Bail Granted

Azima Bewa vs The State Of West Bengal & Ors 

Calcutta High Court

(Appellete Side)

Azima Bewa vs The State Of West Bengal & Ors

 C.R.R. No. 3802 of 2017

DATED : 7 December, 2017

Mr. Deep Chain Kabir .. For the petitioner

Mrs. Anasuya Sinha .. For the State

Debi Prosad Dey [ J ]

Challenge in this revisional application is order no. 2 dated 21.09.2017 passed by the Learned Vacation Judge of Alipore, South 24-Parganas whereby learned Judge released the petitioner on bail with the following order:-

“The accuse/petitioner may find bail of Rs. 10,000/- with two sureties of Rs. 5,000/- each one must be local having landed property within jurisdiction of ACJM, Sealdah and not to leave the jurisdiction of ACJM, Sealdah without prior permission of the I/O subject to the satisfaction of the Ld. ACJM, Sealdah.

The condition as imposed shall not be modified in future.”

Learned advocate appearing on behalf of the petitioner contends that the petitioner could not be released from custody since the petitioner could not arrange any local surety having landed property within the jurisdiction of Additional Chief Judicial Magistrate, Sealdah and that is why the petitioner submitted another application for modification of the said order but the said modification application was also rejected on 25.10.2017.Mr. Kabir appearing on behalf of the petitioner has referred a decision reported in AIR 1978 SC 1594 (Moti Ram & Ors. Vs. The State of Madhya Pradesh & Ors. )

Mrs. Anasuya Sinha, learned advocate for the State has, however, concedes to the principle of law enunciated in the said decision and submits that having regard to the allegations leveled against the petitioner, she may be directed not to leave the jurisdiction of the Additional Chief Judicial Magistrate, Sealdah without prior permission.

The order of learned Sessions Judge clearly reveals that such condition has already been imposed upon the petitioner and the petitioner has been directed not to leave the jurisdiction of Additional Chief Judicial Magistrate, Sealdah without prior permission of the Investigating Officer and subject to the satisfaction of the Additional Chief Judicial Magistrate, Sealdah.

However, I am only concerned with the fact that the direction in respect of the local surety having landed property within the jurisdiction of the Additional Chief Judicial Magistrate, Sealdah has been incorporated in the order and the learned Sessions Judge has also refused to modify such order.

The decision referred to hereinabove has clearly stated about the purpose of granting bail and it has also dealt with the geographical demarcation in respect of the local surety.

The following paragraphs of the said decision may be reproduced below :-

“31. It shocks one conscience to ask a mason like the petitioner to furnish sureties for Rs. 10,000.00. The Magistrate must be given the benefit of doubt for not fully appreciating that our Constitution, enacted by “We, the People of India’, is meant for the butcher, the baker and the candle-stick maker

– shall we add, the bonded labour and pavement dweller.

32. To add insult to injury, the magistrate has demanded sureties from his own district (We assume the allegation in the petition). What is a Malayalees, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know anyone there and might have come in a batch or to seek a job or in a morcha, Judicial disruption of Indian unity is surest achieved by such provincial allergies. What law prescribes sureties from outside or non- regional language applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms sometimes, geographic sometimes linguistic, sometimes legalistic. Act. 14 protects all Indian qua Indians, within the territory of India. Act. 350 sanctions representation to any authority, including a court, for redress of grievances in any language used in the Union of India. Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland, Swaraj is made of united stuff.

33. We mandate the magistrate to release the petitioner on his own bond in a sum of Rs. 1000.00″

In the premises set forth above it is crystal clear that the order the learned Vacation Bench is contrary to the decision of the Hon’ble Supreme Court of India and accordingly the order with regard to the local surety having landed property within the jurisdiction of Additional Chief Judicial Magistrate, Sealdah is modified to the extent that one of the surety must be local. The remaining portion of the order passed by the learned Vacation Bench remains unaltered except the aforesaid modification.

Provision in the order that such condition shall not be modified in any circumstances also appears to be not correct. The bail order is an interlocutory order and can be varied even recalled in any given circumstances.

In that view of this case the condition that “the condition imposed shall not be modified in future” is also set aside. Learned Sessions Judge is at liberty to impose further condition or to even modify the condition which have already been imposed.

Let a copy of the order be sent to the Additional Chief Judicial Magistrate, Sealdah forthwith.

The criminal revisional application is accordingly allowed and disposed of.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.

(Debi Prosad Dey, J.)

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