D.B. Dutta, J.
1. This is an application lor cancellation of ball under section 439(2) of the Code of Criminal Procedure.
2. Park Street Police Station Case No. 313 dated 31.5.98 was registered under sections 302/307/34 IPC/27 of the Arms Act against one Chunnu Khan of Elliot Lane, Munna of Alimuddin Street, Md. Khadlm of 13, Elliot Lane and Md. Mittu of 19C, Ripon Street on the basis of an FIR lodged by one Rajender Lal of 10, Golam Sovan Lane. The FIR version runs as follows.
One Minnita Wilson of 13/1, Golam Sovan Lane is a neighbour of the said Rajender Lal. She has a son named Subha. Subha's father is Khokan Santra. On 30.5.98 Khokan requested Rajender Lal to take Subha to his mother at about 8.30 AM. While he was taking Subha to his mother, the accused persons named above intercepted him in front of 14, Golam Sovan Lane and teased him for taking care of other's kid. Rajender Lal protested. The protest angered the accused persons and a scuffle insued. Rajender's family members came forward and settled the matter temporarily. The accused persons then left the spot threatening that they were coming back to teach them a good lesson. At about 11 P.M., Rajender and one Amin Ansari of 8, Nabab Sirajul islam Lane, after taking meal, were talking in front of 14, Golam Sovan Lane. Suddenly, the accused persons came to the spot being armed with fire arms and started abusing them in most filthy languages. They brandished fire arms and threatened to kill them. Both Rajender and Amin tried to escape from their clutches whereupon the accused Chunnu Khan flred at Rajender Lal. Rajender sustained bullet injury on his left thing. To save him Amln Ansari resisted the accused persons whereupon Md. Mittu assaulted Amln Ansari by the butt of his firearms inflicting injury on his forehead. Md. Khadin and Munna then fired simultaneously aiming at Amln Ansari who sustained bullet injury and fell on the ground. The relatives of Rajender and Amin Ansari came forward and appealed to the accused persons by holding their feet not to kill them. The accused then left the place. Both the injured were taken to SNP Hospital where Amin Ansari was pronounced dead and Rajender Lal was admitted to the hospital.
3. The opposite party named Chunnu Khan @ Javed Khan approached the learned Chief Judge, City Sessions Court, Calcutta for anticipatory bail in connextion with this case on a plea of mistaken identity. His case was that he is not Chunnu Khan referred to in the FIR. It was alleged that according to the FIR, the said Chunnu Khan is a resident of Elliot Lane while he was a resident of 14, Golam Sovan Lane and as such he could not be the person wanted in connextion with that case. in support of the allegation that he was a resident of 14, Golam Sovan Lane, he produced before the learned Chief Judge, City Sessions court, Calcutta a rent receipt issued in his name by his landlord and two electric bills issued by the CESC in his name.
The learned Chief Judge by his order dated 21.8.98 allowed the said application for anticipatory bail with the observations that the documents filed by the opposite party showed that he was resident of 14, Golam Sovan Lane while he found from the case diary that a person named Javed Khan @ Chunnu Khan of Elliot Lane was connected with the offence alleged to have been committed. in other words, the learned Judge virtually accepted the plea of mistaken identity and admitted the opposite party to the anticipatory bail on the assumption that the opposite party was not a person wanted in connection with that case.
4. The order of anticipatory ball was scheduled to remain in force for a period of three weeks from 21.8.98 and the opposite party surrendered before the learned Chief Metropolitan Magistrate within the said period on 10.9.98 and approached the court for regular ball. The I. O. prayed for taking the opposite party into police custody and the prosecution strongly opposed the bail prayer. On behalf of the prosecution it was submlted before the learned Magistrate that the opposite party may also be a resident of 14, Golam Sovan Lane but then as per the statements of the witnesses recorded in the case diary, it would appear that he was also a resident of Elliot Lane and as such, there was no question of any mistaken Identity with reference to the opposite party.
Upon consideration of all the materials on record including the statements of the witnessed recorded in the Case Diary, it appeared to the learned Magistrate that the opposite party was involved in the offences for which the case was registered. The learned Magistrate was also of the view that at that early stage of investigation, grant of ball would seriously hamper the investigation and in the interest of investigation he was inclined to allow police remand as prayed for by the I. O. and not to grant ball to the opposite party. But since he was already granted anticipatory bail by the learned Chief Judge. City Sessions Court, the learned Magistrate allowed the opposite party time to bring order from the superior court by 18.9.98 with the direction upon the opposite party to be present in the court on that date.
