Avijit Banerjee vs Chaya Ghosh and Others

Shib Sadhan Sadhu, J.—By preferring the present application under Article 227 of the Constitution of India read with Section 439(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for brevity) the petitioner has prayed that the order dated 25.02.2015 passed by the Learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas granting bail to the accused persons in connection with Bidhannagar South Police Station Case No. 26 of 2015 dated 16.02.2015 under Sections 188/454/380/427/406/506/341/120B IPC in G.R. Case No. 146 of 2015 be set aside.

The factual matrix which gave rise to the present application is as follows:-

An offence was registered being No. 26/15 dated 16.02.2015 under the provisions of Sections 188/454/380/427/406/506/341/120B of the IPC. As per the F.I.R. lodged on 16.02.2015 the de-facto complainant is the Director of Strategic Management Technology Consultants. His said organization is a lawful tenant of HB-217, Sector-III, Salt Lake City, Ground Floor, Kolkata-700106 comprising of two rooms, one Hall, Kitchen, two toilets and one verandah. An institute for teaching B.B.A.(H) and M.B.A. affiliated to West Bengal State University, Barasat is run in the said premises. Examinations are also held in that premises. The answer sheets and other important and confidential documents were kept therein. Also various books, journals, computers and other electronic gadgets and furniture including cash of Rs. 1,00,000/- (Approx.) were kept in the said premises. The O.P. No. 2 Bikramjit Ghosh threatened the complainant to vacate the premises for which he lodged a diary on 9th December, 2014 which was entered as Bidhannagar South P.S. G.D. Entry No. 672 of 2014. The complainant also filed one proceeding under Section 144 Cr.P.C. and order was passed on 14.01.2015. A report in respect of possession was submitted by police on 28.01.2015 before the Learned Magistrate.

It has been further alleged that on 16.02.2015 around 12.30 p.m. an employee of the organization found that the office furniture were stacked near the main entrance obstructing the door of entrance. The complainant reported about the criminal activities of the O.P./accused in P.S. and police helped him to enter into the premises. He found that the rooms were thoroughly devastated and the educational materials were destroyed. Also the premises was locked from inside. He was again warned by the O.P. Nos. 2 and 3 with the assistance of unknown persons that they would kill him and his wife if he could proceed further. They committed trespass into the demised premises in the night during his absence and damaged his belongings and ousted him forcibly and put the premises under lock and key. No eviction suit has been filed against him and the O.P./accused were armed with deadly weapons and took the law in their own hand.

On 25.02.2015 the case record was put up as the O.P./accused surrendered and the Learned Additional Chief Judicial Magistrate, Bidhannagar granted bail to them considering that the Sections are bailable.

Mr. Rajdeepp Majumder, Learned Counsel, appearing on behalf of the petitioner submitted that the impugned order of granting bail is ex facie, illegal, bad, without jurisdiction and without application of mind leaving a room for doubt that such bail was granted for some extraneous consideration. He further submitted that the Learned Magistrate has no authority to treat the non-bailable offence as bailable. It was his further submission that the accused persons are influential and they are threatening the petitioner and his wife. Therefore, according to him, the impugned order being unjustified, illegal and perverse is liable to be quashed. He relied on the decision reported in Neeru Yadav Vs. State of U.P., (2015) 1 CCR 160 : (2015) 1 Crimes 40 : (2015) 1 JCC 451 : (2015) 1 RCR(Criminal) 311 in order to substantiate his submission.

Mr. Sabir Ahmed, Learned Counsel appearing on behalf of the O.P./accused countering the submission made by his Learned Adversary contended that the Learned Magistrate has got jurisdiction under Section 437 of the Cr.P.C. to grant bail even in a non-bailable offence. He further submitted that the Learned Magistrate took into consideration the entire complaint and being satisfied that no serious case was made out to reject the prayer for bail of the accused persons he allowed the same. He contended yet further that there is no cogent circumstance to cancel the bail, which has been granted to the accused/O.P.s.1, 2 and 3. It was also contended by the Learned Counsel that there is no evidence produced by the petitioner to show that the accused misused the liberty granted to them. Therefore, according to Mr. Ahmed, the Learned Magistrate was quite empowered to grant bail to the accused by exercising his discretion. Accordingly he urged that the present application be dismissed specially when there is absence of any supervening circumstances and adverse report against the accused. He relied on the decision reported in Gurcharan Singh and Others Vs. State (Delhi Administration), AIR 1978 SC 179 : (1978) CriLJ 129 : (1978) 1 SCC 118 : (1978) SCC(Cri) 41 : (1978) 2 SCR 358 and 2003(1) CHN 200 in support of his contention.

