Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 612 (CAL)

In Re : Tapas Sarkar v. State of Calcutta

2009-08-12

AMIT TALUKDAR, RAGHUNATH RAY

body2009
Judgment :- (1) A Division Bench of this Court on 20-2-2008 in connection with CRM 7357 of 2007 cancelled the bail of the present petitioner and directed him to surrender within seven days by way of cancelling his bail bond and in default of which asked the learned Chief Judicial Magistrate concerned to issue non-bailable warrant of arrest, (2) The said order was passed on 20-2-2008. The petitioner chose to surrender before the learned Magistrate on 27-7-2009. Apparent ground made to cover up the said delay is fear as reflected from his application for bail. (3) This is no doubt a very serious matter where a Division Bench of this Court after having heard the petitioner, the de facto complainant and the State had on the basis of the appreciation of the materials available by way of a lengthy reasoned order cancelled the bail and passed necessary directions on the petitioner to submit himself to his bond which stood cancelled on 20-2-2008; yet he preferred to stay away from the process of law and after the heat was accentuated upon him, he having been left with no other option, surrendered on 27-7-2009. (4) After the learned Additional Chief Judicial Magistrate had taken him into custody and refused his prayer for bail he has moved this Court for being released on bail. (5) This matter has appeared before us pursuant to the assignment made by the Honble the Chief Justice. (6) We have heard at length Sri Majumder, assisted by Mr. Mukherjee, learned Advocates, in support of this application for release of the petitioner on bail. Sri Majumder has submitted that it is no doubt true that there has been some delay but he has explained that due to unavoidable circumstances he could not surrender and ultimately he appeared before the Court and since he is a reputed businessman and has his permanent abode, there is no chance of his absconsion. He has referred to paragraph 8 of this application to show his bona Tide with regard to his surrender. (7) Mr. Banerjee, learned Advocate for the De facto Complainant, has stressed on the conduct of the petitioner by way of showing the manner in which the petitioner has stayed away from the process of the law. He has referred to paragraph 8 of this application to show his bona Tide with regard to his surrender. (7) Mr. Banerjee, learned Advocate for the De facto Complainant, has stressed on the conduct of the petitioner by way of showing the manner in which the petitioner has stayed away from the process of the law. He has further submitted that what is the guarantee in the event the petitioner is released on bail, that he will be available for trial? As his past conduct shows that more than one year notwithstanding the order passed by the Division Bench, he has remained absconder and it is not a fit case for granting bail in favour of the petitioner. (8) The learned Advocate for the State adopts the submissions of Sri Banerjee and places the (sic) data available in the case diary before us. (9) In the light of the aforesaid circumstances, we have taken up this application for hearing the prayer made on behalf of the petitioner yesterday. We felt that the lower Court records were required to be seen in the backdrop of the sequence of event which took place after the Division Bench cancelled the bail of the present petitioner. We, accordingly, asked for the same by 3-00 p.m. yesterday and we appreciate the endeavour made by the office in complying with our order and having the record brought before us within the Court hours yesterday. (10) After having heard the submissions made at the Bar and considering the materials that have been made available before us in the light of the various order sheets in the case diary and also considering the order passed by the Division Bench the following position emerges before us : (1) Firstly, we find a Division Bench of this Court way back on 20-2-2008 cancelled the prayer for bail and directed the petitioner hereinabove to submit himself to his bail bond, which stood cancelled, within seven days. (2) In the event the same was not complied with, direction for taking necessary steps for securing his appearance by way of issuing warrant of arrest was given upon (sic) the learned Magistrate, which we find from the lower Court record, had been complied with on 27-2-2008. (3) The petitioner chose to disobey the order of the Division Bench for such a length of time. (3) The petitioner chose to disobey the order of the Division Bench for such a length of time. (4) He made himself available before the learned Additional Chief Judicial Magistrate only on 27-7-2009, whereupon he has banked on averments made in paragraph 8 of this application that on the advice of his friends and well-wishers particularly his daughter he surrendered to the process of law. (11) Mr. Majumder, learned Advocate, has submitted in detail with regard to the credentials of the petitioner who is an established businessman and has his own place of residence and as such, there is no chance of his further absconsion. We are unable to abide by the same in view of