6. The opposite party thereafter moved the same learned Chief Judge, City Sessions Court for regular ball. The learned Judge took exception to the learned Magistrate's observations that the opposite party appeared to him to be involved in the offence, in the absence of any specific observation by the Magistrate in his order as to whether the opposite party was the same person whose name appears in the FIR and was wanted in connection with the case. in such view of the matter, the learned Chief Judge admitted ball to the opposite party.
6. Being aggrieved by this order of ball granted by the learned Chief Judge, City Sessions Court, the State of West Bengal has come forward with the present application for cancellation of the bail on the following grounds. it has been urged that both the order of anticipatory ball and the order of regular ball were passed by the learned Chief Judge after completely Ignoring and overlooking the statements of one of the victims who survived the attack as also other eye-witnessed of the occurrence which at once render the question of mistaken identity that has been raised by the opposite party, absolute false and baseless thereby occasioning a total failure of Justice. it is also urged on behalf of the State that learned Chief Judge did not at all consider and/or apply his mind to the materials available from the case diary with proper care and caution and that the learned Judge has acted Illegally in admitting ball to the opposite party who is involved in such a grave offence. it was further urged that the opposite party subsequent to his release on bail misused the liberty by committing an offence punishable under sections 25/27 of the Arms Act, for which Park Street P.S Case No. 647 dated 6.11.98 was registered and the opposite party was arrested in connexion with this case. it is the further case of the State that if the opposite party is not taken into custody, the normal investigation of the case will be hampered and since all the other co-accused named in the FIR are still absconding, there is every chance of tampering with the evidence. And hence this application supported by affidavit.
7. The opposite party opposed the application on filing a written objection supported by an affidavit. it is alleged on behalf of the opposite party that he is a resident of 14, Golam Sovan Lane, and not of Elliot Lane. it is also alleged that the materials if there be any in the case diary suggesting that he is also a resident of Elliot Lane were all fabrications made after the teamed Chief Judge had occasions to persue the case diary on 21.8. 98 and 18.9.98. it is alleged that he was falsely Implicated with the subsequent Arms Act Case No. 647 dated 6.11.98 and that such Implication was designed only to create a ground for cancellation of his bail. it is further alleged that although the Chief Metropolitan Magistrate rejected the bail prayer of the opposite parly on 17.11.98 in connexion with the case no. 647 of 1998, the opposite parly succeeded in getting bail under section 439 from the same learned Chief Judge in Criminal Misc. Case No. 513 of 1998 and that the plea of false Implication in the subsequent Arms Act case is nothing new and was introduced in the application he had filed for bail under section 439 Cr.PC in connexion therewith, before the learned Chief Judge, City Sessions Court.
8. The learned Public Prosecutor placed the case diary before us and drew our attention to the statements of eye-witnesses who took the two victims to the hospital and submitted that the said statements which were recorded on 31.5.98 soon after the occurrence would clearly reveal that one Chunnu Khan @ Javed Khan, son of Aahat Khan residing at Golam Sovan Lane as well as Elliot Lane was one of the accused persons who launched the pre-planned murderous assault. it is further submitted by the learned P. P. that Elliot Lane and Golam Sovan Lane are not far off and are lying in the vicinity of one another. it is also submitted by the learned P. P. that the documents submitted on behalf of the opposite party suggesting that the rent receipt and the electric bills were issued in his name in relation to the premises No. 14, Golam Sovan Lane do not at all falsify the statements ' of the eye-witnesses to the effect that the opposite party is also a resident of Elliot Lane. it is urged by the learned P. P. that the plea of mistaken Identity can have really no basis particularly when the name, the alias and the father's name of the accused Chunnu Khan appearing in the FIR do correspond with the respective particulars of the opposite party. it is also contended by the learned P. P that the learned Chief Judge while granting anticipatory bail was swayed by the documents filed on behalf of the opposite party which did not form part of the case diary and overlooked the clinching materials that were very much appearing in the case diary so as to implicate the opposite party with the offences involved. it is submitted that the learned CMM upon careful perusal of the case diary was unequivocal in his order dated 10.9.98 rejecting the ball of the opposite party that the case diary contained materials so as to establish the involvement of the accused opposite parly in the concerned offences and that the learned Chief Judge failed to consider the true Impact of the observations made by the learned Magistrate in his order dated 10.9.98 and arbltratlly stuck to his view on the question of mistaken Identity expressed in his earlier order of anticipatory bail based on consideration of irrelevant materials afforded by one rent receipt and two electric bills filed on behalf of the opposite party. The learned P. P. did also produce the case diary of the subsequent case No. 647 dated 6.11.98 registered by the same police station under sections 25/27 of the Arms Act against the opposite party and contended that going by the materials available from this case diary, the plea of false implication of the opposite party with this subsequent case cannot be presently entertained. The learned P. P. further contended that apart from the question of perversity, illegality and impropriety of the order of the learned Chief Judge granting ball to the opposite party, the opposite party can be said to have forfeited his right to remain on bail by reason of the fact that he has misused his liberty by committing more or less similar offence of possession of Ore arms as in the earlier case No. 313 dated 31.5.98. For the aforesaid reasons, the learned P. P submitted that there cannot be a more appropriate case than the present one where this court in exercise of its power under section 439(2) should cancel the ball granted to the opposite party. The learned P. P. placed reliance on two decisions of the Supreme Court ; Pokor Ram
v. State of Rajasthan and Ors. and : Klran Devt v. State of Rajasthan and anr.
