Asok De vs State Of West bengal

@JUDGMENT-JUDGMENT

This is an application for cancellation of bail under Section 439(2) of the Code of Criminal Procedure, 1973 and order dated 26.08.2019 passed by the

learned Judge, Special Court (Essential Commodities Act)-cum-learned Additional District and Sessions Judge, Alipore, South 24 Parganas in Criminal

Misc. Case No. 5158 of 2019 thereby granting anticipatory bail to the opposite party no. 2 in connection with Electricity Case No. 375 of 2019

corresponding to Ekbalpore Police Station Case No. 221 of 2019 dated 13.06.2019 under Sections 135/138 of the Electricity Act, 2003 and thereby

granting bail to the opposite party no. 2 under Section 439 of the Code of Criminal Procedure, 1973.

The brief facts of the case is that on the basis of a credible source information, the petitioner herein along with other officers of CESC Limited visited

18/2/H/12, Mominpur Road, Kolkata-700023 and detected unauthorized abstraction of electricity by means of hooking from CESC Limited’s LT

Service cut out thereby causing huge loss of revenue to CESC Limited as well as endangering human lives and properties. From local enquiry it was

further revealed that the opposite party no. 2 was the master mind behind such illegal act and he was illegally abstracting electricity not only for his

own domestic purpose but also he was distributing the same to the locality in exchange of money, for his unlawful gain, thereby causing wrongful loss

to the CESC Limited.

After inspection, the hooking wire/cable was disconnected from the concerned CESC Limited’s LT Service cut out and portion of the hooking

wire/cable was seized at the concerned place of occurrence after observing all legal formalities of seizure in presence of local representative and local

people. Sketch map of the place of occurrence was also prepared, photographs were taken for capturing the evidence of illegal abstraction of

electricity on due compliance of statutory formalities during the entire process and substantial loss to CESC Limited was assessed provisionally and

then finally in accordance with the relevant provisions of the Electricity Act, 2003, upon fulfilling all statutory formalities, procedure as prescribed in

the said Act.

Apprehending arrest in connection with the said case, the opposite party no. 2 herein preferred an application for anticipatory bail before the Court of

the learned Judge, Special Court (Essential Commodities Act)-cum-learned Additional District and Sessions Judge, Alipore, South 24 Parganas being

Criminal Misc Case No. 4343 of 2019. By order dated 22.07.2019, the learned Judge, Special Court turned down the prayer for anticipatory bail.

After the rejection of his application for anticipatory bail, yet another application for anticipatory bail being Criminal Misc. Case No. 5158 of 2019 was

moved on 20.08.2019 in connection with the said case, without there being any change in circumstance.

Mr. Basu submitted that although in the said 2nd application for anticipatory bail it was categorically stated “new grounds have been created for

which another petition is filed today†without elucidation of so called new grounds, which is a necessary requirement under law for renewing the

prayer for anticipatory for bail, yet the learned Judge was pleased to grant anticipatory bail to the opposite party no. 2 in Criminal Misc. Case No.

5158 of 2019 vide the impugned order dated 26.08.2019 which would make it amply clear that the learned Judge was swayed to grant anticipatory bail

to the opposite party no. 2 primarily by considering his age and his health conditions as well as the health condition of his wife. Even though there is

room for filing a subsequent pre-arrest bail application in cases where earlier applications have been rejected, the same can be done if there is a

change in the fact, situation or in law which requires the earlier view being interfered with a or where the earlier finding has become obsolete.

It is further submitted that the opposite party no. 2 upon being enlarged on anticipatory bail vide impugned order 26.08.2019 and thereafter upon

obtaining regular bail vide impugned order dated 30.08.2019, again perpetrated similar offence within a very short span of time thereby caused

wrongful loss to CESC Limited as well as the Government which led to the registration of a subsequent criminal case against him being Ekbalpore

Police Station Case No. 342 of 2019 dated 04.09.2019 under Sections 135/138 of the Electricity Act, 2003.

