Bail application under Section 439 of Cr.P.C. before the Hon'ble High Court

 

District : Cooch Behar

THE HIGH COURT CALCUTTA

IN THE CIRCUIT BENCH AT JALPAIGURI

CRIMINAL MISCELLANEOUS JURISDICTION

 

                                                          CRM No.                        of 2021

 

                                                          IN THE MATTER OF :

 

An application for Bail under Section 439 of Code of Criminal Procedure’ 1973;

 

A N D

 

In the matter of :

 

Session Case no. 400 of 2012, { ST Case no. 1 (12) 2012 } corresponding to GR Case no. 144 of 2011, in connection with Mathabhanga Police Station Case no. 64 of 2011, dated 28-02-2011, under Section 395, 396, 397 & 216A of Indian Penal Code’ 1860, pending before the Learned Additional District Session Judge, 1^st Court, Cooch Behar (NDPS);

 

A N D

 

 

In the matter of :

 

Yusuf Ali @ Eusuf Ali @ Md. Ichhar Mian, Son of Md. Abdulgani Mian, aged about 55 years, residing at Jateshwar – 2 No., Falakata, District – Jalpaiguri, Pin - 735101. {in Jail since 20-08-2014}.                     _______Petitioner

-      Versus  -

 

The State of West Bengal

                       ______Opposite Party

 

To,

The Hon’ble Rajesh Bindal, Chief Justice ( Acting ) and His Companion Justices of the said Hon’ble Court.

 

The humble petition of the petitioner above named most respectfully;

S H E W E T H :

 

 

1.   That the Petitioner has been arrested as on 20-08-2014, and consequently produced before the Learned Court, and since then the petitioner is in Jail Custody. The Learned Court below lastly on 26-07-2021, has rejected Bail Application in Session Case no. 400 of 2012, { ST Case no. 1 (12) 2012 } corresponding to GR Case no. 144 of 2011, in connection with Mathabhanga Police Station Case no. 64 of 2011, dated 28-02-2011, under Section 395, 396, 397 & 216A of Indian Penal Code’ 1860. This is the Second Time Bail application filed before the Hon’ble High Court, by the Petitioner. First time Bail application being CRM no. 1908 of 2016, has been refused on 04-04-2016, by the Hon’ble High Court.

 

2.   That the Complaint has been registered as FIR no. 64 of 2011, dated 28-02-2011, by one Shri Ashok Sha, who allegedly stated inter alia that on 28-02-2011, while he was at his Shop in selling gold ornament to the 5 to 6 number of customers, about 9 pm, then about 6 to 7 persons came to his shop having arms in their hand, forcibly entered. Two persons were having covered face. They looted shop and taken several gold and silver ornaments. They fired Gun by which few people sustained injury. The said FIR has been registered against the unknown accused persons.

 

3.   That in Mathabhanga Police Station Case no. 64 of 2011, dated 28-02-2011, under Section 395, 396, 397 & 216A of Indian Penal Code’ 1860. The Police submitted Charge Sheet being no. 138 of 2011, dated 12-06-2011. The Charge Sheet does not disclose any specific offence committed by the petitioner. The petitioner name has been implicated in the Charge Sheet.

 

4.   That the Petitioner time and again seeks to release on Bail before the Learned Additional Session Judge, 1^st Court, Cooch Behar, in Session Case no. 400 of 2012, { ST Case no. 1 (12) 2012 } corresponding to GR Case no. 144 of 2011, in connection with Mathabhanga Police Station Case no. 64 of 2011, dated 28-02-2011, under Section 395, 396, 397 & 216A of Indian Penal Code’ 1860, but denied and therefore the petitioner continuously is in Jail Custody, since the date of his arrest by the Production Warrant, i.e. 20-08-2014.

 

5.   That it is pertinent to states that the Petitioner’s bail application has been lastly denied on 26-07-2021. Certified Copy of Order dated 26-07-2021, passed in Session Case no. 400 of 2012, { ST Case no. 1 (12) 2012 } corresponding to GR Case no. 144 of 2011, in connection with Mathabhanga Police Station Case no. 64 of 2011, dated 28-02-2011, under Section 395, 396, 397 & 216A of Indian Penal Code’ 1860, is enclosing herewith this application.

 

6.   That on 03-09-2014, charged has been framed on your petitioner, under Section 395, 396, and 397 of Indian Penal Code’ 1860. The case has been posted for trial. Presently PW2 namely Ashok Sha has been examined as part in chief by the Prosecution. The PW1 Paresh Saha has been examined in full. The Charge Sheet has been submitted against the 13 numbers of the accused persons. Case filed for present against the two accused namely (i) Hemanta Barman, and Md. Hassannur Rahaman. The Nine ( 9 ) accused persons are on Bail, namely (1) Nazimul Haque, (2) Sahidul @ Mohidul Haque, (3) Rabi Lakra, (4) Kartick Mondal, (5) Bishnu Barman, (6) Sahidul Rahman, (7) Subrata Dutta, (8) Jaladhar Barman, and (9) Ukil Barman. The 2 ( two ) accused are in Jail Custoy (1) the Petitioner, and (2) Raju Rava.

