Anju Ghosh vs State Of Tripura

Biswajit Palit, J

This application under Section 439 of Cr.P.C. is filed for granting bail to the accused person in custody in connection with Airport PS case No.37 of 2024 for the offence punishable under Section 302/120B/201/34 of IPC.

Heard Learned Counsel, Mr. Ratan Datta along with Learned Counsel Mr. Ankan Tilak Paul appearing on behalf of the accused person in custody and also heard Learned Spl. P.P., Mr. Sankar Lodh along with Learned P.P., Mr. Raju Datta appearing on behalf of the State-respondent.

As ordered earlier, this Court has received the record of the Learned Trial Court and Learned Spl. P.P. has also produced the Case Diary.

Taking part in the hearing, Learned Counsel for the accused-in-custody has first of all drawn the attention of this Court that this present accused-in-custody is lodging in jail on and from 05.05.2024 and this is first application of the accused-in-custody before this Court. Learned Counsel in support of his contention referred the contents of the first FIR dated 01.05.2024 wherein the name of the present accused-in-custody was not reflected. Learned Counsel thereafter drawn the attention of the Court referring the subsequent FIR laid by one Bulti Deb, wife of the deceased which was tagged with the original FIR and submitted that the name of the accused-in-custody was also not mentioned in the subsequent FIR. Now, referring the charge-sheet submitted by IO, Learned Counsel submitted that in course of investigation of the case, the IO caused arrest of accused Susmita Sarkar and her mother and from the statement of said Susmita Sarkar, he was taken into custody on the allegation that prior to the alleged murder, when Susmita was waiting nearby the PO, that time, the present accused-in-custody arrived therein by a motorbike and consoled her not to panic as he and others would protect her. Learned Counsel submitted that this is the only evidence collected by prosecution during investigation against this present accused. Learned Counsel further submitted that another allegation of the prosecution was that he was tried to abscond Kolkata on the following day of the incident but he did not avail the flight rather he absconded from the State through train and from Kolkata he was later on arrested. Excepting these allegation, no material could collect by prosecution against this present accused and before the Court of Learned CJM, West Tripura, Agartala on so many occasions, the accused submitted prayer for commitment of this case to the Court of Sessions so that the accused can face the trial and since last one and half year, the accused is languishing in jail without any valid cause. So in summing up, Learned Counsel urged for releasing the accused on bail in any condition.

Reliance was placed upon one citation of Hon’ble the Apex Court reported in (2018) 8 SCC 271 [titled as Surinder Kumar Khanna vs. Intelligence Officer, Directorate of Revenue Intelligence] wherein in para Nos. 10, 11, 12, 13 and 14, Hon’ble the Apex Court observed as under:

“10. In Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] , this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] and laid down as under: (AIR p. 160, paras 8-10)

“8. Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] : (SCC OnLine PC)

‘…It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.’

Their Lordships also point out that it is

‘obviously evidence of a very weak type. … It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities’.

They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in ―support of other evidence‖. In view of these remarks, it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except insofar as he is corroborated?

In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal 559 at p. 588.] where he said that such a confession can only be used to ―lend assurance to other evidence against a co-accused ―or, to put it in another way, as Reilly, J. did in Periaswami Moopan, In re [Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77.] : (SCC OnLine Mad)

‘…the provision goes no further than this—where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.’

Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”

The law laid down in Kashmira Singh [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC 1184 : (1964) 2 Cri LJ 344] wherein it was observed: (Haricharan case [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC 1184 : (1964) 2 Cri LJ 344] , AIR p. 1188, para 12)

“12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal 559 at p. 588.] a confession can only be used to ―lend assurance to other evidence against a co-accused”. In Periaswami Moopan, In re [Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77.] Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad)

‘…where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.‘

In Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC)

‘… a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.’

It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] where the decision of the Privy Council in Bhuboni Sahu case [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] has been cited with approval.”

The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused. [ For example: State v. Nalini, (1999) 5 SCC 253, paras 424 and 704 : 1999 SCC (Cri) 691]

In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court, such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilised in order to lend assurance to the Court.

In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges levelled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence.”

Referring the same, Learned Counsel submitted that the confession of the co-accused is not at all substantive evidence as per Section 3 of the Indian Evidence Act. Such confession can be used to lend assurance to other evidence against co-accused and according to Learned Counsel, in view of the aforesaid principle of law laid down by the Hon’ble Apex Court there is no scope to take any adverse inference against the present accused on the basis of statement of co-accused namely Susmita.

