P.K. Biswas, J.@mdashThis is an application u/s 439(2) read with Section 482 of the Criminal Procedure Code praying for cancellation of the
Bail granted by the learned Sessions Judge, Burdwan in Criminal Miscellaneous Case No. 3097 of 1997 confirming an interim bail dated 23.12.97
granted earlier by the learned Sessions Judge, Burdwan to the opposite party No. 1, Sri Indrajit Mukherjee in connection with Kalna P.S. Case
No. 145 of 1995 corresponding to G.R. Case No. 294 of 1994 pending before learned SDJM, Kalna, Burdwan under Sections 326/307/120B/
201 of the Indian Penal Code.
2. The facts leading to the filing of the present application may be summarised as follows:
3. Sri Gurudas Halder, an active member of the State Government Employees'' Federation, West Bengal was having a dispute with his landlord.
S.I., Sri Tapan Choubey attached to the Kalna P.S., sided with the aforesaid landlord and in order to teach a lesson to Sri Balder, he was taken
into custody and was placed in the lock up during the evening of 09.08.1994, and while detained in the lock up, Sri Gurudas Halder was brutally
assaulted by Sri Tapan Choubey and he was compelled to sign on a non-judicial stamp paper wherein it was stated that he has relinquished his
tenancy in favour of his landlord quite voluntarily on a date mentioned in such paper.
4. Aforesaid Gurudas Halder being a leader of the State Government Employees'' Federation was quite popular in his locality and upon hearing the
news that he was illegally detained and assaulted by Sri Tapan Choubey, S.I., Kalna P.S., there were resentment amongst the members of
Federation and on the next day, Gurudas was released from the lock up in an injured condition and was sent to the local hospital for his treatment.
5. On 9.9.94, members of the aforesaid Federation including the present petitioner namely, Rash Behari Karmakar started an agitation against the
aforesaid police officer and they organised a ''pen-down strike'' in their offices and demanded that Sri Tapan Choubey must tender a public
apology to Gurudas Halder and as a result of such agitation, finally on 29.10.94 at the instance of the District Magistrate, Burdwan, Superintendent
of Police, Sub-Divisional Officer and Deputy Collector, Kalna, a meeting was held at the office of the SDO, Kalna, where said S.I., Tapan
Choubey tendered public apology to Sri Gurudas Halder.
6. After tendering public apology to Gurudas Halder, Tapan Choubey decided to vent his anger to the present petitioner namely, Rash Behari
Karmakar, who was an active participant in the said agitation against S.I., Tapan Choubey.
7. S.I., Tapan Choubey with the intention of subjecting the petitioner Rash Behari Karmakar to physical incarceration and torture falsely implicated
Sri Karmakar in a criminal case being Kalna P.S, Case No. 141 / 94 lodged at Kalna P.S. on 30.10.94 u/s 376 of the Indian Penal Code.
8. S.I., Tapan Choubey thereafter arrested Sri Karmakar from Kalna Sub-Divisional Hospital at 16.25 hrs. on 31.10.94 where Sri Karmakar was
admitted for suffering an accident on and from 24.10.94,
9. S.I., Tapan Choubey took Sri Karmakar from the Hospital bed, Dragged him and put him into a police jeep and took him to Kalna Police
Station and while taking Sri Karmakar to the P.S., Sri Choubey abused Sri Karmakar in filthy languages and Sri Karmakar was subjected to
physical assault by said Tapan Choubey and his associates.
10. At the P.S., Sri Karmakar was put into the police lock up where he was also physically assaulted by Sri Tapan Choubey and his companions.
11. The petitioner, Sri Karmakar was also interrogated by Circle Inspector, Kalna and SDPO, Kalna and in their presence, S.I. Tapan Choubey,
Indrajit Mukherjee, Officer-in-Charge of Kalna P.S., i.e., opposite party No. 1 and Sri B. Maity. S.I. of Police attached to Kalna P.S., abused
and physically assaulted Sri Karmakar after giving reference to the role in the agitation against S.I. Tapan Choubey and after that the petitioner was
again sent beck to the police lock up.
