- (1.) THIS Rule is at the instance of the accused-petitioner, swapan Banerjee alias Swapan Kumar banerjee alias Kumar Swapan, for setting aside an order dated the 21st May, 1971 passed by Shri M. N. Das, Additional chief Presidency Magistrate, Calcutta and for releasing him on bail.
(2.) THE facts leading on to the Rule can be put in a short compass. The accused-petitioner is one of the nine accused in a case under section 302/34 i. P. C. for the alleged murder of Nepal roy, M. L. A. on 30. 3. 71 at 292/6, Upper chitpur Road, Calcutta. The investigation is still pending and some statements have been recorded under section 161 of the Code of Criminal Procedure. Four of the accused are absconding. The accused-petitioner who was arrested on 8. 4. 71 and produced before the learned Additional Chief Presidency magistrate, Calcutta, was in police custody and thereafter is in jail custody since 23. 4. 71. Prayers for bail made on his behalf on 23. 4. 71 and 21. 5. 71 were rejected. The last order has been impugned and forms the subject-matter of the present Rule.
(3.) MR. Dilip Kumar Dutt, Advocate (with Mr. Biswanath Sanyal, Advocate)appearing in support of the Rule on behalf of the accused-petitioner pressed his prayer for bail firstly on the absence of the accused-petitioner's name in the F. I. R. lodged on the same date. Mr. S. N. Banerjee, D. L. R. appearing on behalf of the State submitted that the informant Balai Chatterjee is not an eye-witness and had informed over the phone immediately after the explosion. We agree with the submission of Mr. Banerjee and hold that in the circumstances the absence of the accused-petitioner's name in the F. I. R. is not by itself clinching. The next pleas viz. of alibi as based on a certificate by the Finance Officer and Chief accountant, Corporation of Calcutta, is also premature and has to be determined in course of the trial. The third and last submission of Mr. Dutt is the absence of any eye witness and the hardship caused to a permanent employee of the Corporation of Calcutta by the continued detention for about three months. Mr. Banerjee in reply submitted that there are some statements under section 161 of the Code of Criminal Procedure of persons who have referred to the presence of the accused-petitioner, close to the office of the deceased, before and after the incident on that day. We have gone through the statements and it is difficult for us to agree, at this stage, with Mr. Dutt's submission.;