Regarding absconsion, Learned Counsel relied upon another citation of Hon’ble the Apex Court reported in (2011) 11 SCC 754 [titled as Sk. Yusuf vs. State of West Bengal] wherein in para No.31, Hon’ble the Apex Court observed as under:

“Abscondence

Both the courts below have considered the circumstance of abscondence of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. (Vide Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391 : AIR 1971 SC 1050] , Paramjeet Singh v. State of Uttarakhand [(2010) 10 SCC 439 : (2011) 1 SCC (Cri) 98 : AIR 2011 SC 200] and Dara Singh v.Republic of India [(2011) 2 SCC 490 : (2011) 2 SCC (Cri) 706] .) Thus, in view of the law referred to hereinabove, mere abscondence of the appellant cannot be taken as a circumstance which gives rise to draw an adverse inference against him.”

Referring the same, Learned Counsel submitted that since due to the unfortunate incident there was panic so the accused tried to remain away from the area and he had no intention to abscond but due to panic inspite of availing flight he proceeded to Kolkata through train and for that he has not committed any crime and urged for releasing the accused on bail relying upon the principle of said citation of Hon’ble Apex Court.

Reference was further made to another citation of the Hon’ble Supreme Court reported in (2011) 2 SCC 490 [titled as Rabindra Kumar Pal alias Dara Singh vs. Republic of India] wherein in para No.64, Hon’ble the Apex Court observed as under:

“64. The following principles emerge with regard to Section 164 CrPC:

(i) The provisions of Section 164 CrPC must be complied with not only in form, but in essence.

(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.

(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.

(iv) The maker should be granted sufficient time for reflection.

(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.

(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.

(vii) Non-compliance with Section 164 CrPC goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.

(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.

(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.

(x) Confession of a co-accused is a weak type of evidence.

(xi) Usually the court requires some corroboration from the confessional statement before convicting the accused person on such a statement.”

Again, reliance was placed upon another case reported in (2013) 12 SCC 406 [titled as Sujit Biswas vs. State of Assam] wherein in para No.13, Hon’ble the Apex Court observed as under:

“13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ―may be‖ proved, and something that ―will be proved‖. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between ―may be‖ and ―must be‖ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ―may be‖ true and ―must be‖ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ―may be‖ true and ―must be‖ true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] , State v. Mahender Singh Dahiya [(2011) 3 SCC 109 : (2011) 1 SCC (Cri) 821 : AIR 2011 SC 1017] and Ramesh Harijan v. State of U.P. [(2012) 5 SCC 777 : (2012) 2 SCC (Cri) 905] )”

Relying upon the aforesaid observation of Hon’ble the Apex Court, Learned Counsel drawn the attention of the Court that based on the exculpatory statement there is no scope to convict the accused and as such, the present accused deserves bail.

Regarding parity, Learned Counsel also relied upon one judgment of Hon’ble Supreme Court of India in SLP(Crl.) No.8523 of 2024 [titled as Balwinder Singh vs. State of Punjab & Anr.] wherein in para Nos.7, 8, 9 and 10, Hon’ble the Apex Court observed as under:

“7. An accused has a right to a fair trial and while a hurried trial is frowned upon as it may not give sufficient time to prepare for the defence, an inordinate delay in conclusion of the trial would infringe the right of an accused guaranteed under Article 21 of the Constitution.

It is not for nothing the Author Oscar Wilde in ―The Ballad of Reading Gaol‖, wrote the following poignant lines while being incarcerated:

“I know not whether Laws be right,

Or whether Laws be wrong;

All that we know who be in jail

Is that the wall is strong;

And that each day is like a year,

A year whose days are long.”

The incident in the present case occurred on 25.06.2020 and the petitioner was arrested soon thereafter on 26.06.2020. By now, 6 co-accused have been granted bail. As the prosecution wishes to examine 17 more witnesses, the trial is unlikely to conclude on a near date.

