Susanta Ghosh Vs.
State of West Bengal
No.310 of 2012 arising out of SLP (CRL) No.9350 of 2011]
O R D E R
ALTAMAS KABIR, J.
Appeal is directed against the judgment and order dated 29th September, 2011,
passed by the Division Bench of the Calcutta High Court in C.R.M. No.7982 of
2011, which was an application for grant of bail under Section 439 of the
Criminal Procedure Code, hereinafter referred to as "Cr.P.C.", in connection
with Anandapur Police Station Case No.36 of 2011, dated 6th June, 2011, under Sections
147, 148, 149, 448, 326, 307, 302, 506, 201 and 120-B of the Indian Penal Code
read with Sections 25 and 27 of the Arms Act, corresponding to G.R. Case
No.1364 of 2011, pending before the learned Chief Judicial Magistrate, Paschim Medinipur.
The Appellant had moved the High Court for bail against the order dated 20th August,
2011, passed by the Chief Judicial Magistrate, Paschim Medinipur, rejecting his
prayer for bail and remanding him to jail custody.
Appellant is an elected Member of the West Bengal Legislative Assembly. His prayer
for bail is based mainly on the ground that on account of political vendetta he
has been named as an accused in a First Information Report which was lodged on 5th
June, 2011, in respect of an incident which occurred on 22nd September, 2002, and
in respect whereof three separate FIRs had been lodged, two on the date of incident
itself and one on 26th September, 2002, in which he had not been named. The first
FIR was lodged by one Nemai Ch. Sarkar, which was recorded as FIR No.59 dated 22nd
September, 2002 of Keshpur PS, Paschim Medinipur, under Sections 148, 149, 307
and 302 IPC read with Sections 25, 27 and 35 of the Arms Act as also Section
9(b) of the Indian Explosives Act.
second FIR was lodged by one Shri Debashish Roy, the Station House Officer of Keshpur
Police Station, on the same day and in respect of the same incident, which was
recorded as FIR No.60 dated 22nd September, 2002, under similar provisions.
third FIR was lodged by the daughter of the deceased, Smt. Chandana Acharya,
which was recorded as Keshpur PS Case No.61 dated 26th September, 2002, under
Sections 148, 149, 448, 326, 307, 364 and 506 IPC read with Sections 25 and 26
of the Arms Act.
will be apparent from the three FIRs, the first two related to the incident in which
seven persons, including the father of the third complainant, Ajoy Acharya, were
killed at Piyasala Village and their bodies were removed to and buried at Daser
Bandh, Keshpur. As indicated hereinabove, in none of the above FIRs was the
Appellant named, nor was he included in the charge-sheets which were filed.
cases which arose out of the first two FIRs in which charge-sheets were filed under
Sections 148, 149, 302 IPC and also under Sections 448, 364 and 506 IPC, ended in
acquittal of the accused persons who were alleged to have committed the offences
complained of. The third case is, however, still pending trial before the learned
Additional Sessions Judge, Paschim Medinipur.
amongst a number of skeletons which were recovered from a grave in Daser Bandh,
Keshpur, one of the skeletons was identified by one Shyamal Acharya, the younger
son of the deceased, on the strength of the clothes which were recovered, together
with a set of teeth, which were identified to be that of the deceased, Ajoy Acharya.
It is thereafter that the fourth FIR was lodged by Shri Shyamal Acharya, being
Anandapur P.S. Case No.36 of 6th June, 2011, in which 40 persons were named as accused
and the name of the Appellant was shown at serial No.2 and it was alleged that
he had entered into a criminal conspiracy with the other accused persons in order
to cause the deaths of the seven victims, who were allegedly members of the Trinamool
It was further alleged
that a peace meeting had been held prior to the incident and the victims were returning
to their homes upon the assurance that had been given in the meeting that peace
would be maintained by the local villagers. The further allegation was that under
the directions of the Appellant, the seven victims were targeted and dragged out
of their homes and were killed upon his instructions. Thereafter, the bodies were
carried to different places and ultimately buried at Daser Bandh in Keshpur, from
where the skeletons were recovered.
Ranjit Kumar, learned Senior Advocate, who appeared on behalf of the Appellant,
Mr. Susanta Ghosh, urged that with the change in the Government in the State of
West Bengal, the Appellant, who is a M.L.A. of the Communist Party of India (Marxist)
and a former Minister, is being targeted after an interval of nine years in order
to discredit and 7humiliate him and to adversely affect his political career.
It was further submitted
that nothing prevented the prosecution or even the heirs of the victim, including
his daughter, Smt. Chandana Acharya, who had earlier lodged FIR No.61 dated
25th September, 2002, or the younger son, Shri Shyamal Acharya, who had lodged
the fourth FIR, from coming out with the allegation against the Appellant earlier.
