REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.310      OF 2012 (Arising out of SLP(Crl) No.9350 of 2011)

SUSANTA GHOSH … APPELLANT   Vs.

STATE OF WEST BENGAL  … RESPONDENT

O R D E R

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 of 2011, which 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 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  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  

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political vendetta he has been 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 had not been named.  

The first FIR was lodged by one Nemai Ch. Sarkar,  

which  was  recorded  as  FIR  No.59  dated  22nd  

September, 2002 of Keshpur PS, Paschim Medinipur,  

under Sections 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  

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.  

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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.  

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 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 FIRs  

in which charge-sheets were filed under Sections  

148, 149, 302 IPC and also under Sections 448, 364  

and  506  IPC,  ended  in  acquittal  of  the  accused  

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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.

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  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 Appellant was shown at  

serial No.2 and it was alleged that he had entered  

into a criminal conspiracy with the other accused  

persons in order to cause the deaths of the seven  

victims,  who  were  allegedly  members  of  the  

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Trinamool Congress. It was further alleged that a  

peace meeting had been held prior to the 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  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 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  

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humiliate him and to adversely affect his political  

career.   It  was  further  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  allegation  against  the  Appellant  

earlier.  Mr. Ranjit Kumar submitted that not only  

was the delay in lodging the FIR, in which the  

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 Calcutta High  

Court, the Appellant had been granted the benefit  

of  anticipatory  bail  which  was  subsequently  not  

extended by the learned trial Judge, who remanded  

the Appellant to police custody, and, thereafter,  

bail has been refused.  

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10. Mr. Ranjit Kumar submitted that the parameters  

for grant of bail have been laid down by this Court  

in various cases 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    

(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  is  a  

sitting  MLA  and  a  former  Minister  in  the  West  

Bengal  Government,  there  was  no  chance  of  his  

absconsion.  

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12. Mr. Ranjit Kumar submitted that this is a fit  

case for grant of bail to the Appellant.  

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  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 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  

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Appellant had been 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, till  

the concealment of the bodies by 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  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  

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third 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.

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 be proper for us to dilate any  

further on the factual aspect 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  

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allegation that the Appellant has interfered with  

the investigation.  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 by this Court for considering grant of bail to  

an accused include the likelihood of his absconsion  

and tampering with the 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  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  

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possibility appears to be remote. However, in order  

to prevent such an eventuality, the Appellant 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 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 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  

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reason he is exempted from doing so by the trial  

Court on any particular occasion.

19. The appeal is disposed of accordingly.   

……………………………………………J.  (ALTAMAS KABIR)

……………………………………………J.  (GYAN SUDHA MISRA)

New Delhi                      Dated: 03.02.2012                              

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