Considering the above and to avoid the situation of the trial process itself being the punishment particularly when there is presumption of innocence under the Indian jurisprudence, we deem it appropriate to grant bail to the petitioner – Balwinder Singh. It is ordered accordingly. Appropriate bail conditions be imposed by the learned trial court”

Referring the same, Learned Counsel submitted that another co-accused namely Shani Saha Roy has been granted bail by the Hon’ble Apex Court in Special Leave to Appeal(Crl.) No.12103/2025 and involvement of the present accused is much more less than the involvement of the co-accused Shani Saha Roy. So, considering the materials on record the ‘doctrine of parity’ can be applied in this case and urged for enlarging the accused on bail.

Lastly, Learned Counsel submitted that in this case IO has cited more than 80 witnesses in the charge-sheet so there is no chance of immediate conclusion of trial of the case. So, considering the long incarceration of the accused-in-custody, Learned Counsel urged for releasing the accused on bail in any condition.

On the other hand, Learned Spl. P.P. at the time of hearing strongly objected the submission made by Learned Counsel for the accused-in-custody and submitted that from the very beginning due to non-cooperation of the accused persons the trial of this case could not be commenced. It was further submitted by Learned Spl. P.P. that one Pradyut Dhar Chowdhury was the president of one Bharat Ratna Club and one Raju Barman was the Secretary of that club and they were involved in some negotiation business with the nearby CPWD Office in respect of tenders. Later on, those persons along with others were eliminated from the said club and the deceased was made as the Secretary of that club and due to that, they made conspiracy against said Durga Prassana Deb alias Biki(deceased) and intended to eliminate him and ultimately they were successful in their illegal venture. Learned Counsel further submitted that this present accused-in-custody was also an active member of that club and he was also involved in conspiracy of murder of the deceased. Learned Spl P.P. referring the statements of some of the witnesses of the prosecution submitted that the involvement of the accused with the alleged crime cannot be ruled out so Learned Spl. P.P. urged for dismissal of this bail application.

Learned Spl. P.P. further submitted that filing of charge-sheet or lengthy list of witnesses is not a ground for granting bail to an accused and in support of his contention, Learned Spl. P.P. relied upon one citation of Hon’ble Supreme Court of India reported in 2025 SCC OnLine SC 1702 [titled as State of Karnataka vs. Sri Darshan Etc.] wherein in para Nos. 20.4, 20.4.1 and 20.4.6, Hon’ble the Apex Court observed as under:

“20.4. Filing of charge sheet or lengthy list of witnesses does not justify grant of bail.

20.4.1. It is well settled that the mere filing of a charge-sheet does not confer an indefeasible right to bail. Likewise, the mere prospect of a prolonged trial cannot, by itself, outweigh the gravity of the offence, the incriminating material gathered during investigation, or the likelihood of tampering with witnesses.

20.4.6. In the present case, the High Court failed to engage with the incriminating material collected during investigation, despite the seriousness of the offence under Section 302 IPC and the allegation of conspiracy. The mere filing of the charge-sheet, the existence of a long list of witnesses, or the possibility of delay in trial, cannot, by themselves, constitute valid reasons to dilute the gravity of the offence or to disregard the case put forth by the prosecution. As repeatedly held by this Court, such factors are not standalone grounds for the grant of bail in heinous offences involving murder. The reasoning adopted by the High Court to justify the grant of bail is, therefore, contrary to settled legal principles.”

Referring the same, Learned Spl. P.P. submitted that in view of the aforesaid observation made by Hon’ble the Apex Court at this stage there is no scope to grant bail to the accused.

Learned Spl. P.P. also referred another citation of the Hon’ble Apex Court reported in (2025) 9 SCC 31 [titled as Chetan vs. State of Karnataka] wherein in para Nos.113 and 116, Hon’ble the Apex Court observed as under:

“113. There is also a specific finding by the trial court and the High Court that the appellant remained in abscondence from 11-7-2006 till he was arrested by the police on 22-7-2006.

It is trite that mere absconding by itself does not constitute a guilty mind as even an innocent man may feel panicky and may seek to evade the police when wrongly suspected of being involvement as an instinct of self-preservation. But the act of abscondence is certainly a relevant piece of evidence to be considered along with other evidence and is a conduct under Section 8 of the Evidence Act, 1872, which points to his guilty mind. The needle of suspicion gets strengthened by the act. [See : Matru v. State of U.P. [Matru v. State of U.P., (1971) 2 SCC 75 : 1971 SCC (Cri) 391] ].”

