Sandeep Jha @ Sandeep Kr. Jha & Ors. vs The State Of West Bengal

CHAITALI CHATTERJEE DAS, J.:-

Both the revisional applications filed under Section 528 of the BNSS, 2023 read with Section 447 of BNSS, 2023 for transfer of the Criminal proceeding being Misc. Case no. 1359/2025 filed under Section 483 (3) for cancellation of bail, in connection with G.R. case no. 1444 of 2025 corresponding to Kanksa Police Station Case no. 286 dated 23/9/2025 under Sections 126(2)/310(2)/317(3)/238/ 61(2) of BNS, 2023 and for setting aside the order dated 17.11.2025 passed by the Learned District and Sessions Judge, Paschim Burdwan in Cr. Misc. Case no 1262/2025 filed under Section 448 of the BNSS, 2023 arising out of G.R Case no. 1444/2025 corresponding to Kanksa P.S Case no 286 /2025 from Learned ACJM, Durgapur to Learned CJM, Pashim Bardhaman at Asansol. Both the cases being interconnected with each other, heard analogously and for the sake of convenience and brevity are taken up together for consideration.

The genesis of this case rests on the order granting bail by the Learned ACJM (in-Charge) Durgapur on 15.10.2025 to the petitioners and other FIR named accused persons. An application for cancellation of bail filed on behalf of the prosecution on 17.10.2025 was not pressed on 21.11.2025 with a liberty to file afresh on the self-same cause of action. On the same date the prosecution filed an application being CR Misc. Case no 1359/25, the second application which is identical to the first application excepting the newly inserted ground “L” relying on the order dated 17.11.2025, for transferring the case record from the Learned ACJM, Durgapur to Learned CJM, Pashim Bardhaman at Asansol.

The transfer order stands stayed by this court since 21.11.25 which was extended lastly on 8.6.26. The same order on 17.11.2025 records conclusion on the correctness of the bail order and indicates the “propriety question to be decided “before the undersigned” if challenged creates a reasonable apprehension that a fair hearing before the same court is not possible. There was a previous revisional application being CRR 318 of 2026 which was withdrawn on 10.06.26 for technical defects and with liberty the present application was filed.

The stand taken by the Learned Senior Counsel Mr. Sandipan Ganguly a fresh application which is absolutely identical to one of the prosecution itself chose ‘not to press’ cannot proceed on that repeated foundation. That apart the new ground cannot survive once the order it relies on, stands stayed by the Court, the cancellation of bail sought here is a re-argument of the correctness of the bail order without any supervening conduct after release. It is further argued that the Sessions Judge cannot form a view on the propriety of the bail order by giving his own recorded observations in the connected transfer proceeding. It is submitted further that cancellation of bail is not an appeal against the grant of bail and it ordinarily requires other supervening conduct after release that is misuse of liberty tampering with evidence intimidation of witnesses breach of conditions, abscondence or a demonstration that the original order ignored the materials already on record. The second application pleads none of the above and failed to allege a single act by the petitioner after their release. In this regard relied upon by the principle in Gurcharan Dass Chadha Vs. State of Rajasthan^{11.AIR 1966 SC 1418}.

The contention of the Learned Senior Counsel is that the new ground is neutralised by this Court’s own order of stay. Ground “L” rests entirely on the order dated 17.11.25 transferring the case record from the ACJM to the CJM. The order stood stayed from 21.11.25 and on the very date ground “L” was pleaded and stay has been extended since an application cannot draw assistance today from an order that is presently in force. If ground “L” falls away as in law it must while the stay subsist, nothing distinguishes the second application from the first which the prosecution itself did not press. The further contention is that there is reasonable, objective apprehension that the Sessions Judge has already formed a view. In the connected order dated 17.11.2025 the parties are same, the facts are same and the Judge did not confine himself to the question of transfer and held that the order granting bail is contrary to the material as contended in the Magistrate Court’s record and added that the propriety of the five bail orders should be decided elaborately before the undersigned, if challenged. Therefore a reasonable person, reading those words would conclude that the Judge has already indicated his inclination and therefore in terms that he expect to decide itself. In this regard further put reliance in the decision of Gurcharan Dass Chadha Vs. State of Rajasthan (Supra), Nahar Singh Yadav and Anr. Vs. Union Of India & Ors.^{22.(2011) 1 SCC 307}, Usmangani Adambhai Vahora Vs. State of Gujarat and Anr.^{33.(2016) 3 SCC 370}.