9. Mr. S. Imam, the learned senior counsel appearing for the opposite party, reiterated the points that were specifically raised in the written objection filed against the application for cancellation of the ball. it is submitted by him that grant of anticipatory bail under section 438 or bail under section 439(1) was within the discretionary power of the learned Chief Judge, City Sessions Court and the State, not having challenged the legality of the anticipatory bail order, cannot be heard to say that it was illegal. it is submitted that the learned Chief Judge exercised his discretion in granting anticipatory ball after accepting the opposite parly's plea of mistaken identity and the High Court should use extreme care and caution in interfering with such exercise of discretionary power of the City Sessions Court. it is further submitted that the materials that might be now available in the case diary so as to connect the opposite party with Chunnu Khan named in the FIR were not available at the time when the learned Chief Judge had occasions to deal with the application for anticipatory bail and also the application for ball and that such materials must have been fabricated by the prosecution with the object of cancelling the bail. it is also submitted by Mr. Imam that the G.D. Entries 521 and 524 of Park Street Police Station giving rise to the subsequent case No. 647 dated 6.11.98 were inconsistent with one another and that the said inconsistency would go a long way in establishing the truth in the opposite party's plea of his false Implication in the said case. Mr. imam also referred to two decisions of the Supreme Court : Bhagirathstnh Judcja v. State of Gujarat and : Kolat Ram v. State of Haryana and contended that in view of the said decisions this is not at all a fit case for cancellation of ball.
10. The point for our decision would be whether the ball granted by the learned Chief Judge should be cancelled or not. if we carefully scrutinise the orders dated 21.8.98 and 18.9.98 whereby the learned Chief Judge granted anticipatory ball and bail respectively to the opposite party, it would at once become crystal clear that the learned Judge was pleased to grant bail only on the assumption that the opposite party was not the person wanted in connexion with the concerned case. Such assumption made by the learned Judge was obviously based on the rent receipt and the electric bills filed on behalf of the opposite party. But if we carefully peruse the materials available from the case diary, we will find that such assumption by the learned Judge was completely unfounded. The copy of the order dated 10.9.98 passed by the learned C.M.M. on the application for bail under section 437, which is available from the case diary, clearly reveals that the learned Magistrate upon consideration of the materials available from the case diary was satisfied that the opposite party was the person wanted in connextlon with the case concerned. There is, indeed, hardly any scope to give any weight to the opposite party's contention that the materials which are now available from the case diary and which cllnchlngly show the involvement of the opposite party for the offences concerned were not available in the case diary when the learned Judge had occasions to go through the same at the time of dealing with the applications for anticipatory ball and that the said materials were subsequent interpolations at the instance of the prosecution. We have also perused the other case diary that has been submitted to us by the learned Public Prosecutor in connextlon with the subsequent case No. 647 dated 6.11.98 under section 25/27 of the Arms Act registered against the opposite party as also the two G.D. Entries Nos. 521 and 524 which gave rise to that case. But we hardly find any inconsistency between the two. The G. D. Entry No. 521 was recorded at 23-35 hrs. on 5.11.98 at the time when the author of that entry left the police station on receipt of any anonymous telephonic information while the G.D. Entry No. 524 was recorded at 1-25 hrs of that very night after the author of the earlier G.D Entry had returned to the police station along with the opposite party and the seized alamats. it is not understood why these two G.D. Entries cannot be reconciled with one another.
