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2008 DIGILAW 657 (CAL)

Kunda Pada Paik v. STATE OF WEST BENGAL

2008-07-08

AMIT TALUKDAR, PRABUDDHA SANKAR BANERJEE

body2008
Judgment :- (1.) IN this application the Order No. 4 dated 09/01/2008 passed in C. M. C. No. 686 of 2007 passed by the learned Additional Sessions Judge, Diamond Harbour has been sought to be assailed on behalf of the present petitioner, who happens to be the de facto complainant of G. R. Case No. 1095 of 2007. The brief facts leading to the filing of this application would briefly show that the petitioners minor daughter Namita Paik was ravished by the present opposite party No. 2 and one Kalpataru Haider in the night of 27/06/2007. After coming to know about the said incident the petitioner suffered a cardiac arrest followed by threat given by the accused persons. (2.) ON account of illness the petitioner could not file a complaint earlier but subsequently, after his release from the Healthcare Center he approached the Police but since the Police did not take any action ; he was persuaded to take out a petition under Section 156 (3), Cr. P. C. against the opposite party No. 2 and others. This resulted in the registration of Raidighi P. S. Case No. 88 of 2007 under Section 376 of the Indian Penal Code. (3.) THE opposite party No. 2 was arrested in connection with the instant case and subsequently, he was enlarged on bail by the learned Additional Sessions Judge, Diamond Harbour by the impugned Order complained of which has been sought to be set aside at the instance of the present petitioner. (4.) IT appears that while arriving at his finding the learned Additional Sessions Judge was of the view that the incident took place on 27/06/2007 but the petitioner filed the application under Section 156 (3), Cr. P. C. on 27/09/ 2007, i.e. after a long delay of three months ; no steps or any G. D. Entry was lodged ; and the charge-sheet has been submitted in the meantime. (5.) MAINLY on the basis of the above premises the Order of bail was granted in favour of the opposite party No. 2. (6.) WE have been addressed at the Bar on behalf of the petitioner, opposite party No. 2 and the State. (5.) MAINLY on the basis of the above premises the Order of bail was granted in favour of the opposite party No. 2. (6.) WE have been addressed at the Bar on behalf of the petitioner, opposite party No. 2 and the State. (7.) IT is the contention of the learned Advocate for the petitioner that without looking into the case diary the Order was passed and as there was constant threat given by the opposite party No. 2 - it would be unsafe to allow him to remain on bail as it will not be in the interest a fair trial. (8.) THE opposite party No. 2 used an affidavit affirmed by one Tadbikar to deny all the allegations made against him. (9.) LEARNED Public Prosecutor could not support the impugned order. (10) IN the light of the entire factual matrix and on the basis of the submissions made at the Bar we would now proceed to see as to whether the order impugned can be sustained. (11.) IT is by now a well-established principle of law that once an order of bail is granted by a Court of competent jurisdiction-the same should not be interfered with in the absence of any cogent or overwhelming circumstance. After all, grant of bail and cancellation thereof is two diametrically opposite propositions. We have apprised ourselves with the position with utmost circumspection. (12.) IN our view, at the first instance we find that this is a clear case of gang rape. The materials made available before us goes to buttress the same. The opposite party No. 2 had a lead role in the crime committed upon the prosecutrix. The other accused person is still absconding. The delay in filing the complaint has been very clearly explained by the petitioner. (13.) THIS is one aspect of the matter. (14.) AT the second instance we find that the case diary was not perused by the learned Additional Sessions Judge while arriving at his conclusion. His finding with regard to the delay in filing the complaint was obviously, absolutely erroneous. The delay, as we have held earlier, has been satisfactorily explained. Had he looked into the materials; he would not have rushed to the said conclusion. (15.) THIS is a case involving gang rape where one accused is absconding. His finding with regard to the delay in filing the complaint was obviously, absolutely erroneous. The delay, as we have held earlier, has been satisfactorily explained. Had he looked into the materials; he would not have rushed to the said conclusion. (15.) THIS is a case involving gang rape where one accused is absconding. It may be that charge-sheet has been submitted but as we are told, the Trial has not yet started. This cannot be a circumstance for admitting the opposite party No. 2 with an order of bail, who is accused of such a heinous offence. (16.) WHILE dealing with a case involving a sex offence the judicial sensitiveness which is required to be exhibited, has been unfortunately lacking in the impugned order complained of. (17.) BUT all these by itself cannot form the ground for cancellation since however, improperly an order of bail was granted by a otherwise Court of competent jurisdiction, who has used his discretion. We cannot travel beyond the same. (18.) AT the third instance we find there has been specific averments made in paragraphs 13 and 16 of the application. It is shown that the petitioner and his daughter (prosecutrix) is being constantly threatened by the accused. This is one of the important criterias to be considered in an application for cancellation. (19.) PARAGRAPH 13 of the application alleging threat perception at behest of the accused persons have been dealt with by the opposite party No. 2 in his affidavit in a vague fashion. (20.) PARAGRAPH 15 of the affidavit dealing with paragraph 13 of the application simply lays down the criteria for the purpose of canceling an order of bail and in the last sentence it has been stated ". . . . . . . . . . . . / state that no such incident has occurred in the instant case and state that the question of giving threats does not arise at all". This paragraph has been affirmed by Tadbikar as "true to my information derived from the petitioner." (21.) WE have apprised ourselves from the materials and we find that the threat perception cannot be brushed aside altogether. We are of the further view that the learned Additional Sessions Judge was not correct in passing the impugned order complained of. The prosecutrix, as the materials show, is in her family way. We are of the further view that the learned Additional Sessions Judge was not correct in passing the impugned order complained of. The prosecutrix, as the materials show, is in her family way. The impugned order, if allowed to be sustained-would send a wrong signal. Accordingly, after having taken a wholesome view of the entire matter we feel even though the order has been passed in January 2008 and some time has elapsed in the meanwhile but in the particular fact situation and in the peculiar backdrop of the present case we would feel it inclined to set aside same particularly considering the conduct of the opposite party No. 2 at the past stage of grant of bail. (22.) ACCORDINGLY/we allow the application. Set aside the impugned order passed by the learned Additional Sessions Judge, Diamond Harbour in C. M. C. No. 686 of 2007. (23.) BAIL bond furnished pursuant thereof also stands cancelled. (24.) OPPOSITE Party No. 2 is directed to surrender to his bond forthwith. (25.) APPLICATION allowed.