Accordingly, submitted prayed for transferring the Criminal Misc. Case no. 1359/25 stands before the Learned Sessions Judge, Paschim Bardhaman at Asansol to be transferred to any law competent Court of law .In addition the order dated 17.11.25 proceeds on considerations wholly outside section 448, BNSS and the learned Magistrate while discharging his function as in charge of ACJM usurp the jurisdiction of the said ACJM and the said order cannot be questioned on the ground of breach of hierarchy as observed by the Learned Sessions Judge and the de-facto doctrine (Gokaraju Rangaraju ) fully protects the validity of the Magistrate’s orders. The sudden transfer moved while three cancellation applications by the same prosecution were pending bears the hallmark of Forum Shopping rather than genuine apprehension.

Per Contra on behalf of State serious objection has been raised and it is submitted that the present petition for transfer has no merits and it is only filed in order to prevent the prosecution from proceeding with the application for cancelation of bail. It is further submitted that the first application for cancellation of bail was not placed due to certain inherent error and liberty was given to file afresh and accordingly the same was filed without wasting any further time. It is further submitted that the first application was ‘not pressed’ and the second application was filed on the self same day with the liberty of the Court and hence the petitioners cannot take advantage of the said situation as no order was passed in the first application filed for cancellation and after the matter was not pressed filed the second application without wasting any valuable time. It is further the stand of the prosecution that such application had to be filed since the Learned Magistrate allowed the bail application despite the same was rejected earlier by the Learned ACJM only before 3 days vide a put up application and that order of bail paved the way for the other which has caused severe prejudice to the investigating agency since the allegation was very serious. Accordingly prayed for dismissal of both the revisional applications.

Heard the submission of both the Learned Advocate. The factual matrix disclose that a complaint was lodged on 23.09.25 before O/C, Kanksa Police Station by one Patel Harshad Bhai alleging that while returning from Patna to Kolkata in a private car on 12.09.25 carrying around Rs. 40 Lakhs cash in safety vault, two unknown persons forcibly stopped his car and four other persons represented as a Custom Officers, took possession of the steering and front seat and extorted entire Rs.40 lakhs from the safety vault along with other Rs.10,000/- cash, three mobile phones showing deadly weapon like knife for which FIR was lodged on 23.09.25 leading to Kanksa P.S case no. 286 of 2025 u/s 126(2)/319(2)/310(2) BNS, 2023. Later, on an application by prosecution Section 317(3) was added by Ld. ACJM, Durgapur.

During investigation the accused persons were arrested and they individually moved bail petition before the ACJM (In-Charge) Durgapur which were rejected and they were remanded to Judicial Custody. During investigation police seized Rs. 15 lakh from accused Lokesh Kakkar , Rs.15 Lakh from accused Sandip Jha i.e. the petitioner no. 1, Rs. 5 Lakhs from accused Motilal Jha, the petitioner no. 2. Lokesh Kakkar was subsequently produced before the ACJM- in -Charge while Learned Judicial Magistrate,2^nd Court was in charge of remand file on 07.10.25 and bail was granted on the ground that no ground of arrest was informed to the arrestee and the arrest was vitiated. Similarly, Learned JM, 2nd Court, Durgapur holding charge of Learned ACJM (in-charge), Durgapur allowed put up petition, vide an order dated 15.10.25 granted bail to the accused six petitioners in total against which the prosecution filed an application for cancellation of bail on 17.10.25 before the Court of Learned Sessions Judge, Paschim Bardhaman, Asansol. Subsequently, on 27.10.25 the prosecution filed another application for transfer of the case record of CMC 1262/25 before the Court of Learned Sessions Judge , Paschim Bardhaman, Asansol alleging that Learned JM, 2^nd Court, Durgapur holding position of ACJM , Durgapur entertained bail application of one accused Vivek Srivastava on a holiday i.e. on 20.10.25 and allowed the bail application which apparently raises apprehension in the mind of prosecution that a fair trial might not be conducted on the same Court.

