These two applications for cancellation of the anticipatory bail granted to the accused Tarak Das have been moved one at the behest of the State and another at the behest of the de facto complainant. Both are taken up for hearing together as agreed upon by the learned counsel for the parties.
Heard the learned counsel for the parties. Perused the materials on record as also the case diary. The prayer for cancellation has been made firstly challenging the order granting anticipatory bail on the ground that same was against the materials on record and not in accordance with law and not just and proper. It has been pointed out to us that bail was granted on two grounds, firstly, the petitioner also sustained injury in the incident and was treated at Nilratan Sarkar Medical College and Hospital and secondly, on the ground from the bed head ticket of the de facto complainant, it transpires that he was under influence of liquor. It is vehemently urged that none of those grounds is at all sufficient to enlarge the accused persons on anticipatory bail without considering the gravity of the offence and the materials collected against him during investigation.
We have no doubt, the approach of the learned Sessions Judge was not correct and in accordance with law and he should not have on the above findings alone considered the accused's prayer for anticipatory bail without at all addressing on the question, viz. the nature of the allegations against him and the materials collected in support of the same. The order impugned while in detailed disclosed the materials brought to notice of the Court from the side of the accused but it is quiet about the materials collected during investigation against the petitioner. There is no indication in the order how and on what basis the case of the accused obtained much waitage than that of the case of the prosecution. We find from the injury report of the accused opposite party no. 2 which is Annexure P-3 to the affidavit-in-opposition filed by him that on examination the attending Doctor has not found any sign of external injury on his person except complain of pain on chest and other parts of the body, although there was allegation that he was assaulted with bambooes. Whereas going through the injury report of the victim at page 14 of the case diary we find he sustained the lacerated cut wound (irregular shape, size 4 cm × 3 cm × 2 cm) over the occipital area with profuse bleeding and 4 stitches were given and the injured undergone treatments in the hospital till April 30, 2012. It is true that the doctor, who examined the victim, got smell of liquor, coming from his mouth when examined him.
Now going through the statement of the victim at page 5 and statement of the other witnesses at pages 9, 10, 11 and 12 who were present at the scene of occurrence, we find they have categorically disclosed that it is the accused opposite party no. 2 who assaulted the victim and caused the above injuries. On the face of the aforesaid materials collected during investigation the learned Sessions Judge was not at all justified in granting anticipatory bail to the accused opposite party no. 2. The accused opposite party no. 2 is a police constable attached to the Kolkata Police, we find from the case diary before the aforesaid incident two criminal cases involving non-bailable offences and one case involving similar offence was pending against him and after the present incident, five more criminal cases were started against him, out of which four relates to the offence punishable under the Arms Act. Thereafter in the month of December, 2012 another case relating to the cognizable offences punishable under Sections 341/506/34 IPC has been started against him. The Xerox copy of the previous case reference filed in Court from the side of the State be taken on record.
We find while the State filed the application for cancellation of bail on 22nd of June, 2012, the de facto complainant filed his application on 27 of June, 2012 after the anticipatory bail was granted to the accused opposite party no. 2 in May 2012.
Having regard to the aforesaid facts that the accused/opposite party no. 2 was granted anticipatory bail nearly 10 months before and no case has been made out from the side of the State that even now his custodial interrogation is necessary for the purpose of investigation, the question of cancellation of anticipatory bail does not at all arise. In our opinion, the justice will be sub-served if the petitioner is directed to surrender in the Court below with a further direction that on his surrender he shall be released on bail on furnishing a bond of Rs. 50,000/- with two sureties of Rs. 25,000/- each, one of whom must be local and on further condition that after his release he shall not enter within the jurisdiction of the following police stations, i.e Jadavpur P.S, Survey Park P.S, Sonarpur P.S, Patuli P.S, Purba Jadavpur P.S, Regent Park P.S and Bansdroni P.S and shall report to the Anti Rowdy Section, Detective Department, Lalbazar, who are now investigating the case on every alternative day, till the conclusion of the trial. We further direct that in terms of our order, the petitioner shall surrender before the court concerned by Monday week (i.e on 11.03.2013) from this date.
The application for cancellation of bail stands disposed of.