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2004 DIGILAW 377 (CAL)

RANI BALA DEY v. STATE OF WEST BENGAL

2004-06-11

AMIT TALUKDAR, P.K.DEB

body2004
( 1 ) THE judgment of the Court was as follows : this is an application for cancellation of the Bail granted by the learned sessions Judge, 24 Parganas (North) on 16. 1. 2004 in Criminal Misc. Case no. 5460 of 2003 in favour of the opposite party No. 2. ( 2 ) THE opposite party No. 2 was arrayed in connection with Habra police Station Case No. 22 dated 15. 1. 2000 under Section 302/34 of the indian Penal Code read with in Sections 25 and 27 of the Arms Act on the basis of an First Information Report lodged by the present petitioner containing allegation that her son Utpal asked for his meal from her on the night of 14. 1. 2000 at about 8/8-30 p. m. when a person called him as a result of which he went outside but did not return and on the next day she came to know that her son's deadbody, which was identified by her, was found with gun shot injuries. She alleged that the present Opposite Party No. 2 and his associates attempted to murder her son Utpal thrice and had told her that if he is ever murdered it will be in the hands of the Opposite Party No. 2. On the basis of the said F. I. R. the investigation of G. R. Case No. 80 of 2000 ended in a charge-sheet against three accused persons in connection with which cognizance was taken by the learned Sub-Divisional Judicial Magistrate, krishnanagar by his order dated 27. 12. 2000 where the Opposite Party No. 2 was shown as absconder and warrant, proclamation and attachment was issued against him. ( 3 ) SUBSEQUENTLY, on 19. 2. 2001 tha Opposite Party No. 2 surrendered by petition and he was remanded to Jail custody. It appears that the learned sessions Judge by his Order No. 2 dated 5. 3. 2001 granted bail to the Opposite party No. 2. In the meanwhile the bail granted to the Opposite Party No. 2 was cancelled by the learned Sessions Judge by his Order No. 14 dated 29. 4. 2003 in connection with Criminal Misc. Case No. 3826 of 2002 as it was found that he was continuously threatening the de facto-complainant. 3. 2001 granted bail to the Opposite party No. 2. In the meanwhile the bail granted to the Opposite Party No. 2 was cancelled by the learned Sessions Judge by his Order No. 14 dated 29. 4. 2003 in connection with Criminal Misc. Case No. 3826 of 2002 as it was found that he was continuously threatening the de facto-complainant. ( 4 ) IN pursuance of the order of cancellation passed by the learned sessions Judge warrant of arrest was issued by the learned Sub-Divisional judicial Magistrate since the Opposite Party No. 2 did not surrender to his bail bond in terms of the order passed by the learned Sessions Judge. ( 5 ) HOWEVER, after the accused Opposite Party No. 2 was arrested in connection with Ashoknagar Police Station Case No. 64 dated 30. 4. 2003 under Section 302/34 of the Indian Penal Code and forwarded to the Court on 26. 9. 2003 He was sought to be shown arrested in connection with the present case which was allowed by the learned Magistrate on 28. 10. 2003 and production warrant was accordingly issued and the present Opposite Party no. 2 was shown arrested in the said case. The present Opposite Party No. 2 moved the learned Sessions Judge under Section 439 of the Code of Criminal procedure for his release on bail. The said application was registered as criminal Misc. Case No. 5460 of 2003. The learned Sessions Judge directed the release the Opposite Party No. 2-on bail to the satisfaction of the learned sub-Divisional Judicial Magistrate, Basirhat by his order dated 16. 1. 2004. ( 6 ) THIS has prompted the present petitioner to move this Court for cancellation of the said order and it is in this factual matrix the entire argument made at the Bar has to be understood. ( 7 ) THE learned Advocate for the petitioner appearing in support of the application for cancellation has submitted that it was not proper for the learned sessions Judge to enlarge the Opposite Party No. 2 on bail in view of his conduct in absconding for a length of time after his bail was cancelled by the learned Sessions Judge and the threat he had given to the present petitioner who is the de facto-complainant and as the same still subsisted there was every chance of tampering of the evidence by the Opposite Party No. 2. He also submitted that the learned Sessions Judge directly acceded to the prayer for bail of the Opposite Party No. 2 with out his moving the learned Magistrate which was also illegal and he prayed for cancellation of the same. ( 8 ) ON behalf of the Opposite Party No. 2 it was submitted that there is no bar in moving the learned Sessions Judge directly and for this purpose the action of the learned Judge in granting bail to the Opposite Party No. 2 without his first moving the learned Magistrate cannot be called in question. He further submitted that the Opposite Party No. 2 was granted bail by the learned Sessions Judge on due consideration of the materials-on-record and as the Trial is not scheduled to commerce early it would be a pre trial detention for the Opposite Party No. 2 and he was rightly granted bail by the learned Sessions Judge. ( 9 ) WITH regard to the threat given by the Opposite Party No. 2, the learned Advocate appearing on behalf submitted that the same has not been substantiated and are merely wild allegations on the basis of which no steps should be taken. He has supported the impugned order and submitted that the application should be dismissed. ( 10 ) THE learned Advocate appearing for the State has produced the duplicate copy of the case diary and placed the materials before the Court showing the involvement of the Opposite Party No. 2. ( 11 ) AS has been outlined hereinabove the Opposite Party No. 2 was shown as an absconder in the charge-sheet submitted against him whereby the learned Magistrate took cognizance and issued warrant, proclamation and attachment by his order dated 27. 