27.01.2025 Ct. No.1 IN THE HIGH COURT AT CALCUTTA Sl. No.10 Circuit Bench at Jalpaiguri akd [PARTLY ALLOWED] C. R. M. (DB) 493 of 2024 In Re: An application for bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 filed on 24.09.2024 in connection with Dinhata Police Station Case No.341 of 2021 dated 25.06.2011 (RC Case No.0562022S0010 dated 11.04.2022) under Sections 302/34 of the Indian Penal Code and subsequently charge sheet submitted under Sections 147/148/149/323/326/302/34/120B of the Indian Penal Code and Sections 4/5 of Explosive Substances Act. And In Re: Uttam Kumar Barman @ Uttam Barman & Ors. … … Petitioners Mr. Soubhik Mitter Mr. Ranadeb Sengupta Mr. Saikat Chatterjee Dr. Arjun Chowdhury … … for the petitioners Mr. Sudipto Kumar Mazumdar .. ld. Dy. Solicitor General of India Mr. Ajoy Kumar Singhania Mr. Saptak Sarkar … … for the CBI 1. It is submitted on behalf of the petitioners that they are in custody for about two years and five months. Prior to recording of evidence, first, second, fourth and fifth petitioners had approached this court earlier. Prayer for bail of the first petitioner was dismissed as not pressed whereas that of second, fourth and fifth petitioners were turned down by a coordinate Bench. 2. Mr. Soubhik Mitter for the petitioners contends most of the witnesses have been examined. He submits none of the witnesses apart from PW 22 have implicated the petitioners in the crime. PW 22 who claims to be an eyewitness failed to name the petitioners apart 2 from first, fourth, fifth and eighth petitioners in court. No Test Identification parade was held and the i.e. second, third, sixth, seventh, ninth, tenth and eleventh petitioners were identified for the first time in court. Apart from the fifth petitioner, no overt act is attributed to the others in the crime. All the vulnerable witnesses have been examined. Prosecution proposes to examine 75 witnesses in all. There is no possibility of trial concluding in the near future. Accordingly, they pray for bail. 3. Learned Deputy Solicitor General of India opposes the prayer for bail. He contends most of the petitioners have criminal antecedents. They are dangerous persons and have political patronage. Initial investigation by the State police was aborted through influence. Due to their influence, no post-mortem was conducted. However, on analysis of the medical papers collected during investigation, doctors attached to AIIMS, New Delhi opined death was homicidal. Wife of the deceased (PW 22) is an eyewitness. She identified all the petitioners as members of the unlawful assembly who assaulted the victim. Petitioners are members of an unlawful assembly who shared common object to murder. Her evidence is supported by her son (PW 21). Though PW 23 was declared hostile, he admitted his statement before Magistrate. 4. We have considered the evidence on record. PW 22 (wife of the deceased) claims to be an eyewitness. She, however, admits she could not name the assailants before the CBI or the Magistrate. Her statement before Magistrate shows she arrived at the spot after an arrow had been shot at the victim. Thereafter she saw the assault on her husband. She was also assaulted. In court she attributes assault by knife to the fifth petitioner. She also names the first, fourth and eighth petitioners as 3 members of the unlawful assembly. However, with regard to other petitioners, she identifies them by face for the first time in court. No corroborative evidence by way of prior identification in course of Test Identification parade is placed on record. Credibility of such identification in court de hors prior identification during investigation of unnamed accused in a mob requires to be done by the trial Judge at the appropriate stage of the proceeding. 5. Learned Deputy Solicitor General of India rightly argues some of the unnamed accused namely, Rabiul Hoque @ Chikru (ninth petitioner), Ramjan Ali @ Ranjan (eleventh petitioner) and Osman Ali as the miscreant who shot the arrow (not before this court) are referred to in the statement of PW 23 before Magistrate. Though PW 23 is declared hostile, the said witness admitted his statement before Magistrate implicating the fourth, fifth, ninth and eleventh petitioners as members of the unlawful assembly who participated in the assault. 