Safiya Malik

The Division Bench of the Calcutta High Court, comprising Justice Arijit Banerjee and Justice Apurba Sinha Ray, has set aside an order passed by the Learned Chief Judge, City Sessions Court, Calcutta, which had cancelled the statutory bail granted to four accused persons. The judgment addresses the procedural concerns surrounding the cancellation and identifies discrepancies in the reasoning adopted by the NIA Court.

The case originates from an incident on 02.05.2023, when a suo moto complaint was lodged at Moyna Police Station concerning the murder of one Bijoy Bhunia. The High Court, on 03.05.2023, directed that a second post-mortem of the deceased be conducted at Command Hospital, Kolkata.

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The accused, including Milan Bhowmik, Sujoy Mondal, Nandan Mondal, and Subrata Mondal, were arrested on different dates in May 2023. Subsequently, the appellants were granted statutory default bail by the Learned Judge, Special Court, Tamluk, as the chargesheet was not submitted within the stipulated 90-day period. On 05.04.2024, the High Court directed the National Investigation Agency (NIA) to take over the investigation due to concerns over the timing of the chargesheet submission.

On 21.08.2024, the Learned Chief Judge, City Sessions Court, acting as the NIA Court, cancelled the statutory bail granted earlier and took the appellants into custody. This decision was subsequently challenged before the High Court.

The learned counsel for the appellants argued that:

• The bail order granted by the Special Court, Tamluk, was permanent and not interim.

• No application for bail cancellation was filed by the prosecution.

• The accused were not informed about the change in the investigating agency or the transfer of the case to the NIA Court.

• Rule 125 of the Calcutta High Court Criminal (Subordinate Courts) Rules, 1985, allows the accused to seek continuation of their bail before a court of equal jurisdiction.

• There was no evidence of any breach of bail conditions or interference with the investigation.

The NIA contended that:

1. The appellants had failed to appear before the NIA Court on 17.05.2024, prompting the court to issue notices.

2. The appellants were part of a conspiracy involving arms, explosives, and deadly weapons.

3. The NIA Court acted within its jurisdiction under Sections 437(5) and 439(2) of the Criminal Procedure Code (Cr.P.C.) to cancel the bail due to the addition of graver charges under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, and the Explosive Substances Act, 1908.

4. The order was based on judicial precedents, including Pradeep Ram vs. State of Jharkhand & Anr. (2019) 17 SCC 326, which allows cancellation of bail upon the addition of graver charges.

The High Court found that the NIA Court had committed multiple procedural errors in cancelling the bail.

1. The chargesheet in the case was filed after court hours on the 90th day, making the statutory bail valid. The judgment states: “It is not expected that such statutory period will extend up to 12 midnight of the 90th day of the statutory period.”

2. The statutory bail granted to Milan Bhowmik on 02.08.2023 was cancelled without due consideration, despite the chargesheet being filed three days after the statutory period.

3. The NIA Court erroneously interpreted the High Court’s observation that “Under suspicious circumstances, charge sheet was submitted at the fag end of a day allegedly to ensure statutory bail for the prime accused.” The High Court clarified that its statement was directed at the conduct of the state investigating agency rather than the accused.

4. The trial judge mistakenly applied an order passed in CRM (DB) 4769 of 2023, which was specific to another accused, Buddhadeb Mondal, and did not apply to the present appellants.

5. The order did not cite the addition of graver charges as the reason for bail cancellation but instead focused on reassessing the validity of the default bail.

6. There was no evidence that the accused misused their liberty, tampered with witnesses, or failed to cooperate with the investigation.

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Given these findings, the High Court set aside the order dated 21.08.2024 and restored the appellants’ bail on the following conditions:

1. Each appellant must furnish a bail bond of Rs. 50,000/- with two sureties of Rs. 25,000/- each, one of whom must be a local resident.

2. The appellants must not leave the jurisdiction of Moyna Police Station except for court proceedings.

3. They must report to the Officer-in-Charge of Moyna Police Station once every week.

4. The appellants must provide their current local addresses to the Investigating Officer and the trial court.

5. The appellants must attend all trial hearings and must not intimidate witnesses, tamper with evidence, or commit any further cognizable offences.

6. In the event of non-compliance with these conditions, the trial court may cancel the bail without further reference to the High Court.

Advocates Representing the Parties

For the Appellants: Mr. Ayan Bhattacharya, Senior Advocate, Ms. Diksha Ghosh, Advocate

For the State: Arun Kr. Maiti (Mohanty), Bhaskar Prosad Banerjee, Debasish Tandan, Debayan Sen, Advocates

For the Defacto Complainant: Sourav Chatterjee, Senior Advocate, Soumya Nag, Advocates

Case Title: Sujoy @ Sujan Mondal & Others vs. The National Investigating Agency & Anr.

Case Number: CRA (DB) 260 of 2024

Bench: Justice Arijit Banerjee and Justice Apurba Sinha Ray

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