SUSANTA GHOSHversusSTATE OF WEST BENGAL

                   [2012) 1 S.C.R. 829


                    SUSANTA GHOSH                              A
                             v.
                STATE OF WEST BENGAi_
            (Criminal Appeal No. 310 of 2012)

                   FEBRUARY 03, 2012
                                                               B
  [ALTAMAS KABIR AND GYAN SUDHA MISRA, JJ.]

    Bail:

      Death of seven persons - Three FIRs lodged earlier - c
Appellant. a member of Legislative Assembly not named in
the three FIRs - Named in the fourth FIR lodged after 9 years
- Allegation against appellant that he entered into a criminal
conspiracy with other accused persons in order to cause
deaths of seven victims who were allegedly members of 0
political party - Bail application - Rejected by High Court - On
appeal, held: Appellant's prayer for bail is allowed - There was
no mention of the appellant's name or alleged role in the
incident in the three FIRs - Appellant was arrested in
connection with a FIR lodged 9 years after the incident - E
During all these years there was no a/legation that he had
interfered with the investigation - Furthermore, in connection
 with this case he was also granted anticipatory bail - There
 was nothing to indicate that such privilege was either abused
 or misused by the appellant - Tampering with the evidence
 or the investigation is no longer relevant since charge-sheet F
 has already been filed in the case - Since appellant is a
 sitting MLA, the possibility of his absconding is remote -
 Appellant be released on bail to the satisfaction of the trial
 Court subject to conditions as imposed by trial court.
                                                                 G
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 No. 310 of 2012.



                                                                H
    830       SUPREME COURT REPORTS                 [2012] 1 S.C.R.


A       From the Judgment & Order dated 29.9.2011 of the High
    Court of Calcutta in C.R.M. No. 7982 of 2011.

          Ajay Sharma for the Appellant.

        Kalyan Bandopadhyay, Abhijit Sengupta for the
B   Respondent.

          The Order of the Court was deiivered by

                             ORDER
c         ALTAMAS KABIR, J. 1. Leave granted.

       2. This Appeal is directed against the judgment and order
  dated 29th September, 2011, passed by the Division Bench
  of the Calcutta High Court in C.R.M. No.7982 of2011, which
o was an application for grant of bail under Section 439 of the
  Criminal Procedure Code, hereinafter referred to as "Cr.P.C.",
  in connection with Anandapur Police Station Case No.36 of
  2011, dated 6th June, 2011, under Sections 147, 148, 149,
  448, 326, 307, 302, 506, 201 and 120-B of the Indian Penal
E Code read with Sections 25 and 27 of the Arms Act,
  corresponding to G.R. Case No.1364 of 2011, pending before
  the learned Chief Judicial Magistrate, Paschim Medinipur. The
  Appellant had moved the High Court for bail against the order
  dated 20th August, 2011, passed by the Chief Judicial
F Magistrate, Paschim Medinipur, rejecting his prayer for bail and
  remanding him to jail custody.

       3. The Appellant is an elected Member of the West Bengal
  Legislative Assembly. His prayer for bail is based mainly on
  the ground that on account of political vendetta he has been
G named as an accused in a First Information Report which was
  lodged on 5th June, 2011, in respect of an incident which
  occurred on 22nd September, 2002, and in respect whereof
  three separate FIRs had been lodged, two on the date of
  incident itself and one on 26th September, 2002, in which he
H had not been named. The first FIR was lodged by one Nemai
  SUSANTA GHOSH v. STATE OF WEST BENGAL                     831
            [ALTAMAS KABIR, J.]
Ch. Sarkar, which was recorded as FIR No.59 dated 22nd              A
September, 2002 of Keshpur PS, Paschim Medinipur, under Sectio
s 148, 149, 307 and 302 IPC read with Sections 25, 27 and
35 of the Arms Act as also Section 9(b) of the Indian Explosives
Act.

