REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2086 OF 2010

(Arising out of S.L.P. (Crl.) No.4590 of 2010)

PRASANTA KUMAR SARKAR

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APPELLANT (S)

VERSUS

ASHIS CHATTERJEE & ANR.

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RESPONDENT (S)

J U D G M E N T

D.K. JAIN, J.:

Leave granted.

2.

This appeal, by special leave, is directed against order dated 11^th

January, 2010 passed by the High Court of Calcutta in C.R.M. No. 272 of

2010, granting regular bail to respondent No. 1 in this appeal (hereinafter

referred to as “the accused"), under Section 439 of the Code of Criminal

Procedure, 1973 (for short “the Code”).

3.

The accused is facing trial for an offence punishable under Section

302 of the Indian Penal Code, 1860 (for short “IPC”) for allegedly

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committing the murder of one Ms. Mallika Sen. Respondent No.2 is

the State of West Bengal.

4.

Very briefly stated the facts material for the adjudication of this

appeal can be stated thus:

Ms. Mallika Sen, a 57 years old widow was found strangulated at her

residence on 2^nd July, 2009. The appellant, who is the brother of the victim,

lodged a written complaint at the Rampurhat Police Station, on the basis of

which FIR No. 111/09 dated 2^nd July, 2009 was registered under Section

302, IPC.

It has been alleged that a neighbour of late Ms. Sen, one Mr.

Somenath Dutta, saw the accused rushing out of the residence of the

deceased, around the time the incident took place. The accused was arrested

on 13^th July, 2009 and produced before the Additional Chief Judicial

Magistrate who remanded him to judicial custody. Thereafter, on the same

day, the police filed a forwarding report in the said court, inter alia,

requesting for holding of a Test Identification Parade (T.I.P.) of the accused.

The T.I.P. was conducted, but perhaps the accused could not be identified.

However, in the second T.I.P., the accused was duly identified by the

aforesaid witness.

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5.

The accused filed several bail applications before the Additional Chief

Judicial Magistrate which were all dismissed vide orders dated 7^th

September, 2009, 16^th September, 2009 and 19^th September, 2009.

6.

On 7^th October, 2009, charge-sheet No. 138 of 2009 under Section 302

IPC was filed against the accused before the Additional Chief Judicial

Magistrate.

7.

Having failed to secure bail from the Sessions Court, the accused

preferred a bail application, being C.R.M. No. 272 of 2010 before the

High Court under Section 439 of the Code. As stated above, by the

impugned order, the High Court allowed the application, and granted

bail to the accused by a short order, observing thus:

“Having regard to the nature of the alleged crime, we do not

think that interest of investigation requires or (sic) justifies

further detention of the present petitioner at this stage.”

8.

Hence the present appeal by the complainant.

9.

Mr. Nagender Rai, learned senior counsel appearing on behalf of the

appellant, while assailing the impugned order, contended that the said

order being non-speaking, deserves to be set aside in light of the

decision of this Court in Masroor Vs. State of Uttar Pradesh & Anr.¹.

1 (2009) 14 SCC 286

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Learned counsel submitted that the High Court has failed to take into

consideration the manner in which a hapless old lady was done to

death as also the fact that the accused had been duly identified by an

independent witness.

10.

Per contra, Mr. Ujjwal Banerjee, learned counsel appearing for the

accused, contended that the case against the accused was false, as is

evident from the fact that the witness had failed to identify the

accused in the first T.I.P. Learned counsel contended that the accused

had been arrested on a mere suspicion, and in light of the fact that he

has not misused the bail, the impugned order needs to be affirmed.

11.

We are of the opinion that the impugned order is clearly

unsustainable. It i