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2004 Supreme(Cal) 378
High Court Of Calcutta
AMIT TALUKDAR, P. K. DEB
RANI BALA DEY - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. M. 1491 Of 2004
Decided On : 06/11/2004
PRANTIK GHOSH, SUBHASISH PACHHAL, SUMANTA CHAKRABORTY, TAPAN KUMAR TEWARI, TAPAS MONDAL
The Sessions Judge does not have jurisdiction to entertain a bail application directly, without the same being refused by the Magistrate.
Headnote:
BAIL - CANCELLATION - SECTION 439 - COURT OF SESSIONS - JURISDICTION - SECTION 437 - MAGISTRATE'S COURT - JURISDICTION - SECTION 439 - COURT OF SESSIONS - JURISDICTION - DIRECT APPROACH - INAPPROPRIATE - SECTION 439 - COURT OF SESSIONS - JURISDICTION - AFTER REJECTION BY MAGISTRATE - SECTION 439 - COURT OF SESSIONS - JURISDICTION - SPECIAL POWERS - HIGH COURT AND COURT OF SESSION - SECTION 439 - COURT OF SESSIONS - JURISDICTION - CUSTODY - INTERPRETATION - SECTION 439 - COURT OF SESSIONS - JURISDICTION - DIRECT APPROACH - INAPPROPRIATE - SECTION 439 - COURT OF SESSIONS - JURISDICTION - AFTER REJECTION BY MAGISTRATE - SECTION 439 - COURT OF SESSIONS - JURISDICTION - SPECIAL POWERS - HIGH COURT AND COURT OF SESSION - SECTION 439 - COURT OF SESSIONS - JURISDICTION - CUSTODY - INTERPRETATION
Fact of the Case:
The petitioner, the mother of the deceased, filed an application for cancellation of bail granted to the accused by the Sessions Judge. The accused was arrested in connection with the murder of the petitioner's son. He was granted bail by the Sessions Judge on the ground that he had been in custody for a long time and the trial was not likely to commence soon. The petitioner contended that the accused had threatened her and her family and that he was likely to tamper with the evidence if released on bail.
Finding of the Court:
The court held that the Sessions Judge had erred in granting bail to the accused without first considering the petitioner's objections. The court noted that the accused had a history of threatening the petitioner and her family, and that he had absconded after his bail was cancelled on a previous occasion. The court also held that the Sessions Judge had erred in not considering the fact that the accused was likely to tamper with the evidence if released on bail.
Issues: 1. Whether the Sessions Judge had jurisdiction to entertain the bail application directly, without the same being refused by the Magistrate? 2. Whether the Sessions Judge had erred in granting bail to the accused without considering the petitioner's objections? 3. Whether the Sessions Judge had erred in not considering the fact that the accused was likely to tamper with the evidence if released on bail?
Ratio Decidendi: 1. The court held that the Sessions Judge did not have jurisdiction to entertain the bail application directly, without the same being refused by the Magistrate. The court noted that Section 437 of the Code of Criminal Procedure (CrPC) empowers the Magistrate to grant bail in non-bailable offences, while Section 439 of the CrPC empowers the High Court and the Court of Session to grant bail in cases where the accused is in custody. The court held that the Sessions Judge could only entertain a bail application after the same had been rejected by the Magistrate. 2. The court held that the Sessions Judge had erred in granting bail to the accused without considering the petitioner's objections. The court noted that the petitioner had raised serious objections to the accused being granted bail, including the fact that he had threatened her and her family and that he was likely to tamper with the evidence. The court held that the Sessions Judge should have considered these objections before granting bail to the accused. 3. The court held that the Sessions Judge had erred in not considering the fact that the accused was likely to tamper with the evidence if released on bail. The court noted that the accused had a history of absconding and that he had threatened the petitioner and her family. The court held that these factors indicated that the accused was likely to tamper with the evidence if released on bail.
Final Decision: The court allowed the petition and cancelled the bail granted to the accused.
( 2 ) THE opposite party No. 2 was arrayed in connection with Habra police Station Case No. 22 dated 15. 1. 2000 under Section 302/34 of the indian Penal Code read with in Sections 25 and 27 of the Arms Act on the basis of an First Information Report lodged by the present petitioner containing allegation that her son Utpal asked for his meal from her on the night of 14. 1. 2000 at about 8/8-30 p. m. when a person called him as a result of which he went outside but did not return and on the next day she came to know that her son's deadbody, which was identified by her, was found with gun shot injuries. She alleged that the present Opposite Party No. 2 and his associates attempted to murder her son Utpal thrice and had told her that if he is ever murdered it will be in the hands of the Opposite Party No. 2. On the basis of the said F. I. R. the investigation of G. R. Case No. 80 of 2000 ended in a charge-sheet against three accused persons in connection with which cognizance was taken by the learned Sub-Divisional Judicial Magistrate, krishnanagar by his order dated 27. 12. 2000 where the Opposite Party No. 2 was shown as absconder and warrant, proclamation and attachment was issued against him.
( 3 ) SUBSEQUENTLY, on 19. 2. 2001 tha Opposite Party No. 2 surrendered by petition and he was remanded to Jail custody. It appears that the learned sessions Judge by his Order No. 2 dated 5. 3. 2001 granted bail to the Opposite party No. 2. In the meanwhile the bail granted to the Opposite Party No. 2 was cancelled by the learned Sessions Judge by his Order No. 14 dated 29. 4. 2003 in connection with Criminal Misc. Case No. 3826 of 2002 as it was found that he was continuously threatening the de facto-complainant.
( 4 ) IN pursuance of the order of cancellation passed by the learned sessions Judge warrant of arrest was issued by the learned Sub-Divisional judicial Magistrate since the Opposite Party No. 2 did not surrender to his bail bond in terms of the order passed by the learned Sessions Judge.
( 5 ) HOWEVER, after the accused Opposite Party No. 2 was arrested in connection with Ashoknagar Police Station Case No. 64 dated 30. 4. 2003 under Section 302/34 of the Indian Penal Code and forwarded to the Court on 26. 9. 2003 He was sought to be shown arrested in connection with the present case which was allowed by the learned Magistrate on 28. 10. 2003 and production warrant was accordingly issued and the present Opposite Party no. 2 was shown arrested in the said case. The present Opposite Party No. 2 moved the learned Sessions Judge under Section 439 of the Code of Criminal procedure for his release on bail. The said application was registered as criminal Misc. Case No. 5460 of 2003. The learned Sessions Judge directed the release the Opposite Party No. 2-on bail to the satisfaction of the learned sub-Divisional Judicial Magistrate, Basirhat by his order dated 16. 1. 2004.
( 6 ) THIS has prompted the present petitioner to move this Court for cancellation of the said order and it is in this factual matrix the entire argument made at the Bar has to be understood.
( 7 ) THE learned Advocate for the petitioner appearing in support of the application for cancellation has submitted that it was not proper for the learned sessions Judge to enlarge the Opposite Party No. 2 on bail in view of his conduct in absconding for a length of time after his bail was cancelled by the learned Sessions Judge and the threat he had given to the present petitioner who is the de facto-complainant and as the same still subsisted there was every chance of tampering of the evidence by the Opposite Party No. 2. He also submitted that the learned Sessions Judge directly acceded to the prayer for bail of the Op
