DIBYENDU BHUSEN DUTTA, J. - (1.) This is an application for cancellation of bail under Section 439(2) of the Code of Criminal Procedure.
(2.) Park Street Police Station Case No. 313 dated 31-5-98 was registered under Sections 302/307/34, IPC, 27 of the Arms Act against one Chunnu Khan of Elliot Lane, Munna of Alimuddin Street, Md. Khadim of 13, Elliot Lane and Md. Mittu of 19C, Ripon Street on the basis of an FIR lodged by one Rajender Lal of 10, Golam Sovan Lane. The FIR version runs as follows.One Minnita Wilson of 13/1, Golam Sovan Lane is a neighbour of the said Rajender Lal. She has a son named Subha. Subha's father is Khokan Santra. On 30-5-98 Khokan requested Rajender Lal to take Subha to his mother at about 8.30 a.m. While he was taking Subha to his mother, the accused persons named above intercepted him in front of 14, Golam Sovan Lane and teased him for taking care of others kid. Rajender Lal protested. The protest angered the accused persons and a scuffle ensued. Rajender's family members came forward and settled the matter temporarily. The accused persons then left the spot threatening that they were coming back to teach them a good lesson. At about 11 p.m., Rajender and one Amin Ansari of 8, Nabab Sirajul Islam Lane, after taking meal, were talking in front of 14, Golam Sovan Lane. Suddenly, the accused persons came to the spot being armed with fire-arms and started abusing them in most filthy languages. They brandished fire-arms and threatened to kill them. Both Rajender and Amin tried to escape from their clutches whereupon the accused Chunnu Khan fired at Rajender Lal. Rajender sustained bullet injury on his left thigh. To save him Amin Ansari resisted the accused persons whereupon Md. Mittu assaulted Amin Ansari by the butt of his fire-arm inflicting injury on this forehead. Md. Khadin and Munna then fired simultaneously aiming at Amin Ansari who sustained bullet injury and fell on the ground. The relatives of Rajender and Amin Ansari came forward and appealed to the accused persons by holding their feet not to kill them. The accused then left the place. Both the injured were taken to SNP Hospital where Amin Ansari was pronounced dead and Rajender Lal was admitted to the hospital. The opposite party named Chunnu Khan alias Javed Khan approached the learned Chief Judge, City Sessions Court, Calcutta for anticipatory bail in connection with this case on a plea of mistaken identity. His case was that he is not Chunnu Khan referred to in the FIR. It was alleged that according to the FIR, the said Chunnu Khan is a resident of Elliot Lane while he was a resident of 14, Golam Sovan Lane and as such he could not be the person wanted in connection with that case. In support of the allegation that he was a resident of 14, Golam Sovan Lane, he produced before the learned Chief Judge, City Sessions Court, Calcutta a rent receipt issued in his name by his landlord and two electric bills issued by the CESC in his name.The learned Chief Judge by his order dated 21-8-98 allowed the said application for anticipatory bail with the observations that the documents filed by the opposite party showed that he was resident of 14, Golam Sovan Lane while he found from the case diary that a person named Javed Khan alias Chunnu Khan of Elliot Lane was connected with the offence alleged to have been committed. In other words, the learned Judge virtually accepted the plea of mistaken identity and admitted the opposite party to the anticipatory bail on the assumption that the opposite party was not a person wanted in connection with that case.
(3.) The order of anticipatory bail was scheduled to remain in force for a period of three weeks from 21-8-98 and the opposite party surrendered before the learned Chief Metropolitan Magistrate within the said period on 10-9-98 and approached the Court for regular bail. The I.O. prayed for taking the opposite party into police custody and the prosecution strongly opposed the bail prayer. On behalf of the prosecution it was submitted before the learned Magistrate that the opposite party may also be a resident of 14, Golam Sovan Lane but then as per the statements of the witnesses recorded in the case diary, it would appear that he was also a resident of Elliot Lane and as such, there was no question of any mistaken identity with reference to the opposite party.Upon consideration of all the materials on record including the statements of the witnesses recorded in the Case Diary, it appeared to the learned Magistrate that the opposite party was involved in the offences for which the case was registered. The learned Magistrate was also of the view that at that early stage of investigation, grant of bail would seriously hamper the investigation and in the interest of investigation he was inclined to allow police remand as prayed for by the I.P. and not to grant bail to the opposite party. But since he was already granted anticipatory bail by the learned Chief Judge, City Sessions Court, the learned Magistrate allowed the opposite party time to bring order from the superior Court by 18-9-98 with the direction upon the opposite party to the present in the Court on that date.;