GITA RANI HAZRA Vs. GORA DALUI & ORS

JUDGEMENT

(1.) In this case the charge-sheet was submitted under sections 147/148/149/364/302/120B' of the Indian Penal Code on 13.3.93 against the present opposite parties/accused persons. The opposite parties thereafter surrendered before the learned S. D. J. M. , Arambagh, in August 1998 and September 1998 in batches. The learned Magistrate initially rejected the prayer for bail on the ground of gravity of the offence prima facie appearing in view of the charge-sheet submitted. However, ultimately on 1.9.98 the learned Magistrate relying upon the decision in Anwar v. State,1997 4 AICLR 667, granted bail to the opposite parties on the observation that the charge-sheet which was filed in the case was not supported by the documents referred to in Section 173(5) Cr. P. C. The said decision in Anwar v. State was, however, held to be a decision per incurium by a subsequent decision of this Court in Md. Yusuf Rather v. State of West Bengal, 1999 1 AICLR 139, relying upon the decisions of the Supreme Court referred to therein. In view of the position recorded above it is clear that even if charge-sheet which was filed in this case was not accompanied by the documents referred to in Section 173(5) Cr. P. C. , that does not make the charge-sheet non-existent and the learned Magistrate was, therefore, not justified in exercising his jurisdiction to grant bail under Section 437 Cr. P. C. to the present opposite parties in view of the prima facie materials existing against them. It was a clear case of wrong exercise of jurisdiction by the learned S. D. J. M. concerned in granting bail to the opposite parties in this case. That being so, it is a fit case that this Court should intervene in the matter and accordingly this Court cancels the bail granted by the learned S. D. J. M. concerned to the present opposite parties and directs the S. D. J. M. , Arambagh, to take the opposite parties into custody and thereafter deal with the matter in accordance with law. It is needless to say that the question whether the opposite parties are entitled to bail under Section 439 Cr. P. C. is entirely a different matter which does not call'for our examination in this matter.

(2.) The department is directed to forthwith communicate this order to the S. D. J. M. , Arambagh, for immediate compliance.