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2020 DIGILAW 640 (CAL)

SK Abdul Salam v. State Of West Bengal

2020-12-15

JAY SENGUPTA

body2020
JUDGMENT Jay Sengupta, J. - This is an application praying for modification of the order dated 11.03.2019 passed by the learned Additional Sessions Judge, 1st Court, Uluberia, Howrah in Special Case No.18 of 2018 under Section 354 of the Indian Penal Code and under Sections 8 and 12 of the POCSO Act, thereby refusing to modify the condition of bail granted to the petitioner on 06.03.2019. 2. Learned counsel appearing on behalf of the petitioner submits as follows. The petitioner is an accused in this case. He is a senior citizen, aged about 64 years. Since the investigation was not completed within the statutory period as contemplated under Section 167 (2) of the Code, the petitioner preferred an application by statutory bail. On 06.03.2019 the learned trial Court was pleased to grant statutory bail in favour of the petitioner, inter alia, on condition to furnish surety of one gazetted officer of Grade-A. This condition could not be satisfied by the petitioner as he was a common man with limited means and had no access to any gazetted officer. The petitioner accordingly made an application for modification of the condition of bail, but the same was rejected on 11.03.2019. As a consequence, the petitioner is languishing in jail for about two years although he had been granted statutory bail. Although a charge sheet was subsequently submitted under higher charges, the same was done after expiry of 90 days which is the period stipulated for completion of investigation in respect of those graver sections. Therefore, the petitioner was in any way entitled to statutory bail even if the higher charges were taken into consideration. 3. Learned counsel appearing on behalf of the State submits as follows. A charge sheet was subsequently submitted against the petitioner under higher charges. A prima facie case is made out against him as would be evident from a plain reading of the charge sheet. A departmental proceeding was initiated against the concerned investigating officer for not completing investigation within the statutory period. 4. I have heard the submission of learned counsels appearing on behalf of the petitioner and the State and have perused the revisional application. 5. It is an admitted position that the charge sheet was not submitted within the statutory period under which the case was earlier being investigated. 4. I have heard the submission of learned counsels appearing on behalf of the petitioner and the State and have perused the revisional application. 5. It is an admitted position that the charge sheet was not submitted within the statutory period under which the case was earlier being investigated. It appears that the charge sheet was submitted after 90 days which is the statutory period in respect of the graver charges on which the charge sheet was finally submitted. 6. In view of the ratio laid down by the Hon'ble Apex Court in the case of Uday Mohan Lal Acharya, (2001) 5 SCC 453 , it is amply clear that if a charge sheet is not submitted within the statutory period, the accused would have an indefeasible right to seek bail. 7. Besides, the right to obtain bail cannot be defeated by imposing grave and onerous conditions, which could not be satisfied by the accused. It is a fair proposition that a common man may not have access to a gazetted officer to furnish him as surety. The learned trial court ought to have taken into consideration this aspect and accordingly, modified the relevant condition of bail. On this a reference is made to decisions of the Hon'ble Apex Court in Moti Ram & Ors. vs. State of MP, (1978) AIR SC 1594 and Munish Bhasin & Ors. vs. State, (2009) 4 SCC 45 . 8. However, taking into consideration the nature of allegations it seems necessary that the movement of the petitioner is required to be restricted. 9. In view of the above and in the interest of justice, I set aside the impugned order so far as the refusal to modify the conditions of bail is concerned and modify the conditions of bail to the following extent - (i) Instead of sureties of a gazetted officer and another, the petitioner shall furnish two sureties of 10,000/- (Rupees Ten Thousand only) each, one of whom must be local subject to the satisfaction of the learned trial Court. (ii) Until further orders, the petitioner shall stay outside the jurisdiction of Uluberia Police Station. With these observations the revisional application is disposed of. Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.