Calcutta High Court (Appellete Side)
Md. Mucha Ali Molla vs The State Of West Bengal & Ors on 17 July, 2013
Author: Jayanta Kumar Biswas
Bench: Subal Baidya, Jayanta Kumar Biswas
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 Subal Baidya CRM No.3356 of 2013 Md. Mucha Ali Molla v.
The State of West Bengal & Ors.
Mr. B. R. Bhattacharyya Mr. Rabi Sankar Chattopadhyay Mr. Uday Sankar Chattopadhyay Mr. Santanu Maji Mr. S.S. Chatterjee Mr. A.S. Das ....for the petitioner Mr. Manjit Singh,PP Ms. Amita Gour .. for the State Mr. Joy Sengupta Mr. Debajyoti Deb ..for the accused Heard on: July 17, 2013 Judgment on: July 17, 2013 Jayanta Kumar Biswas,J: The petitioner in this CRM under s.439(2)CrPC dated March 6, 2013 is seeking cancellation of the bail the Additional District & Sessions Judge, FTC-III (in-charge), Basirhat granted the accused on February 26, 2013.
The FIR No.168 was registered in Haroa police station on October 20, 2008 under ss.147/148/149/326/307/302/120B IPC and ss.25/27 of the Arms Act, 1959. Twenty of the thirty-nine accused were arrested and their bail prayer was rejected by this court on more than fifteen occasions - as will appear from an order of the Additional Sessions Judge dated November 29, 2012 (p.35).
Another order of the Additional Sessions Judge dated August 29, 2012 reveals the following facts. After examing twelve out of twenty-five prosecution witnesses the Additional Sessions Judge fixed a trial schedule for February 7, 2012, February 8, 2012 and February 9, 2012. On February 7, 2012 a new Special Public Prosecutor filed an application under s.321 CrPC. By the order dated August 29, 2012 the Addional Sessions Judge rejected that s.321 application referring to the nature of the offences and their implications on the society.
After the s.321 application was rejected the twenty accused facing trial applied for bail. By the order dated November 29, 2012 the Additional Sessions Judge rejected the bail application, though it was not opposed by the Special Public Prosecutor who had filed the s.321 application.
Besides mentioning that the bail prayer had been rejected by this court on more than fifteen occasions, the Additional Sessions Judge mentioned that cited witnesses had to be brought under police protection. Considering the serious nature of the offences and the peculiar facts and circumstances under which the trial was proceeding, the Judge concluded that bail to the accused facing trial would frustrate "the very essence of fair trial."
One of the twenty accused facing trial then moved this court under s.439(1) CrPC for bail. By an order dated January 15, 2013 in CRM No.273 of 2013 this court rejected the bail prayer. The remaining nineteen accused then moved the Additional Sessions Judge (in charge) for bail. The same Special Public Prosecutor gave no objection. Even then the Additional Sessions Judge (in charge) rejected the bail prayer on January 24, 2013 referring to the rejections by this court and the gravity of the offences.
The same nineteen accused filed a fresh bail application on February 26, 2013 before the same Additional Sessions Judge (in charge) who had rejected their bail prayer on January 24, 2013; and the same Special Public Prosecutor filing the s.321 application for withdrawal of the case on the grounds that the offences were political offences and giving his no objection to the bail prayers rejected on November 29, 2012 and January 24, 2013 gave his no objection once again.
This time the Additional Sessions Judge (in charge) granted the bail in view of the decisions in "1998 Criminal Law Journal 2131,"
"Sheonandan Paswan-versus-State of Bihar and others," and "Sunil Gupta-versus-State of M.P.," cited by advocate for the accused, the decision dated November 23, 2011 in "Sanjay Chandra-versus-CBI," the period of detention, and the no objection of the State.
Mr. Bhattacharyay appearing for the petitioner and citing the decision in Kanwar Singh Meena v. State of Rajasthan, (2012) 12 SCC 180 has submitted that on the facts of the case the Additional Sessions Judge (in charge) ought not to have granted the accused bail.
Mr. Sengupta appearing for the accused and relying on Subhendu Mishra v. Subrat Kumar Mishra & Anr, 2000 SCC (Cri) 1508, Sanjay Chandra v. CBI, (2012) 1 SCC 40 and Puran v. Rambilas & Anr., 2001 CCrLR (SC) 391 has submitted that since post bail conduct is not the issue, the bail cannot be cancelled; and that the prosecution guilty of delay and laches failed to produce any witness on last two occassions.
Mr. Public Prosecutor has submitted that though he is not in a position to justify the propriety of the order granting bail, when bail had been refused by this court on at least fifteen occasions, he is, however, not in a position to give an assurance that the trial will be concluded in near future, because pursuant to orders of this court in a WP No.9448 (W) of 2013 five of the nineteen absconding accused have been arrested recently.
In a murder case bail is an exception, not a rule; and mere delay in conclusion of trial cannot be the ground to grant an accused bail, unless the statute provides for bail. During progress of trial bail in a murder case can be granted, if the evidence already adduced and the evidence likely to come clearly suggest a slim chance of conviction; and this opinion can be formed only if the evidence in the records and the evidence likely to come are judiciously examined.
In this case the same Judge rejecting the not opposed bail prayer on January 24, 2013 referring to the rejections by this court, granted the accused bail on February 26, 2013 on the grounds of the State's no objection, the period of detention and delay in conclusion of the trial. These all were there on January 24, 2013 and November 29, 2012 as well. Hence on February 26, 2013 they could not be and were not relevant for consideration. The bail order is illegal.
For these reasons, we allow the CRM and cancel the bail the Additional Sessions Judge (in charge) granted the accused on February 26, 2013 and commit the nineteen accused to jail custody. Certified xerox.
(Jayanta Kumar Biswas,J.)
kc(c);ab(f) (Subal Baidya,J.)