Whether accused can make application for anticipatory bail if he is permitted to make bail application?

CALCUTTA HIGH COURT

CRM No. 11409 of 2015
With
C.R.A.N. 2305 of 2016

In the matter of: An application for anticipatory bail under Section 438 of the Code of Criminal Procedure, affirmed on 7.12.2015 in connection with New Town Police Station Case No.332 of 2014 under Sections 279/304/337/427 with added Section 304 of Indian Penal Code, 1860. In the matter of :

Sayantan Chatterjee.
v
State

DATED:13.01.2017.

The petitioner, apprehending arrest in connection with New Town P.S. Case no. 332/2014 under Section 279/304A/337/ 427 I.P.C. with added Section 304 I.P.C., has approached this court for pre-arrest bail.

We have heard the Ld. Advocates of both the parties and the Ld. Counsel for the State at length.

On 22.12.2016 in absence of Mr. Y.Z. Dastoor, the ld. Senior Counsel for the de facto complainant Mr. Phiroze Edulji iterated that during the course of hearing of this application for anticipatory bail orders passed by the Court on day-to-day were not uploaded in the Court’s website on time and that is tantamount to travesty of justice. The ld. Advocate in support of2 his contention referred to a decision of the Apex Court in M/s. Gada Properties Private Limited vs. the Municipal Corporation of Greater Bombay and Ors. After carefully going through the aforesaid decision we do not find that the Hon’ble Apex Court held that not uploading day to day interim orders not touching the merits of the case in any way is tantamount to travesty of justice. After going through the copy of the decision placed before us what we find is that the Hon’ble Apex Court granted permission to file special leave petition without certified as well as plain copy of the impugned judgment that was not available even 2 and ½ months after. Although it was not at all relevant for our discussion to decide the merits of the present application but since the point was raised we felt it necessary to consider the same.

It would not be out of place to mention that the matter was posted for hearing on so many dates due to various reasons mentioned in the orders and on June 20, 2016 an application annexing several documents was filed on behalf of the de facto complainant and in that application dated 20th June, 2016 some aspersions and allegations were made against the court contending that the matter was not heard in part by us and although we did not accept such contention but for removal of any sort of confusion we considered to place the matter before the Hon’ble Chief Justice and it was remitted back before this bench by an order of the Chief Justice on 24.06.2016.

Be that as it may, we find from our order dated 29.07.2016 that on the previous occasion we had requested Mr. Dastoor to find out any authority which empowered us to rely and act on the materials which are not borne out by the materials collected3 during investigation and are not found in the case diary to which Mr. Dastoor submitted that he could not find out any such authority.

The ld. Senior Advocate appearing for the de facto complainant contended that this is not a fit case for grant of anticipatory bail if the Court takes into account the backdrop of the case. It was submitted that the daughter of the de facto complainant who is the victim in this case was travelling with the accused/petitioner in a car. The accused had long acquaintance with the victim girl but for reasons best known to him he drove the car so rashly as to put an end to the life of the victim and the car allegedly dashed against the road divider and overturned. It was contended that the accused/petitioner did suffer very little injury whereas the victim sustained fatal injuries and ultimately succumbed to those injuries. It was contended that since the case was registered under Section 279/304A/337/427 I.P.C. the accused/petitioner was released on bail. The investigating officer on completion of investigation submitted charge-sheet, inter alia, under Section 304A I.P.C. The de facto complainant lodged a ‘Narazi’ petition. It was kept pending. He came in revision and a Ld. Single Judge of this Hon’ble Court in C.R.R. No.4037 of 2015 came to observe:-

“Since transfer of further investigation from the local
police to the Detective Department in violation of the
order of learned Magistrate is subsequently approved
by learned single judge on September 14, 2015 in W.P.
No. 18865(W) of 2015 and since I am also satisfied
about the need of further investigation after going
through the materials available in the Case Diary, I4
would like to hold that the irregularity committed by the
State by transferring investigation from the local police
to the Detective Department is cured by the writ Court.
On consideration of the background of passing the order
of further investigation by the learned Magistrate, I am
also of the view that the petitioner is not prejudiced at
all by the order of further investigation”.

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The Ld. Advocate for the de facto complainant argued that during further investigation the investigating agency made a prayer for adding Section 304 I.P.C. and another prayer for cancellation for bail of the petitioner. Such prayer was made on 8th September, 2015 and on 4th December, 2015 the Ld. Magistrate cancelled the bail of the petitioner and directed him to appear before the Court and to pray for fresh bail under Section 437 of the Code. The accused/petitioner challenged the said order in Criminal Revision no. 4035 of 2015 and a Ld. Single Judge of this Hon’ble Court disposed of the aforesaid Revisional Application observing that the order dated 4th December, 2015 passed by the Ld. C.J.M., Barasat in connection with New Town Police Station case no.332 of 2014 is modified to the extent that the petitioner is disentitled to bail granted by the Ld. Magistrate for the bailable offence under Section 239/334/427 of the Indian Penal Code, as the investigating officer has already intimated the Court of the Ld. Magistrate about involvement of the petitioner in aggravated nonbailable offence under Section 304 Part II of the Indian Penal Code. It is found that in the concluding line of para 8 of the aforesaid judgment passed in C.R.R. No. 4035 of 2015 the observation is as follows:

