AFJAL ALI SHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India, inter alia, praying for direction upon the respondent authorities, especially the respondent nos. 2 and 5 to cancel the parole of the respondent no. 9, for a direction upon the respondents, especially the respondent nos. 2, 5 and 8 to show cause as to why the disciplinary proceeding shall not be initiated for releasing the respondent no. 9, direction upon the respondent police authorities, especially the respondent nos. 3, 7 and 8, to provide adequate security to the petitioner, his family members and witnesses of the case in terms of the order dtd. 17/3/2023 passed by the Hon'ble Apex Court in Transfer Petition (Criminal) 409 of 2021 and a direction upon the respondent no. 10 to deploy Para Military Forces in Panshkura for adequate protection of the petitioner, his family members and the witnesses of the case.

(2.) Mr. Sourav Chatterjee, learned counsel appearing on behalf of the petitioner submitted as follows. The petitioner is the brother of one Kurban Sha (since deceased) who was brutally murdered on 7/10/2019. At the behest of one Jawar Sha, a co-villager, Panshkura Police Station Case No. 495 dtd. 8/10/2019 was started under Sec. 302 read with Sec. 120B of the Penal Code and under Ss. 25 and 27 of the Arms Act in this regard. The respondent no. 9 is a prime accused in this case. He is a dreaded criminal. According to a chart appended with the writ petition the said respondent is an accused in at least 34 criminal cases of which some are for murder, some for kidnapping and rape. His applications for bail in connection with the present case was rejected by this Court at least on four occasions. Two other applications were not pressed. After the petitioner changed political colour, he has been treated with special favours by the State. He could even celebrate birthday parties inside jail. The State applied for withdrawal of prosecution against him under Sec. 321 of the Code. On the very day that the matter was being heard before this Court in a writ application, the learned Trial Court acquitted the respondent. A Single Bench of this Court finally set aside the acquittal with caustic remarks. This Court had termed the respondent no. 9 a history sheeter and the same was not challenged. The Hon'ble Supreme Court, while transferring the trial of the case to Calcutta, categorically recorded that the accused should not be released on bail till conclusion of the trial. Yet, apparently for availing of his services during the elections, an application was made seeking parole on the ground of his mother's illness and on the very same day he was released on parole. The respondent no. 9 has a brother living with his mother who can very well take care of her. In fact, he is the owner of a medical shop. Immediately after his release, the anti-socials owing allegiance to the respondent no. 9 threatened one of the key witnesses who was supposed to depose at the trial on 5/7/2023. He did not come on that day and would possibly be able to depose on a subsequent date. Because of such threat, the said witness lodged a complaint before the police. It is pertinent to state that earlier a witness Imran Ali was abducted by the men of the said respondent. As recorded by this Court the State was allowing witnesses to turn hostile during trial without being declared to be so. The presence of the said accused outside custody is a menace for all connected with the instant case and would adversely affect a fair trial.

(3.) Mr. Amitesh Banerjee, learned senior standing counsel representing the State, submitted as follows. The consideration for grant of parole is distinctly different from the ones for grant of bail or for withdrawal of prosecution under Sec. 321 of the Code. Parole has not been referred to anywhere in the judgments and orders relied upon by the petitioner. In any event, the petitioner is released on parole on being escorted by five armed police personnel. The State has also complied with the direction of videography of the activities of the respondent no.9 while outside his residence as directed by this Court on 5/7/2023. The respondent no. 9 prayed for parole for five days on the ground of his mother's illness. She was bedridden. Immediately after such he made an application, an enquiry was made on the same date and parole was also granted on the same day. This is in conformity with Sec. 62 of the West Bengal Correctional Services Act, 1992. However, there is not a single ground on which the parole has been challenged on merits. There is also no pleading in the writ petition as to the documents annexed at page 140 purporting to be a complaint made about threats received by a witness. The document referred to was sent by email to the SP and the Police Station on 5/7/2023 itself the date on which leave was sought to move the matter. There is no ground on which such parole granted to the respondent no. 9 could be cancelled. The State has provided two armed escorts for the security of the present petitioner.