12. During the night, Sri Karmakar was again taken out of the police lock up by Swapan Dutta, NVF, and thereafter, Sri Karmakar was
mercilessly beaten up by the police personnel under the leadership of Tapan Choubey and S.I. Tapan Choubey decided to castrate Sri Karmakar
In order to teach him proper lesson. Pursuant to such decision, Tapan Choubey brought out a big knife like weapon from police station Malkhana
and S.I. Choubey started assaulting Sri Karmakar with the Intention of castrating him. Sri Indrajit Mukherjee, O.C. of Kalna Police, B. Maity and
Swapan Dutta caught hold Sri Karmakar for assisting Sri Choubey actively and S.I., Choubey actually castrated him.
13. Thus, having received such brutal assault, Sri Karmakar started bleeding profusely and lost his sense and regained his sense on the next day
i.e., on 01.11.94 at the Kalna Hospital. And subsequently, on enquiry he came to learn that at about 3.15 a.m. on 01.11.94, he was admitted to
the said hospital in castrated condition and an emergency operation had to be performed immediately.
14. Sri Karmakar was taken to P.G. Hospital, Calcutta on 08.12.94, subsequently for further treatment, but due to lack of accommodation, his
admission was refused and he was again re-admitted to Kalna Hospital on 09.12.94, and subsequently, between 12.12.94 and 26.12.94, Sri
Karmakar was transferred to Burdwan Medical College & Hospital for further treatment.
15. Sri Karmakar thereafter on 08.12.95 filed a petition of complaint before the learned Chief Judicial Magistrate, Burdwan against the said S.I.,
Tapan Choubey, Indrajit Mukherjee, opposite party No. 1. B. Maity and Swapan Dutta being Case No. Cr-53/95 under Sections 307/326/34 of
IPC in respect of the criminal and violent acts of torture and physical assault and castration of the petitioner by the aforesaid police officers of
Kalna P.S., during the night of 31.10.94 in the Kalna P.S. lock up. The police in turn to save their skin and to cover up and/or protect the actual
offenders, started another false criminal case in respect of aforesaid incident alleging that the injury on the petitioner was inflicted in the police lock
up at the behest of some unknown persons and the said case was registered on the basis of a written complaint submitted by the opposite party
No. 1 and was registered as Kalna Police Station Case No. 145/94 dated 12.9.94 u/s 326 of the Indian Penal Code. The investigation of the
aforesaid case was taken up by the CID, West Bengal. On conclusion of the investigation, a charge-sheet being No. 165/97 dated 14.11.97 under
Sections 326/307/201/120B of IPC was submitted before the learned SDJM, Kalna, Burdwan against the opposite party No. 1, Indrajit
Mukherjee and Julu Sk., Uttam Halder, Kena Sk., NVF, Swapan Dutta and ASI Surya Kanta Mondal.
16. In the charge-sheet, as aforesaid, it was highlighted that there was enough circumstantial evidence to show a series of inaction and/or willful
omissions on the part of the opposite party No. 1, ASI Surya Kanta Mondal, NVF, Swapan Kumar Dutta who connived with the other accused
persons and, thereby, committed offences punishable under Sections 326/307/ 120B/201 of IPC, and in the charge-sheet prayer was made for
issuance of Warrant of Arrest against the opposite party No. 1. The petitioner, however, has alleged that the aforesaid charge sheet is a product of
perfunctory investigation and a clever attempt of protecting the actual assailants in the instant case as the said charge-sheet did not include S.I.,
Tapan Choubey and B. Maity. However, pursuant to the prayer of the I.O., Warrant of Arrest was issued against the opposite party No. 1.
17. In the meantime, Opposite party No. 1, Indrajit Mukherjee and application for anticipatory ball before the learned Sessions Judge, Burdwan,
which was turned down by the learned Sessions Judge and, similar prayer for anticipatory bail was also turned down by this Hon''ble Court and
the opposite party No. 1 preferred a SLP before the Supreme Court of India and the said SLP was also dismissed as not pressed by the Hon''ble
Supreme Court.
