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2021 DIGILAW 209 (CAL)

Tanushri Mitra v. State Of West Bengal

2021-04-07

BIBEK CHAUDHURI

body2021
JUDGMENT Bibek Chaudhuri, J. - This is an application for recalling of the order dated 11th January, 2021 passed by this Court in CRM No.8638 of 2019 thereby cancelling interim bail granted to the petitioner by the learned Chief Judge, City Sessions Court in Criminal Misc Case No.347 of 2019 arising out of GR Case No.1712 of 2018 and Shakespeare Sarani P.S Case No.311 dated 9th December, 2018 under Sections 420/406/120B of the Indian Penal Code vide order dated 5th July, 2019. 2. Before dealing with the contention raised by the petitioner in the instant application it is necessary to refer the following facts:- 3. Shakespeare Sarani P.S Case No.190 of 2018 dated 16th July, 2018 under Section 420/406/409/120B of the Indian Penal Code was registered against the petitioner on allegation that the petitioner in association with other persons started a business of providing job and higher educational facilities in Canada and other foreign countries for the students and job seekers. In this way the petitioner and her associates took huge amount of money from different persons, but they failed to provide them with any kind of job or higher education facility in foreign countries. Thereby they cheated the innocent students and job seekers and committed criminal breach of trust and misappropriated the money of the said candidates in connivance and conspiracy with each other. 4. When the candidates came to know about the arrest of the petitioner in connection with Shakespear Sarani P.S Case No.190 of 2018, they submitted series of complaints to the Officer-in-Charge of Shakespeare Sarani P.S who again registered P.S Case No.311 under Section 420/406/120B IPC dated 9th December, 2018 on the basis of suo moto complaint. On 30th January, 2019 the applicant was arrested. She was however released on interim bail by the learned Chief Metropolitan Magistrate, Kolkata vide order dated 16th February, 2019. On 11th April, 2019 the applicant threatened petitioner No.1 of CRM No.8638 of 2019 outside the court room of the learned Chief Metropolitan Magistrate, Kolkata with dire consequence. Petitioner No.1 lodged FIR before the Hare Street P.S immediately after the occurrence, on the basis of which Hare Street P.S Case No.115 was registered against the petitioner under Sections 195A/506/114 of the Indian Penal Code. Petitioner No.1 lodged FIR before the Hare Street P.S immediately after the occurrence, on the basis of which Hare Street P.S Case No.115 was registered against the petitioner under Sections 195A/506/114 of the Indian Penal Code. An application under Section 437(5) of the Code of Criminal Procedure was filed against the petitioner before the learned Chief Metropolitan Magistrate and by an order dated 17th June, 2019 the learned Chief Metropolitan Magistrate cancelled the interim bail granted to the petitioner. The applicant filed an application under Section 439 of the Code before the learned Chief Judge, City Sessions Court praying for bail and vide order dated 5th July, 2019 the learned Chief Judge, City Sessions Court granted interim bail to the accused/petitioner. The opposite parties No.2 and 3 prayed for cancellation of bail of the petitioner by filing CRM No.8638 of 2019 on 16th September, 2019. This Court vide order dated 11th January, 2021 allowed CRM No.8638 of 2019 and the bail of the petitioner was cancelled. 5. The present application was filed by the accused/petitioner on 2nd March, 2021 praying for recalling of the order dated 11th January, 2021 passed by this Court. 6. In her application the petitioner contends that an order of grant of bail can be assailed on the ground of improper exercise of discretion as well as for post bail conduct. The order of bail can be cancelled under Section 439(2) of the Code only on post bail conduct. In case, the order of grant of bail is assailed, the same cannot be adjudicated upon under Section 439(2) of the Code in as much as post bail conduct assumes no relevance in such case. Therefore improper exercise of discretion can be assailed only by filing an application under Section 482 of the Code of Criminal Procedure before a higher forum and the same cannot be assailed under Section 439(2) of the Code. In the instant case, the private opposite parties has filed a misconceived application as they have assailed the grant of bail by filing an application under Section 439(2) of the Code which is per se non maintainable in view of the law of the land. In the instant case, the private opposite parties has filed a misconceived application as they have assailed the grant of bail by filing an application under Section 439(2) of the Code which is per se non maintainable in view of the law of the land. It is also submitted by the petitioner that the provision under Section 439(2) of the Cr.P.C could not have been invoked by the private opposite parties in an application therein assailing the order of grant of bail, therefore, the cancellation application becomes non maintainable and a misconceived one. Therefore the application for cancellation of bail deserves no adjudication on merit and it ought to be rejected by this Court. 7. On the above mentioned ground the petitioner has filed the instant application praying for recalling of the order dated 11th January, 2021. 