Susanta Ghosh vs State Of West Bengal

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.

4 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.

8 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.

9 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