12. 2000 and after he surrendered he was remanded into custody until such time he was granted bail by the learned sessions Judge on 5. 3. 2001 which was subsequently cancelled by the letter in view of the threat given to the petitioner on 29. 4. 2003. ( 12 ) FROM the Records of G. R. Case No. 80 of 2000, which we have very carefully gone through, we find that initially on 28. 10. 2003 the Opposite party No. 2 was arrested in connection with Ashoknagar Police Station Case no. 64 dated 30. 4. 4. 2003. ( 12 ) FROM the Records of G. R. Case No. 80 of 2000, which we have very carefully gone through, we find that initially on 28. 10. 2003 the Opposite party No. 2 was arrested in connection with Ashoknagar Police Station Case no. 64 dated 30. 4. 2003 under Section 302/34 of the Indian Penal Code and he was shown arrested in connection with the present case. ( 13 ) FROM the aforesaid situation it is abundantly clear that the conduct of the petitioner was far from satisfactory as he evaded the process of law for quite some time and not only he absconded for the period which have been shown hereinabove but did not surrender before the Court after his bail was cancelled in terms of the order of the learned Sessions Judge and his attendance could only be secured after he was shown arrested in connection with another offence which he committed on 30. 4. 2003 which he was on bail in connection with the present case. ( 14 ) WE are conscious of the fact that the paramount consideration for cancellation of bail must be restricted to (a) there must be very cogent and overwhelming circumstances and (b) that the cancellation of bail which necessarily involves a review of a decision already taken in favour of the accused if by reason of supervening situation it would be no longer conducive to a fair trial to allow the accused to retain his freedom. ( 15 ) TRUE, even though on earlier occasion of the learned Sessions judge has cancelled the bail granted by it as the Opposite Party No. 2 had threatened the de facto-complainant and sought to tamper the evidence, but at this juncture the threat perception has not been fructified in so many words before us which is one of the tests which has to be satisfied before embarking for setting aside the order of bail. However, we have to look in to the other circumstances and the conduct of the Opposite Party No. 2. However, we have to look in to the other circumstances and the conduct of the Opposite Party No. 2. ( 16 ) AS shown earlier the Opposite Party No. 2 had always taken the court for a ride and as he misused the liberty of bail the same was cancelled, but, he did not surrender in connection with the present case and had to be shown arrested by virtue of a production warrant while he was apprehended in connection with another crime committed by him while on bail. Entire conduct of the Opposite Party No. 2 is not only far from happy but is not compatible with a fair progress of the proceedings. ( 17 ) NO wonder, an accused with such track record of evading the process of law will not be an obedient respondent in the trial appearing on all dates. ( 18 ) THE conspectus of the order sheet of G. R. Case No. 80 of 2000 abundantly manifests that the conduct of the Opposite Party No. 2 was most abominable. After having shown as an absconder in the charge-sheet and subsequently admitted on bail by the learned Sessions Judge the same was cancelled as he had threatened the petitioner, but, in spite of such cancellation he did not surrender and while at large appears to have committed another crime on 30. 4. 2003 and after he was forwarded to the Court in connection with the said case on 26. 9. 2003 he was shown arrested in connection with the present case on 28. 10. 2003. ( 19 ) NOW, the fact that a person firstly having absconded and even after his bail was cancelled he did not surrender in response to the warrant of arrest issued by the learned Magistrate but committed another crime and could only be placed in the rails after he was shown arrested in connection with another case these are very overwhelming circumstances which to our mind was not taken into account by the learned Sessions Judge while enlarging the Opposite Party No. 2 on bail and it was wholly irrelevant consideration with regard to the period of detention of the Opposite Party no. 2 in view of his track record, while the gravity of the offence may be a sound consideration for refusing the prayer for bail it cannot be of any consequence for the purpose of cancellation of the