Referring the same, Learned Spl. P.P. submitted that the accused soon after the occurrence of alleged incident tried to abscond, so, in view of the observation the present accused-in-custody is not entitled to get any benefit in this case in respect of bail.

Learned Spl. P.P. further submitted that if the accused at this stage is released on bail then there is every possibility that the trial of this case may be hampered. In this regard, reliance was place upon another citation of Hon’ble Apex Court reported in 2025 SCC OnLine SC 1100 [titled as Aashish Yadav vs. Yashpal & Ors.] wherein in para Nos.18 and 20, Hon’ble the Apex Court observed as under:

“18. It was also submitted before the Court that the contract killer Vicky @ Kartoos is having criminal antecedents and is a history sheeter. Thus, the apprehension of the complainant, that the respondent accused, if released on bail may pressurise the witnesses is not unjustified.

The High Court therefore failed to consider these above grounds and has mechanically passed the order and allowed the appeal. The order of grant of bail to accused on parity is error apparent on the face of the record. The High Court failed to consider that the accused are the main accused in the matter and cannot be enlarged on bail because the other co-accused persons have been granted bail. The High Court order granting bail to the accused respondents is hereby set aside. Accordingly, the present appeal is allowed.”

Referring the same, Learned Spl. P.P. submitted that since the alleged accused was the active member of the criminal conspiracy of murdering the deceased so if at this stage he is released on bail then there is every possibility that the trial of this case will be seriously affected and urged for dismissal of bail application.

I have heard both the sides at length and perused the bail application filed on behalf of the accused-in-custody and also gone through the record of the Learned Trial Court and perused the Case Diary. In this case, the prosecution was set into motion on the basis of a suo moto complaint laid by SI Srikanta Guha of Airport PS on 01.05.2024 to O/C, Airport PS alleging inter alia on 30/04/2024 at around 2025 hrs he received one telephonic information that a person was shot at Hatipara under Airport PS and consequent upon which the informant along with staff rushed to the spot and found one body lying by the side of the road with bullet wounds. Immediately, with the help of local public the body was shifted to ILS Hospital wherein the attending doctor declared him as dead. From local enquiry it came to his knowledge that at about 2010 hrs one miscreant shot upon the deceased Durga Prasanna Deb @ Biki while he was sitting in a vehicle bearing No. TR06-A0745 and the same was parked at HatiPara in front of one medicine shop of Shri Bikash Das of Shalbagan BSF Para. And due to bullet injury he fell down on the road from the vehicle and the miscreants fled way. Subsequently, some relatives of the deceased arrived at the Hospital and it was learnt from them that one Raju Barman, Rakesh Barman, Debabrata Barman, Biman Das, Pradyut Dhar Chowdhury and some others made criminal conspiracy and were involved in the commission of the murder of the deceased Durga Prasanna Deb@ Biki. On the basis of the said FIR Airport PS case No.37 of 2024 under Section 302/120B of IPC read with Section 27 of Arms Act was registered. Thereafter, another FIR was laid by Smt. Bulti Deb, wife of the deceased which was also tagged with the original FIR. The investigation was started and after completion of investigation, the IO laid charge-sheet against this present accused and others. Now, the case is pending for trial before the Court of Learned Addl. Sessions Judge, Court No.4, West Tripura, Agartala.

I have also perused the charge-sheet submitted by IO. At the time of hearing Learned Counsel for the accused-in-custody referred para Nos.3, 5, 6, 8 and 9 of the charge-sheet and submitted that in the charge-sheet simply it was mentioned by the co-accused namely Susmita Sarkar and her mother that just before the occurrence of the alleged incident, the present accused came to the PO by riding a bike and assured her not to panic as he would take care of her and on the basis of this statement this present accused was taken into custody.

I have also gone through the statements of witnesses so far collected by IO in course of investigation of this case. From the statements of some of the witnesses who are conversant with the subject-matter of the case, it appears that the present accused-in-custody was an active member of the club where co-accused Pradyut Dhar Chowdhury was the President and Raju Barman was the Secretary and later on they were removed from the Club and was replaced by the deceased as Secretary.

I have also gone through the order of the Hon’ble Supreme Court in respect of bail to accused Shani Saha Roy. Also, I have gone through the citations referred by Learned Counsel of both the sides. It is the admitted position that the accused is not FIR named and nothing was mentioned against him in the FIR.

