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2020 DIGILAW 507 (CAL)

Subasish Mishra v. State Of West Bengal

2020-06-18

SHIVAKANT PRASAD

body2020
JUDGMENT Shivakant Prasad, J. - N.B.: Due to my assignment at the Port Blair Circuit Bench from 16.03.2020 to 27.03.2020 and thereafter lockdown due to COVID-19 the judgment could not be made ready. 2. This is an application for cancellation of interim bail under Section 439(2) of the Code of Criminal Procedure, 1993, whereby and whereunder the petitioner has sought to cancellation of the bail in interim form granted in favour of the opposite party no. 2 vide impugned order dated 07.09.2019 passed by the learned Judge, Special Court (Essential Commodities Act)- cum-learned Additional District and Sessions Judge, Alipore, South 24 Parganas in connection with Electricity Case No. 339 of 2019 corresponding to Ekbalpore Police Station Case No. 190 of 2019 dated 21.05.2019 under Sections 135/138 of the Electricity Act, 2003 and further direction that the opposite party no. 2 be taken into custody after the cancellation of the interim bail so granted by the impugned order. 3. The fact of the petitioner's case is that on the basis of a credible source information that from 60/H/11 Dr. Sudhir Bose Road Police Station Ekbalpore, Kolkata-700023, electricity is being unauthorizedly abstracted by means of direct connection from CESC Ltd. SVC cut out by passing the concern metering arrangement, a team of official of CESC Ltd. including the petitioner as the Senior Engineer (loss control cell) visited the said premises on 21st May, 2019 in between 10.15 hours and 11.35 hours to undertake inspection as to the veracity of the information. Inspection revealed that the opposite party no. 2 is the master mind behind such unauthorized abstraction of electricity and he is using the abstracted electricity unauthorizedly for his own domestic use and also involved in large scale selling of pilfered electricity to their nearby inhabitants in exchange of money for his wrongful gain. On complaint of the petitioner, the said Police Station case was started against the opposite party no. 2 and other accused persons. 4. Applications for anticipatory bail were moved on behalf of all the three accused persons on 14th June, 2019 in connection with Criminal Misc. Case No. 3505 of 2019 and the same was rejected. The opposite party no. 2 thereafter alone moved an application being the second anticipatory bail application registered as Criminal Misc. 2 and other accused persons. 4. Applications for anticipatory bail were moved on behalf of all the three accused persons on 14th June, 2019 in connection with Criminal Misc. Case No. 3505 of 2019 and the same was rejected. The opposite party no. 2 thereafter alone moved an application being the second anticipatory bail application registered as Criminal Misc. Case No. 3793 of 2019 which was also rejected on the self same ground on the finding of serious nature of the offence. Third bail application dated 26.06.2019 for release on anticipatory bail was filed on behalf of the opposite party no. 2 on the contention that the petitioner was being harassed by the CESC authority and is facing lot of trouble due to his serious illness as he is a infirm person. This fact appears to be wrong statement because he cannot be considered as infirm person as the opposite party no. 2 was 33 years old on that date. It is stated in the said application that CESC authority has received a sum of Rs. 6 lakhs by six installments which is reflected from the photocopy of payment bills annexed to the application. However, considering the nature of the offence, the learned Trial Judge rejected the application on 30th July, 2019. It would appear from the affidavit part of the second application under 438 CR.P.C. that Intakhab Alam had changed his age being 42 years as per affidavit which is a misstatement made by him because in his earlier application he has stated on oath that he was 33 years of age. The opposite party no. 2 has filed a further application under Section 438 Cr.P.C. on 6th August, 2019 stating that his earlier applications under Section 438 Cr.P.C. vide Criminal Misc. Case No. 3505 of 2019 and the second anticipatory bail vide Criminal Misc. Case No. 3793 of 2019 and so also the third anticipatory bail application vide Criminal Misc. Case No. 4467 of 2019 were all rejected. Therefore, it cannot be said that there was suppression on this account that he had suppressed the fact of his moving the previous applications while renewing his application for grant of anticipatory bail, the application was not pressed and so rejected as withdrawn by the learned Trial Judge vide order dated 21st August, 2019. 5. Therefore, it cannot be said that there was suppression on this account that he had suppressed the fact of his moving the previous applications while renewing his application for grant of anticipatory bail, the application was not pressed and so rejected as withdrawn by the learned Trial Judge vide order dated 21st August, 2019. 