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2002 Supreme(Cal) 457
High Court Of Calcutta
SUJIT BARMAN ROY, P. K. BISWAS
RASHBEHARI KARMAKAR - Appellant
Versus
INDRAJIT MUKHERJEE - Respondent
B. R. M. 553 Of 1998
Decided On : 07/12/2002
ASHIM ROY, DEBASIS ROY, SEKHAR KUMAR BASU, SUDIPTA MOITRA
Cancellation of bail is a harsh order that interferes with the liberty of the individual and should not be lightly resorted to. The grounds for cancellation of bail are illustrative and not exhaustive, and the prosecution must show that the activities of the accused fall under one or more of these heads or a similar nature.
Headnote:
CRIMINAL PROCEDURE CODE - Section 439(2) - Cancellation of Bail - Grounds - Interference with Liberty - Rejection of Bail and Cancellation of Bail - Distinctive Features - Grounds for Cancellation - Illustrative and Not Exhaustive - Consideration of Circumstances - Suppression of Facts - Threat and Intimidation - Availability for Trial - Tampering with Evidence - Cogent and Overwhelming Circumstances - Balancing of Interests - Word of Caution to Accused - Liberty to Trial Judge to Cancel Bail in Case of Future Allegations.
Fact of the Case:
The petitioner, Rash Behari Karmakar, filed an application under Section 439(2) read with Section 482 of the Criminal Procedure Code (CrPC) seeking cancellation of bail granted to the opposite party, Indrajit Mukherjee, in a criminal case involving allegations of torture, physical assault, and castration. The petitioner alleged that the opposite party, who was the Officer-in-Charge of Kalna Police Station, had falsely implicated him in a criminal case and subjected him to brutal assault and torture, including castration, in retaliation for the petitioner's role in an agitation against the police officer.
Finding of the Court:
The court observed that the allegations against the opposite party were grave and severe but noted that a considerable period of time had elapsed since the grant of bail and that no effective purpose would be served by canceling the bail at this stage. The court also acknowledged that the bail order was not ex facie illegal and that the Sessions Judge had considered the relevant factors in granting and confirming the bail.
Issues: 1. Whether the bail granted to the opposite party should be canceled based on allegations of suppression of facts, threat, and intimidation? 2. Whether the long lapse of time since the grant of bail should be considered in deciding whether to cancel bail?
Ratio Decidendi: 1. The court held that cancellation of bail is a harsh order that interferes with the liberty of the individual and should not be lightly resorted to. The grounds for cancellation of bail under Section 437(5) and 439(2) of the CrPC are identical and include misuse of liberty, interference with the course of investigation, tampering with evidence or witnesses, threats to witnesses, likelihood of fleeing the country, attempts to evade trial, and abscondence. These grounds are illustrative and not exhaustive, and the prosecution must show that the activities of the accused fall under one or more of these heads or a similar nature. 2. The court recognized that the allegations against the opposite party were serious but noted that they had not been established beyond a reasonable doubt. The court also considered the fact that the opposite party had surrendered before the Magistrate and had been in judicial custody for some time before being granted bail. The court further observed that the charge sheet had already been filed and that there was no evidence that the opposite party had attempted to tamper with evidence or witnesses or otherwise obstruct the course of justice.
Final Decision: The court rejected the petitioner's application for cancellation of bail, holding that the circumstances did not warrant such an order. However, the court issued a word of caution to the opposite party that if any future allegations of terrorizing the petitioner or his witnesses were brought to the notice of the trial Judge, the trial Judge would be at liberty to cancel the bail without further reference to the High Court.
( 1 ) THIS is an application under section 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 Halder, 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 under section 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
