Shri Rishishwar Lal Rishi v. The State

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ...

CRM (DB)/6/2023 Shri Rishishwar Lal Rishi

Versus

The State Mr. Rakesh Pal Gobind ... for the petitioner Mr. Sumit Karmakar ... for the State Mr. P.C.Das Mr. Arul Prasanth ... for the victim February 22, 2023 [SR] Item No.1 Heard Mr. Rakesh Pal Gobind, learned counsel for the petitioner, Mr. Sumit Karmakar, learned Public Prosecutor, Mr. P.C.Das & Mr. Arul Prasanth learned counsel for the victim, who relies on the case of Victim-vs State of Karnataka and others in Criminal Appeal No. 1981 of 2022 disposed of on November 17, 2022.

The present petitioner was the Commissioner of Labour posted at Port Blair borne in the cadre of Union Territory Service of Andaman and Nicobar Islands.

The bail for the petitioner is sought for on the ground of parity as the principal accused i.e. Ex-Chief Secretary of the Union Territory of Andaman & Nicobar Islands has already been released, on bail.

Learned Public Prosecutor fairly submits that so far as the principal offence under Section 376 (D) IPC is concerned, the present petitioner is not an accused. The offence is stated

to have been committed on two dates. On the first date, on the basis of allegation of the victim, offence under Section 354 IPC is made out against the petitioner. So far as the entire episode is concerned, the role of the petitioner, being of a facilitator for the principal accused, is charge sheeted under Section 120 (B) IPC.

Learned counsel for the petitioner submits that charge against the present petitioner is far lesser than the gravity of charge against the principal accused i.e. Ex-Chief Secretary of Andaman & Nicobar Islands and the petitioner is entitled to be released on bail on the ground of parity. Learned counsel for the victim relies on the aforesaid decision passed in Criminal Appeal No. 1981 of 2022 wherein in paragraph 2.5, Hon'ble Supreme Court Held thus:- "Having regard to the fact that while releasing respondent No. 2 - accused on bail the High Court has not taken into consideration the relevant aspects which are required to be kept in mind while considering the bail application, namely, seriousness offence alleged;

material collected during investigation;

statement prosecutrix recorded under Section 161 of Cr.PC, etc., the impugned judgment and order passed by the High Court is unsustainable. Considering the fact that the chargesheet has already been filed, the accused is already charge sheeted and the relevant material is also now a part of the chargesheet, the same is required to be considered by the High Court. Therefore, the matter ought to be remitted to the High Court to consider the bail application afresh and pass appropriate orders after considering the relevant material/evidence collected during the investigation which are now a part of the chargesheet."

With great respect to the decision of the Hon'ble Supreme Court, as quoted supra, we have considered all the materials placed by learned Public Prosecutor in the charge

sheet including the statements of the victim recorded under section 161 and 164 Cr.P.C and statements of other witnesses and we are one in our view with learned Public Prosecutor so far as the role of petitioner in the entire transactions is concerned. Offence committed by the petitioner falls within the ambit of Section 354 IPC. So far as first date of occurrence is concerned and under Section 120 B IPC so far as the entire episode is concerned. Learned Public Prosecutor, however, tries to make distinction so far as the principal accused and the present petitioner are concerned to the extent that the principal accused is a mainlander but the present petitioner being an islander, the chance of the petitioner influencing the witnesses is writ large.

Regard being had to the aforesaid consideration, especially the materials in the charge sheet, we desist ourselves from making threadbare discussion statements of each of the witnesses in the charge sheet as it may prejudice the trial to a great extent and the parties also to a great extent.

However, on perusal of the entire record, we are one in our view with the learned Public Prosecutor that prima facie, offence made out against the petitioner is one under section 354 and 120 (B) IPC.

Coming to the other consideration, like the position, means etc. of the petitioner, admittedly the petitioner is a class-I officer of the Union Territory of Andaman and Nicobar

Islands and before his suspension, after arrest, he was posted as Labour Commissioner here. So far as the question of tampering with the evidence is concerned, it is on record that two of the witnesses are declared to be "protected" by the prosecution and other material witness is the victim, besides corroborative evidence of call details etc., which are mostly documentary in nature. So far as the corroborative oral evidence is concerned, one evidence is that of the ex-private secretary of the Ex-Chief Secretary and some other witnesses. We think it just and proper that, if the petitioner is bound by proper conditions, the petitioner shall not be in a position to influence the witnesses.

Coming to the most vital consideration as to whether the release of the petitioner on bail, shall jeopardize the trial or there is chance of his absconding or repeating the offence. Petitioner, being a Government Servant and all the benefits being attached to his service, we do not find any justification of his absconding leaving his family and the financial benefits in lurch. Further, the petitioner, being a permanent resident of these Islands, there is also no chance of his leaving the Islands leaving his family in isolation here at the cost of loosing his service.

We are satisfied that the attendance of the petitioner can be procured at the time of trial for smooth proceeding of the trial.

Regard being had to aforesaid facts and submissions and the discussions supra, we feel just and apposite to extend the benefit of parity to the petitioner. Accordingly, the learned Chief Judicial Magistrate, Port Blair is directed to release the petitioner, on bail, in GR Case No. 658 of 2022 on such terms and conditions as deemed just and proper by him in the facts and circumstances of the case, including the following conditions.

i) The petitioner shall appear before Investigating Officer once in every alternative day in between 6 P.M. to 7 P.M. and give details regarding his whereabouts on the previous date. ii) The petitioner shall not threaten, induce or coerce any witnesses of this case in any manner whatsoever during the currency of this order. iii) The petitioner shall not keep any contact with any witnesses by any means communication including communication through electronic devices like cell phone etc. iv) The petitioner shall not leave the jurisdiction of these Islands without obtaining prior permission from the court in seisin over the matter be it learned Chief Judicial Magistrate till commitment or be it the Trial Court after commitment.

When the petitioner leaves the islands with prior permission of the Court in seisin over the matter, condition No.1 shall automatically be

relaxed during the period of his absence from the islands.

v) The petitioner shall appear before the Trial Court on each date of trial without fail subject, of course, to the provisions under Section 315 CrPC in exceptional case.

With these aforesaid observations, the prayer for bail is allowed.

CRM(DB)/6/2023 is accordingly disposed of.

(Chitta Ranjan Dash, J.) (Md. Nizamuddin , J.)