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2016 DIGILAW 125 (CAL)

Anupam Sarkar v. .

2016-02-03

ANIRUDDHA BOSE, SANKAR ACHARYYA

body2016
JUDGMENT : The petitioner in both these applications is the son of one Sajal Sarkar (deceased), whose charred body with his hands and legs tied was discovered locked inside a factory shed on 26th July 2015, at about 9.30 p.m. It was on petitioner’s written complaint formal F.I.R. was registered. It appears that deceased father of the petitioner was running a unit of manufacturing rubber products from that factory. Dum Dum P.S. Case No. 730 of 2015 dated 27th July 2015 was started on the basis of the said F.I.R., under Sections 302 and 201 of the Indian Penal Code, 1860. After recordal of witness statements, the O.P. No. 2 in C.R.M. 10982 of 2015 and the O.P. No. 2 in C.R.M. 10983 of 2015 were interrogated and arrested on 27th July 2015 itself. During pendency of the investigation, Opposite Party No. 2 in both the cases have been enlarged on bail by the Additional Sessions Judge, 1st Court, Barrackpore on 29th September 2015. In these two applications, the petitioner seeks cancellation of their bail. It is submitted by Mr. Ray, learned Advocate for the petitioner in both the applications that O.P. No. 2 in C.R.M 10982, Barun Dutta (B) was a friend of the informant’s father and Subhash Chakraborty (S), O.P. No. 2 in C.R.M. 10983 is a developer, who has interest in the property on which the factory of the father of the petitioner was located. Mr. Ray further submitted that S was holding out threat to the father of the petitioner for sometime, requiring the deceased to vacate the property, and the father of the petitioner had been resisting such threat. So far as B is concerned, it is submitted on behalf of the petitioner that the deceased had left his residence on the day of occurrence on receiving his call. Further, the widow of the deceased was informed by B that a fire had broken out in the factory of the deceased and a person was charred by the fire. It has been also submitted on behalf of the petitioner that S is an influential person, and the Opposite Parties ought not to have been enlarged on bail before investigation was completed. Prayer for bail of the opposite parties was objected to by the Public Prosecutor before the First Court. It has been also submitted on behalf of the petitioner that S is an influential person, and the Opposite Parties ought not to have been enlarged on bail before investigation was completed. Prayer for bail of the opposite parties was objected to by the Public Prosecutor before the First Court. The First Court, however, granted the prayer for bail of the two accused persons primarily on the ground that the accused persons were taken into police custody but there was no development in the case. Mr. Singh, learned Public Prosecutor, assisted by Mr. Partha Pratim Das, learned Advocate has supported the applications for cancellation of bail. He submitted that this was a case in which as yet there was no eyewitness, and the investigating agency had to primarily rely on circumstantial evidence. It was also his submission that in a case of this nature, investigation is complex and custodial interrogation and trial is necessary. He further submitted that investigation is continuing and another person has been arrested on 1st February 2016 itself. In this regard, he drew our attention to page 252 of the Case Diary. We enquired from him, having regard to his stand, as to why the State had not applied for cancellation of bail granted to the opposite parties. His response was that decision to seek cancellation for bail has to be taken through a protracted administrative process, and this could not be done in these two cases for want of time. On behalf of both the opposite parties, represented in C.R.M. 10982 of 2015 by Ms. Anasuya Sinha and C.R.M. 10983of 2015 by Mr. Sandip Chakraborty it was argued that there is no allegation against the opposite parties of misusing their liberty in any manner upon being enlarged on bail, and there was no reason for cancellation of bail. Ms. Sinha relied on a decision of the Supreme Court in the case of Ramcharan Vs. State of M.P. [ (2004)13 SCC 617 ] to contend that an order granting bail can be cancelled only on existence of cogent and overwhelming circumstances and not on reappreciation of evidence. She submitted that the First Court had already considered the evidence available and her client was enlarged on bail on such consideration and there is no overwhelming intervening circumstances warranting cancellation of bail. The other authority she relied on is the case of Dolat Ram and Others Vs. She submitted that the First Court had already considered the evidence available and her client was enlarged on bail on such consideration and there is no overwhelming intervening circumstances warranting cancellation of bail. The other authority she relied on is the case of Dolat Ram and Others Vs. State of Haryana [ (1995)1 SCC 349 ]. In this judgment, it has been held:- “Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) 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 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted.” Mr. Ray on the other hand had referred to the judgment of the Supreme Court in the case of Prakash Kadam and Others Vs. Ramprasad Vishwanath Gupta and Another [ (2011)6 SCC 189 ]. This judgment was relied upon in support of his submission that overwhelming subsequent intervening factor alone cannot guide the Court considering application for cancellation of bail. Gravity and nature of offence, existence of prima facie case against the accused, position of the accused are also factors to be considered while dealing with an application for cancellation of bail. The other authority relied upon by him is the case of Kanwar Singh Meena Vs. Gravity and nature of offence, existence of prima facie case against the accused, position of the accused are also factors to be considered while dealing with an application for cancellation of bail. The other authority relied upon by him is the case of Kanwar Singh Meena Vs. State of Rajasthan and Another [ (2012)12 SCC 180 ] in support of his submissions. We have perused the Case Diary. In our opinion, there was sufficient materials in the Case Diary prima facie implicating both the opposite parties in the offence alleged. This appears particularly from pages 25, 36 and 71 thereof, as also the materials referred to by Mr. Singh appearing at page 252 of the Case Diary. The nature of evidence collected so far are mainly circumstantial, which, as submitted by the learned Public Prosecutor, makes the task of the investigating agency more complex. In this perspective, in our opinion, enlarging the accused persons on bail before investigation was completed was unwarranted. The offence involved is no doubt grave and serious in nature. This factor was not considered at all by the First Court. In the case of Kanwar Singh Meena (supra), it was held:- “While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail.” We are of the opinion that while enlarging the opposite parties on bail, the First Court failed to take into consideration the gravity and seriousness of the offences alleged, the degree of involvement of the accused persons in the offence alleged at the prima facie stage, the fact that investigation was still going on and the complexity of the investigation. Without reference to any of these relevant factors in the order of bail and reliance only on progress of investigation and period of detention before time to file chargesheet was over, in our opinion, renders the two orders granting bail to the opposite parties perverse. It is also our opinion that, in a case of this nature, if the accused persons are allowed to remain on bail, that would impair smooth investigation and progress in trial. We accordingly direct that bail granted to the accused opposite parties by the Additional Sessions Judge, 1st Court, Barrackpore in C.R.M. 1690/15 and C.R.M. 1668/15, by Order Nos. 2 and 4, both of 29th September 2015 be cancelled. The accused opposite parties are directed to surrender before the ACJM, Barrackpore by 10th February, 2016. After surrender, the ACJM Barrack pore shall take them into custody and take further appropriate steps in accordance with law. The original Case Diary shall be returned to the learned Public Prosecutor.