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2011 DIGILAW 366 (GAU)

Tapan Kumar Saha v. State of Tripura

2011-04-27

UTPALENDU BIKAS SAHA

body2011
ORDER U.B. Saha, J. 1. The instant application is filed by one Sri Tapan Kumar Saha, by profession a businessman, under Section 438, Cr.PC, for granting him bail in the event of his arrest in connection with East Agartala Police Station Case No. 38 of 2011 under Sections 302 and 34, Indian Penal Code, as according to the Petitioner, he is totally innocent, but the police is trying to arrest him. 2. Heard Mr. S. Chakraborty, Learned Counsel for the Petitioner as well as Mr. A. Ghosh, learned Additional P.P. appearing for the Respondent-State who has produced the case diary in terms of the order of this Court dated 26.4.2011. 3. The prosecution case, in short, is as follows: On 12.2.2011 one Sri Ranjan Bardhan lodged an FIR with the Officer-in-charge, East Agartala Police Station alleging, inter alia, that on 12.2.2011, at about 7.00/7.30 p.m., some unknown miscreants attacked upon his younger brother at a narrow katcha lane situated in the east side of the Chitta Ranjan Club and brutally injured by sharp cutting weapon and ultimately, they killed him on spot. It is also stated that the dead body of the deceased brother of the informant was identified by him. 4. While urging for bail, Mr. Chakraborty submits that the Petitioner is a businessman and for his business purpose sometime he met with the deceased, but that does not mean that he is involved in the alleged offence of murder. Not only that in the FIR also, the brother of the deceased who lodged FIR did not name any person, rather he stated that his brother was killed by the unknown miscreants. The Learned Counsel also submits that the Petitioner being a businessman cannot be treated as a miscreant. 5. The Learned Counsel further submits that the present Petitioner by way of filing an application under Section 438, Cr.PC approached the learned Sessions Judge, West Tripura, but the said application was transferred to the court of the learned Addl. The Learned Counsel also submits that the Petitioner being a businessman cannot be treated as a miscreant. 5. The Learned Counsel further submits that the present Petitioner by way of filing an application under Section 438, Cr.PC approached the learned Sessions Judge, West Tripura, but the said application was transferred to the court of the learned Addl. Sessions Judge, Court No. 2, West Tripura, Agartala and upon hearing the Learned Counsel of the parties, the learned Additional Sessions Judge by an order dated 23.4.2011, Annexure 2 to the bail application, rejected the prayer for bail of the Petitioner without assigning any reason, only referring to the submission of the learned public prosecutor, inter alia, that the accused Petitioner is the ring leader who organized the murder of deceased Shymal Bardhan in a cool brain engaging antisocial elements out of which three were booked in jail and rest are moving freely to evade the police arrest. 6. The Learned Counsel for the Petitioner further criticized the order of the learned Additional Sessions Judge on the ground that the submission of the learned P.P. is correct or not, that is to be examined from the case diary while rejecting the prayer for bail, but the same is totally missing in the order of the learned Additional Sessions Judge. Not only that, the Learned Counsel of the Petitioner referred to a decision of the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. AIR 2011 SC 312 but the same was not even discussed by the learned Additional Sessions Judge except noting the said reference, he submits. 7. According to Mr. Chakraborty, in para 122 of the aforesaid decision, the Apex Court discussed about the factors and parameters which should be taken into consideration at the time of disposal of the anticipatory bail application. Paragraph 122 of the aforesaid decision is as follows: 122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made. (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence. (iii) The possibility of the applicant to flee from justice. (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence. (iii) The possibility of the applicant to flee from justice. (iv) The possibility of the accused's likelihood to repeat similar or the other offences. (v) Where the accusations have been made only with object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern. (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused. (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complaint. (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of three being some doubt as to the genuineness of the prosecution in the normal course of events, the accused is entitled to an order of bail. 8. Mr. Chakraborty while referring to the aforesaid parameters laid down by the Apex Court also contended that in paragraph 123 of the said judgment, the Apex Court noted that the arrest should be the last option and it should be restricted to those exceptional cases where-arresting the accused is imperative in the facts and circumstances of that case. 9. Mr. Chakraborty finally contended that against the Petitioner, there is no direct evidence or connecting evidence except the evidence that he is a businessman and there was some business transactions with the deceased but that cannot round for rejection of the prayer for granting pre-arrest bail. 10. Mr. 9. Mr. Chakraborty finally contended that against the Petitioner, there is no direct evidence or connecting evidence except the evidence that he is a businessman and there was some business transactions with the deceased but that cannot round for rejection of the prayer for granting pre-arrest bail. 10. Mr. Ghosh while rounding on the submission of Mr. Chakraborty, would contend that for rejection of the prayer for anticipatory bail, all the ten parameters as laid down by the Apex Court may not have to be attractive, if the prosecution can prove that one of the parameters is applicable for rejection of the prayer for anticipatory bail. 11. He further contends that the offence in the instant case is heinous in nature. The murder of the deceased was a pre-planned one and he ultimately submits that there are materials in the case diary for suspecting the Petitioner that he was involved in the alleged murder. Therefore, it would not be proper for this Court to grant anticipatory bail to the Petitioner. 