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2008 DIGILAW 522 (CAL)

Srikanta Dutta v. STATE OF WEST BENGAL

2008-05-12

AMIT TALUKDAR, PRABUDDHA SANKAR BANERJEE

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Judgment :- (1.) SEEKING to cancel the bail granted by the learned Additional Sessions Judge, Durgapur in Criminal Misc. Case No. 68 or 2008 by its order No. 2 dated 8. 4. 2008, this application has been taken out by the Informant of Faridpur Police Station Case No. 06 of 2008 dated 26. 2. 2008 filed under Section 364a of the Indian Penal Code. (2.) BY the impugned order No. 2 dated 8. 4. 2008 the learned Additional Sessions Judge, Durgapur in Criminal Misc. Case No. 68 of 2008, enlarged on bail the opposite party Nos. 2 and 3 on their furnishing a bond of Rupees Four Thousand with two sureties of Rupees Two Thousand each to the satisfaction of the learned A. C. J. M. , Durgapur. (3.) WHILE arriving at its finding the learned Additional Sessions Judge, Durgapur was of the view that the opposite party Nos. 2 and 3 were in custody since 1.3,2008 and as they were in Police Remand but no fruitful result could be achieved, more so, the investigation having proceeded considerably, they were entitled to bail. (4.) THIS has been sought to be cancelled by the Informant on the premises that the opposite party Nos. 2 and 3 are threatening him to withdraw this case for which purpose he has lodged a General Diary Entry No. 432 dated 13. 4. 2008 and as the victim girl is still untraceable, the continuation of the accused persons on bail would jeopardize the Trial. (5.) SHRI Ghosh, learned Advocate for the petitioner placed the application before us and further submitted that a habeas corpus application is pending before this Court over the issue of the missing of his minor daughter so also this Court is in the midst of hearing of the said application and at this juncture the learned Additional Sessions Judge, Durgapur should not have admitted the accused persons on bail considering the fact that two other persons are still absconding. (6.) HE has also prayed that investigation is still incomplete and for the purpose of a free and a fair Trial they should be detained in custody. (7.) SHRI Manish Sen, appearing for opposite party Nos. 2 and 3 has denied all the allegations. Shri Sen submitted that both opposite party Nos. 2 and 3 resided at least 20 Kilometres away from the place of the petitioner. (7.) SHRI Manish Sen, appearing for opposite party Nos. 2 and 3 has denied all the allegations. Shri Sen submitted that both opposite party Nos. 2 and 3 resided at least 20 Kilometres away from the place of the petitioner. As such, there is no question of their threatening the petitioner and his family. (8.) SHRI Sen has further submitted that the opposite party Nos. 2 and 3 are being falsely implicated. (9.) ACCORDING to Shri Sen, the learned Additional Sessions Judge, Durgapur after proper consideration of all the materials have granted them bail which should not be cancelled in the absence of any strong circumstances. (10.) LEARNED Public Prosecutor for the State with Ms. Saha has produced the Case Diary. (11.) PUBLIC Prosecutor submitted that the investigation is still in progress. He has showed from the Case Diary, the materials available against the opposite party Nos. 2 and 3. He has also produced General Diary Book and has left the matter to the discretion of the Court. (12.) AFTER having heard the submission of Shri Ghosh for the petitioner, Shri Sen for the opposite party Nos. 2 and 3 and the learned Public Prosecutor with Ms. Saha for the State we find that the petitioner had lodged the present FIR against the opposite party Nos. 2 and 3 and one Sukhen Sen (Son of opposite party No. 2) and Raju Yadav. (13.) HE has alleged that his minor daughter have been kidnapped for ransom by the accused persons. The FIR was Jodged on 26. 2. 2008. The opposite party Nos. 2 and 3 were arrested and produced before the learned Additional Chief Judicial Magistrate, Durgapur on 1. 3. 2008 and 2. 3. 2008 respectively. They were taken on Police Remand for ten days and thirteen days respectively. (14.) THEREUPON they were admitted on bail by the learned Additional Sessions Judge, Durgapur, which has prompted the petitioner to take out this application for cancellation of the bail. (15.) WE have very carefully perused the Case Diary in the light of the averments made in the present application. (16.) THE daughter of the petitioner is still missing. The allegations transpired against the present opposite party Nos. 2 and 3 as well as the other two absconding accused Sukhen and Raju. (15.) WE have very carefully perused the Case Diary in the light of the averments made in the present application. (16.) THE daughter of the petitioner is still missing. The allegations transpired against the present opposite party Nos. 2 and 3 as well as the other two absconding accused Sukhen and Raju. (17.) THERE is a solitary General Diary mentioned in paragraph 8 of the petition, which we have requested the learned Public Prosecutor to work out. He has given us the following information :-A Police Report has been submitted by him which does not corroborate the contents of the G. D. Entry. No. Court can be convinced on the basis of the same to come to a conclusion for canceling the bail. (18.) IN our view, notwithstanding the fact that grave allegations contained against the opposite party Nos. 2 and 3 and the absconding accused, Sukhen and Raju - we would be rather slow to cancel the bail for the reasons as follows :-1) Law by now is well-settled that unless there are very cogent and overwhelming circumstances showing that the accused has forfeited his right to continue with his liberty ; bail should not be cancelled. 2) Granting of bail and cancellation thereof are diametrically opposite propositions and unless there are very strong and supervening circumstances showing that it is unsafe for a proper investigation or it will not be conducive to a fair Trial bail once granted should not be interfered with. 3) It is the conduct of the accused at the post stage of grant of bail should be the governing criteria for the purpose of considering a prayer for bail. A single instance of threat, which we have requested the learned Public Prosecutor to work out, in our opinion, would not be sacrosanct to respond to the prayer of the petitioner. (19.) ACCORDINGLY, keeping in mind the aforesaid points we feel that it would be appropriate that instead of straight away canceling the bail, we would dispose of this application by modifying the order of the learned Additional Sessions Judge, Durgapur passed on 8. 4. 2008 in Criminal Misc. Case No. 68 of 2008 by directing that instead of once a week, the opposite party Nos. 4. 2008 in Criminal Misc. Case No. 68 of 2008 by directing that instead of once a week, the opposite party Nos. 2 and 3 will meet the Investigating Officer every alternate day between 12-00 Oclock to 6-00 Oclock and that they shall not enter into the jurisdiction of Durgapur Sub-Division until further orders of this Court. (20.) IT will also be open to the learned Additional Chief Judicial Magistrate, Durgapur, in the event petitioner approaches him with a fresh prayer for canceling the said bail granted by the learned Additional Sessions Judge, Durgapur on account of threat perception or some other supervening circumstances the learned Additional Chief Judicial Magistrate, Durgapur will, without reference to this Court and notwithstanding the fact that the bail was granted by the learned Additional Sessions Judge, Durgapur straight away cancel the bonds furnished before it in terms of the direction of the learned Additional Sessions Judge, Durgapur and take them back into Custody. (21.) APPLICATION accordingly, disposed of. (22.) RETURN the Case Diary and the General Diary Book.