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2008 DIGILAW 1073 (CAL)

Sanjay Mehta v. Jayanta Gupta

2008-12-17

AMIT TALUKDAR, PRABUDDHA SANKAR BANERJEE

body2008
JUDGMENT Re: Application under section 439(2) of the Code of Criminal Procedure filed on 31.10.08. 1. The Order No.2 dated 30.9.2008 passed by Shri Nirmal Kumar Ghosal, the learned Sessions Judge-in-Charge, Howrah, in Criminal Misc. Case No.603 of 2008, whereby the accused-opposite parties were directed to be released on bail, has been made the subject-matter for cancellation in this petition. 2. At the Bar we have been addressed on behalf of the petitioner, the opposite parties and the learned Public Prosecutor for the State. An affidavit has been used on behalf of the opposite parties. 3. It is the principal contention of the petitioner that after their release on bail pursuant to the order passed by the learned Sessions Judge-in-Charge, Howrah, on 30.9.2008, they have been constantly threatening the petitioner and his family members and the eye-witnesses. As such, the learned Counsel for the petitioner was of the view that it would not be conducive in the interest of the pending trial for the opposite parties to remain on bail as they will tamper with the evidence. Relying on various G.D. entries and other materials the learned Counsel for the petitioner has submitted that the petitioner has diarized each and every action when either the petitioner himself or his family members or any witnesses were threatened. According to the learned Counsel for the petitioner, in the interest of justice for ensuring a proper trial and safety of the petitioner, it is necessary that the order of bail granted by the learned Sessions Judge-in-Charge on 30.9.2008 should be cancelled. 4. The learned Counsel for the opposite parties has refuted all the allegations made by the petitioner. He has submitted that the petitioner is an accused in a case where he is alleged to have abducted the sister of the opposite party No.1. The case is pending commitment and this application for cancellation is being used as a ploy to keep the opposite party No.1 behind the Bar so that he will not be able to depose in the said case. Referring to the various G.D. Entries, the learned Counsel for the opposite parties has submitted that they are not contemporaneous and as such the order of bail granted on 30.9.2008 on the basis of proper appreciation of the materials and period of detention, it will not be appropriate to cancel the bail. 5. Referring to the various G.D. Entries, the learned Counsel for the opposite parties has submitted that they are not contemporaneous and as such the order of bail granted on 30.9.2008 on the basis of proper appreciation of the materials and period of detention, it will not be appropriate to cancel the bail. 5. The learned Public Prosecutor for the State produces copies of the G.D. entries and the report indicating that an N.C.R. Case No. 1714 dated 21.10.2008 has been initiated against the opposite parties. 6. After having heard the submissions made at the Bar and considering the materials made available before us in the case diary and the affidavit and the police report, we would now proceed to appreciate as to whether bail granted by the learned Sessions Judge-in-Charge on 30.9.2008 can be sustained in the light of the situation that has bubbled up before us in course of the submission made at the Bar. 7. Law by now is quite well settled that an order of bail granted in however heinous a case may be cancelling the same is a diametrically opposite proposition. It is also a trite proposition of the law that has governed the field of cancellation of bail that once a bail has been granted, it should not be lightly interfered with in the absence of very cogent and overwhelming circumstance !Since the order of cancelling the bail is a harsh step. 8. In this trajectory we will be required to consider the prayer made in this application. 9. Even though we do not share the views expressed by the learned Sessions Judge-in-Charge in his order No.2 dated 30.9.2008 while admitting the present opposite parties on bail to the satisfaction of the learned Chief Judicial Magistrate, Howrah, we feel there are two aspects of the matter which cannot be lost sight of. Firstly, the order was passed on 30.9.2008. The G.D. entries relate to mid October, 2008. This application has been taken out on 31.10.2008 and we are hearing the same after a period of two months. Even though cause of action cannot be said to have become stale; but yet fact remains that in the perception of threat is not contemporaneous. Firstly, the order was passed on 30.9.2008. The G.D. entries relate to mid October, 2008. This application has been taken out on 31.10.2008 and we are hearing the same after a period of two months. Even though cause of action cannot be said to have become stale; but yet fact remains that in the perception of threat is not contemporaneous. We have also had the occasion to assess the impact of the threat perception as felt on behalf of the petitioner in our own way on the basis of the police report and the tenor of the various G.D. entries placed before us. We would be of the considered view that it would not be an appropriate case for setting aside the liberty obtained by the petitioner before the Sessions Judge in the fact situation of the present case: 10. However, to allay the apprehension of the petitioner with regard to the threat felt by his family members and the witnesses, we would be of the view that it would just and proper if the following order is passed by way of disposing of this application: 1. The opposite party Nos. 1, 2 and 3 will not enter within the jurisdiction of Howrah town until further orders. 2. In the event the petitioner feels that he suffers from any fresh threat perception either over telephone or by way of any other means where he himself, his family members or any of the witnesses would feel insecure or be unsafe to depose at the trial, the matter should forthwith be brought to the notice of the learned Sessions Judge-in-Charge or the Transferee Court who will be at liberty to cancel the bail bond without any further reference to this Court. 3. The order restraining the opposite party Nos. 1, 2 and 3 from entering the Howrah town, however, will not be applicable for the purpose of their at ending the Court proceedings on the date fixed. They will appear before the concerned Court and leave town upon prior intimation to the Investigating Officer who will keep track of their movement. 4. Their proposed place of residence will be intimated to the IO who will verify the same and this condition will form part of the bail order. This application is, thus, disposed of. 11. They will appear before the concerned Court and leave town upon prior intimation to the Investigating Officer who will keep track of their movement. 4. Their proposed place of residence will be intimated to the IO who will verify the same and this condition will form part of the bail order. This application is, thus, disposed of. 11. Let this order be communicated to the learned Court below through a special messenger at the costs of the opposite party Nos. 1, 2 and 3, which costs be deposited within a couple of days. Appeal disposed of.