“The petitioner is at liberty to pray for bail for the
offence under Section 304 of the Indian Penal Code.”
The Ld. Advocate for the de facto complainant contended that
his client preferred C.R.R. No. 4036 of 2015 against the order
dated 24th August, 2015 whereby the Ld. Magistrate granted
permission to the investigating officer to add Section 304 of the
Indian Penal Code. The said Revisional Application came to be
disposed of in terms of judgment passed in that Revisional
Application on 29th February, 2016 where a Ld. Single Judge of
this Hon’ble Court made the following observations:
“I would like to make it clear that I have not gone into
the merit to decide whether the petitioner can be
indicted for the offence under Section 304 Part II of the
Indian Penal Code in the instant case. The trial Court
will ultimately decide on conclusion of investigation
whether the petitioner will be prosecuted for the offence
under Section 304 Part II of the Indian Penal Code. I
refrain myself from making any observation whether
the petitioner is liable to be prosecuted for the offence
under Section 304 Part II of the Indian Penal Code at
this stage of further investigation of the case.”

The Ld. Advocate for the de facto complainant vehemently argued that the cumulative effect of the findings arrived at by the Ld. Single Judge in the aforesaid three Revisional Applications is indicative of the proposition that the present petition under Section 438 Cr.P.C. is not maintainable and the petitioner is not6 entitled to an order of anticipatory bail. It was argued that after specific observation of the revisional court that the petitioner was disentitled to bail by reason of adding of the aggravated offence the only course open to him was to surrender either before the investigating officer or the court concerned and to seek bail under Section 437 Cr.P.Code. The Ld. Advocate invited our attention to a decision reported in AIR 2001 S.C. 1444 (1) where it has been held that when minor offence altered for an aggravated crime punishable under Section 302 that disentitles accused to liberty of being released on bail granted to him in relation to minor offence and exercising of power by the Magistrate under Section 437 and enlarging murder accused merely on grounds that he was initially granted bail for a minor offence is not proper.

Without adverting to the argument put forward by the Ld.

Advocate appearing for the accused/petitioner immediately we find no hesitation to hold that the aforesaid decision is not at all applicable here because in the present case the accused/petitioner has not been granted bail by a Judicial Magistrate for the aggravated offence under Section 304 I.P.C. In the instant case, after cancellation/revocation of the bail granted to him for bailable offence he has approached this Court invoking Section 438 of the Cr.P.C. The Ld. Advocate also relied on a decision reported in 2007 Cr.L.J. 3422 where the Apex Court held that where bail granted in favour of the accused for the offence under Section 324/352 and 506 of the Indian Penal Code direction to continue bail after conversion of offence into Section 304 instead of directing accused to apply for bail afresh under Section 439 Cr.P.C. is illegal. We find that the Hon’ble Apex Court made such observation in the context of exercise of power by the High Court under Section 482 of the Code. The aforesaid case law again has no manner of application before us since the application for anticipatory bail filed by the accused/petitioner is not one under Section 482 of the Code but a regular one under Section 438 of the Code, which determination this Bench is seized of.

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The Ld. Advocate for the de facto complainant also relied on a decision reported in 2014 Cr.L.J. 137 where the Hon’ble Kerala High Court held that person released on bail in connection with bailable offence can be rearrested without order passed by Sessions Court or High Court under Section 439(2) where investigation discloses commission of non-bailable offence in the same crime. There is no quarrel with such legal proposition. Mr. Bikas Ranjan Bhattacharya, the learned Senior Counsel appearing for the accused/petitioner contended that anybody can imagine that a theatre of the absurd was enacted by the accused/petitioner taking the victim girl in his car and dashing against a road divider intending to cause her death but the fact remains that a road accident did take place in which both the accused/petitioner and the victim girl were injured but to the misfortune of everybody concerned the girl succumbed to her injury. It was argued that from the observations made by the Ld.

Single Judge disposing of the Revisional Applications filed by the parties it cannot be said that the accused/petitioner did not have any option but to surrender either before the Court or before the investigating officer. It was argued that there is no provision in the code or in any other statute that in case of cancellation/revocation of bail granted to a person in bailable offence consequent upon addition of charge under aggravated non-bailable offence, debars8 him from invoking the provision of Section 438 Cr.P.C. The Ld.

Senior Counsel argued that the clear observation of the Ld. Single Judge in C.R.R. NO. 4035 of 2015 is that the petitioner is at liberty to pray for bail for the offence Under Section 304 of the I.P.C. and since bail also includes anticipatory bail there cannot be any predicament on his part to file the instant application under Section 438 Cr.p.C. before this Hon’ble Court. It was argued that it is for the trial court to decide whether the accused/petitioner is guilty for the offence under Section 304 I.P.C. or for that matter for any other offence or offences but at this juncture this Court has to examine the criteria for grant of anticipatory bail and cannot be swayed by any idea or presupposition that the accident was the act of any predetermination on the part of the petitioner.

