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Calcutta High Court (Appellete Side)

Goutam Das vs The State Of West Bengal & Anr on 20 December, 2018

Author: Md. Mumtaz Khan

Bench: Md. Mumtaz Khan

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20.12.2018

Ct-42 ar C.R.R 2935 of 2018 Goutam Das Vs. The State of West Bengal & Anr.

             Mr. Koustav Bagchi    ... For the Petitioner

             Mr. Ranabir Ray Chowdhury
             Mr. Mainak Gupta    ... For the State

             Mr. Debasis Kar          ... For the O.P no. 2




                   This is an application       under Section 482 of the Code of

Criminal Procedure preferred by the petitioner/defacto complainant assailing the order dated August 27, 2018 passed by the learned Additional Chief Judicial Magistrate, Barrackpore, District-North 24 Parganas in GR Case No.637/18 arising out of Ghola P.S Case No. 60 of 2018 dated February 06, 2018 under Sections 341/323/ 325/354/506 added Section 376 of the Indian Penal Code rejecting the prayer of the petitioner for cancellation of bail of the O.P. No. 2/accused.

It is submitted by Mr. Koustav Bagchi,the learned advocate appearing for the petitioner, that with the addition of Section 376 I.P.C, O.P No. 2/accused person became dis-entitled to avail the liberty of bail granted to him by the court below and as such petitioner/defacto complainant made a prayer before the learned Additional Chief Judicial Magistrate, Barrackpore, for cancellation of bail of the accused but the learned court below rejected the prayer of the petitioner. According to Mr. Bagchi, the learned Court below should have cancelled the bail of the accused with the addition of graver section but instead of doing so rejected the prayer of the petitioner which was not justified.

Mr. Debasis Kar, learned advocate appearing for the accused/opposite party no. 2 submits that allegation labeled against the accused was non bailable and he was granted bail on merit and after grant of bail there was no violation of the condition of bail by the accused and as such there was no scope to cancel his bail. He also submits that there was no cogent material for addition of Section 376 I.P.C. nor even medical report supported the same and as such O.P no. 2/accused has already preferred revision before this court which is pending.

Mr. Ranabir Ray Chowdhury,learned advocate appearing for State, submits that allegations made against the accused was non bailable since beginning and the learned court below taking into account the entire facts and circumstances of the case and the materials available in the case diary granted bail to the accused. He further submits that since there was no violation of the condition of bail granted to the accused,there was no scope to cancel the bail.

I have considered the submissions of the learned advocates appearing for the respective parties and gone through the materials on record including the impugned order.

Evidently on the basis of the written complaint of the husband of the victim case was registered at Ghola P.S. on February 6, 2018 against the accused/opposite party no. 2 for the offence under Sections 341/323/ 325/354/506 I.P.C. Accordingly, on February 9,2018 accused/ opposite party no. 2 surrendered and the learned Court below after hearing both parties and on due consideration of the charges labelled against the accused/ opposite party no. 2 granted him bail. Subsequently, after recording the statements of the victim lady under section 164 Cr.P.C. and on the prayer of the investigating officer section 376 IPC was added. Petitioner then came up with a petition praying for cancellation of bail of the accused which was rejected by the order impugned.

Admittedly, there was no allegation of tampering of evidence or any threat to the victim or any of the witnesses by the accused or causing of any hindrance in the investigation nor there was any allegation of violation of the condition of bail. The sole ground for making prayer for cancellation of bail of the accused was addition of section 376 IPC. There is no doubt that section 376 IPC is a graver offence and is triable by the Court of Sessions and the Magistrate has no jurisdiction to grant bail unless the matter is covered by proviso to section 437 Cr.P.C. But as a revision is pending challenging the order for addition of section 376 IPC and the Case Diary is also not before this court, I do not think it proper to consider that aspect or to make any comment whether the material on record justified addition of section 376 IPC or not.

Therefore, taking into entire circumstances I find no merit in the instant revision at this stage. Accordingly, the instant revision being CRR 2935 of 2018 stands dismissed.

Urgent photostat copy of this order, if applied for, be given to the parties upon compliance of all formalities in this regard.

(Md. Mumtaz Khan,J.)