11. in : Bhagtrathstnh Judeja v. State oJGuJarat, the Supreme Court observed:
"Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the ball. And the trend today is towards granting ball because it is now well-settled by a catena of decisions of the court that the power to grant ball is not to be exercised as if the punishment before trial is being Imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence."
12. in : DolatRamv. State of Haryana, the Supreme
"Rejection of ball in a non-bailable case at the initial stage and the cancellation of ball already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances area necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for concellatlon of ball, broadly (Illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of Justice or abuse of the concession granted to the accused in any manner............ However ball once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no loner conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of ball during the trial."
13. in : Pokar Ram v. State ojnajasthan, cited on
behalf of the prosecution, the Supreme Court was dealing with an appeal by special leave against an order of the High Court refusing to cancel the anticipatory bail granted by the Sessions Judge. The Supreme Court observed:
"Unusual though it may appear to be, under a compelling necessity in the interest of Justice, we would depart from the ordinary response of this court to matters involving ball. Ordinarily, this court is loath to interfere with the orders granting or refusing ball but it cannot be an insurmountable obstacle in the way of rectifying an order which tends to disclose miscarriage of Justice."
The Supreme Court referred to the decision of the Constitution Bench in Gurbaksh Singh's case which clearly laid
down a distinction between an ordinary order of ball and an order of anticipatory bail. The accusation against the respondent was that he committed an offence of murder by using fire arms and the Supreme Court observed:
"When a person is accused of an offence of murder by the use of a firearm the court has to be careful and circumspect in entertaining an application for anticipatory ball."
The Supreme Court held that when the power under section 438 Cr.PC was exercised sub silent is as to reasons or on considerations Irrelevant or not germane to the determination, the Supreme Coprt must interfere to avoid miscarriage of justice. in the Impugned order of the High Court against which the Supreme Court was dealing with the appeal. Bhaghtrath Stngh's case (supra) was referred to and the Supreme Court observed that it was a case in which accusation was for an offence under section 307 IPC. The Supreme Court further observed:
"As stated earlier, by reference to these decisions not of topical interest bearing on the question of grant or refusal of anticipatory ball the High Court unfortunately missed crux of the matter."
The Supreme Court further observed at paragraph 13:
"Before we conclude this judgment, it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress."
Promptly after the registration of the case under section 302, an application for anticipatory bail was made and granted and the Supreme Court observed:
"if such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken. Therefore, we have no option but to cancel the order granting anticipatory bail."
14. in : Klran Dcvi v. State of Rajasthan, the
Supreme Court was hearing an appeal by Special Leave against the grant of anticipatory bail in a murder case. The Supreme Court expressed its opinion that anticipatory ball should not have been granted in the murder case when the investigation was still incomplete and the proper course to adopt was to leave it to the trial court to do the needful if and when the person concerned was arrested in the light of the record available at that point of time. in such view of the matter, the Supreme Court finally set aside the order of anticipatory bail.
15. it is needless to comment that the considerations relevant on a motion to cancel ball already granted are somewhat different from those relevant to the rejection of an application for bail. The reason is that cancellation of hall necessarily involves the review of a decision already made.
16. in view of our discussions made above, it would necessarily follow that the learned Chief Judge, City Sessions Court granted the anticipatory as well as the bail without proper application of his mind and without consideration of the materials available from the case diary and that his orders were based on Irrelevant considerations and it cannot be said by any stretch of imagination that there was proper exercise of discretionary power in the matter. Moreover, it appears that the prosecution has been able to establish prima facie that the opposite party misused the liberty by committing another offence under section 25/27 of the Arms Act.
17. Thus, giving our anxious consideration to all the facts and circumstances which are relevant for the purpose of considering whether bail already granted to the opposite party should be cancelled or not, we think it fit in the interest of Justice to cancel the bail. The order dated 18.9.98 passed by the learned Chief Judge. City Sessions Court in Criminal Misc. Case No. 425 of 1998 is accordingly set aside. The bail bond furnished by the accused opposite party is hereby cancelled. The application is thus allowed.
18. Appeal allowed.
A. Talukdar, J.
18. I agree.