State Of West Bengal vs Krishnendu Mukherjee

Learned lawyer for the State has assailed the order dated 19th May, 2018 passed by the Sessions Judge-in-Charge, Burdwan in Criminal Misc. Case

No. 1627 of 2018 granting pre-arrest bail to the petitioner, inter alia, on the condition that he shall surrender before the concerned Court within 30

days. It is submitted that similar prayer for pre-arrest bail of the petitioner was rejected by this Court on 12-02-2018 in CRM No. 1259 of 2018.

Notwithstanding such fact, the trial judge proceeded to grant pre-arrest bail, inter alia, on the premise that investigation is complete and charge-sheet

has been filed in the matter. It is argued that the trial judge ignored the prayer for further investigation and custodial interrogation of the absconding

accused persons including the petitioner while passing such order. The impugned order, therefore, is not only affront to judicial discipline and comity of

courts but also suffers from gross non-application of mind.

Rebutting such submissions, learned Senior Counsels appearing for the opposite party/accused submit that the order of pre-arrest bail is a temporary

one and is no longer in force as his client did not appear before the concerned court within 30 days, as directed. They further submit that their client

did not surrender before the court below as he apprehended that he would be subjected to custodial torture and false implication in other case as he

has inimical relation with the local Police Administration. Our attention is drawn to previous litigation instituted by the petitioner against the Police

Administration in support of such plea of animosity. It is further submitted that as charge sheet had been filed, the trial judge took into consideration

subsequent developments and granted pre-arrest bail. Without prejudice to the aforesaid submissions, it is contended that the petitioner is ready and

willing to pray for regular bail provided he is not subjected to custodial torture or harassment by the Police Administration.

In the face of submission relating to animosity from police towards the petitioner, we called upon the learned counsel for the State to inform us

whether the petitioner is wanted in any other case apart from those which are listed in paragraph 6 of the cancellation application. Upon instruction,

Mr. Ahmed, learned lawyer for the State submitted that at present the petitioner is not wanted in any other case apart from the cases referred to in

the said paragraph. He further submitted that the petitioner had not complied with the conditions of pre-arrest bail imposed upon him in those case as

modified by the Apex Court in its order dated 05-03-2018 in SLP(Cr) No. 1577 of 2018 and had not appeared before the court below and prayed to

regular bail within the stipulated time frame.

We have perused the impugned order passed by the learned Sessions Judge-in-Charge granting pre-arrest bail to the petitioner. Learned judge was

aware that this Court had refused self-same relief to the petitioner, inter alia, on the gravity of the offence and that custodial interrogation of the

petitioner was necessary to unravel the extent of his involvement in the murder. Notwithstanding such observations of this Court, the learned Judge

proceeded to grant relief to the petitioner on the premise that investigation is complete and charge sheet has been filed in the instant case and no

process was pending execution against the petitioner.

For a better appreciation of the impugned order passed by the learned Judge, we quote the reasons which purportedly weighed with him to grant

aforesaid relief: “There will be no investigation as Charge-Sheet has been filed, there will be an arrest of this petitioner when arrest is not at all

required and if the petitioner surrenders before the Ld. C.J.M., there may be an uncertainty of his being released on bail in spite of the evidence

against him is only a confessional statement before the police by the accused Miltan Sen and that too, even if it is assured that the confessional

statement is admissible in evidence, advice by itself without inducement cannot even bring the accused under the purview of Section 107 of the Indian

Penal Code so as to include him in a murder purportedly by the accused Miltan Sen.â€​

The Judge had further observed:

“Now, the second point which is raised before this court by the Ld. P.P. is that since warrant has been issued against the petitioner, the petitioner

cannot be granted bail u/s. 438 of Cr.P.C. To this submission, this court would like to point out that the warrant which was issued by the Ld. A.C.J.M.