The Learned Session Judge, Paschim Bardhaan, Asansol allowed the prayer of transfer on 27.10.25 and observed that by dealing with bail application the Learned Judicial Magistrate, 2nd Court, Durgapur made “Judicial Chaos” and hence directed to transfer the G.R. case no. 1444 of 2025 from the Court of ACJM, Durgapur to CJM, Paschim Bardhaman, Asansol. Being dissatisfied with the same the petitioners filed CRR 5036 of 2025. The said order was stayed for eight weeks and extended time to time by the Learned Co-Ordinate Bench .In the meantime on 21.11.25 the prosecution ‘not pressed’ the CMC 1244 of 2025, and it was rejected with liberty to file afresh and on the same date another application being CMC No. 1359/25 was filed by the prosecution before the Learned Sessions Judge, Paschim Bardhaman, Asansol. This application was admitted by the Learned Sessions Judge, Paschim Bardhaman, Asansol and being dissatisfied that the admission of such matter, CRR 318 of 2026 was filed by the petitioner which was ‘withdrawn’ due to some technical defects on 10.06.26 and later on the present revisional application being CRR 2405 of 2026 with the prayer for transfer of the application for cancellation of bail being CMC no. 1359/25.

From the entire facts and circumstances and the argument made on behalf of the prosecution, it is evident that the root cause giving rise to filing the applications are the order granting bail by the Learned Magistrate in charge when their prayer was not entertained by the Learned ACJM. Therefore the seminal issue falls for consideration as to whether the Magistrate who is on roster remand for bail file can allow a put up petition filed on behalf of the accused person the bail prayer of whom was previously rejected by the ACJM. In addition whether the order dated 17.11.25 suffers from any perversity sufficient enough to cause apprehension in the minds of the accused of not having fair trial.

Therefore it is necessary to revisit the law laid down in this regard. Chapter II of the code of criminal procedure 1908 corresponding to Chapter II of BNSS deals with the constitution of criminal courts and office .Chief Judicial Magistrate is the head of the Magistracy in the District and exercises control and supervision over the investigating officer .Section 15 of CrPC reads as follows;

The chronology of incidents demonstrate that on 26.9.25 alleged persons being the petitioners no 1,2,3,4,5&6 were arrested and produced before the court of Learned Additional Chief Judicial Magistrate ,Durgapur. Petitioner no.7 was brought under arrest and produced before the Learned A.C.J.M in charge on 27.9.2025 .Another accused Lokesh Kakkar was arrested and produced before the Learned ACJM in charge on 4/10/2025 and his bail prayer was allowed on 7.10.2025 .On 8.10.2025 cancellation of bail application was filed .On 15.10.2025 the bail prayer for the present petitioners were allowed .On 17.10.2025 cancellation of such bail prayer was filed by the prosecution. On 20.10.2025 the bail prayer of Petitioner no.7 was allowed and another cancellation was filed on 27.10.2025. The application for transfer of the cancellation of bail prayer was made by the Investigating officer before the Learned Sessions Judge and the order was passed by the Learned Sessions Judge on 17.11.2025 against which the CRR no. 5036 of 2025 is filed. The main stand for filing such transfer petition was that there was recovery of Rs 10,00,000/- from Lokesh Kakkar and on 4.10.2025 he was forwarded before the Learned ACJM, Durgapur and order of 3 days remand was allowed and on 7.10.2025 the investigating officer specifically averred that custodial interrogation was necessary but he was released on bail by the Learned Magistrate who was in charge of the ACJM on the ground of non-communication of ground of arrest which was not correct and hence the application for cancellation of the said bail was filed.

