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2000 DIGILAW 538 (CAL)

SAIDA BEGAM v. NAZRUL KHAN

2000-11-08

DEBIPRASAD SENGUPTA

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D. P. SENGUPTA, J. ( 1 ) D. P. Sengupta, J.-This is an application under section 439 (2) of the Code of Criminal Procedure for cancellation of bail. ( 2 ) IT appears that Panskura P. S. Case No. 41/99 dated 24. 3. 99 under section 448/380/435/326/302/34 of the Indian Penal Code was registered on the basis of a complaint lodged by Mst. Saida Begam. In the said case the present accused opposite party No. 1, namely, Nazrul Khan was made an accused. It appears that he filed an application for anticipatory bail under section 438 of the Code of Criminal Procedure before the learned Sessions Judge, Midnapore. The learned Judge by His order dated 29. 6. 99 allowed the said payer for anticipatory bail and directed the accused to be released on bail of Rs. 1000/- in the event of his arrest. It appears from the said order that the learned Public Prosecutor submitted before the learned Sessions Judge that there is nothing in the case diary against the petitioner. It also appeared from the said order that the learned Judge also perused the case diary and he was also of the same view with the learned Public Prosecutor and accordingly prayer for anticipatory bail was allowed. ( 3 ) AFTER the anticipatory bail was granted by the learned Sessions Judge on 29. 6. 99 the accused Nazrul Khan surrendered before the learned SDJM, Tamluk and prayed for regular bail, which was allowed by the learned Magistrate and the accused Nazrul Khan was released on bail of Rs. 1000/- against such order of granting bail, defacto-complainant came up before this Court for cancellation of the said bail. Mr. Kazi Safiuddin the learned Advocate appearing for the defacto-complainant/petitioner submits that the learned Sessions Judge granted anticipatory bail to the accused opposite party No. 1 Nazrul Khan without looking into the case diary. The learned Advocate brought our notice to the First Information Report which was lodged by the present petitioner. On perusal of the said first information report it appears that on 23. 3. 99 at about 9. 30 p. m. the miscreants including the present opposite party No. 1 Nazrul Khan entered into the house of the complainant and snatched away the key of the almirah from the husband of the complainant. The miscreants took away more than 2 lac of rupees and some other articles. 3. 99 at about 9. 30 p. m. the miscreants including the present opposite party No. 1 Nazrul Khan entered into the house of the complainant and snatched away the key of the almirah from the husband of the complainant. The miscreants took away more than 2 lac of rupees and some other articles. When the husband of the complainant tried to resist them the miscreants assaulted him with a vojali in his abdomen. The entire house was ransacked and was set on fire. The victim ultimately died as a result of such injury. ( 4 ) IT appears from the first information report that these persons were named as accused in the present case and the accused opposite party No. 1 in the present application has been figured as accused No. 3 in the first information report. We fail to understand why this FIR, in which specific allegation has been made against the present accused opposite party No. 1, was not brought to the notice of the learned Sessions Judge. We also fail to understand as to how the learned Judge has recorded a finding that on perusal of the case diary he could not find any material against accused Nazrul Khan, although in the First Information Report accused Nazrul Khan has been specifically named as one of the miscreants. ( 5 ) THE learned Advocate appearing for the petitioner draws our attention to the decision of the Hon'ble apex Court reported in 1996 Calcutta Criminal Law Reporter SC 130 (Salauddin Abdul Samad Shaikh v. State of Maharashtra ). In the said Judgment it was held by the said Hon'ble apex Court that anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail would leave it to the regular Court to deal with the matter on appreciation of evidence placed before it after the investigation has progressed or the chargesheet is submitted. ( 6 ) THE learned Advocate of the petitioner also draws our attention to a judgment of the Hon'ble apex Court reported in 1997 Calcutta Criminal Law Reporter SC 88 (K. L. Varma v. State and Another ). In the said Judgment same principle has been laid down by the Hon'ble apex Court as it was done in the case of Salauddin Abdul Samad Shaikh. In the said Judgment same principle has been laid down by the Hon'ble apex Court as it was done in the case of Salauddin Abdul Samad Shaikh. It was held that anticipatory bail was granted for limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular Court for bail and to give the regular Court sufficient time to determine the bail application. ( 7 ) RELYING on the aforesaid two judgments the petitioner's learned Advocate submits that the learned Sessions Judgment committed a serious illegality in granting anticipatory bail to said Nazrul Khan not for a limited period and even without giving any direction to surrender before the learned Magistrate and to pray for regular bail. It is submitted by the learned Advocate that in view of the two decisions referred to above the learned Judge should have granted anticipatory bail for a limited period, if he was of the opinion that this was a fit case for anticipatory bail, and he should have left the matter to the consideration of the learned Magistrate to deal with the matter on appreciation of evidence placed before it. But the learned Magistrate granted regular bail to the petitioner as per direction of the learned Sessions Judge without considering the materials collected by the investigating agency simply relying on the order of anticipatory bail passed by the learned Sessions Judge. ( 8 ) THE learned Advocate appearing for the accused opposite party No. 1 submits that when bail was granted by the learned SDJM in view of the order of the anticipatory bail granted by the learned Sessions Judge and since the accused opposite party No. 1 has not misused the liberty granted by the Court and he is enjoying such liberty for considerable period, such bail should not be cancelled by this Court. We are unable to accept such submission made by the learned Advocate appearing on behalf of the accused opposite party. A legality remains a legality and it cannot be made legal simply because it continued for a considerable period. We are unable to accept such submission made by the learned Advocate appearing on behalf of the accused opposite party. A legality remains a legality and it cannot be made legal simply because it continued for a considerable period. As we have already pointed out earlier that specific allegation has been made against the accused Nazrul Khan in the First Information Report, we are of the view that such nature of allegation in FIR is sufficient for the purpose of rejection of anticipatory bail. We fail to understand how the learned Public Prosecutor made a submission before the learned Sessions Judge that there is absolutely no material in the case diary. We also fail to understand how the learned Judge accepted such submission made by the learned Public Prosecutor although he has recorded in his order granting anticipatory bail that he perused the case diary. ( 9 ) IN view of the discussion made above we are of the view that this is a fit case in which the bail granted to the petitioner should be cancelled accordingly we direct the accused opposite party No. 1 Nazrul Khan to surrender within a period of one week before the learned Sub-Divisional Judicial Magistrate, Tamluk and the learned SDJM, Tamluk further directed to take him in custody on such surrender. Liberty is granted to the accused opposite party No. 1 Nazrul Khan to make prayer for regular bail before the learned Magistrate and after any such prayer for bail is made before the learned Magistrate the same will be considered by the learned Magistrate after taking into consideration the materials collected by the investigating agency during investigation in the present case The present application for cancellation of bail is accordingly allowed. I agree. Application allowed.