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2023 Supreme(Cal) 86
IN THE HIGH COURT AT CALCUTTA
Debangsu Basak, Md. Shabbar Rashidi, JJ.
State Of West Bengal - Appellant
Versus
State Of West Bengal - Respondent
C.R.M. (DB) No. 2569 of 2022
Decided On : 17-01-2023
Madhusudan Sur, Advocate, Dipankar Pramanik, Advocate, Milon Mukherjee, Advocate, Sourav Chatterjee, Advocate, Soumya Nag, Advocate, Avik Ghatak, Advocate, Abhinav Rakshit, Advocate
Police personnel who abuse their authority and commit serious crimes are not entitled to anticipatory bail, especially when they have interfered with the investigation and are likely to abscond and tamper with the evidence.
Headnote:
BAIL CANCELLATION - DOCOITY - SECTION 395 IPC - SECTION 439 CRPC - SECTION 41A CRPC - SECTION 197 CRPC - POLICE PERSONNEL - PUBLIC SERVANT - SANCTION FOR PROSECUTION - COMPROMISE - TAMPERING WITH EVIDENCE - ABSCONDING - GRAVITY OF OFFENCE - LARGER INTEREST OF PUBLIC: - Police personnel intercepted the complainant, dragged him from a train, and snatched his valuables while representing themselves as customs officials. - The court held that the actions of the police personnel were not in the discharge of their official duty and were not protected under section 197 of the Code of Criminal Procedure. - The court also held that the police personnel had interfered with the investigation by procuring a compromise affidavit from the complainant and not complying with the notice under section 41A of the Code of Criminal Procedure. - The court found that the police personnel were likely to abscond and tamper with the evidence and that their release on bail was against the larger interest of the public. - The court canceled the bail granted to the police personnel.
Fact of the Case:
The complainant, Biswajit Barman, lodged a complaint alleging that he was intercepted by six persons pretending to be custom officials while traveling on a train. He was forcefully taken from the train, assaulted, and his gold butts and mobile phone were snatched. The accused left him near 'Captain Bheri' after returning the gold butts. The complainant filed a complaint under sections 379/340/419/420/34 IPC. The accused filed an anticipatory bail application under section 438 of the Code of Criminal Procedure, which was granted by the Sessions Judge. The State filed an application to cancel the bail, contending that the case was not a simple theft case but a case of docoity punishable under section 395 of the Indian Penal Code.
Finding of the Court:
The court held that the order granting anticipatory bail to the accused was unfounded, based on a wrong proposition of law, and palpably perverse. The court found that the accused had interfered with the investigation by procuring a compromise affidavit from the complainant and not complying with the notice under section 41A of the Code of Criminal Procedure. The court also found that the accused were likely to abscond and tamper with the evidence and that their release on bail was against the larger interest of the public.
Issues: 1. Whether the accused were entitled to anticipatory bail in a case of docoity punishable under section 395 of the Indian Penal Code. 2. Whether the accused had interfered with the investigation by procuring a compromise affidavit from the complainant and not complying with the notice under section 41A of the Code of Criminal Procedure. 3. Whether the accused were likely to abscond and tamper with the evidence. 4. Whether the release of the accused on bail was against the larger interest of the public.
Ratio Decidendi: 1. The court held that the accused were not entitled to anticipatory bail in a case of docoity punishable under section 395 of the Indian Penal Code as the gravity of the offence, the likelihood of the accused absconding, and the larger interest of the public weighed against their release on bail. 2. The court held that the accused had interfered with the investigation by procuring a compromise affidavit from the complainant and not complying with the notice under section 41A of the Code of Criminal Procedure, which showed a lack of respect for the law and a willingness to obstruct the course of justice. 3. The court held that the accused were likely to abscond and tamper with the evidence as they had already shown a willingness to interfere with the investigation and had not complied with the notice under section 41A of the Code of Criminal Procedure. 4. The court held that the release of the accused on bail was against the larger interest of the public as they were police personnel who had abused their authority and committed a serious crime, which had shaken the public's faith in the police.
Final Decision: The court canceled the bail granted to the accused and directed that they be taken into custody.
JUDGMENT
Md. Shabbar Rashidi, J. - One Biswajit Barman lodged a written complaint on 11.03.2022 with Dumdum GRPS stating, inter alia, that due to the outbreak of Corona, his business was in a bad condition and he had to take loan. In order to pay off the loan amount, he along with his family members agreed to sell out the gold ornaments. Accordingly, he got the gold ornaments converted into gold butts through his local smith. He was advised to sell the gold butts at Kolkata for better price. He was travelling from Bongaon to Sealdah carrying the gold butts for selling on 09.03.2022. At about 01.40 p.m., when his train was standing at platform no. 4 at Dumdum station, he was intercepted by at least six persons pretending to be custom officials. He was forcefully brought down from the train and was taken towards metro railway station by crossing platform no. 5. He was thereafter taken in a yellow taxi. The aforesaid persons assaulted the complainant inside taxi and extorted all his gold butts and JIO keypad mobile. A little further, the complainant was left near 'Captain Bheri'.
2. On the basis of such written complaint lodged on 11.03.2022, Dumdum GRPS Case No. 9/2022 dated 11.03.2022 under sections 379/340/419/420/34 IPC was started against these unknown persons miscreants.
3. While the case was being investigated the opposite party nos. 1 to 8 filed an application under section 438 of the Code of Criminal Procedure before the Learned Sessions Judge, Alipur vide CMC no. 1318 of 2022. With their bail application the aforesaid opposite parties also filed an affidavit alleged to be sworn by the de facto complainant Biswajit Barman wherein the de facto complainant declared that the case was initiated out of misunderstanding and the matter had been settled out of Court with the intervention of friends and relatives and well-wishers as well. He also declared that he had received his missing gold articles for which he was not willing to proceed with the case and he had no allegation against anybody. The de facto complainant, by his affidavit, also expressed that he had no objection if the aforesaid petitioners (respondent nos. 1 to 8) were granted bail in connection with the said case i.e. Dumdum GRPS Case No. 9/2022 dated 11.03.2022.
4. The learned Court by its order no. 2 dated 06.04.2022 granted bail to the opposite party nos. 1 to 8 in consideration of the submissions made on behalf of the de facto complainant that the stolen articles were already recovered. Consequently, the opposite party nos. 1 to 8 on the strength of such order passed in CRM 1318 of 2022 surrendered before Learned Additional Chief Judicial Magistrate, Sealdah and obtained regular bail.
5. By filing the instant application being CRM (DB) 2569 of 2022, the petitioner State of West Bengal has sought to cancel the order of granting bail to the opposite party nos. 1 to 8 in CRM no. 1318 of 2022. It has been submitted that the case cannot be treated as a simple case of theft under section 379 of the Indian Penal Code. It is contended that there were six accused persons kept in the offence and the purport of the crime narrated in the written complaint discloses the case to be case of docoity punishable under section 395 of the Indian Penal Code. The case is still under investigation. CCTV footage of the place of occurrence has been seized in course of investigation. There are every likelihood that the case may turn out to be that punishable under section 395 of the Indian Penal Code. It has also been stated that the opposite parties were served with notices under section 41A of the Code of Criminal Procedure and they have not complied the same for which warrant of arrest was issued against them. It was also contended that the de facto complainant has been gained over. The dispute involved in the case are not at all private in nature, rather it has a bearing on the society at large and the de-facto complainant was not at all competent to register his no objection for the
