The Calcutta High Court on Monday held that an application for anticipatory bail could not be said to be non-maintainable merely because the accused was not in India while seeking it. The order was passed by a division bench of Justice Joymalya Bagchi and Justice Manojit Mandal while hearing multiple anticipatory bail applications filed by two leaders of Gorkha Janmukti Morcha.
"The imposition of a condition on an accused not to leave the country without the permission of the Court upon being granted the relief of pre-arrest bail is a discretionary one depending on the facts of the case. Although the aforesaid condition gives rise to an inference that an accused ordinarily ought to be within the country while seeking the relief of pre-arrest bail, it cannot be read to understand that in all cases an accused seeking pre-arrest bail must definitely be within the country", the court said.
It was the case of the Petitioners, Bimal Gurung and Roshan Giri that they had been protesting in the Nepali speaking sub- divisions of Darjeeling against compulsory imposition of Bengali language in the government schools in the district. These protests were resisted by the state government and the police force was used as tool for political vendetta. In these circumstances, the Petitioners sought anticipatory bail and submitted that they were ready and willing to cooperate with an honest and bona fide investigation.
The Advocate General of the State of West Bengal on the other hand contested the application stating that the same was non-maintainable in as much as the Petitioners were not present in the country. Additionally, it was argued that the petition was bad in law because the Supreme Court had already denied similar reliefs to the Petitioner in a writ petition earlier filed by him in this behalf. They also contended that the applications were time barred w.r.t the Supreme Court's order. Further, the State submitted that the Petitioners were proclaimed offenders who flew to another country illegally, despite issuance of 'red corner notices'. The state thus urged the courts to dismiss the applications of the leaders of alleged violent agitation.
With regards the non-maintainability on grounds of absence of the Petitioners in the country, the court said, "Though the provision for pre-arrest bail is statutory in nature and does not partake the character of a constitutional remedy, any issue of demurrer raised qua maintainability of such relief, must be strictly construed bearing in mind the fact that a "procedure established by law" making inroad into personal liberty must be fair, just and reasonable and not an arbitrary and oppressive one. Sweeping and unreasonable fetters put on the right of an accused to access such relief, may render such restriction violative of the fundamental right to liberty under Article 21 of the Constitution of India".
The bench further held that pre-arrest bail was an interim relief sought by the Petitioners before the Supreme Court while the main petition therein sought transfer of investigation to an independent authority. Therefore, the same could not restrict the high court from adjudicating pre-arrest bail application as it was not considered by the Supreme Court on merits.
With regards the limitation, the court noted that it was not a case of inordinate delay and the reasons for delay were well justified by the Petitioners.
On the issues relating to antecedents of the Petitioners including them being declared as 'proclaimed offenders', the court said that the same were objections to be assessed in the light of validity of the said processes the "petitioners ought not to be non-suited in limine on such score".
Lastly, with regards to the allegation that the Petitioners crossed the borders illegally, the court granted two weeks time to the state authorities to file affidavit disclosing relevant facts relating to the ascendance of the petitioners beyond the territory of India. The bench observed that in case the Petitioners had actually travelled to other country without permission, the "Court would necessarily require to factor in such daring and dangerous conduct of an accused while considering the prayer for pre-arrest bail".
The matter was accordingly put for further hearing after five weeks.
The Petitioners were represented by Senior Advocate Y. J. Dastoor and Advocates Anand Bhandari, Urgen lama, and Panthu Rai. The Respondents were represented by Advocate General Kishore Dutta, PP Saswata Gopal Mukherjee, APP Aditi Shankar Chakraborty and Advocate Rudradeepta Nandy.
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