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2015 DIGILAW 477 (CAL)

Animesh Das v. State of West Bengal

2015-06-09

R.K.BAG

body2015
JUDGMENT : R.K. Bag, J. The petitioner has prayed for cancellation of bail of the opposite parties no.2 to 12 under Section 439 (2) of the Code of Criminal Procedure, 1973 by challenging the order dated April 11, 2014 passed by the learned Sessions Judge, Purba Medinipur in connection with Criminal Misc. Case No.1173 of 2014 arising out of Mahishadal Police Station Case No.92 of 2014 dated 13th March, 2014 under Sections 341/323/308 of the Indian Penal Code and Section 3(1) (i) to (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter the S.C. & S.T. Act, 1989). The opposite parties no.2 to 12 have prayed for dismissal of the application filed by the petitioner by filing CRAN 2461 of 2014 under Section 482 of the Code of Criminal Procedure. 2. For proper appreciation of the prayers made by the parties, it is necessary to narrate, in brief, the backdrop of the case which is as follows:- The petitioner was married to the opposite party no.2 in the year 2002 under the Special Marriage Act. Within the period of 10 years, the bonhomie of marriage turned into acrimonial relationship and culminated into separation resulting in filing of several civil and criminal proceedings. The petitioner husband filed a proceeding under Section 9 of the Hindu Marriage Act against the opposite party no.2 (wife) which was registered as Mat Suit No.379 of 2011. Similarly, the opposite party no.2 started one maintenance proceeding against the petitioner husband under Section 125 of the Code of Criminal Procedure, which was registered as M-261 of 2012. It is alleged that the opposite party no.2 was compelled to reside in the house of her parents due to continuous torture inflicted on her by the petitioner husband and mother-in-law. 3. On January 15, 2014 there was a meeting of compromise between the parties in the village where the alleged incident took place. The petitioner husband filed a petition of complaint before the court of learned Chief Judicial Magistrate, Tamluk, praying for direction on the Officer-in-Charge of Mahishadal Police Station to take up the investigation by treating the said petition of complaint as FIR. Accordingly, Mahishadal Police Station Case No.92 of 2014 was started. The opposite parties no.2 to 12 prayed for anticipatory bail before the court of learned Sessions Judge, Purba Medinipur, by filing Criminal Misc. Case No.1173 of 2014. Accordingly, Mahishadal Police Station Case No.92 of 2014 was started. The opposite parties no.2 to 12 prayed for anticipatory bail before the court of learned Sessions Judge, Purba Medinipur, by filing Criminal Misc. Case No.1173 of 2014. By order dated April 11, 2014 learned Sessions Judge, Purba Medinipur, granted anticipatory bail to the opposite parties after formation of opinion that no offence under the provisions of the S.C. & S.T. Act, 1989 is made out. 4. Mr. Arindam Jana, learned counsel appearing on behalf of the petitioner contends that the contents of the petition of complaint treated as FIR disclose offences under Section 3(1)(v) (x) (xv) of the S.C. & S.T. Act, 1989 against the opposite parties. Mr. Jana further submits that in view of specific bar under Section 18 of the SC & ST Act, 1989 the order passed by learned Sessions Judge on April 11, 2014 is illegal and without jurisdiction and the same is liable to be set aside by this Court. Mr. Jana has relied on the decision of our High Court in "Parimal Maity v. State of West Bengal" reported in (2014) 2 Cr.L.R. (Cal) 297, the decision of the Supreme Court in "Vilas Pandurang Pawar v. State of Maharashtra" reported in (2012) 8 SCC 795 and the decision of the Supreme Court in "Subodh Kumar Yadav v. State of Bihar" reported in (2010) 2 SCC (Cri) 200 in support of his above contention. Mr. Jana has vehemently raised objection against the procedure adopted by the opposite parties no.2 to 14 by filing CRAN 2461 of 2014 under Section 482 of the Code of Criminal Procedure. According to Mr. Jana, the CRAN filed by the opposite parties praying for dismissal of the revisional application of the petitioner is misconceived. 5. Mr. Pratip Kumar Bhattacharya, learned counsel appearing on behalf of the opposite parties no.2 to 14 raises initial objection about the maintainability of the application filed by the petitioner for cancellation of bail on the ground that the petitioner has suppressed the fact of previous reporting of the incident before the police on January 21, 2014 on which the present criminal case is started by the petitioner by filing a petition of complaint in the court of learned Magistrate under Section 156(3) of the Code of Criminal Procedure. Mr. Mr. Bhattacharya argues that the opposite parties never misused the liberty granted to them by the court and as such, the question of cancellation of bail of the opposite parties does not arise. By referring to various provisions of Chapter-XI of the Calcutta High Court Appellate Side Rules, Mr. Bhattacharya submits that the opposite parties have the right to file CRAN under Section 482 of the Code of Criminal Procedure in connection with any CRM filed by the petitioner. According to Mr. Bhattacharya, the petitioner has abused the process of the court and to prevent abuse of the process of the court and for ends of justice, the petitioner is entitled to file CRAN under Section 482 of the Code of Criminal Procedure praying for dismissal of the application filed by the petitioner. Mr. Bhattacharya has relied on the decisions of Chhattisgarh High Court reported in 2004 Cri LJ 680 and 2007 Cri LJ 2475 and one unreported decision of our High Court in connection with CRM 13746 of 2013 decided on December 2, 2013 in support of his above contention. 