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Bail or Jail =the parameters laid down by this Court for considering grant of bail to an accused include the likelihood of his absconsion and tampering with the evidence or the witnesses or even the investigation. Tampering with the evidence or the investigation is no longer relevant since charge-sheet has already been filed in the case. As far as absconsion is concerned, the Appellant being a sitting MLA, even such a possibility is remote. There is, of course, the possibility that the Appellant may tamper with the witnesses

REPORTABLE

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IN THE SUPREME COURT OF INDIA

 

CRIMINAL APPELLATE JURISDICTION

 

 

CRIMINAL APPEAL NO.310 OF 2012

(Arising out of SLP(Crl) No.9350 of 2011)

 

 

SUSANTA GHOSHAPPELLANT

 

Vs.

 

STATE OF WEST BENGAL … RESPONDENT

 

 

O R D E R

 

 

ALTAMAS KABIR, J.

 
1. Leave granted.

 

 

2. This Appeal is directed against the judgment

 

and order dated 29th September, 2011, passed by the
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Division Bench of the Calcutta High Court in C.R.M.

 

No.7982 of 2011, which was an application for grant

 

of bail under Section 439 of the Criminal Procedure

 

Code, hereinafter referred to as “Cr.P.C.”, in

 

connection with Anandapur Police Station Case No.36

 

of 2011, dated 6th June, 2011, under Sections 147,

 

148, 149, 448, 326, 307, 302, 506, 201 and 120-B of

 

the Indian Penal Code read with Sections 25 and 27

 

of the Arms Act, corresponding to G.R. Case No.1364

 

of 2011, pending before the learned Chief Judicial

 

Magistrate, Paschim Medinipur. The Appellant had

 

moved the High Court for bail against the order

 

dated 20th August, 2011, passed by the Chief

 

Judicial Magistrate, Paschim Medinipur, rejecting

 

his prayer for bail and remanding him to jail

 

custody.

 

 

3. The Appellant is an elected Member of the West

 

Bengal Legislative Assembly. His prayer for bail

 

is based mainly on the ground that on account of
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political vendetta he has been named as an accused

 

in a First Information Report which was lodged on

 

5th June, 2011, in respect of an incident which

 

occurred on 22nd September, 2002, and in respect

 

whereof three separate FIRs had been lodged, two on

 

the date of incident itself and one on 26th

 

September, 2002, in which he had not been named.

 

The first FIR was lodged by one Nemai Ch. Sarkar,

 

which was recorded as FIR No.59 dated 22nd

 

September, 2002 of Keshpur PS, Paschim Medinipur,

 

under Sections 148, 149, 307 and 302 IPC read with

 

Sections 25, 27 and 35 of the Arms Act as also

 

Section 9(b) of the Indian Explosives Act.

 

 

4. The second FIR was lodged by one Shri Debashish

 

Roy, the Station House Officer of Keshpur Police

 

Station, on the same day and in respect of the same

 

incident, which was recorded as FIR No.60 dated 22nd

 

September, 2002, under similar provisions.
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5. The third FIR was lodged by the daughter of the

 

deceased, Smt. Chandana Acharya, which was recorded

 

as Keshpur PS Case No.61 dated 26th September, 2002,

 

under Sections 148, 149, 448, 326, 307, 364 and 506

 

IPC read with Sections 25 and 26 of the Arms Act.

 

 

6. As will be apparent from the three FIRs, the

 

first two related to the incident in which seven

 

persons, including the father of the third

 

complainant, Ajoy Acharya, were killed at Piyasala

 

Village and their bodies were removed to and buried

 

at Daser Bandh, Keshpur. As indicated hereinabove,

 

in none of the above FIRs was the Appellant named,

 

nor was he included in the charge-sheets which were

 

filed.

 

 

7. The cases which arose out of the first two FIRs

 

in which charge-sheets were filed under Sections

 

148, 149, 302 IPC and also under Sections 448, 364

 

and 506 IPC, ended in acquittal of the accused
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persons who were alleged to have committed the

 

offences complained of. The third case is, however,

 

still pending trial before the learned Additional

 

Sessions Judge, Paschim Medinipur.