It was submitted that the petitioner is not likely to flee the course of justice. Lastly, the Ld. Advocate referred to a decision reported in 2015 (7) Supreme 641. In the aforesaid decision reference was made to the celebrated decision in the case of Gurbaksh Singh Sibbia and Others Vs. State of Punjab (1980) 2 SCC 565. It is stated in para 19 of the judgment:-

“The Constitution Bench in this case emphasized that
provision of anticipatory bail enshrined in Section 438 of
the Code is conceptualised under Article 21 of the
Constitution which relates to personal liberty.
Therefore, such a provision calls for liberal
interpretation of Section 438 of the Code in light of
Article 21 of the Constitution.”

Of late, in the case of Bhadresh Bipinbhai Seth Vs. State of Gujarat and Another, where remaining on bail in a case u/s. 506(2) I.P.C. charge u/s. 376 I.P.C. was added the accused was granted anticipatory bail by the Sessions Court, the High Court cancelled such anticipatory bail. The Apex Court set aside the judgment of the High Court and restored the order of anticipatory bail of the Sessions Court after making elaborate discussion with regard to the legal position governing the field.

The Ld. Public Prosecutor appearing for the State in his usual fairness conceded that by reason of the pronouncement in the Revisional Applications the petitioner was not precluded from invoking the provision of Section 438 Cr.P.C. He also submitted that there can be no dispute that bail also includes anticipatory bail.

The Ld. Public Prosecutor then took us to the materials in the case diary more particularly through the statements of the witnesses recorded under Section 161 Cr.P.C.

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We have already stated in detail the backdrop of the case. We have also stated about the specific observation of the Ld. Single Judge while disposing of C.R.R. no. 4035 of 2015 that the present petitioner is at liberty to prefer bail for the offence under Section 304 of the I.P.C. After going through the judgments passed by the Ld. Single Judge in the Criminal Revisional Applications to which our attention has been drawn, we cannot find ourselves in agreement with the Ld. Advocate for the de facto complainant that observations made therein or the cumulative effect thereof is that the present application for anticipatory bail is not maintainable.

On the contrary, we find and hold that in view of all those observations the apprehension of arrest on the part of the petitioner has been deepened. We find no hesitation to hold that the present application for anticipatory bail is well maintainable subscribing to the view that the prayer for bail also includes anticipatory bail.

Now, about the merits of the case. No case has been made out from the side of the State that the accused/petitioner is likely to flee the course of justice or that he is likely to tamper with the evidence or hamper the investigation. It may not be out of place to mention here that the investigation of the case has since been taken over by the Detective Department of Bidhannagar Police Commissionarate. Be that as it may, the question is whether the materials collected by the investigating agency prima facie points out that the accused/petitioner with the intention of causing the death or having known that by his negligent driving of the car he will cause death of the victim drove the car rashly and hit the road divider. After going through the statements of several witnesses recorded under Section 161 Cr.P.C. which are at pages 6,7,8,9,10, 11, 12, 13, 14 and 15 we find that according to these witnesses the victim suffered an accidental death as the car in which she was travelling with the accused/petitioner met with an accident.

We find that the witnesses whose statements, recorded under Section 161 Cr.P.C., are there at pages 6, 7, 8 and 9 are all eyewitnesses to the alleged accident and they rescued both the petitioner and the victim girl from inside the car.

The statements of those eye-witnesses to the occurrence, in whose presence, the alleged accident took place is most important and according to them, they found that one Car was coming in high speed and dashed against the road divider and then the Indica Car overturned. Subsequently, they and others rushed to11 the spot and rescued the two injured therefrom and the petitioner was found to be driving the Car and other one i.e., the daughter of the de facto complainant subsequently died.

This observation of ours, however, is not with regard to the merits of the case which is for the trial court to decide. Suffice it to say, that since it was incumbent on our part to examine the materials on record carefully we have done that much.

In view of the above analysis and discussion we find that this is a fit case for grant of anticipatory bail. The application under Section 438 Cr.P.C. is accordingly allowed.

The de facto complainant filed an application registered as C.R.A.N. 2305 of 2016 stating therein every minute detailed with regard to the occurrence which the de facto complainant believed and in that application everything including the case laws have been discussed at length. The petitioner in that application annexed voluminous record of other materials which he considered appropriate to bring to the notice of the Court. However, there is no specific prayer in the aforesaid C.R.A.N. 2305 of 2016. Be that as it may consequent upon our allowing the application for anticipatory bail this C.R.A.N. 2305 of 2016 stands disposed of in the light of our order.

The petitioner in the event of arrest will be released on furnishing bail bond of Rs.10,000/- to the satisfaction of the arresting officer and if he is not arrested within a week from the date of this order he shall surrender before the learned court below within a further period of 1 week thereafter.12

This order of grant of anticipatory bail is subject to the conditions laid down in Section 438 (2) Cr.P.C.

Both the applications under Section 438 Cr.P.Code and C.R.A.N. 2305 of 2016 are accordingly disposed of.

 

(Ashim Kumar Roy, J.) (Malay Marut Banerjee, J.)

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