Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 102 (CAL)

Asim Biswas v. State of West Bengal

2015-02-05

SHIB SADHAN SADHU

body2015
JUDGMENT SHIB SADHAN SADHU, J. 1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure seeking to quash/set aside the impugned order dated 21.08.2014 passed by the Learned Sessions Judge, Burdwan in Criminal Misc. Case No. 2301 of 2014 whereby and whereunder Learned Sessions Judge, Burdwan refused to confirm the interim anticipatory bail granted to the petitioners earlier on 01.08.2014. 2. I have heard Mr. Prabir Mitra, Learned Senior Advocate appearing for the petitioner. I have also heard Mr. Ayan Bhattacharya, Learned Advocate, appearing for the State. I have also perused the relevant materials on record including the impugned orders. Further I have carefully gone through the decisions reported in Siddharam Satlingappa Mhetra vs. State of Maharastra & Others, (2011) 1 C. Cr. LR 488 (SC), A.K. Dhote and J.F. Salve & Another vs. State of Maharastra and Others, (2003) 2 SCC 649 and Sri Sudip Sen vs. State of West Bengal, (2010) 3 C Cr. LR (Cal) 314 cited by the Learned Advocate appearing on behalf of the petitioners. 3. On hearing both sides, a short question which falls for consideration is whether the Learned Sessions Judge was justified in granting the anticipatory bail to the petitioners on 01.08.2014 till 16.08.2014 and thereafter, canceling the same on 21.08.2014. 4. Looking into the factual background, it appears from the order sheets of Criminal Misc. Case NO.2301 of 2014 that the petition under Section 438 Cr. P.C. was filed by the petitioners on 03.07.2014 and 25.07.2014 was fixed for hearing and C.D. and L.C.R. were called for. On 25.07.2014 hearing was further adjourned to 31.07.2014 on the prayer made by the Learned P.P., Burdwan as the C.D. could not be produced. On 31.07.2014 it was again adjourned to 01.08.2014 on the same prayer and on the same ground made by the Learned P.P. On 01.08.2014 the history was repeated and the Learned P.P. submitted that the case diary was not available. On 31.07.2014 it was again adjourned to 01.08.2014 on the same prayer and on the same ground made by the Learned P.P. On 01.08.2014 the history was repeated and the Learned P.P. submitted that the case diary was not available. So the Learned Sessions Judge, Burdwan after hearing both sides and on perusal of the F.I.R. observed that there was political rivalry between two political parties and the case is outcome of such political rivalries and accordingly, he granted the prayer for anticipatory bail to the petitioners till 16.08.2014 subject to the satisfaction of the Learned Chief Judicial Magistrate, Burdwan and on condition that after their release on bail they shall strictly comply with the provision of Section 438(2) Cr. P.C. It further appears that in compliance with such order the petitioners surrendered before the Learned Chief Judicial Magistrate, Burdwan on 04.08.2014 and prayed for bail. The Learned Chief Judicial Magistrate, Burdwan considering the fact that the Learned Sessions Judge, Burdwan granted anticipatory bail to the accused/petitioners, allowed their prayer for bail. The bail bonds were furnished and accepted and the accused persons were released at once. Thereafter, on 21.08.2014 the Learned Sessions Judge, Burdwan on hearing both sides and on perusal of the C.D. and L.C.R. refused to confirm the interim bail granted earlier and rejected the prayer for anticipatory bail, by passing the impugned order. 5. The Constitution Bench of Hon’ble Supreme Court in the case of Gurbaksh Singh Sibbia & Others vs. State of Pubjab, (1980) 2 SCC 565 : AIR 1980 SC 1632 had laid down that the operation of the order passed under Section 438(1) Cr. P.C. need not be necessarily limited in the point of time. It has been held by the Hon’ble Full Bench of this High Court in Sudip Sen vs. State of West Bengal (Supra) that if a person has been directed to be released on bail in the event of his arrest under Section 438 Cr. P.C. for limited duration during which the regular Court has to be moved for bail, he shall move the Trial Court in the first instance for seeking such bail and the order releasing him on anticipatory bail would come to an end, and in case his application for ordinary/regular bail is rejected, the Trial Court shall remand him to police/judicial custody as the case may be. 6. 6. Therefore, in view of such well-established legal position, the exercise undertaken by the Learned Sessions Judge, Burdwan is not only illegal but also perverse. Although he granted the anticipatory bail on 01.08.2014 on merit after hearing the Learned P.P. but surprisingly enough he cancelled the anticipatory bail already granted by him while hearing the same application once again. It is needless to mention in this connection that the law is well-settled on the point that when an anticipatory bail is granted on giving full hearing to the Public Prosecutor, it cannot be cancelled unless fresh materials are placed and the conditions for cancellation of bail as provided under Section 439(2) Cr. P.C. are fulfilled. 7. For the aforesaid reasons, this application is allowed. The impugned order being order No.6 dated 21.08.2014 passed in Criminal Misc. Case No. 2301 of 2014 is hereby set aside. Consequently the bail granted to the petitioner is hereby confirmed. 8. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.