5. Further, it appears from impugned order dated 07.09.2019 passed in Electricity Act Case No. 339 of 2019 that the opposite party no. 2 surrendered before the Trial Court and he was admitted on bail on certain condition which has been sought to be cancelled by the petitioner on the ground that the opposite party no. 2/accused has criminal antecedents because on 21.01.2019 he was found tapping electricity from underground distribution point though no case was registered but a final assessment was made and he has paid a sum of Rs. 5,96,636/-. 6. It is submitted by Mr. Basu that multiple attempts were made to obtain anticipatory bail by suppressing earlier rejection of anticipatory bail. It is pointed out that there is no mention in his bail application filed on 07.09.2019 about the earlier rejection of his prayer for pre-arrest bail in his application for bail on 21.08.2019 which was dismissed as withdrawn and that the order impugned is completely silent in this regard. A bare reading of the orders rejecting the prayer for anticipatory bail, it would appear that all said applications were turned down by the learned Trial Court after taking into consideration the incriminating materials against the opposite party no. 2 and the criminal antecedents of the opposite party no. 2 and in such view of the matter there could not have been any occasion of the learned Judge to have granted interim bail to the opposite party no. 2 on the date of his surrender before him. It is contended that till date the conditions imposed by the learned Judge while enlarging opposite party no. 2 on interim bail has not been complied with by the opposite party no. 2 and such conduct on the part of the opposite party no. 2 is a clear demonstration of the fact that the opposite party no. 2 has scant regard for the law of the land as well as the judicial orders and with sheer impunity, the opposite party no. 2 clearly misused the protection against incarceration granted to him by the impugned order. 2 is a clear demonstration of the fact that the opposite party no. 2 has scant regard for the law of the land as well as the judicial orders and with sheer impunity, the opposite party no. 2 clearly misused the protection against incarceration granted to him by the impugned order. 7. It is no doubt apparent on the record that the opposite party no. 2 was caught red handed on 21.01.2019 tapping electricity unauthorizedly, illegally from underground distribution of CESC Ltd. at 1E/H/12 Ibrahim Road, Kolkata-700023 by passing a block meter bearing no. 4712588 having consumer no. 14049113011 standing in his name and ultimately he has paid the sum of Rs. 5,96,036/- as per the final assessment order dated 21.01.2019 and settled the matter of the CESC Ltd. But the opposite party no. 2 was again caught red handed on 19.06.2019 when he was found hooking through direct connection from service cut out of CESC Ltd at 1E/H/12 Ibrahim Road, Kolkata-700023, thereby illegally and unauthorizedly absracting electricity for his wrong gain and thereby causing wrongful loss to CESC Ltd as well as the Government which resulted in another criminal case being Ekbalpore Police Station Case No. 227 of 2019 dated 19.06.2019 under Section 135/138 of Electricity Act, 2003. 8. It is argued on behalf of the petitioner that the learned Judge has completely failed to appreciate the fact that the opposite party no. 2's intention is not by any standard bonafide one nor can it be said by any stretch of imagination that allegation against opposite party no. 2 is not serious in nature and he has scant regard for the law of the land as he has become habitual offender by indulging such kind of offence from time to time. 9. The argument laid before this Court on behalf of the petitioner is that the learned Judge by his impugned order granting interim bail to the opposite party no. 2 has absolutely overlooked the fact of earlier application for anticipatory bail having been rejected on four previous occasions and by clearly indicating that there were incriminating materials against the opposite party no. 2 and this goes to show that the learned Judge was of the view that the custody of the opposite party no. 2 was necessary in the facts and circumstances of the case. 2 and this goes to show that the learned Judge was of the view that the custody of the opposite party no. 2 was necessary in the facts and circumstances of the case. There was no subsequent change in the situation and, therefore, there could not have been cogent reasons whatsoever which could have impelled the learned Judge to enlarge the opposite party no. 2 on interim bail. 10. Mr. Basu in support of his stand in cancellation of interim bail granted to the petitioner has placed reliance on a Full Bench decision in case of Suman Suman Saha @ Kausik Saha -Vs.