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CALCUTTA HIGH COURT (DB)
Rabin Bhattacharyya
and Nure Alam Chowdhury, JJ.
In Re Renu Singh - Petitioner
Decided on 12.9.1994
Counsel for the parities:
For the Petitioner - Tapan Roy Chowdhury, Thakurdas Roy Chowdhury, Alok Roy Chowdhury, Chanchal Dutta etc.
For the Opp. Parties - Kazi Safiullah, Gouranga Mukherjee, Dilip Dutta, Jayasree Chakraborty and Ms. Kabita Mukherjee etc.
(ii) Criminal Procedure Code, 1973 - Section 438 - Anticipatory Bail - Post Mortem Report shows prima facie that it was a case of homicide - Deceased much ahead of occurrence informed police of his apprehension about his life and also safety of members of his family Prima facie materials disclosed in C.D. must receive, due consideration - Grant of anticipatory bail is completely extraneous to provisions of anticipatory bail. (Paras 11, 14, 15, 18, 20 & 23)
(iii) Criminal Procedure Code, 1973 - Sections 437, 438 & 439 - Anticipatory bail granted - Whether during current of anticipatory bail, a person has right to approach Court for ordinary bail? - (No) - Whether anticipatory bail, if granted, can be a ground for bail u/s. 4371 - (No) - Powers of High Court to interfere with order.
Held: The learned Magistrate who granted bail to them under Section 437 of the Cr. P. C. had no jurisdiction to pass such an order in the advent of anticipatory bail already granted. The order of the learned Magistrate is a replica of anticipatory bail which Section 437 does not envisage.
It is needless to mention that anticipatory bail will become operative in the event of arrest of the petitioners. (Para 26)
In the light of the above, there could be no shred of obscurity that appearance of the accused on their own before the learned SDJM craving for bail is unwarranted. The law does not encompass that a person when enlarged on anticipatory bail could have any right to apply for ordinary bail. It has not been provided by the Code even overtly and covertly that a person can enjoy both, anticipatory bail and a bail. The Learned Counsels for the parties could not cite any authority that during the currency of the anticipatory bail, a person has the right to approach the learned Magistrate for ordinary bail. (Para 27)
In our view, if it is allowed to be done, the anticipatory bail will be reduced to a mockery as it can never be the source for bail under Section 437. It will open the flood gate of machination for bail and the object of Section 438 of the Cr. P.C. will be totally frustrated.
We are of the view, on perusal of both the Sections, that there is no nexus between the two as both the Sections stand on an independent footing. The considerations in both the Sections are different. It is not complementary to each but factually, legally and mutually is exclusive of each other. To be precise, one relates to pre-cognizance stage while the other relates to post-cognizance stage. (Para 28)
The anticipatory bail, if granted by the Sessions Judge or the High Court, as the case may be, cannot be a ground for bail under Section 437 of the Cr. P.C. (Para 29)
Further Held: A power always inheres with the High Court which can be exercised under Article 227 of the Constitution of India. Even, an extraordinary revisional power both in the civil and criminal jurisdiction could be exercised by the High Court to prevent the abuse of the process of the Court, according to the need. In our view, the superior Court has got ample power to interfere with an order, as in the instant case, the order of the learned SDJM dated 22.8.94, the object being to prevent the miscarriage of justice. We have already come to the conclusion that the anticipatory bail dated 18.8.94, though lost its force cannot be allowed to stand for the foregoing reason and the order of the Learned SDJM is totally bad in law in the face of the anticipatory bail. The basic thing having disappeared (anticipatory bail dated 18.8.94) its repetition in the Court of the Learned SDJM will not advance the cause. (Para 37)
Result: Ordered accordingly.
JUDGMENT
Rabin Bhattacharyya, J. - The de facto complainant Renu Singh, the wife of the deceased Ranjit has come up before this Court for cancellation of anticipatory bail dated 18.8.1994, granted by the learned Sessions Judge in charge, North 24-Parganas, in Criminal Misc. Case No. 2274, in connection with Rajarhat Police Station Case No. 144 dated 7.7.1994, initially started under Section 306/34 of the I.P.C But, subsequently a further Section was added viz. Section 302 of the LP.C for the Post Mortem Report disclosing the death of Ranjit, a homicide.
2. However, to appreciate the viability of the claim brief resume of the facts is essential. The facts:
One Mohn Singh, since deceased, acquired substantial properties which included amongst others the factory and the landed properties. On his death, the properties left behind him devolved on his legal heirs. The death of Mohn dealt a death blow to the peace and happiness in the Singh's family for the dispute and dissension broke out amongst the members of the family over the control, possession and ownership of the properties left behind by Mohon, the deceased.
Though the forensic battle commenced for acquisition of ownership, yet the dispute ended in a compromise on certain terms. There was again revival of the dispute when the condition of the amicable settlement was repudiated by the Opposite Parties by the reason of their failure to honour the payment over which much altercation ensued preceding the date of occurrence. Ranjit, the deceased, forced his entry into the flat in "Pull man Complex" where he stayed on 6.7.94 along with his friend but in a different flat.
In the morning following, Renu along with other family members broke open the door of the said flat and found Ranjit lying in a pool of blood in a bathroom with kirpan beside him. Ranjit succumbed to his injuries when a case on the basis of the complaint of Renu disclosing the death a suicide was reported which generated the above noted P.S. case.
3. In the meantime, the Opposite Parties preferred an application for anticipatory bail, the hearing of which was adjourned to 18.8.94 admitting the Opposite Parties to an interim anticipatory bail. It was finally disposed of, as directed by the Hon'ble Court, which, has now became the sore of this litigation.
4. To contradict the claim, none of the Opposite Parties has put in any affidavit-in-opposition.
5. We have been addressed by the parties at length for and against the impugned order which we will discuss threadbare in our order.
Mr. Roy Chowdhury appearing to canvass the prayer for cancellation of bail has dexterously argued that the defacto complainant can very well present an application for cancellation of bail, since there is no bar under the law.
Mr. Dutta and Mr. Sen are sought to have refuted the contention of Mr. Roy Chowdhury that the de facto complainant is devoid of right to prefer an application for cancellation of bail as the matter is confined between the State on onej1and and the accused on the other.
6. We cannot accept the contention to be water and air tight as neither Mr. Dutta nor Mr. Sen by application or otherwise challenged the decision of the Learned Sessions Judge in charge on that count. After careful consideration of the position of law, we are of the view, the defacto complainant is clothed with right to put up a claim for cancellation of bail when craving for justice. We can draw an analogy in support for the principle of law laid down in Bhagwant Singh v. Commissioner of Police and Anr.1, where the Court held:
"In a case where the Magistrate to whom a report is forwarded under Sub-section (2) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First. Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideratio
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