18. Finding no other alternative, opposite party No. 1, Indrajit Mukherjee surrendered before the learned SDJM, Kama, Burdwan on 22.12.97
and prayed for granting him bail. But the said prayer was rejected by the learned Magistrate and learned Magistrate remanded the opposite party
to jail custody till 5.1.98.
19. The opposite party No. 1 thereafter, preferred an application for bail u/s 439 of the Code of Criminal Procedure before the learned Sessions
Judge, Burdwan immediately which was numbered as Miscellaneous Case No. 3097 of 1997 and while making such prayer, there has been
certain suppression of material fact i.e. prayer for anticipatory bail was rejected by learned Sessions Judge, Burdwan, Hon''ble High Court and
Hon''ble Supreme Court.
20. On the same date, without looking into the case diary in the Instant case by order dated 23.12.97, learned Sessions Judge granted interim ball
to opposite party No. 1 and being emboldened by the grant of interim bail, the opposite party No. 1 through various persons started threatening
the petitioner and his family members and held out threats that all of them would be put to death if they adduced evidence in Court. The present
petitioner went to the Kalna P.S., to lodge a diary in respect of the aforesaid threat on 28.12.97, but the Kalna P.S., refused to accept such diary
and this continued for a number of times.
21. The petitioner, thereafter, wrote a letter dated 13.01.98 addressing the same to the D.G. of Police, Lalbazar informing him about the aforesaid
threats of death and violence held out by the opposite party No. 1 and/or his men against the petitioner and the inaction of the Kalna Police Station
in taking steps with regard to the aforesaid materials. The petitioner, thereafter, filed an application for cancellation of the interim bail granted to the
opposite party No. 1 on 23.12.97 before the learned Sessions Judge, Burdwan and the said application was numbered as Criminal Miscellaneous
Case No. 133 of 1998, and the prayer for confirmation for ball granted to the opposite party No. 1 and the application for cancellation of the
interim bail of the opposite party No. 1 were taken up for hearing on the self-same date and after the hearing the learned Judge by order dated
04.02.98 was pleased to reject the prayer for cancellation of bail preferred by the petitioner and confirmed the interim bail granted to the opposite
party No. 1.
22. Thereafter, on 04.02.98, the petitioner came across with the opposite party No. 1 on the bridge at the railway platform of Burdwan Railway
Station, when the opposite party No. 1 threatened the petitioner with dire consequences and even with death. The opposite party No. 1, however,
abused the petitioner with filthy language and threatened the petitioner that if he continued with the criminal case he would be forced to leave
Kalna. The petitioner, thereafter, went to inform the said incident to the Kama P.S., but the Kalna P.S., refused to record his statement.
23. Threats and/or criminal intimidation to the petitioner and his family members at the behest of the opposite party No. 1 through his henchmen
were continuing unabated and the petitioner tried to inform the local police and informed those facts to the Superintendent of Police, Burdwan by
writing letters but even then no improvement was noticed.
24. The petitioner, ultimately, came before this Court with a prayer for cancellation of bail granted in favour of the opposite party No. 1 although
the other accused persons of this case have been remanded to custody for a considerable period of time and has alleged that the learned Sessions
Judge acted hastily and in an improper manner in granting the interim bail to the opposite party No. 1 on 23.12.1997 without proper appreciation
of the materials in the C.D.
25. Opposite party No. 1 has filed affidavit-in-opposition and has denied all the material allegations contained in the application under
consideration. It has further been contended that he is not guilty of suppression of the factum of rejection of the prayers of the opposite party for
anticipatory bail by the learned Sessions Judge, Burdwan and also by this Hon''ble Court and by the Hon''ble Supreme Court in the application for
bail u/s 439 of the Criminal Procedure Code filed by him before the learned Sessions Judge, Burdwan inasmuch as, it is a well settled principles of
law that there is a gulf of difference between pre-arrest and post-arrest bail and the relevant consideration for grant or refusal of such bails are also
different and such non-mentioning of the anticipatory bail in the aforesaid form may at best be an omission and not a suppression.