had been set aside by the Revisional Court, Court of the Additional Sessions Judge, 1st Court, Asansol in Criminal Revision No. 02/2018. Therefore,

there is no W.P.A. at present so as to say that the petition u/s. 438 of Cr.P.C. is not maintainable on that ground. Therefore, from the all the angles

aforesaid, it appears to this court that justice will be done if 438 application is allowed.†Unfortunately, both the findings of the Judge are contrary to

the materials on record. A perusal of the charge sheet filed by the Investigating Agency in the instant case would make it amply clear that the

Investigating Officer had prayed for further investigation for apprehension of the petitioner and one Riten Basak, absconding accused persons and for

their custodial interrogation to elicit further evidence for the progress of the case. Relevant portion of the charge sheet may be quoted as follows:

“During investigation prima facie case was established against accused Riten Basak @ Fufa S/o. Lt. Rasamoy Basak of Rambandi, P.S. Hirapur,

Dist. Paschim Bardhaman (W.B.) and accused Krishnendu Mukherjee S/o. Lt. Amaresh Mukherjee, of Dollylodge, Radhanagar Road, P.S. Hirapur,

Dist. Paschim Bardhaman (W.B.) and their custodial interrogation was seriously felt necessary for unearthing their actual role and motive in the entire

series of the event of the conspiracy and murder and to collect further evidence. Several raids were held to secure their arrest but they were found to

be absconding. Accordingly, prayer for issuance of W/A against them was made and the ld. A.C.J.M. Asansol was pleased to issue W/A against the

said two accused persons. Till now they are absconding to evade arrest. However, it is reasonably believed that once they are brought under arrest

some other evidence will be collected in course of their interrogation in police custody. Therefore, further investigation in terms of Sec.173(8) of

Cr.P.C. is kept open and once the absconding accused persons named above are arrested they will be taken into police custody for interrogation for

collection of further evidence in terms of the Judgment of the Hon’ble Supreme Court reported in CBI V/s. Rathin Dandapat (2016) 1 SCC 507,

and the evidence collected during their interrogation and such other fresh evidence as may be collected otherwise will be forwarded to the learned

court.â€​ ………………………………………………………..

“The investigation of the above noted case is going on. Supplementary charge sheet as per provision of Sec.173(8) of Cr.P.C. will be submitted

after arresting accused Krishnendu Mukherjee and Riten Basak to unearth the truth. It is to be mentioned here that Hon’ble Justice Jyomalya

Bagchi & Hon’ble Justice Rajarshi Bharadwaj, Division Bench of Calcutta High Court rejected the bail application U/s. 438 Cr.P.C. on 12-02-18

vide CRM No. 1259/2018, Calcutta High Court of accused Krishnendu Mukherjee on the ground that custodial interrogation is very much required for

the interest of investigation.â€​

It is also pertinent to note that after the initial warrant, proclamation and attachment against the petitioner was set aside by the revisional court,

subsequent warrant of arrest had been issued for apprehension of the petitioner on 5th April, 2018 which was also ignored by the learned Judge.

Under such circumstances, we are constrained to observe that the learned Judge had wholly glossed over the materials on record and had come to

perverse conclusions that no further investigation was pending in the matter and no unexecuted process was pending against the absconding opposite

party/accused. Hence, we set aside the impugned order dated 25-05-2018 which not only suffers from gross judicial impropriety being in breach of

judicial discipline and comity of courts but also smacks of clear non-application of mind and gross perversity.

At this juncture, petitioner seeks time to appear before the court below and pray for regular bail. The opposite party/accused is directed to appear

before the court below forthwith and not later than 48 hours and pray for regular bail failing which investigating agency shall take all necessary steps

for his immediate apprehension in accordance with law. We also call upon the concerned Judge to explain why his conduct in granting pre-arrest to

the accused on perverse and/or non-existent grounds notwithstanding rejection of similar relief by this Court be not prima facie construed as an act of

judicial indiscipline and malice in law and the matter be not referred for initiation of appropriate action against him in accordance with law.

Such explanation be filed before this Court within a fortnight from date. Let this matter appear under the same heading after two weeks. Registrar

General is directed to communicate the copy of the order to the concerned Judge forthwith for due compliance. Let photostat plain copy of this order

duly countersigned by Assistant Registrar (Court) be handed over to the parties on usual undertaking.