 

 

8. From amongst a number of skeletons which were

 

recovered from a grave in Daser Bandh, Keshpur, one

 

of the skeletons was identified by one Shyamal

 

Acharya, the younger son of the deceased, on the

 

strength of the clothes which were recovered,

 

together with a set of teeth, which were identified

 

to be that of the deceased, Ajoy Acharya. It is

 

thereafter that the fourth FIR was lodged by Shri

 

Shyamal Acharya, being Anandapur P.S. Case No.36 of

 

6th June, 2011, in which 40 persons were named as

 

accused and the name of the Appellant was shown at

 

serial No.2 and it was alleged that he had entered

 

into a criminal conspiracy with the other accused

 

persons in order to cause the deaths of the seven

 

victims, who were allegedly members of the
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Trinamool Congress. It was further alleged that a

 

peace meeting had been held prior to the incident

 

and the victims were returning to their homes upon

 

the assurance that had been given in the meeting

 

that peace would be maintained by the local

 

villagers. The further allegation was that under

 

the directions of the Appellant, the seven victims

 

were targeted and dragged out of their homes and

 

were killed upon his instructions. Thereafter, the

 

bodies were carried to different places and

 

ultimately buried at Daser Bandh in Keshpur, from

 

where the skeletons were recovered.

 

 

9. Mr. Ranjit Kumar, learned Senior Advocate, who

 

appeared on behalf of the Appellant, Mr. Susanta

 

Ghosh, urged that with the change in the Government

 

in the State of West Bengal, the Appellant, who is

 

a M.L.A. of the Communist Party of India (Marxist)

 

and a former Minister, is being targeted after an

 

interval of nine years in order to discredit and
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humiliate him and to adversely affect his political

 

career. It was further submitted that nothing

 

prevented the prosecution or even the heirs of the

 

victim, including his daughter, Smt. Chandana

 

Acharya, who had earlier lodged FIR No.61 dated 25th

 

September, 2002, or the younger son, Shri Shyamal

 

Acharya, who had lodged the fourth FIR, from coming

 

out with the allegation against the Appellant

 

earlier. Mr. Ranjit Kumar submitted that not only

 

was the delay in lodging the FIR, in which the

 

Appellant was indicted, fatal to the prosecution

 

case, but gave rise to a strong suspicion that it

 

was motivated. Mr. Ranjit Kumar also submitted

 

that before the Division Bench of the Calcutta High

 

Court, the Appellant had been granted the benefit

 

of anticipatory bail which was subsequently not

 

extended by the learned trial Judge, who remanded

 

the Appellant to police custody, and, thereafter,

 

bail has been refused.
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10. Mr. Ranjit Kumar submitted that the parameters

 

for grant of bail have been laid down by this Court

 

in various cases and this Court has indicated as to

 

when bail could be refused in respect of cognizable

 

offences, such as, if there were :

 

 

(i) chances of tampering with the evidence;

 

(ii) chances of interfering with the

 

investigation; and

 

(iii)chances of absconsion;

 

 

11. Mr. Ranjit Kumar submitted that as far as the

 

first two instances are concerned, since charge-

 

sheet has already been filed, the same do not

 

survive. Furthermore, since the Appellant is a

 

sitting MLA and a former Minister in the West

 

Bengal Government, there was no chance of his

 

absconsion.
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12. Mr. Ranjit Kumar submitted that this is a fit

 

case for grant of bail to the Appellant.

 

 

13. Strongly opposing the Appellant’s prayer for

 

bail, Mr. Gopal Subramanium, learned Senior

 

Advocate, submitted that the offences alleged to

 

have been committed by the accused, including the

 

Appellant, were highly disturbing and had caused a

 

serious law and order situation and had also spread

 

panic amongst the people of the area. Mr.

