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2002 DIGILAW 626 (CAL)

Madan Chand Shamsukha v. State of West Bengal

2002-09-19

DEBI PRASAD SENGUPTA

body2002
JUDGMENT The judgment of the Court was as follows:–– This is an application for bail in connection with Lake Police Station Case No. 120 dated 24.4.2002 under Sections 457/387/506/148/120B of the Indian Penal Code. 2. The petitioner was granted anticipatory bail by this Court on 9.8.2002 for a period of four weeks and was directed to surrender before the learned Magistrate within the said period of four weeks. The petitioner surrendered on 26.8.2002 and his prayer for bail was rejected. In view of the judgment in the case of (1) K.L. Verma v. State and Another reported in 1997 C. Cr. L.R. (S.C.) 88, the petitioner was not taken into custody and was granted time till 5.9.02 for moving the higher Court. It appears that after such prayer for regular bail was rejected by the learned Magistrate on 26.8.2002, the petitioner applied for the certified copy of the order on 28.8.2002, which was made ready for delivery on 7.9.2002. The present petitioner filed an application under Section 439 of the Code of Criminal Procedure for bail before this Court on 9.9.2002. 3. It is submitted by the learned Advocate of the petitioner that the petitioner surrendered before the learned Magistrate within the period specified by this Court. After his prayer for bail is rejected, he applied for certified copy of the order on 28.8.2002, which was obtained by him on 7.9.2002. According to the petitioner's learned Advocate, there is no delay or laches on the part of the petitioner in filing the present application under Section 439 of the Code of Criminal Procedure. 4. Mr. S.S. Roy, the learned Advocate appearing for the defacto-complainant opposes this application and submits that in view of the larger Bench decision of this Court reported in (2) 2002(2) CLJ 262 , the present application for bail is liable to be rejected. 5. Mr. Roy, the learned Advocate of the defacto-complainant refers to paragraph - 44 of the aforesaid judgment. S.S. Roy, the learned Advocate appearing for the defacto-complainant opposes this application and submits that in view of the larger Bench decision of this Court reported in (2) 2002(2) CLJ 262 , the present application for bail is liable to be rejected. 5. Mr. Roy, the learned Advocate of the defacto-complainant refers to paragraph - 44 of the aforesaid judgment. In sub-paragraphs (d) of paragraph-44 of the said judgment, it was held that if the application for regular bail is moved within the duration of anticipatory bail and the same is rejected but the outer limit prescribed by the order of anticipatory bail has not expired, then instead of taking the accused into custody he may be allowed to move the superior Court for bail within the specified period namely the outer limit as specified in the order of anticipatory bail. 6. In sub-paragraph (e) of paragraph - 44 of the said judgment, it was held that if the application for regular bail is moved after or the date as on which the application for regular bail is rejected and in either case the outer limit prescribed by the order of anticipatory bail has expired, then and in that event on and from that date of expiry of the period fixed by the order of anticipatory bail, the accused must surrender and be in the custody of the Court before the superior Court can take up for consideration the application for regular bail. 7. Referring to the aforesaid sub-paragraphs, it is submitted by Mr. Roy that since the period of anticipatory bail, i.e., four weeks, has already expired, the petitioner has no other alternative but to surrender before the learned Magistrate and he is to be taken into the custody before his prayer for bail is considered by the Court. 8. But, I am unable to accept such contention. In the present case, it cannot be said that the petitioner is avoiding the process of the Court by adopting any dubious method. In the circumstances of the present case, there is sufficient reason for which the present application for bail under Section 439 of the Code of Criminal Procedure could not be tiled before this Court in time. The last date of filing such application for bail was 8.9.2002 and it was filed on 9.9.2002. 9. In the circumstances of the present case, there is sufficient reason for which the present application for bail under Section 439 of the Code of Criminal Procedure could not be tiled before this Court in time. The last date of filing such application for bail was 8.9.2002 and it was filed on 9.9.2002. 9. It further appears that when there was a delay in obtaining the certified copy of the order of rejection passed by the learned A.C.J.M., Alipore, the petitioner made a prayer before the learned Magistrate for extension of such period so that he can bring the order of bail under Section 439 of the Code of Criminal Procedure from this Court. The learned Advocate of the petitioner produces the certified copy of the order dated 15.9.2002 from which it appears that such period was extended by the learned Magistrate till 19.9.2002. In such circumstances, I am of the view that the prayer for bail should not be rejected by this Court only on the grounds as agitated by the learned Advocate of the defacto-complainant. 10. The prayer of the petitioner for anticipatory bail was allowed by this Court on 9.8.2002. He surrendered before the learned Magistrate on 26.8.2002. This Court granted anticipatory bail after going through the Case Diary. From a perusal of the Case Diary, which is produced before this Court, I find that there is no collection of any fresh materials after the date on which the petitioner was granted anticipatory bail. In such circumstances, I do not find any reason to reject the prayer for bail of the present petitioner. 11. Accordingly, I allow the present application for bail and direct that the petitioner, namely, Madan Chand Shamsukha shall be released on bail of Rs.10,000/- with two sureties of like amount, one of whom must be local, to the satisfaction of the learned A.C.J.M., Alipore. 12. It is further directed that after being released on bail, the petitioner shall meet the Investigating Officer of the case twice in a week until further orders from this Court and the petitioner shall not leave the jurisdiction of Calcutta without prior permission of the learned Magistrate. The present application for bail is accordingly disposed of.