- The State of West Bengal and Ors.,2010 4 CalHN 361 (Cal) wherein the question for determination was whether the accused can move second application for anticipatory bail in case his first application is rejected. If yes, in what contingency before the same Court or to the superior court? The Full Bench of this Hon'ble Court held by summing up conclusions as follows a) a person has a right to move either the High Court or the court of sessions for directions under section 438 CRPC at his option. In case a person chooses to move the Court of session in his first instance and his application for grant of anticipatory bail under section 438 is rejected, he can again move the High Court for the same reason under section 438 CRPC itself. b) Where a person chooses to straightway move the High Court in the first instance and his application is rejected on the same set of facts and circumstances, he will not be entitled to move the Court of session for the second time, but may invoke the extraordinary powers of the Supreme Court by seeking special leave to appeal in the Supreme Court. c) A person will be entitled to move the High Court or the Court of sessions as the case may be, for the second time. He can do so only on the ground of substantial change in the facts and circumstances of the case due to subsequent events. However, he will not be entitled to move the second application on the ground that the court on earlier occasion failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the court. 11. However, he will not be entitled to move the second application on the ground that the court on earlier occasion failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the court. 11. This Court finds on perusal of four applications under Section 438 of Criminal Procedure Code filed on behalf of the opposite party that in the second application the fact of rejection of previous application was disclosed. Therefore, the cited decision is distinguishable from the given facts of the case. Secondly, the accused/opposite party no. 2 had surrendered before the Court when he was granted bail on the ground that his wife was a psychiatric patient and he has to look after her. That apart, the Investigating Officer had not submitted the final report even after 90 days and for that reason, he was admitted on interim bail even considering the seriousness of the case, otherwise the learned Judge would have granted him regular bail had there been no antecedents. 12. Reference is also made to a decision in case of Smt. Nabanita Das Maity Vs the State of West Bengal and another, (2008) 2 CalCriLR 97 (Cal) to submit that grant of anticipatory bail should be cancelled on the score that there has been non disclosure about the rejection of the earlier anticipatory bail which amount to suppression of material fact and practicing fraud upon the Court but as I have discussed above that interim bail granted vide impugned order to the opposite party no. 2/accused is on the basis of a regular application for bail when he surrendered before the Trial Court and he was taken into custody and then his prayer for bail was considered and interim bail order granted to him. So the above cited judgment is also distinguishable from the facts of the case. 13. Yet, a case of Pamela Sarkar Vs. State of West Bengal and Anr., (2010) 2 CalHN 267 CAL passed by the Division Bench of this Hon'ble Court has been relied to submit that there has been misstatement in the affidavit. So the above cited judgment is also distinguishable from the facts of the case. 13. Yet, a case of Pamela Sarkar Vs. State of West Bengal and Anr., (2010) 2 CalHN 267 CAL passed by the Division Bench of this Hon'ble Court has been relied to submit that there has been misstatement in the affidavit. It has been observed in a set of facts that in the second application the accused himself stated in his affidavit filed before the Trial Court mentioning that no application under Section 438 Cr.P.C. was filed by him earlier was held to be ground itself for rejection of the anticipatory bail by cancellation of the bail on the ground of misstatement made by the accused. The above cited case is not also apposite to the facts and circumstances of the instant case which was with regard to an application for anticipatory bail for the second time filed with the misstatement that there was no rejection of or no pendency of such an application for anticipatory bail before any of the Court barring the misstatement regarding age of the opposite party no. 2. 