and the learned Magistrate towards the end of the order observed that the learned A.P.P. did not raise any ground of absconding by the accused whereby trial might be vitiated. This observation of the learned Magistrate, according to this Court, is a peculiar observation, when the conduct of the accused is transparent from the records, why the learned Magistrate would depend and rely upon the submission or non-submission of the learned A.P.P appearing in the matter. It is not submission which is important, it is conduct which is more important. A conduct has to be inferred from the records of a case. If a case was initiated in the year 2012 and till 22.07.2019, there has been no progress in the case, was it not the duty of a learned Magistrate to take into consideration the contribution of the accused person for the delay which has taken place already in the initiation of the proceedings of trial. At this stage, I am inclined to rely upon a judgement of the Hon'ble Apex Court in the case of Narendra K. Amin (DR.) Vs. State of Gujarat And Another reported in (2009) 3 Supreme Court Cases (Cri) 813 wherein the Hon'ble Apex Court was pleased to hold that where irrelevant materials weighed with the court for accepting the prayer for bail adding vulnerability to the order granting bail, a superior court is entitled to interfere.
12. I find that the order dated 13.02.2020 passed by the learned Additional District & Sessions Judge, Ghatal, reflecting that the case diary was produced before the learned Sessions Court and both the parties contested and the learned Sessions Court after taking into account the order of the learned Magistrate which included amongst others the observations of the Hon'ble Apex Court in the order dated 02.07.2019 and the close proximity of the time when the accused surrendered and was granted bail on the same day after surrendering was pleased to interfere with the order. By the same order, the learned Sessions Court also weighed with the reasoning assigned in respect of the principle of liberty as spelt out by the learned Magistrate and collective conscience of the society so far as the facts of the case are concerned. Having considered the same, the learned Sessions Court proceeded to cancel the bail.
13. In view of the reasons so assigned by the learned Sessions Court and the irrelevant consideration and omission of material circumstances by the learned Additional Chief Judicial Magistrate, Ghatal, I am not inclined to interfere with the order dated 13.02.2020 passed in Criminal Misc. Case No. 199 of 2019 by the learned Additional District & Sessions Judge, Ghatal, Paschim Medinipur. As such, the order dated 13.02.2020 passed in Criminal Misc. Case No. 199 of 2019 by the learned Additional District & Sessions Judge, Ghatal, Paschim Medinipur is hereby affirmed. Accordingly, C.R.R. 604 of 2020 is dismissed.
14. The Investigating Officer is personally present in Court. His personal appearance may be dispensed with.
15. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance with the necessary formalities.
( TIRTHANKAR GHOSH, J. ) dc.