My attention is invited to the first and second application under section 438 of the code of criminal procedure to submit that there was no justification

for grant of anticipatory bail on the basis of the second of application because no new grounds was elucidated and explained in the application so as to

warrant the court to grant anticipatory bail.

I have also heard Mr. Uday Sankar Chattopadhyay learned counsel for the opposite party no. 2 who submits that sum of Rs. 4,00,000/- has been

deposited in term of condition for bail. It would appear from the averments made in paragraph 6 of the petition that the petitioner is an old person

suffering from sugar and other ailments. The submissions of the learned Judge took note of old aged diabetic condition of the accused after having

considered the allegation being serious in nature, for having committed theft of electricity by means of hooking from the service cut out of CESC

Limited not only for his domestic purpose but also distributing the same to the local consumers in an illegal dishonest and unauthorized manner acting

as an illegal licensee and in consequence thereof there has been wrongful gain by the accused causing loss of revenue to the CESC Limited and the

government exchequer amounting to Rupees 11 lakhs approximately per year, the learned Judge rejected the prayer for anticipatory bail in the interest

of investigation.

Mr. Basu adverted to the second application under 438 of CRPC filed on behalf of the opposite party no. 2 wherein the facts of previous rejection has

been though noted but the ground as embodied in paragraph 6 is the same save and except the ground that he along with his wife is suffering seriously

from diabetes and Doctor has advised both of them to take rest for one month. It is submitted that there is no changed circumstance as on the same

ground of illness, the petitioner sought for his release on anticipatory bail. They were meant as new ground being created for which another petition

under section 438 CRPC was filed but without any elucidation or explanation for ground being made to warrant a justifiable order of pre-arrest bail in

favour of the petitioner.

The order, which the learned Judge passed enlarging the petitioner accused on anticipatory bail vide order dated 26th of August 2019 in connection

with Criminal Misc Case No. 5158 of 2019 reflects that on condition to deposit the sum of Rs. 4 lakhs by four equal installments per month starting

from the month of September 2019 and to continue to pay the balance amount in the month of October 2019 number 2000 19 December 2019 was on

the finding that the petitioner accused has caused loss of revenue to CESC Limited and the government exchequer amounting to Rs. 11 lakhs

approximately as alleged in the FIR which amount was not paid to the CESC Limited by the petitioner till the date as has been assessed and

demanded from him by the CESC Limited but having regard to the old-age diabetic condition of the accused petitioner as he was not keeping on well

he was allowed to find bail. It is submitted that the learned Judge has overlooked the fact of subsequent case registered against him for the similar

wrongful gain by theft of electrical energy for himself and by unauthorizedly providing electricity to other neighbouring persons.

It is also depicted from the order dated the 30th August, 2019 that the petitioner was subsequently admitted on bail of Rs. 10,000 with two surety of

Rs. 5000 each subject to the satisfaction of the learned CJM Alipore in default to judicial custody.

On behalf of the opposite party no. 2/accused it is submitted that subsequent to filing of the instant application for cancellation of anticipatory bail the

accused opposite party no. 2 has deposited the sum of Rs. 2 lakhs in favour of the CESC Limited out of total due of Rs. 4 lakhs and has further

submitted that rest amount be deposited by easy instalment in favour of CESC Limited.

It would appear that the sum of Rs. 2 lakh was deposited by the petitioner in compliance of the condition imposed in the order for pre-arrest bail. But

no efforts have been made so far to deposit the rest of the finally assessed amount of loss calculated as per the rule by the CESC Limited.