the past conduct of the present petitioner who has virtually neglected to comply with an order of the Division Bench and it is only after issuance of non-bailable warrant of arrest, as per advice of the family members and his well- wishers more particularly as per the request of his daughter, he chose to surrender. (12) The conduct by itself absolutely militates against the petitioner and we find substance in the submission of Mr. Banerjee that there is no guarantee in the event the petitioner is again released on bail that he will not repeat his performance by way of further absconsion. (13) Accordingly, we feel, it will not be an appropriate case to consider the prayer for bail of the present petitioner. (14) On the contrary, we are of the considered view that this is an absolutely appropriate case for custodial trial. (15) As we have very carefully gone through the lower Court record of BGR Case No. 1294 of 2007, we would like to share some of our feelings on the basis of perusal of the same. (16) It is indeed true that pursuant to the direction of the Division Bench in connection with CRM 7357 of 2007, the learned Magistrate forthwith took steps to issue warrant of arrest on 27-2-2008. But subsequently, the steps as known to law by way of adverting to Sections 82 and 83 of the Code of Criminal Procedure were not followed by him more scrupulously. This we have found on the basis of our reading of the order sheets on various dates. (17) It is regretted that the order sheets of the learned Additional Chief Judicial Magistrate are not maintained by himself. This we have found on the basis of our reading of the order sheets on various dates. (17) It is regretted that the order sheets of the learned Additional Chief Judicial Magistrate are not maintained by himself. Several important orders like taking of cognizance and issuance of proclamation and attachment are delegated to a ministerial staff and simply he put his initial on the dotted lines. The order sheets are not maintained in terms of Rule 183 of the Criminal Rules and Orders of the High Court at Calcutta, Volumes 1 and II. We would like to quote the same hereunder: "R. 183. Orders requiring the exercise of judicial discretion and the final order shall be recorded by the Magistrate in his own hand or typed by him, others may be recorded under his discretion by the Bench Clerk." (18) This is simply not done. (19) Delegation of important functions by the learned Magistrate to the staff simply does not speak very well about the functioning of the Court. (20) Furthermore, the observations made by the learned Additional Chief Judicial Magistrate on 29-7-2009. "It appears from the record that though C. S. has been submitted against the Accd. for Magistrate (sic) triable offence, yet the bail granted in favour of the Accd. has been cancelled by the Honble Court even after submission of the C. S.", in spite of an order passed by the Division Bench, in our view, is inappropriate for the simple reason that a Naraji petition is pending disposal before the learned Additional Chief Judicial Magistrate, which we find has been fixed for orders on 14-8-2009. (21) The Division Bench by its order dated 20-2-2008 made the following observations: "We have perused the Case Diary and the Injury Report of the Father of the present Petitioner. The Injury Report at page 44 of the Case Diary dated 11-4-2007 (before the day when the Opposite party No. 2 was enlarged on interim bail) show fractured injuries on both hands." (22) Furthermore, the Naraji petition at page 83 of the lower Court records speaks for itself with regard to the allegations of extortion and offence under Section 307 of the Indian Penal Code. (23) It was absolutely pre-emptive on the part of the learned Additional Chief Judicial Magistrate to have come to such a finding and interpret the order of the Division Bench of this Court in such a fashion. We would be of the view that as the Naraji petition is pending, neither we nor the learned Additional Chief Judicial Magistrate should rush to any conclusion with regard to the ultimate result of the case and we would only request the learned Additional Chief Judicial Magistrate to dispose of the Naraji petition in the light of the prayer made by the de facto complainant on the basis of the materials made available before him by the next date upon proper application of his judicial mind and in the background of the entire issue involved. (24) Since the next date has been fixed on 14-8-2009, but as we have been in seisin of this matter and we are aware that the lower Court record would not be made available by that time before him, we postpone the date of delivery of the order to 24-8-2009. Such order passed by the learned Additional Chief Judicial Magistrate on 1 -8-2009 directing the matter to appear for orders on 14-8-2009, would be read as "24-8-2009". (25) The De facto Complainant should be notified before such hearing. (26) Accordingly, taking a wholesome view of the entire issue, we reject this application and direct that a copy of this order be sent down along with the lower Court record to the learned Additional Chief Judicial Magistrate, Alipore, by Friday next i.e. 21-8-2009. Petition dismissed.