IN THE HIGH COURT AT CALCUTTA CRIMINAL MISCELLANEOUS JURISDICTION APPELLATE SIDE CRM (DB) 3526 of 2024 Yearul Islam @ Md Yearul Islam Vs. State of West Bengal & Anr. Before: The Hon’ble Justice Arijit Banerjee & The Hon’ble Justice Apurba Sinha Ray For the Petitioner : Mr. Sandipan Ganguly, Sr. Adv., Ms. Manaswita Mukherjee, Adv. For the State : Mr. Arijit Ganguly, Adv. Mr. Md. Yaser A. Ismail, Adv. For the defacto complainant : Mr. Md. Shahjahan Hossain, Adv. Ms. Sanjida Sultana, Adv. Mr. Prithwiraj Biswas, Adv. CAV On : 11.02.2025 Judgment On: : 28.02.2025 Apurba Sinha Ray, J. :- 1. The learned counsel for the petitioner submits that the petitioner has been falsely implicated in this case. The FIR does not specify his active 2 involvement in the commission of the alleged offence excepting a stray allegation that the offence was committed in conspiracy with the petitioner. None of the victims have stated anything against the petitioner at the time of recording their statements under Section 164 Cr.P.C. The defacto complainant is neither an eye witness nor a post occurrence witness and as such his version in the FIR that the present petitioner was involved in the commission of the crime has no legs to stand upon. It is apparent from the orders passed by the Learned Judicial Magistrates that when the petitioner voluntarily surrendered before the Court there was no prayer for his interrogation at correctional home or for taking the present petitioner into police custody for the purpose of recovering the stolen gold. No such prayer was also made thereafter by the investigating officer. In fact, even in the first charge sheet there was no whisper of seizure of gold. Only when the allegation was raised by the informant against the investigating officer of having seized the gold and cash mentioned in the complaint within 15 days of the alleged incident without proper seizure list, the investigating officer sprang into action and sought to interrogate the petitioner in correctional home and thereafter sought 5 days’ jail custody of the petitioner. When the Learned Magistrate allowed one day police custody of the petitioner on the basis of the report of the SDPO, Domkal to the effect that there was no foul play in the investigation, it appears that only the investigating officer was examined and not the complainant. The police authorities conveniently manufactured a seizure list thereby showing that the recovery of the gold was made as shown by the petitioner from his garden behind a poultry farm. 3 The only piece of evidence connecting the petitioner to the present case is the purported recovery. In this connection, it is submitted that the said recovery of gold from the petitioner cannot be relied upon. The statements recorded under Section 161 Cr.P.C. of the charge sheeted witnesses are all signed by the witnesses and is, accordingly, hit by Section 162 Cr.P.C. and therefore they cannot be the basis of his further detention. 2. The learned counsel for the State opposes the prayer for bail. According to him, there are sufficient incriminating materials against the present petitioner. Gold ornaments have been recovered from his house as per his leading statement. This goes to show that the petitioner was involved in the commission of the offence by conspiring with the accused no. 1. If the petitioner is enlarged on bail the prosecution of the case may suffer. 3. The learned counsel appearing for the defacto complainant has also raised objection. According to him, at the time of consideration of the prayer for bail under Section 439 of Cr.P.C./483 BNSS, the Court is not supposed to examine whether or not the defacto complainant filed a petition stating that the police took away the gold ornaments after 15 days of the incident without any seizure list. 4. We have considered the rival submission of the parties. 5. After considering the case diary we find that there are certain discrepancies and confusion. However, without going into the merits of the case and keeping such discrepancies and confusion to be thrashed out 4 during trial, we are proceeding to dispose of the bail application in accordance with law. 6. After considering the statements of the witnesses recorded under section 164 Cr.P.C. as well as statements recorded under section 161 Cr.P.C. it is, prima facie, established that the present petitioner did not give any blow to the deceased or the injured victims. None of the said witnesses has stated that he was present at the place of occurrence where deceased and other victims were being assaulted by the principal assailant namely Nur Selim. Only two or three witnesses stated before the police that they saw the petitioner to receive one bag from the principal assailant Nur Selim, when he was fleeing away from the house of the victim. The FIR discloses that there was a conspiracy between the present petitioner and the principal assailant Nur Selim but there is no direct evidence as to how such conspiracy was hatched up between them, excepting the fact that the present petitioner received a ladies bag from the principal assailant and helped him to flee away from the locality after facilitating him to change his blood stained wearing apparels. It is correct that only one evidence is forthcoming to the effect that the stolen ornaments were recovered as per leading statement of the present petitioner. However, there were serious confusion and anomalies regarding such seizure. As the investigation is complete and further, as the petitioner was not the principal assailant, and also keeping in mind that the said principal assailant is still in judicial custody, we are of the view that the petitioner may be enlarged on bail on some stringent conditions. Accordingly, the petitioner Yearul Islam @ Md 5 Yearul Islam may find bail on execution of a bond of Rs. 50,000/- with two sureties Rs. 25,000/- each out of which one must be local subject to the satisfaction of the Learned Additional Chief Judicial Magistrate, Lalbagh, Murshidabad and on further conditions that he shall not leave the jurisdiction of the Lalbagh Police Station and shall report to the Officer-in- Charge of the concerned police station once in every week until further orders. He shall also intimate his current local address to the I.O. and the Learned Trial Court. 7. The petitioner shall appear before the trial court on every date of hearing until further orders and shall not intimidate the witnesses and/or tamper with evidence and/or commit any cognizable offence in any manner whatsoever in the event the petitioner fails to adhere to any of the conditions stipulated above without justifiable cause, the trial court shall be at liberty to cancel the petitioner’s bail in accordance with law without further reference to this court. 8. Application for bail is accordingly disposed of. 9. Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties on compliance of all necessary formalities. I Agree. (APURBA SINHA RAY, J.) (ARIJIT BANERJEE, J.)