8. Mr. Ayan Bhattacherjee, learned Advocate for the petitioner has made a lengthy submission based on various decision of the Hon'ble Supreme Court of India as well as this Court. On the question as to whether an order under Section 439(2) of the Code of Criminal Procedure of cancelling interim bail of the accused can be recalled by the same court or not, Mr. Bhattacherjee refers to a decision of the Hon'ble Supreme Court in the case of Municipal Corporation of Greater Mumbai & Anr. Vs. Pratibha Industries Ltd. & Ors, (2019) 3 SCC 203 . He refers to paragraph 10 of the aforesaid decision of the Hon'ble Supreme Court which reads as follows:- "10... Insofar as the High Courts' jurisdiction to recall its own order is concerned, the High Courts are courts of record, set up under Article 215 of the Constitution of India. Article 215 of the Constitution of India reads as under:- "215. High Courts to be courts of record.- Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself." It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record. This has been recognized in several of our judgments." 9. This has been recognized in several of our judgments." 9. On this point he also refers to another decision of the Hon'ble Supreme Court in the case of State of Punjab vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 . In Davinder Pal Singh Bhullar (Supra), an application was filed under Section 482 of the Code in appeal against acquittal after dismissal of the said appeal. Under such factual backdrop the Hon'ble Supreme Court held that If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. 10. Mr. Bhattacherjee next refers to the decision of the Hon'ble Supreme Court in Sushila Aggarwal & Ors. vs. State (NCT of Delhi) & Anr, (2020) AIR SC 831 . He particularly refers to paragraph 93.11 which states as follows :- "The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr; Jai Prakash Singh (supra) State through C.B.I. vs. Amarmani Tripathi). This does not amount to "cancellation" in terms of Section 439 (2), Cr.P.C." 11. He also refers to another decision of the Hon'ble Supreme Court in Union of India vs. Hasan Ali Khan & Anr, (2011) 10 SCC 235 and submits that the cancellation of bail and an appeal preferred against an order granting bail stand on different footings. This does not amount to "cancellation" in terms of Section 439 (2), Cr.P.C." 11. He also refers to another decision of the Hon'ble Supreme Court in Union of India vs. Hasan Ali Khan & Anr, (2011) 10 SCC 235 and submits that the cancellation of bail and an appeal preferred against an order granting bail stand on different footings. While the ground for cancellation of bail would relate to post-bail incidents, indicating misuse of the said privilege, an appeal against an order granting bail would question the very legality of the order passed. This difference was explained by this Court in State of U.P. Vs. Amarmani Tripathi, (2005) 8 SCC 21 . 12. It is also submitted by Mr. Bhattacherjee that an order of bail is an interlocutory order. Therefore the limitation contained in Section 362 of the Code is not applicable in the instant case. The petitioner can file an application praying for recalling of on order passed by this Court under Section 439(2) of the Code of Criminal Procedure. In support of his contention he refers to the following decisions of the Hon'ble Supreme Court :- i) Sushila Aggarwal & Ors. vs. State (NCT of Delhi) & Anr (supra). ii) Anowar Hossain Fakir @ Boto,2017 1 CalCriLR 347 (Cal). iii) Sri Sudip Sen vs. The State of West Bengal, (2010) CriLJ 4628 . iv) B.N Elias & Co. LLP vs. Md. Idris Ali & Ors, (2013) 3 CalCriLR 437 (Cal) . 13. Mr. Debapratim Guha, learned Advocate for the private opposite parties, on the other hand submits that although the court granting bail can cancel the bail on the ground of misconduct by the accused or new adverse facts having surfaced after the grant of bail, however, in view of express bar contained in Section 362 of the Code, it cannot review its order as to grant of bail on ground of it being unjustified, illegal or perverse. Such challenge to bail order on ground of it being illegal or contrary to law can be determined only by the court superior to the court which granted bail. In support of this contention he refers to the decision of the Hon'ble Supreme Court in Abdul Basit @ Raju & Ors. vs. Mohd. Abdul Kadir Chaudhury & Anr,2014 10 SCC 454 . 14. In support of this contention he refers to the decision of the Hon'ble Supreme Court in Abdul Basit @ Raju & Ors. vs. Mohd. Abdul Kadir Chaudhury & Anr,2014 10 SCC 454 . 14. In the matter of Pravash Chandra Sarkar, (2014) 1 CalCriLR 908 (Cal) , referred to by the learned Advocate for the private opposite parties, it was held by a coordinate Bench of this Court that recalling of an order creates a vacuum, not coming within rigours of Section 362. If an order is obtained by abuse of process of Court, the Court has the authority to recall the said order for reason of its becoming nullity. Order given without being heard, contrary to natural justice in violation of the principle of audi alteram partem can always be recalled. 