Mr Basu in support of his stand for cancellation of bail granted to the petitioner, has relied on a full bench decision in case of Suman Saha @ Kausik

Saha versus the State of West Bengal and others reported in 2010(4) CHN(Cal) 361 wherein the question for determination that it was before the Full

Bench was whether the accused can move second application for anticipatory bail in case his first application is rejected; if yes, in what contingency

before the same court or to the superior court?. Full bench of this Honorable Court held by summing up conclusions as follows:

a) a person has a right to move either the High Court or the court of sessions for directions under section 438 CRPC at his option. In case a person

chooses to move the Court of session in his first instance and his application for grant of anticipatory bail under section 438 is rejected, he can again

move the High Court for the same reason under section 438 CRPC itself.

b) Where a person chooses to straightway move the High Court in the first instance and his application is rejected on the same set of facts and

circumstances, he will not be entitled to move the Court of session for the second time, but may invoke the extraordinary powers of the Supreme

Court by seeking special leave to appeal in the Supreme Court.

c) A person will be entitled to move the High Court or the Court of sessions as the case may be, for the second time. He can do so only on the ground

of substantial change in the facts and circumstances of the case due to subsequent events. However, he will not be entitled to move the second

application on the ground that the court on earlier occasion failed to consider any particular aspect or material on record or that any point then

available to him was not agitated before the court.

It has been further held with the conditions for moving subsequent anticipatory bail application on the ground that the person is not arrested after

rejection of anticipatory bail application and secondly the subsequent anticipatory bail contend mould materials, further developments and different

considerations with the observations that the second application for anticipatory bail giving more materials, further developments and different

considerations does not amount to review of earlier order and is not barred by section 362 of the code of criminal procedure.

Reference to a decision in case of Smt. Nabanita Das Maity Vs the State of West Bengal and another (2008)2 CCr. LR(Cal) 9 7has been made to

submit that the grant of anticipatory bail should be cancelled on the score that there has been nondisclosure about the rejection of earlier application

for anticipatory bail which amount to suppression of material fact and practising fraud upon the court. I find that in the second application there was

nondisclosure about the rejection of earlier application for anticipatory bail and that is why it was considered to be a practising fraud upon the court

whereas I find from the averments made in the paragraph 1 of the second application for anticipatory bail that the petitioner has disclosed the fact of

his first application being rejected but he registered the second application for anticipatory bail on the similar ground of his illness but with added

ground of his wife. Though, there is averments about previous rejection of bail but the ground of illness of his wife appears to have been setup for pre-

arrest bail.

In case of Pamela Sarkar VS State of West Bengal and another reported in 2010 (2) CHN(Cal) 267 the division bench of this Honourable Court

observed in a set of facts where in the second application, the opposite party no.2/ accused himself stated in his affidavit filed before the trial court

mentioning that no application under section 438 CRPC was filed by him earlier, was held to be a ground itself for rejection of anticipatory bail by

cancellation of the bail on the ground of misstatement made by the opposite party no.2.

The case of Pamela Sarkar in my considered opinion is distinguishable from the facts and circumstances of the instant case, inasmuch as the opposite

party no.2/ accused in his second application for anticipatory bail in paragraph 2 has categorically stated supported by an affidavit that no such case

under section 438 CRPC application has been filed earlier rejected nor disposed of by the learned Court or any Courts and also Apex Court of India,

except the petition under section 438 CRPC rejected by the trial vide CMC number 4343 of 2019. Therefore, it cannot be said that there has been

misstatement on affidavit made on behalf of the opposite party No.2.

This court is not oblivious of the facts disclosed before this court that the opposite party no. 2 on being enlarged on anticipatory bail by impugned order

dated 26th of August, 2019 and thereafter upon obtaining regular bail by impugned order dated the 30th August, 2019 again perpetrated similar offence

within the very short span of time thereby causing wrongful loss to CESC Ltd as well as the government which led to the registration of a subsequent

criminal case against him being Eqbal PS case No.342 of 2019 dated 0409 2019 under section 135/138 of Electricity Act 2003 which is evident from

the complaint dated 04.09. 2019 and he was arrested in connection therewith and was in judicial custody till 31st of October 2019 before being

enlarged on bail on 01.11. 2019. It is also pointed out that on 04.09.2019 one Firoz Khan landlord of premises No. 5/to/H/50BK Road, Kolkata 7000 23

also informed the officer in charge of Eqbalpore police station in writing as to how the opposite party 2 by adopting coercive means and force took

over the control of the electric supply meter standing in the name of his wife and thereafter pilfered electricity by resorting to hooking/tapping.

