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IN THE HIGH COURT OF CALCUTTA
Nishita Mhatre, Tapash Mookherjee, JJ.
The Central Bureau of Investigation - Petitioner
Versus
Madan Gopal Mitra - Opposite Party
C.R.M. No. 10538 of 2015
Decided On : 19-11-2015
CANCEL BAIL - SARADA CHIT FUND SCAM - SECTION 439(2) OF THE CODE OF CRIMINAL PROCEDURE - CANCELLATION OF BAIL - The Calcutta High Court, while cancelling the bail granted by a Vacation Judge to the accused in the Sarada Chit Fund scam, held that the order granting bail was perverse and riddled with infirmities. The Court noted that the Vacation Judge had ignored the principles of natural justice by not granting an adjournment to the CBI when it was informed that neither the Investigating Officer of the case nor the Case diary was available in Court on that day. The Court also noted that the Vacation Judge had failed to consider the reasons for which the bail had been rejected on four earlier occasions, including the fact that the accused was a Cabinet Minister of West Bengal and that he wielded great influence and power in the State.
Fact of the Case:
The Central Bureau of Investigation (CBI) filed an application for cancellation of bail granted to the accused, a Cabinet Minister of West Bengal, in the Sarada Chit Fund scam case. The accused had been granted bail by the Sessions Judge, Alipore, sitting as the Vacation Judge. The CBI contended that the Vacation Judge had erred in granting bail without issuing notice to the CBI, without considering the case diary, and without granting an adjournment to the CBI when it was informed that neither the Investigating Officer of the case nor the Case diary was available in Court on that day.
Finding of the Court:
The Court held that the Vacation Judge had erred in granting bail to the accused without issuing notice to the CBI, without considering the case diary, and without granting an adjournment to the CBI when it was informed that neither the Investigating Officer of the case nor the Case diary was available in Court on that day. The Court also held that the Vacation Judge had failed to consider the reasons for which the bail had been rejected on four earlier occasions, including the fact that the accused was a Cabinet Minister of West Bengal and that he wielded great influence and power in the State.
Issues: 1. Whether the Vacation Judge erred in granting bail to the accused without issuing notice to the CBI? 2. Whether the Vacation Judge erred in granting bail to the accused without considering the case diary? 3. Whether the Vacation Judge erred in granting bail to the accused without granting an adjournment to the CBI when it was informed that neither the Investigating Officer of the case nor the Case diary was available in Court on that day? 4. Whether the Vacation Judge erred in failing to consider the reasons for which the bail had been rejected on four earlier occasions?
Ratio Decidendi: 1. The Court held that the Vacation Judge had erred in granting bail to the accused without issuing notice to the CBI, as required under Section 439(1)(b) of the Code of Criminal Procedure. The Court noted that the purpose of the proviso to Section 439(1)(b) is to ensure that the prosecutor is given notice of the bail application and that the Court considers the view of the prosecution agency before deciding whether to grant bail. 2. The Court held that the Vacation Judge had erred in granting bail to the accused without considering the case diary. The Court noted that the case diary is an important document that contains the details of the investigation and that it is essential for the Court to consider the case diary before deciding whether to grant bail. 3. The Court held that the Vacation Judge had erred in granting bail to the accused without granting an adjournment to the CBI when it was informed that neither the Investigating Officer of the case nor the Case diary was available in Court on that day. The Court noted that the CBI had made a reasonable request for an adjournment and that the Vacation Judge should have granted the adjournment in order to ensure that the CBI had an opportunity to present its case. 4. The Court held that the Vacation Judge had erred in failing to consider the reasons for which the bail had been rejected on four earlier occasions. The Court noted that the accused had been denied bail on four previous occasions and that the Vacation Judge should have considered the reasons for those denials before deciding whether to grant bail.
Final Decision: The Court quashed and set aside the order of the Vacation Judge granting bail to the accused. The Court also cancelled the bail granted to the accused and directed him to surrender before the Court of Chief Judicial Magistrate, Alipore, South 24 Parganas, immediately.
The Central Bureau of Investigation (for short 'CBI') has filed the present application for cancellation of the bail granted by the Sessions Judge, Alipore, sitting as the Vacation Judge.
2. The present case arises in view of the alleged involvement of the Opposite Party along with several other accused in cheating the investors of their hard-earned money, most of whom are from the poorer sections of society, of an enormous amount of money running into several thousands of crores of rupees. The alleged involvement of the Opposite Party was revealed while investigating what is popularly known as the "Sarada Chit Fund Scam" case.
3. The Opposite Party had applied for bail on three previous occasions before the Sessions Court. These applications were rejected on 20th May, 25th June and 2nd July, 2015. He had also moved an application for bail before this Court but chose not to press. Later he moved CRM No.6575 of 2015 which was decided by a Division Bench of this Court, to which one of us (Mhatre, J.) was a party, on 6th August, 2015. The prayer for bail was rejected.
4. It appears from the record before us that the Opposite party moved an application for bail before the Sessions Court, Alipore, on 9th October, 2015. The Sessions Judge, Alipore, directed the Opposite Party to intimate the learned Public Prosecutor the next date of hearing and called for the case diary. The hearing was fixed on 31st October, 2015. It appears that the CBI was given a notice on 14th October, 2015 by the Advocate for the Opposite Party informing it that the bail application would be heard on 31st October, 2015. There is no dispute that this notice was received by the CBI on 14th October, 2015.
5. On 31st October, 2015 when the matter was taken up for hearing before the Vacation Judge, an application was submitted by the CBI through its Counsel for an adjournment. The reason for the adjournment was that the Investigating Officer of the case had been summoned to testify before the Special court, CBI at Raipur, Madhya Pradesh, and therefore was not available in the Court on that day to assist the Counsel for the CBI. The adjournment application was disallowed by the learned Vacation Judge, and he directed that the parties should appear before him at 3 p.m. It appears that the matter was then heard at 3.30 p.m. on 31st October, 2015, as reflected from the impugned order. However, the Special Public Prosecutor of the CBI was not present. A memo was filed on behalf of the CBI which was signed by the Special P.P. indicating that the learned Judge had erred in directing that the matter would be heard on that date and had not conceded to the reasonable request made by the CBI for an adjournment of the matter to any other date because of the absence of the Investigating Officer and the case diary.
6. The learned Judge has recorded in the impugned order that an adjournment was sought by the Special Public Prosecutor on the ground that the Investigating Officer was at Raipur and the case diary was not available with him. The case was taken up for hearing by the Vacation Judge in the absence of the Counsel for the CBI and the case diary. The Vacation Judge was conscious of the fact that the Sessions Court on three previous occasions and the High Court on another occasion had rejected the bail applications of the Opposite Party. However, he observed that since he had concurrent jurisdiction in view of provisions of Section 439(2) of the Code of Criminal Procedure, there was no need to wait for either the case diary or the presence of the Counsel for the CBI, as reflected from the impugned order. The learned Judge was perturbed by the fact that the Counsel for the CBI had contended in the memo filed by him that the bail application was being taken up for hearing with undue haste and that he had pre-determined the issue. On considering the submissions of the Counsel for the Opposite Party the learned Vacation Judge granted bail on furnishing a bond of Rs. 2 lac
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