15. However in the instant case the applicant/accused was extensively heard, the learned Advocate for the applicant/opposite party appeared at the time of hearing of CRM No.8638 of 2019 and submission made by him was recorded at length by this Court in its order dated 11th January, 2021. Under such circumstances the petitioner/accused cannot claim that she was not given an opportunity of being heard. If the petitioner has any grievance, she could move the higher court assailing the order of cancellation of bail. An application for recall is not maintainable under the facts and circumstances of this case. 16. The learned Advocate for the private opposite parties also refers to the following decisions in support of his argument that the court can cancel an order of bail of an accused granted by the court of sessions under the provision of Section 439(2) of the Code. In Puran vs. Rambilas & Anr, (2001) CalCriLR 391 (SC) it is held by the Hon'ble Supreme Court that even if it is an interlocutory order, the High Court's inherent jurisdiction under Section 482 is not affected by the provisions of Section 397 (3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. 17. On the same point he refers to following decision:- i) Gurcharan Singh vs. State (Delhi Administration), (1978) AIR SC 179 . ii) Hari Singh Mann vs. Harbhajan Singh Bajwa & Ors, (2001) CalCriLR 41 (SC) . 18. 17. On the same point he refers to following decision:- i) Gurcharan Singh vs. State (Delhi Administration), (1978) AIR SC 179 . ii) Hari Singh Mann vs. Harbhajan Singh Bajwa & Ors, (2001) CalCriLR 41 (SC) . 18. The Hon'ble Supreme Court has delineated in Dolat Ram vs. State of Haryana, (1995) 1 SCC 349 the following situations as supervening factors which justify the cancellation of bail of an accused:- (a) Interference or attempt to interfere with the due course of administration of Justice. (b) Evasion or attempt to evade the due course of justice. (c) Abuse of the concession granted to the accused. (d) Possibility of the accused. (e) Livelihood/actual misuse of bail. (f) Livelihood of the accused tampering with the evidence or threatening witnesses. (g) Other supervening circumstances, which have rendered it no longer conducive to a fair trial to allow the accused to retain his/her freedom by being on bail. 19. The order of bail granted in favour of the applicant by the learned Chief Judge, City Sessions Court on 5th July, 2019 was passed ignoring a relevant circumstance that the accused while on bail threatened the witnesses with dire consequence within the precinct of the trial court. The petitioner No.1 had to lodge a complaint against the applicant before the Hare Street P.S and on the basis of their complaint P.S Case No.115 dated 11th April, 2019 was registered under Section 195A/506/114 IPC. 20. It is needless to say that the applicant was granted bail under Section 437 of the Code of Criminal Procedure on 16th February, 2019 and she threatened the witnesses so that the criminal case instituted against her might be withdrawn on 11th April, 2019. The specific act of the applicant committed on 11th April, 2019 was of course in violation of the conditions enumerated in Section 437(3) of the Code. The learned Chief Judge, City Sessions Court did not consider her post bail misconduct in court premises though he recorded the said fact in his order. 21. On factual aspect, Mr. Bhattacherjee submits that the applicant did not violate any condition for bail after she being released by the learned Chief Judge, City Sessions Court. However, the report submitted by the Officer-in-Charge of Hare Street P.S is on record that the petitioner misused the condition for bail on 11th April, 2019. 21. On factual aspect, Mr. Bhattacherjee submits that the applicant did not violate any condition for bail after she being released by the learned Chief Judge, City Sessions Court. However, the report submitted by the Officer-in-Charge of Hare Street P.S is on record that the petitioner misused the condition for bail on 11th April, 2019. This Court clearly stated in the order dated 11th January, 2021 that the petitioner violated the condition for bail granted under Section 437 of the Code of the Criminal Procedure and therefore her bail was cancelled by the learned Chief Metropolitan Magistrate on 17th June, 2019 under Section 437(5) of the Code. 22. It is absolutely false to suggest on behalf of the applicant that the order of bail granted to the petitioner was not cancelled on the basis of her post bail conduct. 23. The decisions of the Hon'ble Supreme Court as well as this Court relied on by the learned Advocate for the petitioner is not applicable under the facts and circumstances of this case because this Court is not unmindful to note that an order of bail granted by the learned Chief Judge, City Sessions Court can be cancelled by this Court under the provision of Section 439(2) of the Code taking into account the post bail conduct of the applicant. This Court never considered the correctness of the order of bail granted by the learned Chief Judge, City Sessions Court in his order dated 5th July, 2019. 24. In view of the above discussion on I firmly hold that the instant application is devoid of any merit. The application was misconceived and vexatious in nature. Therefore the application deserves rejection with exemplary cost. 25. Accordingly the application for recalling of the order dated 11th January, 2021 passed in CRM No.8638 of 2019 is rejected with cost of Rs.10,000/- to be deposited by the applicant in the fund of the High Court Legal Aid Service Committee within seven days from the date of this order. 26. CRAN 1 of 2021 is thus disposed of.