Therefore, by enlarging the accused/opposite party no. 2 on pre-arrest bail and thereafter on regular bail, there is every likelihood that he will use his

liberty to subvert justice or tamper with the evidence or that his mere presence at large would intimidate the witnesses, especially when his past

conduct clearly demonstrates his criminal fervor.

In case of Puran, Shekhar And Anr vs Rambilas & Anr., State Of Maharashtra And Anr (2001) 6 Supreme Court cases 338, the Honourable Apex

Court in regard to grounds for cancellation of bail under section 439(2) of Cr.P.C., held that an order granting bail passed by ignoring material and

evidence on record and without giving reasons, would be perverse and contrary to principles of law. Such an order would itself provide a ground for

moving an application for cancellation of bail. Such ground for cancellation is different from the ground that the accused misconducted himself or

some new facts called for cancellation.

In Dolat Ram v. State of Haryana (1995) 1 SCC(CRI) 23 7the Apex Court held that rejection of bail in a non-bailable case at the initial stage and the

cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming

circumstances are necessary for an order directing the cancellation of the bail already granted. Generally speaking the grounds for cancellation of bail

broadly 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. The Honourable Apex Court clarified that these instances are merely illustrative

and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is

passed in a heinous crime, that too without giving any reasons.

The Honourable Apex Court in case of Puran (supra) at paragraph 11 of observed thus:

“11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of

cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is

made clear by this court in Guru Charan Singh versus State (Delhi Admn.) (1978 )1 SCC118.â€​

It is gathered from the above cited decision in Puran (supra) that the provision of section 439 (2) of the Code of Criminal Procedure provides the

power to the High Court to cancel bail. Therefore, the power to cancel bail can be exercised also in respect of orders passed by the Court of Session.

In this particular case this Court finds that the learned Trial Court had rejected the application for pre-arrest bail at the first instance where the ground

of illness of the opposite party no. 2 having suffered or suffering from diabetic problem was taken into consideration apart from seriousness and

gravity of the offence alleged by the complainant. In the second application the grounds are similar to the first application but additionally one ground

has been added that his wife was also a diabetic and suffering from such disease. That might be consideration in the

mind of the learned Trial Court to admit him on anticipatory bail and thereafter considering him or admitting him on regular bail on certain condition.

It is axiomatic from the above discussion that the opposite party no. 2 was again involved in a subsequent case of similar nature of offence which is no

doubt a matter of concern. Taking into consideration the ratio of decision as embodied in Puran (supra) case, I find that the opposite party no. 2

undoubtedly misconducted after having been enlarged on bail and enjoying the liberty on the basis of anticipatory bail, he further committed an offence

serious in nature which was registered against him on the basis of a complaint lodged by a person of the locality as the opposite party no. 2 tampered

the electric meter of the wife of the complainant and committed theft of energy by way of hooking through electric cable. Therefore, his bail order is

liable to be cancelled to prevent recurrence of such offence.

In the context of what is discussed above, I find that the petitioner has been able to show the ground of misconduct committed by the opposite party

no. 2 and misuse of the privilege of bail granted to him for having committed the crime of the similar nature. However, if the entire amount of loss

assessed finally by the CESC Ltd. has been deposited then the opposite party no. 2 would be allowed to enjoy the bail privilege otherwise the bail

order shall stand cancelled and be taken into custody so as to prevent recurrence of offence of the nature as alleged by the CESC Limited as the

criminality in the mind of the accused/opposite party no. 2 is writ large.

Thus, the CRM being 10803 of 2019 is disposed of.

Website copy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.