same, but, however, the fact that the Appellate (Opposite Party No. 2) had played hide and seek with the Court is a cogent ground to suspend the liberty enjoyed by the petitioner. ( 20 ) GRANT of bail is a wide discretion vested on a Court and apart from the fact that it has to be exercised most judicially such discretion has to be further tampered with utmost circumspection. There was a folly on the part of the learned Sessions Judge who has accepted the contention of the opposite Party No. 2 with regard to the period of detention, which in our mind could not have been a malleable factor in the present fact situation of the instant case, and directed the release of the Opposite Party No. 2 on bail. ( 21 ) WE do not wish to share the folly of the learned Sessions Judge and are of the view that there are cogent and supervening circumstances which do not justify the sustenance of the Order No 2 dated 5. 3. 2001 passed by the learned Sessions Judge in Criminal Misc. Case No. 793 of 2001 and the order passed in the dismal background of the fact situation which has been depicted hereinabove does not commend well for proper administration of justice that too in favour of a person who had scant regard for the system and had virtually played with the Court for long. ( 22 ) PROFILE of crime has changed. The Justice Delivery sustem has to be geared up for dealing with truant accused who takes the very system for a ride. Apart from the seriousness of the offence which we do not wish to comment lest it may influence the trial if such lenient attitude, as has been taken by the learned Judge while granting bail to the Opposite Party No. 2 is taken,then the faith of the people in the Criminal Justice system would be greatly shaken. Soft justice in hardcore crime will only undermine the majesty of law. Soft justice in hardcore crime will only undermine the majesty of law. ( 23 ) AS such, we are of the considered view that it was not a prudent exercise on the part of the learned Sessions Judge who have entertained the prayer for bail of the present Opposite Party No. 2 and we have no hesitation to cancel the same without a shimper and accordingly, set aside the Order No. 3 dated 16. 1. 2004 passed by the leamed Sessions Judge, Barasat and cancel the bond executed by the present Opposite Party No. 2 before the learned Sub-divisional Judicial Magistrate, Barasat on 22. 1. 04 in G. R. No. 80/2000. ( 24 ) HOWEVER, before parting we feel it necessary to address ourselves with a subsidiary question that has been raised at the Bar with regard to accession of the prayer for bail straightway by the learned Sessions Judge without the same being refused by the learned Magistrate as in our view the point requires some discussion even if it may not have absolutely no bearing on the question that has just been now determined by us hereinabove. ( 25 ) IN the scheme of the Code of Criminal Procedure (hereinafter referred to as the said Code) the Legislature in their wisdom has incorporated the powers of the Court relating to provisions as to Bail and Bail Bonds in Chapter-xxxiii. Sections 436 and 437 speak of the powers of a Court in granting bail in bailable and non-bailable offences respectively. More particularly, if we see Section 437 (1) of the said Code we find that an accused in connection with a non-bailable offence when he either appears or is brought before a court other than the High Court or Court of Session he may be released on bail with certain riders incorporated in clauses (i) and (ii) of sub-section (1)of Section 437 of the said Code. ( 26 ) SECTION 439 of the said Code vests dual power on the High Court and the Court of Session while exercising power of bail independent and without being controlled by Section 437 of the said Code in relation to a person who is in custody. This position has to be understood in the light of the powers vested under the said Code to both the Magistracy and the sessions Judge. This position has to be understood in the light of the powers vested under the said Code to both the Magistracy and the sessions Judge. A Magistrate who is vested with the power of remand, taking of cognizance and that way it is the Court of the first instance. The language in sub-section (1) of Section 437 of the said Code which clearly shows-"when any person accused of, or suspected of, the commission of any non-bailable offence or appears or is brought before a Court other than the High court or Court of Session. " ( 27 ) THE emphasis on the portion "otherthan the High Court or Court of Session" has to be read in the light of the powers of the Sessions Judge created by the Statute in Section 9 (2) of the said Code. ( 28 ) IT appears that in view of Section 439 (1) of the said Code where it has been stated that the High Court or a Court of Session may direct the release on bail of a person accused of an offence and in custody which may apparently give impression in the first instance that a person who is in custody may during the remand period or on submission of charge-sheet at the pre-trial stage if he is in custody may move the Court of Sessions directly. But, this position has to be reconciled with the fact that unlike a Special Court set up under the various special Acts which posses the power of remand, taking of cognizance and other collateral magisterial power vested under the particular statute, but ordinarily a Sessions Judge in connection with a bail application is restricted to the powers given to it under Section 439 of the said Code and nothing more until the stage of Section 209 of the said code is crossed when he takes cognizance under Section 193 of the said Code. ( 29 ) A plain reading of Section 193 of the said Code shows that unless there is any expressed provision in the Code "no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code". ( 29 ) A plain reading of Section 193 of the said Code shows that unless there is any expressed provision in the Code "no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code". ( 30 ) IN other words, the Court of Session barring the powers under section 439 of the said Code on the eve of the commitment of a case (if it is a session triable case) does not become seizin of the matter unlees it is committed. ( 31 ) FURTHER more the basic language of Section 437 (1) of the said code clearly makes a very subtle distinction with regard to exercise of power in respect of bail in case of non-bailable warrant. The language of sub-section (1) of Section 437 reads as follows:"when any person accused of, or suspected or, the commission of any non-bailable offence is arrested or detained without warrant by an Officer-in-Charge of a police station or appear or is brought before a Court other than the High Court or Court of Session, be may be released on bail". ( 32 ) HE may be released on bail whereas the relevant provisions of sub-section (1) of Section 439 (a) of the said Code shows :" A High Court or Court of Session may direct that any person accused of an offence and in custody be released on bail". ( 33 ) ALTHOUGH there is a hair-split distinction we have to read in between to realise the intention of the legislature in this regard in our own humble way. We feel that as in Section 437 (1) of the said Code the language is the court other than the High Court or the Court of Session before which an accused is brought before he may be released on bail. Emphasis : he may be released on bail. Where as, the stress in sub-section (1) of Section 439 of the said Code-High Court or Court of session may direct. Emphasis : he may be released on bail. Where as, the stress in sub-section (1) of Section 439 of the said Code-High Court or Court of session may direct. ( 34 ) FOR better appreciation of the problem it would be profitable for us to refer to the provision of the pan passu sections in the erstwhile Code of 1898 (for short, the Old Code), Section 497 of the Old Code is corresponding to Section 437 of the Code of 1973 (for brevity, the Present Code) whereas section 498 of the Old Code is corresponding to Sections 439 and 440 of the present Code. ( 35 ) FOR profitable discussion we have to refer to the provisions of Section 497 of the Old Code first. Language of Section 497 (1) of the Old Code reads as follows:"497. (1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an Officer-in-Charge of a police station, or appears or is brought before a Court, be may be released on bail " ( 36 ) IF we see very closely the language of Section 437 of the present code the Word". Appears or is brought before a Court other than the High court or Court of Session" was not there in Section 497 of the Old Code which was only" appears or is brought before a Court". ( 37 ) THE legislature in their wisdom in the present Code laid emphasis with regard to appearance or production before a Court other than the High court or the Court of Session which was not present in the erstwhile Code of 1989 ( Old Code ). As such, there cannot be any misgiving that the magistrate's Court is the Court of first instance except the Special Courts exercising the jurisdiction of the particular Act enjoying the power of remand, cognizance, commitment and production. The other Courts in the hierarchy in the present Code i. e. the Sessions Judge or the High Court can be approached after the first strata has been exhausted and by passing the same direct approach cannot be made. ( 38 ) SECTION 498 (1) of the Old Code reads as follows:"498. The other Courts in the hierarchy in the present Code i. e. the Sessions Judge or the High Court can be approached after the first strata has been exhausted and by passing the same direct approach cannot be made. ( 38 ) SECTION 498 (1) of the Old Code reads as follows:"498. (1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive, and the High Court or Court of Session may, in any case, whether therebe an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced". ( 39 ) THE said section of the Old Code speaks with regard to the power exercised by the High Court or the Court of Sessioln in respect of bail. In that section amongst other recitals the language was "direct that any person be admitted to bail" does not find place in contemporaneous Section of 439 of the Present Code. Here the short title of Section 439 of the Present Code shows special powers of High Court and the Court of sassion regarding bail where the High Court or the Court of Sesstion may direct and the word in clause (a) of sub-section (1) of Section 439 of the Present Code' and in custody has to be understood in the context that the person/accused is in custody by virtue of an order or remand passed by the Learned Magistrate either after being brought before it or upon his surrender on his own violation. ( 40 ) WE on an overall analysis of the entire situation which we have outlined we are of the humble opinion that the bail application without being entertained and being refused at the first instance by the learned Magistrate the learned Sessions Judge did not have any jurisdiction to straightway , entertain the prayer under Section 439 of the said Code. In this context we are emboldened to come to our conclusion on the basis of the Division Bench decision of our Court in Srilal Agarwalla and Others, v. King Emperor, Vol. 44 the Calcutta Law Journal 134 wherein the Hon'ble Mr. Justice Z. R. Z. Suhrawardy and H. P. Duval, JJ. In this context we are emboldened to come to our conclusion on the basis of the Division Bench decision of our Court in Srilal Agarwalla and Others, v. King Emperor, Vol. 44 the Calcutta Law Journal 134 wherein the Hon'ble Mr. Justice Z. R. Z. Suhrawardy and H. P. Duval, JJ. Held : " This rule was issued on the Commissioner of Police Calcutta, to show cause why the petitioners should not be produced before a magistrate, or in the alternative, why they should not be released on bail. With regard to the second ground I do not think we should interfere at this stage. There is no order by any Court which will give us power to direct the petitioners to be relesed on bail under Section 498 (read section 439 of the Present Code) or even under Section 497 (read section 437 of the Present Code ). Criminal Procedure Code. From the said Division Bench decision it can be necessarily inferred that Their Lordships of the Division Bench were of the view that the question of release on bail can be considered only after the formal order" by any Court" (read the Court of Magistrate ). ( 41 ) WE further find great sustenance from the decision of Gurucharan singh and Others v. State (Delhi Administration), AIR 1978 SC 179 : P. K. Goswami, J. writing the judgement for the Division Bench of P. K. Goswami and V. D. Tulzapurkar, JJ. in-Paragraph 24 held :" Section 439 (1),cr, P. C. of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437 (1) there is no ban imposed under Section 439 (1) Cr. P. C. against granting of bail by the High court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused". It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused". ( 42 ) IN the light of the Division Bench decision of the Court in Srilal agarwalla and Others v. King Emperor (supra) and the view of the Supreme court in GURUCHARN SINGH and Others v. State (Delhi Administration) (supra) we feel that it was inappropriate on the part of the learned Sessions judge to have entertained the prayer of the Opposite Party No. 2 for bail without the same being rejected by the learned Magistrate. ( 43 ) IT can be reasonaly inferred that in the hierarchy of the Criminal court of which the Court of the Magistrate is of the first instance and is vested with the power of initial production, remand and power of bail with certain restrictions and the Court of Session which of course has similar powers under Section 439 of the said Code in respect of bail can only entertain, an application after the same has been rejected by the learned Magistrate concerned and no direct prayer for bail can be entertained within the framework of the said Code by the learned Session Judge. ( 44 ) IN that way the learned Sessions Judge has grossly misdirected itself. ( 45 ) WE have very carefully perused the records of G. R. Case No. 80 of 2000 where we find that after the Oposite Party No. 2 was shown arrested by virtue of the production warrant by the learned Sub-Divisional Judicial magistrate, Barasat on 28. 10. 03 although he was in custody no prayer for bail was ever made on his behalf before the learned Magistrate and strightway application before the learned Sessions Judge to our mind is quite in appropriate in view of as the discussions held hereinabove. ( 46 ) WE set asi'de the impugned order dated 16. 1. 04 passed by the learned Sessions Judge, Barasat in Crl. Misc. Case No. 5460/03 and cancel the Bond furnished by the Opposite Party No. 2 before the learned Sub-divisional Judicial Magistrate, Barasat on 22. 1. 04 in G. R. No. 80/2000. ( 47 ) THE application is allowed. ( 46 ) WE set asi'de the impugned order dated 16. 1. 04 passed by the learned Sessions Judge, Barasat in Crl. Misc. Case No. 5460/03 and cancel the Bond furnished by the Opposite Party No. 2 before the learned Sub-divisional Judicial Magistrate, Barasat on 22. 1. 04 in G. R. No. 80/2000. ( 47 ) THE application is allowed. ( 48 ) REGISTRY is requested to send a copy of the relevant portion of this order to all the learned Sessions Judges and the learned Additional Sessions judges who are exercising powers sunder Section 439 of the said Code for circulatory information and their future guideline. ( 49 ) RETURN the Case diary. Send down the Lower Court Records along with a copy of this Order to the learned Sub-Divisional Judicial Magistrate, Barasat who will take appropriate steps for apprehension of the Opposite Party No. 2 as known to Law.