 

7.   That the alleged allegation of the defacto complainant as has been canvassed in the letter of complaint, is false and fabricated one, though the defacto complainant in arm twisting trying to put Criminal recourses of Law into motion against your Petitioner.

 

8.   That your Petitioner most humbly submits that he is no way connected with the alleged commission of offence and it is also most humbly submits that the Petitioner is innocent. The other accused persons are stranger to the petitioner. The petitioner had no idea about what other accused persons has ever done.  The petitioner is clueless about the items seized by Police authorities and as such no criminal element is there for which your petitioner could be kept behind the bar.

 

9.   That your Petitioner specifically denies the statements and allegations contained in the complaint and states that he is innocent and he did not commit any offence as alleged by the complainant.

 

10.                That the Petitioner states that his Custodial detention will not improve the prosecution case as he is innocent and not connected therewith in any manner.

 

11.                That Your Petitioner pertinently states and submit that the petitioner has never involved in the alleged crime as suggested by the prosecution, and in the circumstances of spread of pandemic of COVID – 19 at its highest in the State, he seeks to get release on bail at any terms and conditions, in the necessity to save his life from COVID-19.

 

12.                That Your petitioner states that there is no chance of ascendance and / or tampering with evidences, if Your petitioner released on bail at any terms and conditions, thereof.

 

13.                That the petitioner states that the Charge of offences are groundless and it has been leveled against him with a mala fide intention for humiliating him.

 

14.                That Your petitioner states that the accusation leveled by the complainant stem not from motive of furthering the ends of justice but from some ulterior motive and as such if the petitioner is not released on bail, the very object of  release on bail, will become in fructuous.

 

15.                That your petitioner belongs from a mediocre family, who run his family with his meager income.

 

16.                That your petitioner states that the content of complaint of the de-facto complainant does not disclose and or describe any particular offence or cause of offence against your petitioner.

 

17.                That your petitioner is innocent and committed no offence and have been falsely implicated in this case.

 

18.                That the allegations made against your petitioner is totally false, fabricated and motivated one.

 

19.                That Since the Charge Sheet submitted by Police, the Investigation over by conducting every possible search, and seizure thereof thus the detention of your petitioner become unwarranted and not necessary.

 

20.                That your Petitioner undertake to comply with all such direction as may be determine by the Hon’ble Court in the event of releasing him on bail at any terms and conditions, thereof in the interest of administration of justice.

 

21.                That your petitioner is a peaceful person in his locality having his permanent resident and no chance of his absconding and or evading the due process of Law.

 

22.                Unless the order as prayed for is passed your petitioner will suffer irreparable loss and injury.

 

 

23.                That this application is made bona fide and for the ends of justice.

In the circumstances stated herein above your petitioner most humbly pray that your Lordships would graciously be pleased to direct the release on bail to your petitioner in connection with  Session Case no. 400 of 2012, { ST Case no. 1 (12) 2012 } corresponding to GR Case no. 144 of 2011, in connection with Mathabhanga Police Station Case no. 64 of 2011, dated 28-02-2011, under Section 395, 396, 397 & 216A of Indian Penal Code’ 1860, pending before the Learned Additional District Session Judge, 1^st Court, Cooch Behar (NDPS), and or pass such other order or orders as to your Lordship may deem fit and proper for the end of justice.

 

And the Petitioner, as in duty bound shall ever pray.

 

I certify that FIRDUS MIYA,

has been duly authorized to sign this

petition on behalf of the petitioner

 

Advocate

 

 

 

 

 

 

 

A F F I D A V I T

 

I, FIRDUS MIYA, Son of Ayjat Miya, aged about 21 years, by faith Muslim, by Occupation Daily Labour, residing at Bhahmattar Chatra, Cooch Behar - 736167, do hereby solemnly affirm and say as follows:

 

1)           That I am Brother in law and agent of the petitioner, I am well-acquainted with the facts and circumstances of the case and as such I am competent to affirm this affidavit on behalf the petitioner.

 

2)           That the statements made in the foregoing Paragraphs of this petition are true to my information derived from the petitioner and the records of the case, which I verily believe to be true.

 

 

 

Prepared in my Office                            Deponent is known to me

                                                   

Advocate                                               Clerk to:

                                                                                      Advocate

Solemnly affirmed before me

this         day of September, 2021.