26. It has further been stated on his behalf that any Court of law, while considering the prayer for bail, pending the availability of the case diary,
may grant interim bail subject to confirmation thereof on a subsequent date on receipt of the case diary and this is exactly what had happened in the
instant case, so no exception can be taken to the grant of interim bail to the opposite party No. 1 in the manner as it has been granted to him and
subsequently on hearing both sides and on consideration of the case diary, the said interim bail was confirmed by the learned Sessions Judge,
Burdwan.
27. It has further been contended that the petition under consideration is based on false and baseless allegation against the opposite party No. 1.
28. Further, it has been contended that in the absence of any incriminating material appearing against the opposite party No. 1 in the case diary and
in the statements of the witnesses of the prosecution recorded u/s 161 and Section 164 of Cr.PC. the prayer for cancellation of bail of the opposite
party No. 1 is not at all entertainable and it is only on the very cogent and overwhelming materials and circumstances such cancellation may be
made, but regard being had to the materials on record in the instant case, such cogent and overwhelming circumstances are wanting so no order
cancelling the bail of the opposite party can be passed by this Hon''ble Court.
29. With all such allegations, opposite party No. 1 has prayed for rejection of the application under consideration.
30. Now although the affidavit-in-opposition was filed on behalf of the opposite party No. 1 in connection with this matter, yet, at the time of
hearing, none has appeared on his behalf.
31. In connection with the aforesaid matter, we have heard the learned counsel appearing for the petitioner, as also the learned Additional Public
Prosecutor appearing for the State, who in course of his submission has submitted that no doubt that the allegations levelled against this petitioner
are grave and severe in nature, yet, after the long lapse of time from the date of grant of this interim bail in favour of this opposite party No. 1
which was granted on 23.12.97 and subsequently is was confirmed on 4.2.98, no fruitful purpose will be served by cancelling the aforesaid bail.
32. It is now well settled position of law by a catena of decisions of the Supreme Court that the power of the Court in granting bail is not to be
exercised if the punishment before trial is being imposed. The only material considerations in such situations are: whether the accused would be
readily available for his trial or whether he is likely to abuse the discretion granted in his favour by tampering with evidence. But, when there is no
prima facie case, there is no question of considering the other circumstances. But even where a prima facie case is established, the approach of the
Court in the matter of granting bail should not be that the accused should be detained by way of punishment, but whether the presence of accused
would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with the evidence.
33. The question of cancellation of bail u/s 439(2) of Cr.PC stands certainly on a different footing from admission to bail u/s 439(1) of Cr.PC.
Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another and once an accused is enlarged on bail,
his liberation from custody cannot be lightly interfered with, but this does not, mean that in appropriate case, where ends of justice so demands the
Court will refuse to pass orders. Rather in such a situation Court exercise its power to cancel the bail granted earlier to meet the ends of justice.
34. It is now quite well settled that rejection of bail stands on one footing, but cancellation of bail is a harsh order because it interferes with the
liberty of the individual and hence it must not be lightly resorted to and the grounds for cancellation of bail u/s 437(5) and 439(2) are identical,
namely, bail granted u/s 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity,
(ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar
activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (v) there is likelihood of his fleeing to
another country (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to
place himself beyond the reach of his surety etc. and of course such grounds are illustrative and not exhaustive. So to succeed the prosecution must
show that the activities of the accused come under either one or more of these heads or under the head of a similar nature.
35. Bearing these principles in mind, let us now examine how far the conduct of the opposite party No. 1 invites the cancellation of bail granted to
him.
36. In the petition itself it has been highlighted that there is enough circumstantial evidence to show that there were series of inaction and/or willful
omission on the part of the opposite party No. 1 and others who connived with the other members of the accused persons of this case and thereby
committed this heinous offence punishable under Sections 326, 307, 120(b)/201 of the Indian Penal Code.
37. It is also an admitted position that the charge sheet has been filed against the opposite party No. 1 and others, but such allegations even If it
was grave and heinous in nature that cannot be taken into consideration at the time of consideration of the prayer regarding cancellation of the bail
of the accused/opposite party No. 1.