14. Mr. Basu also relied on a decision in case of Puran, Shekhar And Anr vs Rambilas & Anr., State Of Maharashtra And Anr., (2001) 6 SCC 338 the Honourable Apex Court in regard to grounds for cancellation of bail under section 439(2) of CRPC and submitted that an order granting bail was passed by ignoring material evidence on record and without giving reasons regarding the order impugned as perverse and contrary to principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. Such ground for cancellation is different from the ground that the accused misconducted itself or some new facts called for cancellation. In this particular case the ratio of decision may be taken into consideration in the given facts of the case but I find that there was reflection of the cases instituted against the accused/opposite party no. 2 before the Trial Court. In this particular case the ratio of decision may be taken into consideration in the given facts of the case but I find that there was reflection of the cases instituted against the accused/opposite party no. 2 before the Trial Court. The Trial Court having considered the facts that the investigation was not concluded with the submission of the final report even after 90 days and secondly, that the accused person's wife was a psychiatric patient suffering from aliment and he had to attend to his wife and thirdly that the conditions which were imposed for release of the accused by way of interim order of bail was duly complied with and that is reflected from affidavit in opposition submitted by the learned Advocate Mr. Uday Sankar Chattopadhyay for the opposite party no. 2 who has enclosed in his application the money receipts showing that Rs. 4 lakhs have already been deposited. So far as the merit of the case in concern that can very well be gone into at the trial but at this stage if on the basis of the consideration of antecedents of the criminal antecedents of the accused/opposite party no. 2 the interim bail is cancelled then the prosecution has to undertake the trial so as to conclude the trial to hold him guilty or not guilty . 15. The Court is well in the knowledge that offence under Section 135/138 of Electricity Act, 2003 is summary triable after the submission of the final report but as on the date of granting interim bail on surrendering by the accused/opposite party no. 2 since the final report was not submitted before the Trial Court within 90 days, the accused was admitted on interim bail but undoubtedly the learned Trial Court overlooked his subsequent involvement in the offence of similar nature which is no doubt a misconduct on the part of the accused. 2 since the final report was not submitted before the Trial Court within 90 days, the accused was admitted on interim bail but undoubtedly the learned Trial Court overlooked his subsequent involvement in the offence of similar nature which is no doubt a misconduct on the part of the accused. It would not be out of place to take note of the provisions of Sub-section 5 of Section 154 of the said Act which provides that Special Court has to determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined which ever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil Court. It is also provided that in case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the board or licensee or the concern person, as the case may be, shall be refunded by the board or licensee to the concerned person as the case may be, within the fortnight from the date of communication of the order of Special Court together with interest at the prevailing Reserve bank of India prime lending rate for the period from the date of such deposit till the date of payment. Therefore, the provision of Section 154 deals with the civil liability which means loss or damage incurred by the Board or licensee or the concerned person as the case may be due to commission of an offence referred to in Section 135 to 140 and Section 150 of the Act. This Court takes serious note of the fact that the accused involved in the similar crime of serious nature. 16. Notwithstanding, the accused has criminal liability who is habituated to commit similar type of crime and his criminal intention is writ large which this Court takes a serious note of it that learned Trial Court indeed overlooked the material evidence of similar offence committed during pendency of the case. 16. Notwithstanding, the accused has criminal liability who is habituated to commit similar type of crime and his criminal intention is writ large which this Court takes a serious note of it that learned Trial Court indeed overlooked the material evidence of similar offence committed during pendency of the case. However, I make it clear that the accused/opposite party no. 2 will deposit the entire amount of final assessment within three months from the date hereof in default the petitioner shall be at liberty to move the Trial Court for cancellation of interim bail granted by impugned order and put the accused/opposite party no. 2 into custody so as to prevent recurrence of such offence of nature alleged by the CESC Ltd. 17. Accordingly, the CRM being 10804 of 2019 is disposed of. 18. Website copy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.