 

All annexures are legible,

 

Advocate

C O M M I S S I O N E R

 

 

 

                                                         

DISTRICT: COOCH BEHAR

THE HIGH COURT CALCUTTA

IN THE Circuit Bench at Jalpaiguri

CRIMINAL MISCELLANEOUS JURISDICTION

 

C. R. M. No.                     of  2021

 

In the Matter of

 

An application for bail under Section 439 of the Code of Criminal Procedure 1973 ;

 

 

And

                                                    

In the Matter of

 

Yusuf Ali @ Eusuf Ali @ Md. Ichhar Mian,,

                                        ….. Petitioner

 

Versus

 

State of West Bengal,

                           ……… Opposite Party

 

 

 

 

 

 

 

 

 

Ashok Kumar Singh.

Advocate,

Bar Association, Room No. 15,

High Court, Calcutta,

Mobile No. 9883070666.

Email : aksinghadvocate@rediffmail.com

 

Written Arguments

 

District : Bankura.

In the Court of the Learned 2^nd Judicial Magistrate, at Bishnupur, Bankura.

 

                                                                                                Misc. Case no.                 of 2013.

                                                                                                ( arising out of Misc. Case no.             of 2013 ).

 

                                                                                                In the matter of :

                                                                                                Sri Goutam Kumar Ghosh ______Petitioner.

-          Versus –

Smt. Mahua Ghosh ________Opposite Party.

 

Written Arguments

 

1.      That the Opposite Party Smt. Mahua Ghosh, filed one Misc. Case being no.            of 2012, under Section 125 of the Criminal Procedure Code’ 1973, against the petitioner Sri Goutam Kumar Ghosh, for maintenance and whereas She also filed one application for interim maintenance, which has been heard by the Learned Court and accordingly an order of interim maintenance has been passed on 16-04-2012, by this Learned Court.

 

2.      That it is pertinent to state that one Matrimonial Suit being no. Mat Suit no. 59 of 2011, has been initiated by the Petitioner against the Opposite Party Smt. Mahua Ghosh, before the Learned District Judge, at Alipore, South 24 Parganas, which has been subsequently transferred to the Learned 14^th Court of the Additional District Judge, at Alipore, South 24 Parganas, and whereas the Opposite Party appeared through her Learned Advocate, though She did not contest the said Matrimonial Suit and ultimately, the Learned Additional District Judge, Alipore, South 24 Parganas, was pleased to pass necessary order, with a decree that the marriage between the parties of the suit dissolved at the cost as enumerated therein in the decree of dissolution of marriage dated 22-01-2003, between the parties.

 

3.      That the said decree of dissolution of marriage between the parties has been granted by the Learned Court on the ground of cruelty as “ the respondent started torture mentally and physically on different pretext” “ It also appears from the record that there is no chance of lodging conjugal life due to behavior of the respondent”.

 

4.      That the Opposite Party Smt. Mahua Ghosh, is not the wife of your petitioner, in accordance with the Order dated 11-05-2012, passed by the Learned Court of 14^th Additional District Judge, at Alipore, South 24 Parganas, in Mat Suit no. 59 of 2011.

 

5.      That Since the Petitioner is a victim of the purported activities of the Opposite Party, which termed as a torture as to mentally and physically, inflicted by the opposite party, herein, and more particularly, such act of cruelty has been established and proved by the petitioner, in said Mat Suit no. 59 of 2011, and whereas such an act of the opposite party obstruct and resist the conjugation of marriage life at her sweet will of the opposite party, and thus while the act of the opposite party has well established in a Matrimonial Suit and adjudicated and decided and ultimately delivered with established reasons by the Learned Court of the Additional district Judge, Alipore, South 24 Parganas, in that event nothing has ever been left to adjudicate and or to decide further in a proceedings of summery nature, before the Learned Magistrate, at Bishnupur, Bankura.

 

6.      That the fundamental questions in a present proceedings under Section 125 of the Criminal Procedure Code’ 1973, as to “refused and neglect” by the Petitioner does not arise at all and not only prima-facies but on established propositions as delivered in the said Matrimonial Suit, that the petitioner is a victim of torture mentally and physically inflicted by the opposite party herein, and there is no chance of conjugation of married life at the instances of the opposite party, and in such an established event, how the petitioner will be make liable to maintain the opposite party.

 

7.      That in the fact and in the Law, the Opposite Party is not entitled to get any money toward maintenance of her in any manner, whatsoever, from the petitioner herein.