In addition, the bail prayer of the present petitioners though rejected on 11.10.2025 and there was recovery from the accused person and the petitioner no.1 was identified in T.I. Parade on 15.10.25, their bail application was allowed. So far petitioner no.7, his bail prayer was turned down by the Learned ACJM on 20.11.2025 but suddenly on a holiday the Learned 2^nd Judicial Magistrate entertained the bail application and allowed. Further point was raised that there are three Judicial Magistrate including ACJM and out of them two conducted T.I Parade of the accused persons and hence both of them are potential witnesses in the case therefore transfer was necessary.

The learned Sessions Judge was to consider whether the transfer applications to be allowed in the light of the parameters required to be considered under the statute. On perusal of the order passed by the Learned Sessions Judge, the nature of his observation made therein it is found that there was breach of judicial decorum and Judicial Discipline and the Learned Sessions Judge quoted the observation of Hon’ble Supreme Court whereby it was held that “showing disrespect or questioning the propriety of any order of superior court by the inferior court would be destructive of the hierarchical system in administration of justice”. The Learned District judge was of the opinion that Judicial Magistrate, 2nd Court, Durgapur is subordinate to Learned Additional Chief Judicial Magistrate and since the bail prayer of the 6 accused persons were initially not allowed by him the Learned Judicial Magistrate, 2^nd Court who is subordinate to ACJM and was assigned the charge of the said Court should not have been taken the petition out of turn and allowed the petition.

This court is unable to subscribe the view of the Learned District Judge in as much as Section 15 of Cr.P.C expressly empowers the Chief Judicial Magistrate to distribute the business of the court amongst the Judicial Magistrate and so long he is discharging his duties on the strength of such administrative order the concerned Magistrate was actually discharging the function of the said ACJM even though according to judicial hierarchy he may be subordinate to ACJM . It hardly needs to be stated that such an observation, if accepted would have far reaching ramification for the entire criminal justice dispensation system prevailing in the District Judiciary. The observation of the Learned Sessions Judge touches the propriety of the of the order of Judicial Magistrate who allowed the put up and granted the bail after it was rejected by the ACJM few days back while considering the application for transfer of the case.

Beside this the Learned Sessions Judge further made other observations while dealing with transfer application by expressing his opinion that the order of bail granted by the Learned Magistrate to Lokesh Kakkar is in hot haste when the cancellation of such bail applications were pending before the Learned Court.

It is the settled propositions of law that the Learned Sessions Judge while exercising the jurisdiction was not acting as an Appellate Court in respect of the order passed by the Learned Magistrate. In such circumstances ,the Learned Sessions Judge ought to have restrained himself from expressing opinion touching upon the propriety of the order particularly when such observations may have the effect of casting aspersions upon the judicial function exercised by the Learned Judicial Magistrate. An observation of such nature coming from superior judicial forum, is capable of creating a reasonable apprehension in the mind of the accused/petitioners that the matter may not be considered with an entirely open and impartial mind . Therefore in the facts and circumstances of the present case the apprehension expressed on behalf of the accused persons of not having fair trial cannot be said to be wholly unfounded.