6. Mr. Amarta Ghose, learned counsel appearing on behalf of the opposite party State submits that there are enough materials in the case diary to justify prima facie case under Section 3(1)(iv) (x) (xv) of the SC & ST Act, 1989 against the opposite parties. According to Mr. Ghosh, learned Sessions Judge, Purba Medinipur, was not justified in granting anticipatory bail to the opposite parties in view of the specific bar under Section 18 of the SC & ST Act, 1989. 7. Before dealing with the rival contentions made by the learned counsel representing both parties, I would like to decide the issue of maintainability of the present application filed by the petitioner under Section 439(2) of the Code of Criminal Procedure. The suppression of fact by the petitioner with regard to reporting of the incident previously to the Officer-in-Charge of the Police Station cannot be a bar in filing the application for cancellation of bail of the opposite parties. I do not find any merit in the submission made on behalf of the opposite parties that the present application for cancellation of bail under Section 439(2) of the Code of Criminal Procedure is not maintainable in law. In my view, the present application filed by the petitioner is maintainable in law. I do not find any merit in the submission made on behalf of the opposite parties that the present application for cancellation of bail under Section 439(2) of the Code of Criminal Procedure is not maintainable in law. In my view, the present application filed by the petitioner is maintainable in law. On perusal of various provisions of Chapter-XI of the Appellate Side Rules of the High Court at Calcutta referred to by learned counsel for the opposite parties, I find that the opposite parties can file objection in writing supported by affidavit praying for dismissal of the application filed by the petitioner. The prayer of the opposite parties for invoking inherent power of the court under Section 482 of the Code of Criminal Procedure only for dismissal of the application filed by the petitioner is, in any view, misconceived. I fully agree with the submission made on behalf of the petitioner in this regard. However, I am inclined to consider the affidavit in opposition filed on behalf of the opposite parties and the supplementary affidavit filed by the opposite parties for the purpose of deciding the merit of the application filed by the petitioner. 8. On perusal of the petition of complaint which was treated as FIR (Annexure P-4 to the application), I find that the petitioner has not disclosed his relationship with the opposite parties in the said petition of complaint. Admittedly, the petitioner happens to be the husband of the opposite party no.2 and son-in-law of the opposite parties no.3 and 4. The allegation of insult and abuse of the petitioner by the opposite parties by taking the name of the caste disclosed in the petition of complaint must be considered in the background of relationship of the parties. This aspect is left open for decision of the trial court after recording of the evidence during the trial of the case. The allegation of insult and abuse of the petitioner by the opposite parties by taking the name of the caste disclosed in the petition of complaint must be considered in the background of relationship of the parties. This aspect is left open for decision of the trial court after recording of the evidence during the trial of the case. Even assuming for argument's sake that the offence under Section 3(1) (v) (x) (xv) of the SC & ST Act, 1989 is made out against the opposite parties and thereby Section 18 of the SC & ST Act, 1989 stands as bar to grant anticipatory bail to the opposite parties, I have to consider whether the bail granted to the opposite parties is liable to be cancelled under Section 439(2) of the Code of Criminal Procedure when there is no iota of allegations that the opposite parties misused the liberty granted to them by the court. It is pertinent to point out that learned counsel for the opposite parties submitted that the opposite parties were granted regular bail after granting anticipatory bail by learned Sessions Judge. 9. Section 439(2) of the Code of Criminal Procedure reads as follows:- "A High Court or court of session may direct that any person who has been released on bail under this chapter be arrested and commit him to custody." The grounds for cancellation of bail granted under Section 437(1) or (2) or 439(1) of the Code of Criminal Procedure are laid down by the Supreme Court in "Aslam Babalal Desai v. State of Maharashtra" reported in AIR 1993 SC 1 , which are as follows:- i) Misuse of liberty by the accused by indulging in similar criminal activity; ii) Interference with the course of investigation' iii) Attempt to tamper with evidence of witnesses; iv) Threatening witnesses or indulging in similar activities which would hamper smooth investigation; v) Likelihood of fleeing away of the accused to another country; vi) Attempt to make the accused scarce by going underground or becoming non-available to the investigating agency; vii) Attempt to place himself beyond the reach of his surety etc." 10. It is also pertinent to mention the principles of law enunciated by Supreme Court for cancellation of bail in non-bailable offence in the case of "Dolat Ram v. State of Haryana" reported in (1995) 1 SCC 349 , which are reiterated in the case of "Suvendu Mishra v. Subrata Kumar Mishra" reported in (2000) SCC (Cri) 1508, are as follows:- Generally speaking, the grounds for cancellation of bail are; interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of the bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. 