 

8.      That no morality of Law and fact can be drawn up by any presumption or assumption, that the Opposite Party is entitled to get maintenance from your petitioner, in any manner whatsoever, while it has been established that She inflicted torture mentally and physically on your petitioner and there is no chance of conjugation of married life at the instance of the opposite party, thus the Opposite Party is not entitled to get any maintenance for her from the Petitioner.

 

9.      That in view of such facts, your Petitioner is seeking that the Learned Court, on considering the factual aspects as well as the Legal aspects, set aside the Order dater dated 16-04-2012, passed by this Learned Court in Misc. Case no.             of 2012, and cancelled the order of interim maintenance, at once.

 

10.   That proceeding in Civil Court are substantial - Granting maintenance to the wife can not be sustained – The Proceedings in Civil Court are substantial whereas the proceedings under Section 125 of the Code of Criminal Procedure are of summary nature. Once the Civil Court of a Competent jurisdiction comes to the conclusion that wife is not entitled to maintenance from her husband the criminal court can not sit in appeal over the said decision. Even section 127 ( 2 ) of the Cr. P. C. contemplates cancellation of an order passed under section 125 after the decision of a Civil Court. Whereas a wife filed a civil suit for declaration that she was entitled to reside separately from her husband and for maintenance from him under the Hindu Adoption and Maintenance Act, 1956, and the same came to be dismissed on merits and the order became  final as no appeal was filed there against the subsequent order passed by a Magistrate under Section 125 of the Code of Criminal Procedure granting maintenance to the wife ca not be sustained. Murlidhar versus pratibha, 1985 ( 87 ) Bom LR 561 ( Bom ).

 

11.   That Civil Court – Jurisdiction of – The legislative intent is manifest in the language used in sub section (2) that the order needs to be cancelled or varied by the Magistrate, if the Magistrate feels that the order of maintenance passed by him should be cancelled or varied in view of the decision of the competent civil court. Without such cancellation and variation, the order of maintenance would not be rendered ineffective. The civil court decision must be brought to the knowledge of the Magistrate whether rendered before or after the order of the Magistrate shall then consider the question of cancellation or variation of the maintenance order. However, it may be stated that a clear and categorical finding , if given  by the competent civil court, can not be overlooked or ignored or disregarded by the Criminal Court.  Harikishan Versus Shanti Devi, 1989 Cri L J 439 at 443 / ( 1989 ) 2 Crimes 599.

 

12.   That if wife is not able to prove cruelty, She is not entitled to get maintenance. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD, CRIMINAL REVISION APPLICATION NO. 226 of 2002 { Sanjay Sudhakar Bhosale – versus – Khristina } decided on 08-04-2008.

 

13.   That the other judicial reference upon which, your petitioner  relied upon :

a)      Saraswati Devi – Versus – State of U.P. and others, on 23^rd May’ 1995. II ( 1995 ) DMC 674.

b)      K. Venkataratnam – Versus – Kakinda Kamala, on 21^st August’ 1959. AIR 1960 Ori 157.

c)       Ramji Malviya – Versus – Smt. Munni Devi Malviya on 20^th March 1959. AIR 1959 All 767, 1959 Cri L J 386.

 

14.   That the provisions of Section 127 (2) state as Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

 

15.  That in the facts and circumstances, Smt. Mahua Ghosh, is not entitled to get any maintenance, and the order of maintenance should be cancelled.

 

 

Through ________

 

Advocate for the Petitioner.

 

 

 

 

District : Bankura.

In the Court of the Learned 2^nd Judicial Magistrate, at Bishnupur, Bankura.

 

                                                                                                Misc. Case no.                 of 2013.

                                                                                                ( arising out of Misc. Case no.             of 2013 ).

 

                                                                                                In the matter of :

                                                                                                Sri Goutam Kumar Ghosh ______Petitioner.

-          Versus –

Smt. Mahua Ghosh ________Opposite Party.

 

FIRISHTI

( Enclosure )

 

a)      Murlidhar versus pratibha, 1985 ( 87 ) Bom LR 561 ( Bom ).

b)      Harikishan Versus Shanti Devi, 1989 Cri L J 439 at 443 / ( 1989 ) 2 Crimes 599.

c)       IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD, CRIMINAL REVISION APPLICATION NO. 226 of 2002 { Sanjay Sudhakar Bhosale – versus – Khristina } decided on 08-04-2008.

d)      Saraswati Devi – Versus – State of U.P. and others, on 23^rd May’ 1995. II ( 1995 ) DMC 674.

e)      K. Venkataratnam – Versus – Kakinda Kamala, on 21^st August’ 1959. AIR 1960 Ori 157.

f)       Ramji Malviya – Versus – Smt. Munni Devi Malviya on 20^th March 1959. AIR 1959 All 767, 1959 Cri L J 386.

 

 

Through ________

 

Advocate for the Petitioner.