I have considered the submissions made by Sri Majumder, Learned Counsel for the petitioner and also by Mr. Ahmed, Learned Counsel for the O.P./accused in the light of the aforesaid decisions placed by them. I have also perused the entire materials available on record including the impugned order.

In the decision reported in Dipak Shubhashchandra Mehta Vs. C.B.I. and Another, AIR 2012 SC 949 : (2012) 170 CompCas 244 : (2012) CriLJ 1664 : (2012) 1 JCC 757 : (2012) 1 RCR(Criminal) 870 : (2012) 4 SCC 134 : (2012) AIRSCW 1436 : (2012) 2 Supreme 276 the Supreme Court held that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as: a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and c) prima facie satisfaction of the Court in support of the charge. In addition to the same, the Court while considering a petition for grant of bail in a non-bailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted.

In the decision reported in Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu and Another, (2012) CriLJ 4670 : (2012) 4 JCC 2909 : (2012) 9 JT 155 : (2013) 1 RCR(Criminal) 277 : (2012) 9 SCALE 165 : (2012) 9 SCC 446 the Hon''ble Supreme Court has held that concept of cancellation of bail and of nullifying order granting bail in appeal are different. It has been further held therein that the concept of setting aside an unjustified, illegal or perverse order is totally different from the cancelling an order of bail on the ground that the accused had misconducted himself or because of some supervening circumstances warranting such cancellation.

Reiterating the same principles in the case of Neeru Yadav V. State of U.P. and Another (supra) cited by the Learned Counsel for the petitioner, the Hon''ble Supreme Court observed in Paragraph 13 of the judgment as follows:

"13. We have referred to certain principles to be kept in mind while granting bail, as has been laid down by this Court from time to time. It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court."

Looking into the impugned order dated 25.02.2015 it appears that the case record was put up on the surrender by the O.P./accused and bail petition was filed for all the accused persons and the Learned Magistrate granted them bail by passing the following order:

"Hd. Considering bailable sections they may find bail of Rs. 750/- each with one surety, i.d., to J.C. to 18.05.2015."

Thus it is apparent that the Learned Magistrate passed the order granting bail as if alleged offences were bailable but in fact it is not so. The Sections 454/380/406 and 120B IPC are non-bailable offences. It further appears from the aforesaid impugned order that the Learned Magistrate did not record any reason for granting bail in such serious offences. Moreover another grave and alarming circumstance reflected from the order impugned is that although it is a G.R. Case but no notice of hearing of the bail application was given to the State far to speak of hearing the State. The record was simply put up on the prayer of the accused persons and they were granted bail for some questionable consideration. Therefore, the impugned order granting bail is not only illegal but also absolutely perverse.

I would like to make it clear that it is not an application for cancellation of bail, as cancellation is not sought because of supervening circumstances. The present one is basically an application challenging grant of bail where the Learned Magistrate passed such order treating the non-bailable offences as bailable and without recording any reason which makes the order perverse.

Consequently the impugned order passed by the Learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas is set aside and the bail bonds of the O.P./accused are cancelled. The accused (O.P. Nos. 1, 2 and 3) are directed to surrender to custody forthwith failing which it shall be the duty of the Learned Additional Chief Judicial Magistrate, Bidhannagar to take them to custody immediately. I would like to make it further clear that whatever has been stated in this judgment are only for the purpose of annulment of the order of grant of bail and they would have no bearing whatsoever on trial.

The application is thus allowed.

Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.