Mr. Ranjit Kumar submitted
that not only was the delay in lodging the FIR, in which the Appellant was indicted,
fatal to the prosecution case, but gave rise to a strong suspicion that it was motivated.
Mr. Ranjit Kumar also submitted that before the Division Bench of the Calcutta
High Court, the Appellant had been granted the benefit of anticipatory bail which
was subsequently not extended by the learned trial Judge, who remanded the Appellant
to police custody, and, thereafter, bail has been refused.
Ranjit Kumar submitted that the parameters for grant of bail have been laid
down by this Court in various cases and this Court has indicated as to when
bail could be refused in respect of cognizable offences, such as, if there were
of tampering with the evidence;
of interfering with the investigation; and
Ranjit Kumar submitted that as far as the first two instances are concerned, since
charge-sheet has already been filed, the same do not survive. Furthermore, since
the Appellant is a sitting MLA and a former Minister in the West Bengal Government,
there was no chance of his absconsion.
Ranjit Kumar submitted that this is a fit case for grant of bail to the
opposing the Appellant's prayer for bail, Mr. Gopal Subramanium, learned Senior
Advocate, submitted that the offences alleged to have been committed by the accused,
including the Appellant, were highly disturbing and had caused a serious law
and order situation and had also spread panic amongst the people of the area. Mr.
Subramanium submitted that apart from being grievous, as well as heinous in nature,
the crimes were committed pursuant to a well-conceived conspiracy which had been
hatched under the leadership of the Appellant herein. Mr. Subramanium submitted
that although the name of the Appellant had not figured in the earlier FIRs,
his complicity in the murder of the seven victims had been subsequently established
by witnesses who had witnessed the incident and had maintained that the Appellant
had been present throughout, until the dead bodies were buried, giving rise to an
additional charge under Section 201 IPC.
Subramanium submitted that having regard to the grievous and appalling nature of
the crime, right from when the murders were committed, till the concealment of the
bodies by burying them, the question of granting bail to the Appellant does not
arise, especially when charge-sheet has been filed against him and the matter is
ready for trial. Learned counsel submitted that the prayer made on behalf of the
Appellant for grant of bail was liable to be rejected.
considered the submissions made on behalf of the respective parties, we are inclined
to allow the Appellant's prayer for bail. Admittedly, two FIRs in respect of the
same incident were lodged on the same day, while the third FIR was lodged a few
days later. The first FIR was lodged by one Nemai Ch. Sarkar, a local man. The second
FIR was lodged by the S.H.O. of the Keshpur Police Station and the third FIR was
lodged by the daughter of the deceased Ajoy Acharya.
is no mention of the Appellant's name or alleged role in the incident. There
was nothing to prevent at least Smt. Chandana Acharya, the daughter of the
deceased, from naming him. Whether the investigating authorities took notice of
the same is an entirely different matter. At this stage it will not be proper for
us to dilate any further on the factual aspect of the matter, but at least for the
purpose of considering the Appellant's prayer for bail it does merit consideration
that the Appellant has been arrested in connection with a FIR lodged 9 years after
the incident. During all these years there is no allegation that the Appellant has
interfered with the investigation. Furthermore, in connection with this case he
was also granted anticipatory bail. There is nothing to indicate that such privilege
was either abused or misused by the Appellant.
indicated hereinabove, the parameters laid down by this Court for considering
grant of bail to an accused include the likelihood of his absconsion and
tampering with the evidence or the witnesses or even the investigation.
Tampering with the evidence or the investigation is no longer relevant since charge-sheet
has already been filed in the case. As far as absconsion is concerned, the
Appellant being a sitting MLA, even such a possibility is remote. There is, of course,
the possibility that the Appellant may tamper with the witnesses. However, considering
the fact that the matter has been reopened as far as the Appellant is concerned,
after an interval of about 10 years, even such a possibility appears to be
remote. However, in order to prevent such an eventuality, the Appellant can be put
on terms, as was done by the High Court while allowing his prayer for
therefore, allow the appeal and direct that the Appellant be released on bail to
the satisfaction of the trial Court. The trial Court may impose such conditions
as may be necessary to secure the Appellant's presence during the trial. In addition
to the above, except for Garhbeta, which is his Assembly Constituency, the Appellant
shall not enter other areas of Paschim Medinipur District, West Bengal, without
the permission of the trial Court and shall report to the local police station
where he will be residing, once on the last Sunday of each month, between 11.00
a.m. and 1.00 p.m. The Appellant shall make himself available before the trial Court
at all stages of the trial, unless for any special reason he is exempted from doing
so by the trial Court on any particular occasion.
appeal is disposed of accordingly.
(GYAN SUDHA MISRA)