The judgement relied upon by the petitioner in Nahar Singh Yadav and Anr. Vs. UOI and Ors, (supra) relates to the “Ghaziabad P.F. Scam” arisen out of a written complaint made by the Special Judge and Vigilance Officer, District Court, Ghaziabad leading to lodging of FIR under various sections including POCA by CBI, Anti-Corruption Branch against some class III and IV employees of the said District Court with allegation that they fraudulently syphoned of huge amount of money in the name of General Provident Fund. An application for transfer of the said proceeding was made by CBI from Uttar Pradesh to any other Court on the ground of involvement of lots of District Judges and Judicial Officers in the scam and it was held by Apex Court that CBI is an interested party under Section 406 Cr.P.C and has locus standi to make application of transfer of a case envisaged for investigation .Article 21 was discussed along with few notable judgement and held that there is no hard and fast rule for exercise of power under Section 406 Cr.P.c and in paragraph 29 held:-

In the case of Usmangani Adambhai Vahora Vs. State of Gujarat and Anr. (Supra) the trial pertains to kidnapping for ransom and the accused sought transfer of his case from a particular Court under Section 408 Cr.P.C. He claimed he overheard the informant predict conviction and linked a remark by that judge to that conversation. The Principal Sessions Judge rejected the plea holding there was no jurisdiction once the trial has begun. The High Court held the application maintainable and directed transfer so that justice would also appear to be done. The Apex Court while deciding the issue whether an application under Section 408 (1) Cr.P.C to transfer a case between Additional Sessions Judge is maintainable after the trial has begun and took note of decision of Gurcharan Dass Chadha vs State of Rajasthan(Supra) , Abdul Nazar Madani v. State of T.N.^{44.(2000) 6 SCC 204}; Captain Amarinder Singh v. Parkash Singh Badal^{55.(2009) 6 SCC 260}; Lalu Prasad v. State of Jharkhand^{66.(2013) 8 SCC 593}; Nahar Singh Yadav v. Union of India(Supra); and K.P. Tiwari v. State of M.P^{77.1994 Supp (1) SCC 540}, and upheld maintainability of the case but found the apprehension “mercurial” and unreasonable. It further observed that transfer requires a reasonable apprehension that justice will not be done. A bare allegation is not enough and transfer is an exceptional remedy not a routine one.

The order passed in Criminal Misc. Case 1359 of 2025 which is the subject matter of CRR 2405 of 2026 was filed on behalf of State for cancellation of order of bail dated 15.10.25 passed by Learned ACJM , Durgapur in Kanksa P.S. case no. 286 of 2025 and the direction was given to issue upon notice to the Opposite Parties. On 1.12.2025 application for cancellation of bail of the petitioners herein was taken up and an adjournment was sought for and ultimately a date was fixed on 5^th February, 26 for hearing. It appears from the document annexed with this revisional application being CRR 2405 of 2026 that on 7.10.2025 accused Lokesh Kakkar was produced and on perusal of the case Diary the prayer made by the Investigating Officer for adding Section 317(3) BNS with the original Section of law was allowed. The bail petition was filed on petitioners of the accused person .The Learned Court allowed the prayer by passing a reasoned order mostly considering that there was unexplained delay in lodging the FIR and accused was not informed on the ground of arrest which is a clear violation of settled principle of law laid down by the Hon’ble Apex Court and such violation clearly vitiates the arrest. The Court also discussed that the involvement of the accused was only in respect of supply of alleged offending vehicle and the bail was granted in his favour.

On 15.10.2025 the prayer was made by the Investigating Officer for police remand for seven days against accused person Parmar Vijaysinh Chattarsinh. Prayer for bail was made and the Learned Court considering the forwarding report, arrest memo medical slip and considering the rival contentions of both the parties found that there has been no search and seizure list out of these six accused person. No further PC prayer made in respect of any of this accused persons and accused persons are already in custody for a considerable period of time. Moreover, there is a big technical flaw due to non-intimation of the ground of arrest and as mandated by Hon’ble Supreme Court. One of the co-accused has already been granted bail on the same ground and accordingly order of bail was granted in favour of the accused persons who are the petitioners herein.

So the first order granting bail in favour of Lokesh kakkar on 17.10.25 and the second bail was passed after seven days from such order. On the same day another bail prayer was made in respect of Parmar Vijaysinh Chattarsinh, Moulik Kumar Somabhai Patel and the bail prayer was rejected by the Learned ACJM, Durgapur, IC. Again on 28^th October, 25 the prayer for bail was made on behalf of accused Parmar Vijaysinh Chattarsinh, Moulik Kumar Somabhai Patel and the said prayer was rejected considering that they are resident of Gujrat.

