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2007 DIGILAW 556 (CAL)

PRADIP ROY v. STATE OF WEST BENGAL

2007-07-25

JAPAN MUKHERJEE

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( 1 ) THE learned Counsel for the petitioner as well an the learned Counsel for the State are present. ( 2 ) HEARD. ( 3 ) THE only short point in this application is whether the learned magistrate was wrong in holding in his impugned order that he has no power to confirm the interim bail granted to the accused in view of Section 437 (i) (i) of the Code of Criminal Procedure. ( 4 ) IT appears that initially the case was started under Section 354/ 325/323 of the Indian Penal Code and the accused were granted interim bail by the learned Magistrate and they were on interim bail. Subsequently, Sections 493/376 of the Indian Penal Code were added against the accused Pradip roy and Dilip Roy. On 21. 6. 2007, the I. O. prayed for taking the accused Pradip roy and Dilip Roy in custody and later all the four accused/petitioners prayed for confirmation of the interim bail. The impugned order dated 21. 6. 2007 shows that on the prayer of the I. O. for taking the accused Pradip Boy and Dilip Roy in custody, the learned Counsel for the accused submitted that the interim bail granted to the accused persons cannot be cancelled by the Court as per Section 437 (5) of the Code of Criminal Procedure and the learned Magistrate considered the said contention and found that the Section provides that if the Court considers it necessary to do so direct that person released on bail under subsection (i) (ii) of Section 437 of the Code of Criminal Procedure may be arrested and taken into custody. He further observed that the case was initially started under Sections 345/354/325 and 323 of the Indian Penal Code. Accordingly, the accused persons were granted interim bail. But subsequently the Court finds that there is clear allegation against Pradip Roy and Dilip Roy under section 493/376 of the Indian Penal Code. He came to the conclusion that in view of the added section possibly in view of the Section 437 (1 ) (i) of the Code of Criminal Procedure, the Court does not have the power at this stage to confirm interim ball granted to the accused persons and so he extended the interim bail till 5. 7. 2007 and fixed the petition under Section 437 (5) of the Code of Criminal Procedure for hearing on that date. 7. 2007 and fixed the petition under Section 437 (5) of the Code of Criminal Procedure for hearing on that date. ( 5 ) SO, from the order of the learned Magistrate it appears that the learned Magistrate was not in a position to confirm the bail granted to the accused persons because of the provision under Section 437 (1) (i) of the Code of Criminal Procedure. The provision of section 437 (1) (i) of the Code of Criminal procedure stands as a bar for release of the accused persons on bail in a case where there appears reasonable grounds for believing that the accused is guilty of offence punishable with death or imprisonment for life and surely not of the offence the punishment of which may go upto life imprisonment. The provision of Section 437 (1) (i) of the Code of Criminal Procedure does not stand as a bar for consideration of the petition of the accused Pradip Roy and dilip Roy for grant of bail according to law. It appears that other two accused persons, accused of bailable offences were kept on interim bail and their bail order was not confirmed for the reasons unexplained. Even the order does a not speak anything about those accused persons who are accused of bailable offences. ( 6 ) UNDER the circumstances, the order of the learn Magistrate should be interfered. The learned Magistrate is directed to dispose of the petition for confirmation of bail of all the accused according to law. He is also directed to dispose of the application under Section 437 (5) of the Code of Criminal procedure. The accused tear do continue on interim bail till the hearing and order by the learned Magistrate in view of the order of this Court. This application being C. R. R. 2428 of 2007 stands disposed of accordingly.