6. We are conscious of our remit in a bail application involving a case of group violence resulting in murder. While in such cases it may not be prudent to shift the evidence qua each accused in the midst of trial, it is equally important to bear in mind the possibility of politically partisan witnesses casting net too wide to implicate unnamed persons during trial. Added to it is the issue of protracted detention in lingering trials as the present one. It may not be out of place to bear in mind the petitioners are incarcerated for more than two years and a part of the delay was on the score of the prosecuting agency approaching the Apex Court to transfer the proceeding outside the State of West Bengal. 7. In this premise, we have addressed the prayer for bail not only from the prism of gravity of the offence and culpability based on 4 evidence on record but from the angle of protracted detention infracting fundamental right to speedy trial of the accused against whom scanty and legally fragile evidence has been adduced. 8. Taking into consideration these aspects, we note the implication of the second, third, sixth, seventh and tenth petitioners is based on the bald identification by PW 23 for the first time in court. No specific overt act is attributed to them either by PW 23 or even in the statement of PW 24 (hostile witness) before Magistrate. However, PW 23 in her deposition has specifically named first, fourth, fifth and eighth petitioners as members of the unlawful assembly and stated fourth petitioner had attacked her husband with a knife causing severe injuries and ultimate death. Her deposition is corroborated in the statement of PW 24 before Magistrate wherein he refers to the role of fourth, fifth, ninth and eleventh petitioners in the assault. These incriminating pieces of evidence put the prosecution case against first, fourth, fifth, eighth, ninth and eleventh petitioners on a more sturdier plane in comparison to the others before us. 9. Accordingly, prayer for bail of petitioner nos.1, 4, 5, 8, 9 and 11 namely, (1) Uttam Kumar Barman @ Uttam Barman, (4) Liton Shil, (5) Liton Bhowmik @ Litan Bhowmik, (8) Biswajit Barman @ Biswa, (9) Rabiul Hoque @ Chikru @ Rabiul Haque & (11) Ramjan Ali @ Ranjan is rejected. 10. However, we are of the opinion further detention of petitioner nos.2, 3, 6, 7 & 10 is not necessary and they may be enlarged on bail. 11. At this stage, learned Deputy Solicitor General of India argues second, third, seventh and tenth petitioner have criminal antecedents. 5 12. However, as discussed above, evidence against the said petitioners with regard to their membership of the unlawful assembly and specific roles is most sketchy. They are in custody for a protracted period and prosecution proposes to examine more than 70 witnesses evidencing no prompt conclusion of trial in the near future. Moreover, all the vulnerable witnesses have been examined and there is no possibility of winning them over. 13. In this backdrop, while acknowledging their right to bail on the ground of protracted detention, we propose to impose strict conditions upon petitioner nos.2, 3, 6, 7 & 10 so that their movements are restricted and there is no possibility of the said petitioners interfering with the administration of criminal justice. 14. Therefore, the petitioner nos.2, 3, 6, 7 and 10 namely (2) Pranab Barkait @ Sujan Barkait (Goja), (3) Ratan Roy Sarkar, (6) Nakul Roy Sarkar, (7) Pritam Ray Sarkar & (10) Shahanur Hossain @ Bappa, be released on bail upon furnishing bond of Rs.20,000/- (Rupees Twenty thousand only) each, with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Additional Chief Judicial Magistrate, Dinhata, Coochbehar subject to condition that the said petitioners shall appear before the trial court on every date of hearing until further orders and shall not intimidate witnesses or tamper with evidence in any manner whatsoever and on further condition that petitioner nos.2, 3, 6, 7 and 10, while on bail, shall not enter the district of Cooch Behar except for the purpose of attending trial in the present case or any other case and shall provide the address where they shall presently reside to the Investigating Agency as well as the jurisdictional court and shall report to the Deputy Superintendent of Police, CBI, ACB, 6 Siliguri Unit, Balaidas Chatterjee Road, Siliguri once in a week until further orders. 15. In the event they fail to appear before the trial court without any justifiable cause, the trial court shall be at liberty to cancel their bail automatically without reference to this court. 16. The application for bail is thus disposed of. 17. Trial Judge is requested to conclude the trial at an early date. 18. Parties are directed to communicate a copy of the order to the trial court for due compliance. (Gaurang Kanth, J.) (Joymalya Bagchi, J.)