ANIRUDDHA BOSE, J. - (1.) This Reference arises out of an application for bail of the petitioner, Tousif Sohrab @ Tausiff Sohrab @ Sambia. The petitioner was arrested on 16th January 2016 late in the evening, at about 10:40 p.m in connection with Maidan Police Station Case No. 9 of 13th January 2016, and Charge -sheet has been submitted against him involving offences under Sections 302/307/201/212 and 427 of the Indian Penal Code, 1860 and Sections 115/194 of the Motor Vehicles Act, 1988. The petition for bail was instituted on 26th April 2016, after submission of Charge sheet on 10th March 2016. The petition for bail was heard by a Division Bench of this Court. The Hon'ble Presiding Judge of the Bench was pleased to reject the prayer for bail by an order passed on 29th April 2016. The Hon'ble Companion Judge, however, expressed a different view, and opined that the petitioner ought to be enlarged on bail subject to certain conditions and on furnishing bond as specified in this Lordship's order. Mr. Manjit Singh, learned Public Prosecutor opposing the prayer for bail however, submitted that the order of the Hon'ble Companion Judge is dated 9th May 2016. In view of difference of opinion of the Hon'ble Judges constituting the Division Bench, this matter has been referred to me. No specific points of difference, however, have been formulated, but the points of difference emerge from the orders of the two Hon'ble Judges of the Bench to which I shall refer to briefly later in this order.
(2.) But before I do so, I shall briefly narrate the allegations of the prosecution against the petitioner, which has been summarized by Mr. Manjit Singh, learned Public Prosecutor, drawing my attention primarily to materials included in the Case Diary, and in particular, pages 14 to 43 thereof. The prosecution case has also been broadly reproduced in the respective orders of the two Hon'ble Judges, who have ultimately differed on the point of grant of bail. The prosecution case is: - i.The Commissioner of Police, Kolkata had issued a notification on 30th December 2015 under different statutory provisions directing closure of certain roads in the Kolkata Maidan area for vehicular traffic to prevent "danger, obstruction or inconvenience to the public in connection with the reherseals for Republic Day Parade on 30th and 31st December 2015, 2nd, 4th, 6th, 8th, 9th, 11th, 13th, 15th, 16th, 18th, 20th, 22nd and 24th January, 2016....". The time between which such restriction was to operate on 13th January, 2016 was 05.00 hours and 09.00 hours or till the end of reherseals. Altogether eleven roads were brought within the scope of restriction, which included Khidderpore Road and Red Road. ii.The Parade Reherseal on 13th January 2016, being the date of occurrence of the incident started at about 06.00 A.M., and different contingents of the Armed Forces were marching through the eastern flank of Khidderpore Road, towards Red Road. A white coloured Audi (the subject -vehicle) without any registration number had entered the "No -Entry" zone of Khidderpore Road through the mud - path avoiding the guard -rails placed near "Vidyasagar Setu". Then it proceeded from southern flank of Khidderpore Road to the north on very high speed. The vehicle ignored the signal of the traffic policeman on duty near the crossing of Lovers' Lane urging him to stop, crashed through the guard rails placed on the road, and proceeded along the "No -Entry" zone towards Red Road crossing, commonly known and Jenson and Nicolson Island. iii. The subject -vehicle again ignoring hand -signal of the police personnel on duty requiring it to stop, took a U -turn from the Jenson and Nicolson Island and entered the eastern flank of Khidderpore Road, through which the contingents of the armed forces were marching at that point of time. In the eastern flank of Khidderpore Road, between the concrete road divider and the space being used by the marching contingents, the gap was narrow. Through this narrow gap, the vehicle was being driven at a high speed against the direction in which the army contingents were marching, and one army personnel was hit, but he escaped major injury. Thereafter, with same high speed the vehicle hit Corporal Gaud Abhimanyu Rangalal of the Indian Air Force, who was moving along with an Air Force contingent at a distance two or three yards left of the said contingent. Said Gaud Abhimanyu Rangalal ultimately succumbed to the injuries he suffered on being hit by the offending vehicle, after he was taken to the Command Hospital. iv.The subject -vehicle, instead of stopping at the spot, tried to flee, and in the process crashed into guard rails placed on the course the vehicle was taking on Khidderpore Road, ignoring signals by traffic police on duty to stop. Impact of the crash caused inflation of the air bags and certain parts of the vehicle were also damaged. The vehicle ultimately stopped at a distance of about 150 meters away from the South gate of Fort William. v.The subject -vehicle did not have regular registration number. The person who was driving the car could not be intercepted at the time of occurence of the incident or immediately thereafter. After getting down from the car, the driver of the vehicle had escaped. The "TC" number plates from both the frontal and rear side of that vehicle were also removed, and submission of Mr. Singh is that it was the driver of the vehicle who had removed the "TC" number plates. vi.Subsequent investigation by police led to identification of the dealer of the subject -vehicle as also identity of the petitioner as the one who was driving the vehicle at the material point of time. The petitioner was placed in Test Identification Parade and was identified as the person driving the said vehicle by fifteen witnesses. vii.It is also the case of the prosecution that the petitioner could not be traced in spite of raids being conducted on his house and other places where he could ordinarily be found, though the prosecuting agency had become aware of his identity on the date of occurence of incident itself. He could be apprehended on 16th January 2016 at about 10:40 p.m near his in -laws' house in Kolkata itself.
(3.) Mr. Pinaki Misra, learned Senior Advocate appearing for the petitioner has pressed for bail of the petitioner, urging me to concur with the view expressed by the Hon'ble Companion Judge of the Division Bench. In support of his prayer for bail, petitioner's contention is that it was a case of accident, if at all. Charge sheet has already been submitted and the State is in possession of all the offending articles. The petitioner is in custody for over six months and there is no chance of influencing any witness or tampering with any evidence as majority of the witnesses are personnel of defence and police forces. He has questioned import of Sections 302 and 307 of the 1860 Code in the Charge sheet, arguing that the case is of rash and negligent driving at the worst, which has been the view of the Hon'ble learned Companion Judge. He pointed out in particular that there was no motive to sustain a case under Section 302 or Section 307 of the 1860 Code. He has further submitted that on pure humanitarian ground, the grand -father of the petitioner is interacting with the family of the victim for considering the question of compensation.;