The application under Section 483(3) of BNSS was filed on 17^th October, 25 for setting aside the order dated 15.10.25 whereby the order of bail was granted in favour of the present petitioners. The major ground taken in such application was that on 17.10.25 in gross violation of 480 (1) of BNSS 2023 as well as the dictum of Hon’ble Supreme Court and the High Court and also an incorrect fact the Learned ACJM , Durgapur in charge enlarge the prayer for bail of Lokesh Kakkar. The prosecution opposes the reason assigned by the Learned Magistrate as correct. It was further mentioned that by an order dated 17.10.25 Section 317(3) BNSS punishable with imprisonment with life and triable exclusive by court of session was added with the original Section of law and the police recovered certain huge amount from the possession of the present petitioners and the period of detention was necessary for further investigation. However such order of bail granted by the Learned ACJM in charge pass which was initially rejected on 11.10.2025.

Therefore the apprehension expressed by the Learned Public Prosecutor that they would not get a fair trial even during the pendency of the investigation as by different order the prayer for bail of the accused person was allowed by the Learned ACJM in charge on different dates and it would hamper the investigation to a great extent. It was further contended the test identification parade was conducted by two Judicial Magistrates who are under the Learned ACJM, Durgapur and probable witnesses in this matter and therefore the order to maintain the transparency and fairness the police case should be transferred to the Court of Learned Judicial Magistrate, Paschim Bardhaman. The Learned Court discussed the relevant provision of Section 448 of BNSS 2023 which speaks as follows:-

Therefore upon conspectus of the entire circumstances this court considered that out of three Learned Magistrate two conducted the T.I Parade and will be the probable witnesses and once this apprehension has been raised and further the observations made by the Learned Session Judge for the purpose of proper adjudication the G.R Case no 1444 of 2025 arising out of Kanksa P.S Case no 286 of 2025 dated 23.9.2025 registered under section 126(2)/319(2)/310(2) with adding section 317(4) of BNS pending before the Learned Additional Chief Judicial Magistrate ,Durgapur be transferred to the court of Learned Chief Judicial Magistrate, Purba Burdwan .

Since this court is not in agreement with the observation made by the Learned Sessions Judge regarding the breach of hierarchy and thereby causing judicial chaos ,the said Criminal Misc case no. 1359 /2025 for cancellation of bail should also to be transferred to the Learned District Judge, Purba Burdwan.

Accordingly vide this combined judgement delivered by this Court both CRR 5036 of 2025 and CRR 2405 of 2026 stands allowed .

The order dated 17.11.2026 passed by the Learned Sessions Judge Paschim Burdwan in connection with Cr. Misc Case no. 1262/2025 filed under section 448 of the BNSS, 2023 is hereby set aside. All other connected applications, if any, hereby stands disposed of. In view of the aforesaid observation the entire G.R Case no 1444 of 2025 corresponding to Kanksa Police Station case no. 286 dated 23/9/2025 be transferred to the Court of Learned Chief Judicial Magistrate, Purba Burdwan.

The proceeding being Criminal Misc, case no. 1359/2025 filed under 483(3) of BNSS for cancellation of bail in connection with 1444 of 2025 is hereby transferred to the Learned Sessions Judge, Purba Burdwan for disposal.

It is pertinent to mention herein that this court has not entered into the merit of the case neither into the propriety of the order granting bail by the Learned Magistrate and hence both the Learned Sessions Judge, Purba Burdwan and the Learned CJM, Purba Burdwan will deal with the matter in accordance with law without being influenced by any of the observations made by this court or the Learned Session Judge Paschim Burdwan.

All other connected application, if any, hereby stand disposed of.

Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities.