Calcutta High Court (Appellete Side)
Basanta Nath @ Kata vs Unknown on 11 January, 2017
Author: Patherya
Bench: Patherya
1 Sl. no. 608 11.01.2017
pk C.R.M. 10573 of 2016 In the matter of : Basanta Nath @ Kata ... Petitioner.
Mr. Navanil De ... for the petitioner Mr. Arnab Chatterjee, Mr. Jisan Iqubal Hossain ... for the opposite party nos. 2 to 5.
Mr. Debabrata Dasgupta ... for the State.
By this application the de facto complainant/applicant seeks cancellation of the bail granted to the opposite party nos. 2 to 5 by order dated 6th October, 2016.
Counsel for the de facto complainant submits that the court below while rejecting the prayer of Indranil Ghosh and Shyamal Karmakar and treating that of Surojit Ghosh, husband as not pressed, granted bail to the opposite party nos. 2 to 5. This is not a simple case under Section 498A but is one in which the victim girl was subjected to acid injury. The medical reports will evidence corrosive injury to oesophagus and the injury report of N.R.S. Medical College and Hospital, Calcutta will show involvement of all the accused persons in the instant case. The court below without considering the said medical report has granted bail to the opposite party nos. 2 to 5 in spite of them being named by the victim girl. Therefore, the court below in not appreciating the evidence before it and as revealed through the case diary has rendered the order passed being perverse per se. The order dated 6.10.2016 cannot be allowed to remain on the 2 record and be set aside. As a consequence the bail granted to the opposite party nos. 2 to 5 be also cancelled.
Counsel for the opposite party nos. 2 to 5 submits that the date of incident was 31st July, 2016 near about midnight and the victim girl was first taken to Monmohini Health Care Nursing Home, Berhampore which has issued a report on 9th August, 2016 stating therein that the victim girl was unable to talk. It was from there that she was shifted to N. R. S. Medical College and Hospital, Kolkata and on her discharge therefrom, she was taken to the Christian Medical College, Vellore, Chennai. The statement made and reflected in column 10 is not of the patient but of her father, Basanta Nag. This will be borne out from 164 statement of the victim lady, wherein she has not named her two sisters-in-law, Soma Karmakar and Sima Dhar. Therefore, on the statement of the victim lady herself the two sisters-in-law mentioned above were entitled to grant of anticipatory bail. The incident occurred at midnight and the only persons, who were in the room, were husband, Surojit and the victim lady. The opposite party nos. 2 and 4 could not have been in the room of the couple. Therefore, father-in-law and mother-in- law were in no way involved in the offence alleged and the anticipatory bail granted to them is justified and calls for no cancellation. The opposite party no. 2 is an old man aged 64 years. The opposite party no. 4 was hospitalised from 31st July, 2016 to 4th August, 2016 as she suffered injury due to physical assault in respect of which F.I.R. was filed on 2nd August, 2016. The court below by passing the order dated 6th October, 2016 has considered the case diary and it is thereafter that the order has been passed.
Reliance is placed on 2009(3) SCC (Cri.) 683 for the proposition that the High Court while considering the application for cancellation will not substitute the reasoning of the court below with its own reasoning or reappreciate the order passed unless the same is palpably erroneous. Cogent and overwhelming circumstances must exist to warrant cancellation of bail granted.
For all the said reasons, therefore, the bail granted to the opposite party nos. 2 to 5 warrants no interference and the application be dismissed.
3Having considered the submissions of the parties and on scrutiny of the case diary produced by State counsel, it is an admitted position that the victim girl suffered acid injury and this will appear from the injury reports at pages 22, 25 and 30. On a reading of the injury report at page 30 and the 164 statement of the victim girl at page 42 the fact that the victim girl was subjected to consumption of acid cannot be disputed and as things stood on 06.10.2016 the court below was to be guided. In the injury report in column 10 which deals with statement of the patient it has been noted that all the FIR accused persons were involved in the offence. Relying on the said statement the prayer of the brothers- in-law was rejected. If the said statement was to be relied on the said statement ought to have been relied on wholly or not at all. If not relied on wholly reasons ought to have been assigned for allowing the prayer of the opposite party nos. 2 to 5 or reasons for rejecting the prayer of the brothers-in-law, but that does not find mention in the Order dated 06.10.2016. Therefore, without differentiating between the opposite parties and the brothers-in-law the grant to some and non- grant to others cannot be justified and in the facts of the case, the anticipatory bail granted to the opposite party nos. 2 to 5 ought to be cancelled, but in the case diary produced before us and on scrutiny of the 164 statement of the victim girl it is seen that the victim girl has not named the opposite party nos. 3 and 5 in the commission of the offence. Therefore, the anticipatory bail granted to the opposite party nos. 3 and 5 cannot be cancelled but that of the opposite party nos. 2 and 4 stands cancelled as they stand on the same footing as the brothers- in-law. Although counsel for the opposite party took the plea of age of the opposite party no. 2 and produced the medical sheets of the opposite party no. 4 but the medical sheets of opposite party no. 4 were not in the CD produced by State Counsel and age cannot be a reason for grant of anticipatory bail in an offence under Section 326A I.P.C.
Accordingly, the anticipatory bail granted to the opposite party nos. 2 and 4 stands cancelled and that granted to the opposite party nos. 3 and 5 is upheld in view of the 164 statement of the victim girl. The O. C. of the Berhampore Police 4 Station is directed to visit the village where the opposite party nos. 3 and 5 reside once a week to prevent any law and order situation, that may arise.
In view of the aforesaid this application is disposed of. Certified copy of this order, if applied for, be given to the parties on priority basis.
( Patherya, J.) ( Amitabha Chatterjee, J. )