12. This Court has gone through the order of the learned Additional Sessions Judge from which it appears that the learned Sessions Judge mainly based on the submission of the learned P.P. and nowhere it has been stated the reasons for rejection of the prayer for bail. However, as this Court is not exercising revisional jurisdiction, but exercising the concurrent jurisdiction, therefore, it would not be proper on the part of this Court to express any opinion regarding order of the learned Additional Sessions Judge. 13. In paragraphs 118 to 127 of Siddharam Satlingappa Mhetre (supra), the Apex Court discussed the scope and ambit of the anticipatory bail taking note of the earlier decision of it in the case of Gurbaksh Singh Sibbia, etc. v. State of Punjab AIR 1980 SC 1632 and Joginder Kumar v. State of U.P. and Ors. (1994) 4 SCC 260 and ultimately culled down the factors and parameters which has to be taken into consideration by a court while dealing with the anticipatory bail. One of the parameters is that the court must evaluate the entire available material against the accused very carefully and the court must also clearly comprehend the exact role of the accused in the case. One of the parameters is that the court must evaluate the entire available material against the accused very carefully and the court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern. Therefore, according to this Court, while evaluating the entire material against the accused, the court is to see whether the applicant in a pre-arrest bail in any manner connected with the alleged offence as personal liberty to a citizen is very precious fundamental right which should not be curtailed unless the facts and circumstances of a case and the law of the land demand it. Before curtailing the personal liberty of a citizen, the court is to see whether in the case diary, there are some materials against the accused application. If the court is of the view that without curtailing the personal liberty of an accused, the criminal investigation can proceed subject to accused applicant is directed to join with the investigating authority for assisting it to find out the actual truth relating to the alleged offence and also find out the real culprits. 14. To consider the aforesaid aspect, this Court has gone through the case diary. In the case diary, there is no direct evidence against the present Petitioner and even there is no whisper that he is in any way connected with the offence, rather there is a suspicion and firm belief that the present Petitioner may be in the matter being he is a businessman and there was some transaction with the deceased in connection with the business. 15. This Court is of considered opinion that for rejecting the bail application filed by an accused, the court is not to see the nature of offence, but to see whether the accused is in any way connected with the offence. The alleged offence may be heinous in nature or even a grave one, but that itself would not suggest to reject the prayer for bail unless the applicant who applied for bail is connected with the offence as alleged. The alleged offence may be heinous in nature or even a grave one, but that itself would not suggest to reject the prayer for bail unless the applicant who applied for bail is connected with the offence as alleged. The court is also to see if the accused applicant is granted bail, whether he will influence the investigating authority or any of the witnesses. If that possibility is not there, then it would be proper for the court to grant the bail. 16. In the instant case, though the alleged offence is heinous in nature and even if the submission of the prosecution is correct to the effect that the deceased was murdered with planning of cool brain, then also the question remained whether the present Petitioner is in any way connected with the said offence of murder. 17. According to this Court, so far as records available in the case diary at this stage, against the Petitioner, there is no such material except suspicion and suspicion. Therefore, it would not be proper on the part of this Court to curtail the liberty of a citizen on the basis of suspicion alone. 18. Accordingly, it is directed that the Petitioner shall be released on bail in the event of his arrest in connection with the aforesaid P.S. case on furnishing a bond of Rs. 50,000 with two sureties of the like amount to the satisfaction of the arresting authority on further conditions that he shall appear before the I.O. of the case once in a fortnight till investigation is complete and he shall also appear before the I.O. of the case as and when called for and he shall not leave the State of Tripura without prior permission of the learned Chief Judicial Magistrate, West Tripura, Agartala, and he shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case as to dissuade him from disclosing such facts to the court or to any police officer. 19. With the aforesaid order, the bail application is allowed and disposed of. Application allowed.