11. Relying on the case of "Puran v. Rambilas" reported in (2001) 6 SCC 338 the Supreme Court has laid down in paragraph 17 of "Abdul Basid v. Mohd Abdul Kadir Chaudhury" reported in (2014) 10 SCC 754 that the concept of setting aside an unjustified, illegal or perverse order is absolutely different from cancelling an order of bail on the ground that the accused has misconducted himself or because of some supervening circumstances warranting such cancellation. 12. With the above proposition of law laid down by the Supreme Court for cancellation of bail under Section 439 (2) of the Code of Criminal Procedure, I would like to discuss the decisions cited from the Bar. The proposition of law laid down by our High Court in "Parimal Maity" (supra) is that the anticipatory bail cannot be granted to the accused when an offence under Section 3(1) of the SC & ST Act, 1989 is made out against the accused, because there is specific bar under Section 18 of the SC & ST Act, 1989. The proposition of law laid down by our High Court in "Parimal Maity" (supra) is that the anticipatory bail cannot be granted to the accused when an offence under Section 3(1) of the SC & ST Act, 1989 is made out against the accused, because there is specific bar under Section 18 of the SC & ST Act, 1989. The proposition of law laid down by the Supreme Court in "Vilas Pandurang Pawar" (supra) is that Section 18 of the SC & ST Act, 1989 creates a bar for invoking Section 438 of the Code of Criminal Procedure, though a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC & ST Act, 1989 has been prima facie made out. In "Subodh Kumar Yadav" (supra), the Supreme Court has laid down in paragraph 15 as follows:- "Learned counsel for the appellant contended that cancellation of bail can be only with reference to conduct subsequent to release on bail and the supervening circumstances. According to him, an application for cancellation will not be maintainable with reference to what transpired prior to the grant of bail. He relied upon the following observations in State of U.P. v. Amarmani Tripathi in support of the said contention. "17.....The decisions in Dolat Ram v. State of Haryana and Samarendra Nath Bhattacharjee v. State of W.B. cases relate to applications for cancellation of bail and not appeals against orders granting bail. In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under Section 439 read with Section 437, continue to be relevant. We, however, agree that while considering and deciding the appeals against grant of bail, where the accused has been at large for a considerable time, the post-bail conduct and supervening circumstances will also have to be taken note of. We, however, agree that while considering and deciding the appeals against grant of bail, where the accused has been at large for a considerable time, the post-bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail." A careful reading of the said observations shows that while considering the factors relevant for consideration of bail already granted vis-a-vis the factors relevant for rejection of bail, this Court pointed out that for cancellation of bail, conduct subsequent to release on bail and supervening circumstances will be relevant. The said observations were not intended to restrict the power of a superior court to cancel bail in appropriate cases on other grounds." In the above reported case, the Supreme Court was considering the issue of cancellation of bail in appeal where leave was granted to prefer appeal by the Supreme Court. The High Court can very well exercise the power of revision under Section 401 and 482 of the Code of Criminal Procedure for setting aside an illegal or unjustified order of granting bail. However, in the absence of any supervening circumstances after grant of bail or in the absence of any allegation of misuse of the liberty by the accused persons, this Court cannot cancel the order of granting bail by exercising criminal miscellaneous jurisdiction under Section 439(2) of the Code of Criminal Procedure. Since in the instant case this court is not exercising the power of the appellate court or the revisional court, I am of the view that the decision of the Supreme Court in "Subodh Kumar Yadav" (supra) will not be relevant in deciding the present case. 13. The proposition of law laid down by Chhattisgarh High Court in "Sumesh Das v. State Chhattisgarh" reported in 2004 Cri.L.J. 680 and in "Rajkumar Agarwal v. State of Chhattisgarh" reported in 2007 Cri.L.J. 2475 is that the application for anticipatory bail under Section 438 of the Code of Criminal Procedure is maintainable if the provisions of SC & ST Act, 1989 are not attracted in the said case. It is also held by our High Court in the case of "Mrinal Das v. State" (decided on December 2, 2013 in CRM 13746 of 2013) that when the provisions of the SC & ST Act, 1989 are not attracted in a particular case the accused persons are entitled to get anticipatory bail on the ground that the bar under Section 18 of the said Act will not be attracted. 14. Admittedly, in the instant case, the opposite parties did not misuse any liberty granted to them by the court by granting anticipatory bail followed by regular bail when they surrendered before the trial court. In the absence of any supervening circumstance and in the absence of any misconduct during the post bail period, I cannot persuade myself to invoke the provisions of Section 439(2) of the Code of Criminal Procedure for cancellation of bail of the opposite parties. However, the petitioner is at liberty to challenge the order of granting anticipatory bail by learned Sessions Judge by way of revision. In view of my above findings, I do not find any merit in the instant application. Accordingly, the application under Section 439(2) of the Code of Criminal Procedure stands dismissed. Consequently, CRAN 2461 of 2014 also stands disposed of. Urgent photostat certified copy of this order, if applied for, shall be given to the learned counsel for the parties as expeditiously as possible.