Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 1050 (CAL)

Subhas Chandra Das v. STATE OF WEST BENGAL

2008-12-08

ASHIM KUMAR ROY

body2008
JUDGMENT:- (1). Heard Mr. Partha Pratim Das, the learned Counsel appearing on behalf of the petitioners as well as Mr. Swapan Kumar Mallick, the learned Counsel appearing on behalf of the State, Perused the Case Diary. (2). The present petitioners, who happened to be the father-in-law and the sister-in-law of the defacto-complainant, being implicated in a case relates to offence punishable under Sections 498A/406/34 of the Indian Penal Code, and apprehending arrest in connection with the said case, moved an application for anticipatory bail before the learned Chief Judge, City Sessions Court, Calcutta, when the learned Judge, after perusal of the Case Diary and considering the materials appearing therefrom allowed the petitioners prayer for anticipatory bail and directed the same shall remain valid till 10th of November, 2008. (3). During the subsistence of the order of anticipatory bail, both the petitioners surrendered in the Court below and was released on interim bail by the learned Chief Metropolitan Magistrate, Calcutta on condition that they shall produce in Court the principal accused i.e. husband by November 10, 2008. On the next day, i.e., on 10th of November, 2008, since the petitioners could not produce the principal accused, the learned Court below refused to confirm the ad interim bail or to extend the same and issued Warrant of Arrest against the present petitioners. (4). Hence, the instant Criminal Revision. (5). Mr. Das, submitted that bail cannot be subject to a condition that the accused who have been released on bail, shall produce the other accused. He further submitted that the learned Magistrate completely misdirected him when he recorded that the anticipatory bail was granted on condition that the petitioners shall produce the principal accused. He submitted that undertaking given by the learned lawyer of the petitioners before the Sessions Court is without their consent. (6). On the other hand, Mr. Swapan Kumar Mallick, learned Counsel appearing on behalf of the State, stoutly repudiated the submissions of Mr. Das. He submitted that by giving an undertaking before the Sessions Court to the effect that after release they will produce the principal accused, they obtained anticipatory bail and then again, after surrender they were released on interim bail by the learned Magistrate on condition that they will produce the principal accused in the Court when they raised no objection. Das. He submitted that by giving an undertaking before the Sessions Court to the effect that after release they will produce the principal accused, they obtained anticipatory bail and then again, after surrender they were released on interim bail by the learned Magistrate on condition that they will produce the principal accused in the Court when they raised no objection. According to him after taking benefit of such undertaking by obtaining the order of bail now they cannot be permitted to defy the same. (7). I have given my anxious and thoughtful consideration to the rival submissions of the parties. The Chapter XXXIII of the Code of Criminal Procedure governed the matter relating to grant of bail under the Code. The provisions contained thereunder does not contemplate either granting of bail on condition that the persons enlarged on bail shall produce the principal accused in Court within some specified period, nor non-fulfillment of such condition would be the ground for not extending the interim bail or to refuse confirmation even when any undertaking to that effect given in Court by the accused. Certainly, while enlarging any accused on bail the Court can always impose condition to ensure his presence during the trial before the Court as well as to ensure being enlarged on bail the accused must not interfere with the course of justice and to minimise the chance of his abscondence. hi the instant case, the condition subject to which the petitioners have been granted interim bail is alien to the provisions of Code of Criminal Procedure. Since the condition subject to which the petitioners have been granted bail is not in accordance with law, non-fulfillment of such condition can never be a ground for either refusing to extend the interim bail or to confirm the same. Neither the imposition of such condition is justified nor refusing to confirm the bail for non- fulfillment of such condition is at all called for. In my opinion, the learned Court below must not refuse to extend the bail or to confirm the same merely on the ground of non-fulfillment of the aforesaid undertaking given by the petitioners in Court. (8). In my opinion, the learned Court below must not refuse to extend the bail or to confirm the same merely on the ground of non-fulfillment of the aforesaid undertaking given by the petitioners in Court. (8). I find although in the order of granting anticipatory bail there has been a reference as to the undertaking given by the petitioners in the Court but 1 do not find that Anticipatory bail was granted to the petitioners subject to such undertaking. I further find that while passing the order of anticipatory bail the learned Sessions Judge has come to a definite conclusion that there is no material against the present petitioners in the Case Diary. Having very carefully gone through the Case Diary, I do not find any reason to differ from such observations of the learned Court below. (9). For the reasons stated above, the order impugned is set aside, The learned Magistrate is directed to hear out the petitioners prayer for bail afresh and to pass appropriate order after considering the Case Diary. (10). The petitioners are directed to surrender in the Court below within a fortnight from this date and after surrender in the Court below, if they make any prayer for bail the learned Magistrate shall consider their such prayer forthwith in accordance with law. The petitioner shall continue on interim bail for three weeks from this date of order. (11). I make it clear that if within the fortnight from this date petitioners do not surrender in the Court below the learned Court shall be at liberty to proceed against them in accordance with law. (12). This application succeeds and stands allowed. (13). The office is directed to deliver the urgent Xerox certified copy of this order within three days from the date of making the application.