     4. The second FIR was lodged by one Shri Debashish             B
Roy, the Station House Officer of Keshpur Police Station, on
the same day and in respect of the same incident, which was
recorded as FIR No.60 dated 22nd September, 2002, under
similar provisions.
                                                                    c
    5. The third FIR was lodged by the daughter of the
deceased, Smt. Chandana Acharya, which was recorded as
Keshpur PS Case No.61 dated 26th September, 2002, under
Sections 148, 149, 448, 326, 307, 364 and 506 IPC read with
Sections 25 and 26 of the Arms Act.                                 D
     6. As will be apparent from the three FIRs, the first two
related to the incident in which seven persons, including the
father of the third complainant, Ajoy Acharya, were killed at
Piyasala Village and their bodies were removed to and buried
at Daser Bandh, Keshpur. As indicated hereinabove, in none          E
of the above FIRs was the Appellant named, nor was he
included in the charge-sheets which were filed.

     7. The cases which arose out of the first two Fl Rs in which
charge-sheets were filed under Sections 148, 149, 302 IPC and       F
also under Sections 448, 364 and 506 IPC, ended in acquittal
of the accused persons who were alleged to have committed
the offences complained of. The third case is, however, still
pending trial before the learned Additional Sessions Judge,
Paschim Medinipur.                                                  G
      8. From amongst a number of skeletons which were
 recovered from a grave in Daser Bandh, Keshpur, one of the
 skeletons was identified by one Shyamal Acharya, the younger
 son of the deceased, on the strength of the clothes which were
                                                                    H
    832      SUPREME COURT REPORTS                   [2012] 1 S.C.R.


A recovered, together with a set of teeth, which were identified
  to be that of the deceased, Ajoy Acharya. It is thereafter that
  the fourth FIR was lodged by Shri Shyamal Acharya, being
  Anandapur P.S. Case No.36 of 6th June, 2011, in which 40
  persons were named as accused and the name of the
B Appellant was shown at serial No.2 and it was alleged that he
  had entered into a criminal conspirC1cy with the other accused
  persons in order to cause the deaths of the seven victims, who
  were allegedly members of the Trinamool Congress. It was
  further alleged that a peace meeting had been held prior to the
c incident and the victims were returning to their homes upon the
  assurance that had been given in the meeting that peace would
  be maintained by the local villagers. The further allegation was
  that under the directions of the Appellant, the seven victims were
  targeted and dragged out of their homes and were killed upon
  his instructions. Thereafter, the bodies were carried to different
0
  places and ultimately buried at Daser Bandh in Keshpur, from
  where the skeletons were recovered.

         9. Mr. Ranjit Kumar, learned Senior Advocate, who
    appeared on behalf of the Appellant, Mr. Susanta Ghosh, urged
E   that with the change in the Government in the State of West
    Bengal, the Appellant, who is a M.L.A. of the Communist Party
    of India (Marxist) and a former Minister, is being targeted after
    an interval of nine years in order to discredit and humiliate him
    and to adversely affect his political career. It was further
F   submitted that nothing prevented the prosecution or even the
    heirs of the victim, including his daughter, Smt. Chandana
    Acharya, who had earlier lodged FIR No.61 dated 25th
    September, 2002, or the younger son, Shri Shyamal Acharya,
    who had lodged the fourth FIR, from coming out with the
G   allegation against the Appellant earlier. Mr. Ranjit Kumar
    submitted that not only was the delay in lodging the FIR, in which
    ihe Appellant was indicted, fatal to the prosecution case, but
    gave rise to a strong suspicion that it was motivated. Mr. Ranjit
    Kumar also submitted that before the Division Bench of the
H   Calcutta High Court, the Appellant had been granted the benefit
  SUSANTA GHOSH v. STATE OF WEST BENGAL                      833
            [ALTAMAS KABIR, J.]
of anticipatory bail which was subsequently not extended by the    A
learned trial Judge, who remanded the Appellant to police
custody, and, thereafter, bail has been refused.

     10. Mr. Ranjit Kumar submitted that the parameters for
grant of bail have been laid down by this Court in various cases   B
and this Court has indicated as to when bail could be refused
in respect of cognizable offences, such as, if there were :

      (i)     chances of tampering with the evidence;

      (ii)    chances of interfering with the investigation; and   c
      (iii)   chances of absconsion;

      11. Mr. Ranjit Kumar submitted that as far as the first two
instances are concerned, since charge-sheet has already been
filed, the same do not survive. Furthermore, since the Appellant · D
is a sitting MLA and a former Minister in the West Bengal
Government, there was no chance of his absconsion.

