30.01.2019. C.R.M. No. 6671 of 2018
In the matter of: Ajgar Ali
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
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.
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
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.)