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2015 DIGILAW 905 (CAL)

Sk Munna Ali v. .

2015-10-28

JOYMALYA BAGCHI, SANKAR ACHARYYA

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JUDGMENT Heard the learned Counsel appearing on behalf of the parties. Perused the Case papers. The petitioners are in custody for about 80 days. It is submitted that charge sheet was filed under Sections 323/448/506 of the Indian Penal Code against the petitioners. It is, therefore, submitted that further detention of the petitioners is illegal inasmuch as they are booked under bailable offences. Learned Public Prosecutor submitted that investigation is complete and bearing in mind the extent of complicity of the petitioners charge sheet was filed against them under lesser offences. Learned lawyer for the defacto complainant opposes the prayer for bail. He submits that the petitioners are named in the FIR and played pivotal role in murder of the victim. Suppressing such fact, the defacto complainant and others have been booked under Sections 149/302 of the Indian Penal Code for murder of the victim. He submits that investigation on the face of it appears to be biased and therefore, prayer has been made for re-investigation/further investigation which is pending consideration before this Court in W.P. no. 20633(W) of 2015. We have considered the rival submissions of the parties. Campus violence has become an endemic scourge in our educational institutions. One such spate of violence at Sabang Sajanikanta Maha Vidyalaya on 7.8.2015 between two groups owing allegiance to rival student associations resulted in the unfortunate death of one Krishnapada Jana, a student of the said institution. First Information Report was lodged by one Soumen Ganguly who was the general secretary of the Student Union of the college wherein petitioners were named as assailants of the victim. In the course of investigation however, Soumen Ganguly was implicated as an accused person, while petitioners were implicated in lesser offences. In the course of investigation reliance has been placed on C.C. TV. footage wherefrom it appears that the victim Krishnapada Jana was moving around with the principal accused Paltu Ojha and the defacto complainant Soumen Ganguly. Petitioners were also found in the college in or around the time of the incident. Although the victim and Paltu Ojha were seen moving around the college premises in a body it is claimed by the investigating agency that the victim Krishnapada Jana was dealt the murderous blow by Paltu Ojha. Petitioners were also found in the college in or around the time of the incident. Although the victim and Paltu Ojha were seen moving around the college premises in a body it is claimed by the investigating agency that the victim Krishnapada Jana was dealt the murderous blow by Paltu Ojha. In conclusion of investigation while the petitioners have been implicated in offences punishable under Sections 323/448/506 of the Indian Penal Code, Paltu Ojha, defacto complainant and others have been implicated to be members of the unlawful assembly for commission of offence punishable under Section 149/302 of the Indian Penal Code. It is strange while defacto complainant Soumen Ganguly has been alleged to be a member of the unlawful assembly who assaulted Krishnaprasad, it was the latter who took the victim for medical assistance and lodged first information report. Such inconsistencies appear to have been glossed over by the investigating agency. From the statements and materials on record it appears that the petitioners were present at the place of occurrence and participated in the scuffle between the students. Admittedly, they belong to the rival association. It is, therefore, difficult to accept the prosecution version that the petitioners can be booked only for the lesser offences. On the other hand, there is every likelihood of the petitioners’ involvement in the unlawful assembly resulting in the murder of Krishnapada Jana (as depicted in the FIR) appears to have been conveniently ignored for reasons best known to the investigating agency. It is trite law that the subjective satisfaction of the Court is not to be guided by the opinion of the police officer filing the charge sheet. Investigation in this case depicts a strange dichotomy inasmuch as the defacto complaint has been alleged to be a member of the unlawful assembly which assaulted the victim although it appears immediately thereafter he made arrangements for the victim’s medical assistance and lodged first information report which implicates the petitioners in the murder of the victim. It is also pertinent to note that the prayer for reinvestigation/further investigation by an independent agency is pending consideration before this Court in another jurisdiction. In this factual background, we are reluctant to extend the privilege of bail to the petitioners although the investigating agency has apparently concluded that the petitioners have committed bailable offences only. There appears much more in this matter than what meets the eye. In this factual background, we are reluctant to extend the privilege of bail to the petitioners although the investigating agency has apparently concluded that the petitioners have committed bailable offences only. There appears much more in this matter than what meets the eye. Presence of the petitioners at the place of occurrence as well as their predominant role in the rival students’ association at the college is evident. They are also the principal assailants in the FIR. In this backdrop it is difficult to accept the volte face during investigation in attributing of a minimalist role to the petitioners in the alleged offence while portraying a prominent role on the part of the defacto complainant and others in forming an unlawful assembly to commit murder of the victim. Such issues may be gone into in further details while considering the prayer for re-investigation/further investigation pending before this Court. When prayer for further investigation is pending as to the role of the petitioners in the offence of murder it cannot be said that the accusation of murder against the petitioners is a dead letter or otiose and hence under such circumstances there is a subsisting discretion vested in the Court not to accept the ipse dixit of the police and release the petitioners on bail forthwith. For the aforesaid reasons, we are not inclined in granting bail to the petitioners at this stage. We make it clear that the observation made by us are for the purpose of disposal of this bail application and shall not have any bearing at the subsequent stage of proceeding which shall be conducted in accordance with law. The application for bail is thus rejected.