Prasanta Kumar Sarkar
Vs Ashis Chatterjee & Anr.
JUDGMENT
D.K. JAIN, J.:
1.
Leave
granted.
2.
This
appeal, by special leave, is directed against order dated 11 th January, 2010
passed by the High Court of Calcutta in C.R.M. No. 272 of2010, granting regular
bail to respondent No. 1 in this appeal (hereinafter referred to as "the
accused"), under Section 439 of the Code of Criminal Procedure, 1973 (for
short "the Code").
3.
The
accused is facing trial for an offence punishable under Section 302 of the
Indian Penal Code, 1860 (for short "IPC") for allegedly committing
the murder of one Ms. Mallika Sen. Respondent No.2 is the State of West Bengal.
4.
Very
briefly stated the facts material for the adjudication of this appeal can be
stated thus:
Ms. Mallika Sen, a 57
years old widow was found strangulated at her residence on 2nd July, 2009. The
appellant, who is the brother of the victim, lodged a written complaint at the
Rampurhat Police Station, on the basis of which FIR No. 111/09 dated 2nd July,
2009 was registered under Section302, IPC.
It has been alleged
that a neighbour of late Ms. Sen, one Mr.Somenath Dutta, saw the accused
rushing out of the residence of the deceased, around the time the incident took
place. The accused was arrested on 13th July, 2009 and produced before the
Additional Chief Judicial Magistrate who remanded him to judicial custody.
Thereafter, on the same day, the police filed a forwarding report in the said
court, inter alia, requesting for holding of a Test Identification Parade
(T.I.P.) of the accused. The T.I.P. was conducted, but perhaps the accused
could not be identified. However, in the second T.I.P., the accused was duly
identified by the aforesaid witness.
5.
The
accused filed several bail applications before the Additional Chief Judicial
Magistrate which were all dismissed vide orders dated 7th September, 2009, 16th
September, 2009 and 19th September, 2009.
6.
On
7th October, 2009, charge-sheet No. 138 of 2009 under Section 302 IPC was filed
against the accused before the Additional Chief Judicial Magistrate.
7.
Having
failed to secure bail from the Sessions Court, the accused preferred a bail
application, being C.R.M. No. 272 of 2010 before the High Court under Section
439 of the Code. As stated above, by the impugned order, the High Court allowed
the application, and granted bail to the accused by a short order, observing
thus: "Having regard to the nature of the alleged crime, we do not think
that interest of investigation requires or (sic) justifies further detention of
the present petitioner at this stage."
8.
Hence
the present appeal by the complainant.
9.
Mr.
Nagender Rai, learned senior counsel appearing on behalf of the appellant,
while assailing the impugned order, contended that the said order being
non-speaking, deserves to be set aside in light of the decision of this Court
in Masroor Vs. State of Uttar Pradesh & Anr. Learned counsel submitted that
the High Court has failed to take into consideration the manner in which a
hapless old lady was done to death as also the fact that the accused had been
duly identified by an independent witness.
10.
Per
contra, Mr. Ujjwal Banerjee, learned counsel appearing for the accused,
contended that the case against the accused was false, as is evident from the
fact that the witness had failed to identify the accused in the first T.I.P.
Learned counsel contended that the accused had been arrested on a mere
suspicion, and in light of the fact that he has not misused the bail, the
impugned order needs to be affirmed.
11.
We
are of the opinion that the impugned order is clearly unsustainable. It is
trite that this Court does not, normally, interfere with an order passed by the
High Court granting or rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion judiciously,
cautiously and strictly in compliance with the basic principles laid down in a
plethora of decisions of this Court on the point. It is well settled that,
among other circumstances, the factors to be borne in mind while considering an
application for bail are:
i.
whether
there is any prima facie or reasonable ground to believe that the accused had
committed the offence;
ii.
nature
and gravity of the accusation;
iii.
severity
of the punishment in the event of conviction;
iv.
danger
of the accused absconding or fleeing, if released on bail;
v.
character,
behaviour, means, position and standing of the accused;
vi.
likelihood
of the offence being repeated;
vii.
reasonable
apprehension of the witnesses being influenced; and
viii.
danger,
of course, of justice being thwarted by grant of bail. (See: State of U.P.
through CBI Vs. Amarmani Tripathi2; Prahlad Singh Bhati Vs. NCT, Delhi &
Anr.3; Ram Govind Upadhyay Vs. Sudarshan Singh & Ors.4)
12.
It
is manifest that if the High Court does not advert to these relevant considerations
and mechanically grants bail, the said order would suffer from the vice of
non-application of mind, rendering it to be illegal. In Masroor (supra), a
Division Bench of this Court, of which one of us (D.K. Jain, J.) was a member,
observed as follows:
"Though at the
stage of granting bail an elaborate examination of evidence and detailed
reasons touching the merit of the case, which may prejudice the accused, should
be avoided, but there is a need to indicate in such order reasons for prima
facie concluding why bail was being granted particularly where the accused is
charged of having committed a serious offence."
(See also: State of
Maharashtra Vs. Ritesh5; Panchanan Mishra Vs. Digambar Mishra & Ors.6;
Vijay Kumar Vs. Narendra & Ors.7; Anwari Begum Vs. Sher Mohammad & Anr8)
13.
We
are constrained to observe that in the instant case, while dealing with the
application of the accused for grant of bail, the High Court completely lost
sight of the basic principles enumerated above. The accused, in the present
case, is alleged to have committed a heinous crime of killing an old helpless
lady by strangulation. He was seen coming out of the victim's house by a
neighbour around the time of the alleged occurrence, giving rise to a
reasonable belief that he had committed the murder. We feel that under the
given circumstances, it was not the stage at which bail under Section 439 of
the Code should have been granted to the accused, more so, when even charges
have not yet been framed. It is also pertinent to note that, as stated above, the
Additional Chief Judicial Magistrate had rejected three bail applications of
the accused but the High Court did not find it worthwhile to even make a
reference to these orders. In this regard, it would be useful to refer to the
following observations echoed in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @
Pappu Yadav & Anr.9:- "In regard to cases where earlier bail
applications have been rejected there is a further onus on the court to
consider the subsequent application for grant of bail by noticing the grounds on
which earlier bail applications have been rejected and after such consideration
if the court is of the opinion that bail has to be granted then the said court
will have to give specific reasons why in spite of such earlier rejection the
subsequent application for bail should be granted." (See also: Ram Pratap
Yadav Vs. Mitra Sen Yadav & Anr.10)
14.
For
the foregoing reasons, the appeal is allowed, and the impugned order is set
aside. The bail bond and the surety furnished by the accused in terms of the
impugned order stands cancelled and it is directed that he will be taken into
custody forthwith. Needless to add that observations touching the merits of the
case against the accused are purely for the purpose of deciding the question of
grant of bail and if in future any such application is filed by the accused, it
shall be considered on its own merits untrammeled by any of these observations.
...........................................J.(D.K.
JAIN)
............................................J.
(H.L. DATTU)
NEW
DELHI;
OCTOBER
29, 2010.
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