The trial of this case has not yet been commenced. It is on record that the present accused is lodging in jail for a considerable period of time. In the charge-sheet, the IO has cited more than 80 numbers of witnesses and for recording their evidences, a considerable time would be required.

However, in course of hearing Learned Special P.P. tried to draw the attention of the Court that he was involved in some other case. In this regard, Learned Counsel for the accused-in-custody relied upon another citation of the Hon’ble Apex Court reported in (2020) 1 TLR (SC) 16 [titled as Prabhakar Tewari vs. State of U.P. & Anr.] wherein in para Nos.4 and 7, Hon’ble the Apex Court observed as under:

“4. Learned counsel for the appellant has submitted that the accused Vikram Singh is involved in at least five other criminal cases under the same Police Station, Jagdishpur. He has also brought to our notice the witness statement of one Narendra Dev Upadhyay. This statement was recorded on 29 th March 2019. The part of his statement to which our attention has been drawn by learned counsel for the appellant records that the said witness saw Vikram Singh standing near National Highway 56 Flyover on the date of occurrence of the incident in Warisganj with 6 or 7 accomplices and all of them were talking about plans of killing the victim.

Learned Counsel for the State of Uttar Pradesh supported the appellant‘s stand. Mr. C.A. Sundram, learned senior counsel for the accused contested the present appeal. His main argument is that the statement of Narendra Dev Upadhyay, on which reliance was placed by the prosecution and the appellant was recorded after fifty days from the date of occurrence of the incident. On the question of granting bail, Mr. Sundram has argued, such a statement was unreliable. He has also submitted that even as per the F.I.R. or the witness statements recorded under Section 161 of the Code of Criminal Procedure, 1973, his client was not named as having participated in the act of assault or being present at the place of occurrence while the assault took place.

On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. The factors outlined in the case of Mahipal (supra) for testing the legality of an order granting bail are absent in the order impugned. The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the High Court granting bail. This appeal is dismissed.”

Referring the same, Learned Counsel for the accused-in-custody has drawn the attention of the Court that mere pendency of a case is not a ground for refusing the prayer for bail.

I have also gone through the said citation of the Hon’ble Apex Court.

It is on record that he was also accused in Airport PS case No.1/2021 dated 01.01.2021 under Section 364A/34 of IPC and was charge-sheeted vide Airport PS CS No.88/2021 dated 30.10.2021 under Section 364B/34 of IPC.

However, as already stated, the trial of the case is not yet been commenced. From the relevant prosecution papers it appears to this Court that in course of investigation, the following incriminating materials were revealed against the present accused:

That the accused in custody was an active member of the Bharat Ratna Club.

That the accused was one of the members of the criminal conspiracy.

On the day of alleged unfortunate incident, just before the incident the accused appeared to the PO along with a bike and consoled another co-accused not to take panic and assured to protect her.

After the incident the accused fled away from the alleged area and later on he was arrested from Kolkata.

So, considering the aforesaid materials on record at this stage it cannot be said that the present accused-in-custody is totally innocent and he has got no involvement directly or indirectly with the alleged conspiracy in respect of murder of the deceased till the trial is concluded.

But considering the materials on record and also the period of incarceration of the accused-in-custody at this stage I am inclined to grant bail to the accused-in-custody with the following terms and conditions:

That the accused namely Birchakra Ghosh shall execute bail bond of Rs.2,00,000/- with two sureties of like amount out of which one surety must be a public servant to the satisfaction of Learned Trial Court, in default, the accused shall remain in J/C as before.

In the event of release, the accused shall attend Court once in a week till conclusion of the trial and also shall attend Court on the dates of hearing so that the trial does not suffer.

The accused shall not leave the jurisdiction of Agartala without prior permission of the concerned Learned Trial Court during the period of bail.

The accused shall not in any way directly or indirectly involve himself to tamper or threaten the witnesses of the prosecution who have been cited as witness in the charge-sheet by the IO.

In case of violation of any of the conditions of bail by the accused-in-custody, the prosecution shall be at liberty to approach to the concerned Learned Trial Court for cancellation of the bail granted to the accused.

With the aforesaid terms and conditions, the present bail application stands disposed of.

A copy of this order be communicated to concerned Learned Trial Court and a copy of this order also be communicated to O/C, Airport PS through Learned Spl. P.P. for information.

Also, a copy of this order be furnished to Learned Counsel for the accused-in-custody.