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Ajgar Ali vs The Sate Of West Bengal & Ors on 30 January, 2019

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30.01.2019. C.R.M. No. 6671 of 2018
rc.
In the matter of: Ajgar Ali
…Petitioner.
-Versus
The Sate of West Bengal Ors.

Mr. Tapan Dutta Gupta … for the Petitioner

Mr. P. Dey …for the State

Affidavit-of-service filed in court be kept on record, which shows that

Opposite Party No. 2 who has received the service but no steps taken for

appearance before this Court.

This is an application under Section 439(2) of the Code of Criminal

Procedure whereby the petitioner has assailed the order dated 16.08.2018 passed

by the learned Additional Chief Judicial Magistrate, Basirhat, In-Charge allowing

the prayer for bail of the accused/opposite party no. 2 in connection with Haroa

Police Station Case No. 380/2018 dated 26.07.2018 under Section 363/365 of the

Indian Penal Code corresponding to G.R.No. 2844 of 2018.

The case under reference was started on the basis of the First Information

Report lodged by the petitioner. The Investigation Officer submitted the charge

sheet being 422/2018 dated 10.08.2018 under Section 363/365 of the Indian Penal

Code against the opposite party no. 2 and prayer was made to discharge other

three accused persons.

The pith and substance of the prosecution case as emerges from the first

information report and the charge sheet that at bout 10 in the morning the minor

daughter of the defacto complainant went out from his residence to attend the
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school named Chowhata High School. But as she did not return the defacto

complainant began to search. Subsequently he came to know that the opposite

party no. 2 kidnapped her minor daughter with an oblique motive and confined her.

My attention is invited by Mr. Tapan Dutta Gupta, learned advocate for the

petitioner to an order dated 13.08.2018 whereby the learned Additional Chief

Judicial Magistrate, Basirhat, In-Charge was pleased to reject the prayer for bail of

the O.P.No. 2 and directed the I.O. to cause further investigation as the provision of

Section 376 of the Indian Penal Code was required to be added. The observation

so made by the learned Additional Chief Judicial Magistrate, Basirhat, In-Charge

and his order of rejection thereof may be reproduced hereunder :-

“In this regards the court duly takes guidance in view of the rullings as

referred in the matters of Saktipada Ghosh vs. State of West Bengal, (20-15)( 3

Calcutta Criminal Law Reporter (Cal) 393 and Smt. Namita Naskar vs. State of

West Bengal, (2014) 3 WBLR (Cal) 669 and also being further by the later and

spirit of the ruling in case of Hasabhail Valibhai Qureshi v. State of Gujrat and

others reported in 2004 SCC Criminal 1603, wherein the Hon’ble Apex Court has

clearly observed, whether a further investigation is warranted, the hands of the

investigating agency or the Court should not be tight down on the ground the

further investigation made delay the trial, as the ultimate object is to arrive at the

truth. In another case of Ramlal Narayan v. State (Delhi Administration) reported in

(1979) SCC 332, the Apex Court amongst others observed when defective

investigation comes to light during the course of trial, it may be cured by further

investigation if circumstances so permitted.

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In such circumstances the court is inclined to send the matter, along with the

affidavits as filed by the mother and relative of the victim girl and the CD, to the IO

for causing further investigation on the point of existence and thereafter adding of

section 376 IPC and of the relevant sections under POCSO Act, because the

investigation of the IO appears to be hasty in manner in the light of affidavits

wherein it has been clearly stated that IO paid no heed to them. The concerned

SDPO is requested to keep a monitor upon the IO in that regards.

Accordingly the prayer for bail stands rejected of the accused person.

To date for production.

This order is passed purely in the interest of criminal administration of justice

and to uphold the rule of law. G.R.O to send copies to the concerned office. ”

It is curious to note that by the impugned order dated 16.08. 2018 when a

Judicial Magistrate was in charge of Additional Chief Judicial Magistrate, Basirhat,

In-Charge got the matter put up by a petition only three days after and allowed the

O.P.No. 2 accused to find bail of Rs. 800/- each with one surety of like amount by

regularising the process earlier with the observation that the charge sheet has

been submitted in respect of the offences which are Magistrate triable. This ground

which has been taken up by the petitioner that in such a grave and heinous offence

the learned Magistrate has ventured to grant bail without any just reason assigned.

Having heard the learned advocate for the petitioner and the State I am of

the opinion that it appears that the learned Magistrate holding charge of Additional

Chief Judicial Magistrate, Basirhat, without considering the order dated 13.08.2018

passed by the Additional Chief Judicial Magistrate, Basirhat has entertained the put
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up petition and granted bail. It appears that the learned Magistrate has ventured in

granting bail in a case where direction of the Additional Chief Judicial Magistrate,

Basirhat was to hold further investigation by the investigating agency into the

offence under Section 376 of the Indian Penal Code.

In the context above, the order dated 16.08.2018 enlarging the accused

opposite party no. 2 on bail is hereby cancelled and is directed to surrender before

the Court with further direction that the investigating agency will hold further

investigation to the offence if at all the offence under Section 376 of the Indian

Penal Code has been committed after the victim girl was eloped by the opposite

party no. 2.

A copy of this order be sent to the learned Registrar (Administration), High

Court, Calcutta to ascertain as to who was the Judicial Magistrate holding charge

of the court of Additional Chief Judicial Magistrate, Basirhat and to obtain

explanation from him and to put up before the Judge-in-Charge of the District.

Urgent photostat certified copies of this order, if applied for, be made

available to the parties upon compliance of the requisite formalities.

(Shivakant Prasad, J.)

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