38. True it is that in the instant case, after the anticipatory bail prayer of the opposite party No. 1 was rejected by Superior Court, the opposite
party No. 1, finding no other alternative surrendered before the learned Magistrate praying for his release on bail and his prayer being rejected by
the concerned Magistrate, he approached the Sessions Judge by filing application u/s 439 of the Code of Criminal Procedure and the Sessions
Judge on that day, i.e. on 23.12.1997 granted interim bail to the opposite parry No. 1 recording therein the prayer for interim bail be allowed since
the charge sheet was submitted in connection with this case, presumably, on the consideration that the concerned accused person will be readily
available for the trial and there is no scope to abuse discretion granted in his favour by tampering with the evidence inasmuch as the charge sheet
has already been laid before the Court.
39. The aforesaid order, as it appears, cannot at all be termed to be ex facie illegal as it was within the competence of the Sessions Judge to grant
such bail, even in a Sessions trial case on perusal of the materials before him. Furthermore, the orders dated 4.2.1998, passed by the learned
Sessions Judge suggest that on the self-same day by one order in Crl. Miscellaneous Case No. 133 of 1998 the learned Sessions Judge has ,
considered the cancellation prayer, made on behalf of the petitioner with regard to the bail to the opposite party No. 1 and by another order in Crl.
Miscellaneous Case No. 3097 of 1997 he has also considered the prayer of the opposite party No. 1 regarding confirmation of the interim bail,
granted earlier to him by the learned Sessions Judge.
40. The learned Sessions Judge in his aforesaid orders has considered the entire aspects of the matter regarding alleged suppression of the fact
regarding rejection of the anticipatory bail order by the Superior Court, question of evading trial, abscondence and also regarding alleged threat
and/or intimation by the O.P. No. 1 to the petitioner in connection with this case and after considering those, he was pleased to confirm the interim
bail granted to the opposite party No. 1 and eventually rejected the prayer of the petitioner praying for cancellation of bail.
41. These orders also, to our mind, do not seem to be ex facie illegal.
42. In that view of the fact and also in the absence of the some cogent and overwhelming circumstances, the bail order, as has been granted by the
learned Sessions Judge, cannot be cancelled. Of course in the present petition, some sort of allegation has been made alleging that after the
confirmation of the interim bail threat was hurled against the petitioner by the opposite party No. 1 even with death, yet, such allegations have no
direct bearing either with the investigation of this case or with regard to the materials, already collected in connection with this case and the
aforesaid allegation simpliciter in the given situation, does not, by itself, prove to be very cogent and overwhelming circumstances for securing an
order for cancellation of bail.
43. Moreover, in the instant case the bail was granted to the accused/ opposite party No. 1 as back as on 23.12.1997. Now after a lapse of
considerable period of time no effective purpose will be sub-served by cancelling the bail of this accused/opposite party No. 1 in this case.
44. In such eventuality and in view of what has been stated above in the preceding paragraphs, we are of the clear view that this is not a fit case
where cancellation of bail should be made, but at the same time, we are not unmindful that larger interest of the State and Community including
consideration that parties do not loose faith in the system and take law into their own hands wrecking vengeance by private retribution are certainly
relevant factors to be taken into account while considering cancellation of bail.
45. So, keeping the aforesaid consideration in our mind, we issue a word of caution against the aforesaid accused/opposite party No. 1 that if any
such future allegation against him for terrorising the petitioner and his witnesses are brought to the notice of the trial Judge, the trial Judge shall be at
liberty to cancel the bail of this opposite party No. 1 after giving opportunity to the parties of being heard without any further reference to this
Court and/or may pass such other order or orders as may be deemed fit and proper.
The present application for cancellation of bail is thus rejected.
With the aforesaid observations, the petition under consideration stands disposed of accordingly.
Later
Criminal department is directed to supply urgent certified copy of this judgment and order to the petitioner, if applied for, as expeditiously as
possible.
S. Barman Roy, J.
46. I agree.