    12. Mr. Ranjit Kumar submitted that this is a fit case for
grant of bail to the Appellant.                                    E

      13. Strongly opposing the Appellant's prayer for bail, Mr.
Gopal Subramanium, learned Senior Advocate, submitted that
the offences alleged to have been committed by the accused,
including the Appellant, were highly disturbing and had caused
a serious law and order situation and had also spread panic        F
amongst the people of the area. Mr. Subramanium submitted
that apart from being grievous, as well as heinous in nature,
the crimes were committed pursuant to a well-conceived
conspiracy which had been hatched under the leadership of the
Appellant herein. Mr. Subramanium submitted that although the      G
 name of the Appellant had not figured in the earlier FIRs, his
 complicity in the murder of the seven victims had been
 subsequently established by witnesses who had witnessed the
 incident and had maintained that the Appellant had been
                                                                   H
    834      SUPREME COURT REPORTS                   [2012] 1 S.C.R.


A   present throughout, until the dead bodies were buried, giving
    rise to an additional charge under Section 201 IPC.

        14. Mr. Subramanium submitted that having regard to the
  grievous and appalling nature of the crime, right from when the
  murders were committed, ti)I the concealment of the bodies by
8
  burying them, the question of granting bail to the Appellant does
  not arise, especially when charge-sheet has been filed against
  him and the matter is ready for trial. Learned counsel submitted
  that the prayer made on behalf of the Appellant for grant of bail
C was liable to be rejected.

       15. Having considered the submissions made on behalf
  of the respective parties, we are inclined to allow the
  Appellant's prayer for bail. Admittedly, two FIRs in respect of
  the same incident were lodged on the same day, while the third
D FIR was lodged a few days later. The first FIR was lodged by
  one Nemai Ch. Sarkar, a local man. The second FIR was lodged
  by the S.H.O. of the Keshpur Police Station and the third FIR
  was lodged by the daughter of the deceased Ajoy Acharya.

E       16. There is no mention of the Appellant's name or alleged
  role in the incident. There was nothing to prevent at least Smt.
  Chandana Acharya, the daughter of the deceased, from
  naming him. Whether the investigating authorities took notice
  of the same is an entirely different matter. At this stage it will
  not ba proper for us to dilate any further on the factual aspect
F of the matter, but at least for the purpose of considering the
  Appellant's prayer for bail it does merit consideration that the
  Appellant has been arrested in connection with a FIR lodged
  9 years after the incident. During all these years there is no
  allegation that the Appellant has interfered with the investigation.
G Furthermore, in connection with this case he was also granted
  anticipatory bail. There is nothing to indicate that such privilege
  was either abused or misused by the Appellant.

       17. As indicated hereinabove, the parameters laid down
H by this Court for considering grant of bail to an accused include
  SUSANTA GHOSH v. STATE OF WEST BENGAL                      835
            [ALTAMAS KABIR, J.]
the likelihood of his absconsion and tampering with the              A
evidence or the witnesses or even the investigation. Tampering
with the evidence or the investigation is no longer relevant since
charge-sheet has already been filed in the case. As far as
absconsion is concerned, the Appellant being a sitting MLA,
even such a possibility is remote. There is, of course, the          B
possibility that the Appellant may tamper with the witnesses.
However, considering the fact that the matter has been
reopened as far as the Appellant is concerned, after an interval
of about 10 years, even such a possibility appears to be remote.
 However, in order to prevent such an eventuality, the Appellant     c
can be put on terms, as was done by the High Court while
allowing his prayer for Anticipatory Bail.

     18. We, therefore, allow the appeal and direct that the
Appellant be released on bail to the satisfaction of the trial
Court. The trial Court may impose such conditions as may be          D
necessary to secure the Appellant's presence during the trial.
In addition to the above, except for Garhbeta, which is his
Assembly Constituency, the Appellant shall not enter other
areas of Paschim Medinipur District, West Bengal, without the
permission of the trial Court and shall report to the local police   E
station where he will be residing, once on the last Sunday of
each month, between 11.00 a.m. and 1.00 p.m. The Appellant
shall make himself available before the trial Court at all stages
of the trial, unless for any special reason he is exempted from
doing so by the trial Court on any particular occasion.              F

       19. The appeal is disposed of accordingly.
D.G.                                        Appeal disposed of.