 

Subramanium submitted that apart from being

 

grievous, as well as heinous in nature, the crimes

 

were committed pursuant to a well-conceived

 

conspiracy which had been hatched under the

 

leadership of the Appellant herein. Mr. Subramanium

 

submitted that although the name of the Appellant

 

had not figured in the earlier FIRs, his complicity

 

in the murder of the seven victims had been

 

subsequently established by witnesses who had

 

witnessed the incident and had maintained that the
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Appellant had been present throughout, until the

 

dead bodies were buried, giving rise to an

 

additional charge under Section 201 IPC.

 

 

14. Mr. Subramanium submitted that having regard to

 

the grievous and appalling nature of the crime,

 

right from when the murders were committed, till

 

the concealment of the bodies by burying them, the

 

question of granting bail to the Appellant does not

 

arise, especially when charge-sheet has been filed

 

against him and the matter is ready for trial.

 

Learned counsel submitted that the prayer made on

 

behalf of the Appellant for grant of bail was

 

liable to be rejected.

 

 

15. Having considered the submissions made on

 

behalf of the respective parties, we are inclined

 

to allow the Appellant’s prayer for bail.

 

Admittedly, two FIRs in respect of the same

 

incident were lodged on the same day, while the
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third FIR was lodged a few days later. The first

 

FIR was lodged by one Nemai Ch. Sarkar, a local

 

man. The second FIR was lodged by the S.H.O. of

 

the Keshpur Police Station and the third FIR was

 

lodged by the daughter of the deceased Ajoy

 

Acharya.

 

 

16. There is no mention of the Appellant’s name or

 

alleged role in the incident. There was nothing to

 

prevent at least Smt. Chandana Acharya, the

 

daughter of the deceased, from naming him. Whether

 

the investigating authorities took notice of the

 

same is an entirely different matter. At this

 

stage it will not be proper for us to dilate any

 

further on the factual aspect of the matter, but at

 

least for the purpose of considering the

 

Appellant’s prayer for bail it does merit

 

consideration that the Appellant has been arrested

 

in connection with a FIR lodged 9 years after the

 

incident. During all these years there is no
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allegation that the Appellant has interfered with

 

the investigation. Furthermore, in connection with

 

this case he was also granted anticipatory bail.

 

There is nothing to indicate that such privilege

 

was either abused or misused by the Appellant.

 

 

17. As indicated hereinabove, the parameters laid

 

down by this Court for considering grant of bail to

 

an accused include the likelihood of his absconsion

 

and tampering with the evidence or the witnesses or

 

even the investigation. Tampering with the evidence

 

or the investigation is no longer relevant since

 

charge-sheet has already been filed in the case. As

 

far as absconsion is concerned, the Appellant being

 

a sitting MLA, even such a possibility is remote.

 

There is, of course, the possibility that the

 

Appellant may tamper with the witnesses. However,

 

considering the fact that the matter has been

 

reopened as far as the Appellant is concerned,

 

after an interval of about 10 years, even such a
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possibility appears to be remote. However, in order

 

to prevent such an eventuality, the Appellant can

 

be put on terms, as was done by the High Court

 

while allowing his prayer for Anticipatory Bail.

 

 

18. We, therefore, allow the appeal and direct that

 

the Appellant be released on bail to the

 

satisfaction of the trial Court. The trial Court

 

may impose such conditions as may be necessary to

 

secure the Appellant’s presence during the trial.

 

In addition to the above, except for Garhbeta,

 

which is his Assembly Constituency, the Appellant

 

shall not enter other areas of Paschim

 

Medinipur District, West Bengal, without the

 

permission of the trial Court and shall report to

 

the local police station where he will be residing,

 

once on the last Sunday of each month, between

 

11.00 a.m. and 1.00 p.m. The Appellant shall make

 

himself available before the trial Court at all

 

stages of the trial, unless for any special
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reason he is exempted from doing so by the trial

 

Court on any particular occasion.

 

 

19. The appeal is disposed of accordingly.

 

 

……………………………………………J.

(ALTAMAS KABIR)

 

 

……………………………………………J.

(GYAN SUDHA MISRA)

New Delhi

Dated: 03.02.2012

 

 

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