Full Judgment
A.K. De, JJ.
1. This is an application for bail by one of the accused persons in G R Case No 790/71 of Uttarpara P. S. under Sections 364, 302/201/34 of the Indian Penal Code.
2. State opposed the prayer for bail.
3. The case for the prosecution is that Pradip and his friend Biswadeb left Howrah for Nabagram on the 30th May 1971 for attending Sradh of their friend Debu Banerjee's mother. When they did not return, enquiry was made from Debu's father and it was learnt that Bulan Chakraborty brought some young men to his house. No information, however, could be had 'of those young men. from Bulan, Nine dead bodies were discovered at Nabagram on the 31st may 1971. Police arrested a number of persons and produced twenty of them before the Magistrate on the 3rd June 1971; Petitioner Nirmal was produced in custody on the 5th August. 1971. He applied for bail before the Magistrate and the Sessions Judge who refused his prayers.
4. Mr. Sadhan Gupta. Advocate appearing for the petitioner, submitted that the petitioner Nirmal is an employee at Calcutta Telephone Bhavan. has a large family of. 13 members depending on him; that the entire family will be financially ruined if he is further kept in hazat; that he regularly attended and did his duty at '23' Calcutta Telephone Exchange in May and from June to the 3rd August, 1971. He further submitted that the petitioner did not abscond or tamper with evidence and is not likely to abscond or tamper with evidence, that the petitioner has not been mentioned in F. I, R, or in first remand petition before the Magistrate.
5. State in opposing the prayer for bail submitted that the offences the petitioner is accused of are serious; that the evidence collected show complicity of the petitioner with the crime that the investigation has resulted in charge-sheet and commitment; that of the 22 persons charge-sheeted under Sections 302, 120-B/148/149/364 of the Indian Penal Code, only six could be apprehended during the course of investigation and inquiry for over an year; that as many as nine young men have been done to death; that the bodies of murdered youths were concealed; that brutality and cruelty of the perpetrators of the crime should be taken into consideration; that accused Nirmal has other brothers; and that the submission that his family will be ruined is of no consequence.
6. Mr. Sadhan Gupta. Advocate appearing for the petitioners submitted that the provisions relating to grant of bail in non-bailable offences in Section 497 (1) of the Criminal Procedure Code are unconstitutional as violative of Article 14 of the Constitution of India and that the petitioners should not, therefore have been refused bail by the learned Magistrate or the Sessions Judge in accordance with those provisions. This application for bail here is under Section 498. Criminal Procedure Code and it is not an application for revision of the learned Magistrate's orders refusing bail. Mr. Gupta submitted that persons, accused of non-bailable offences have not been given equality before the law or equal protection of law in the matter of grant of bail as some of the persons accused of non-bailable offences have been treated differently from others also accused of non-bailable offences. Equal protection means the right to equal treatment in similar circumstances both in the privileges conferred and liabilities imposed by law. Criminal Procedure Code has classified offences into two groups, namely bailable and non-bailable depending on the gravity of the offences and the punishment prescribed therefor, The provisions regarding bail are Laid down in Sections 496 to 502. Criminal Procedure Code. The main provision relating to bail in bailable cases is contained in Section 496, Criminal Procedure Code and that relating to non-bailable cases is given in Section 497. Criminal Procedure Code. The substantive portion of Section 496 applies to all persons except those accused of non-bailable offences. Section 497 contemplates three stages in a case namely (1) at the time of accusation (2) during investigation inquiry or trial (3) after the conclusion of trial and before judgment and provides for bail differently for different stages. At the initial stage of mere accusation dealt with under Sub-section (1) bail may not be refused; but if the accusation indicates that the person is involved in an offence punishable with death or imprisonment for life bail is restricted only to persons under the age of 16 years or a woman or a sick or infirm person. If the case is under investigation, inquiry or trial and there are no reasonable grounds to believe that the accused is guilty of any non-bailable offence, he has a right to be released on bail. There is no inequality between persons accused of non-bailable offences in the matter of grant of bail at stages after accusation in any Sub-section other than Sub-section (1). The granting of bail in a non-bailable offence is a concession allowed to an accused person and it presupposes that this privilege is not abused and he appears in Court whenever called upon to do so in connection with the case. If the offence is bailable, bail must be granted under Section 496, Criminal Procedure Code. But if the offence is non-bailable the Court should decide the question of granting the bail in the light of considerations namely the nature and seriousness of the offence, a reasonable possibility of the presence of the accused being secured at the trial, a reasonable apprehension of the evidence being tampered with and the quantum of punishment. Article 14 is a general provision and has to be read subject to the other provisions within the Part on Fundamental Rights, such as Article 15(3). In Article 15(3). the State is empowered to make special provision for women and children. The first duty of the Court is to examine the purpose and policy of the Act and then to discover whether the classification made by the law has a reasonable relation to the object which the legislature seeks to obtain. Classification in order to be legally permissible must satisfy two conditions. First it must be founded on an intelligible differentia which distinguishes persons that are grouped together from persons left out of the group. And, secondly, the differentia must have a rational relation sought to be achieved by the law in Question. A legislation is not to be struck down as discriminatory if any state of facts may reasonably be conceived to justify it. In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge and matters of common report. The persons accused of non-bailable offences have been put into two groups. One group consisting of persons who are accused of offences punishable with death or imprisonment for life and the other group consists of persons accused of offences punishable with sentences other than death or imprisonment for life. One group is easily distinguished from the other group. This distinction has a rational relation to the object of the provision for grant of bail in Section 497 (1) of the Criminal Procedure Code. Age or difference in the nature of the persons may confer rational basis. The very nature of the offence of a serious type may require a different and special procedure. The object of the provisions of Section 497 (1) of the Criminal Procedure Code is to make it possible for persons arrested for non-bailable offences to come out On bail even before trial and at the same time to secure their regular attendance thereafter date by date to ensure speedy investigation and trial. The graver the offences in the charge, the chances of the accused making himself unavailable or scarce by abscondence or by delaying collection of evidence by threatening witnesses or scaring them away are more. A female or a person below 16 years of age or a sick or infirm person, because of their physical handicaps and/or immaturity is not likely to interfere with the investigation or to delay the trial by abscondence or interference. The persons accused of waver offences are not to be released on bail at the initial stage in Section 497 (1) so that they may not commit same or similar offence again before the stage of inquiry or trial or investigation is reached. Persons not accused of graver non-bailable offences are more likely not to do any such thing. The differentia between the two groups has thus a reasonable relation to the object of the legislature in the matter of grant of bail. The provision of Section 497 (1) therefore in favour of one group of persons accused of non-bailable offence cannot be said to be arbitrary. The provision, therefore, is not ultra vires the Constitution.
7. Having heard the submission of both the parties and having gone through the materials on record we are of opinion that the prayer for bail should be allowed.
8. In the result, the application is allowed. The petitioner shall be released on a bail of Rupees 10,000/-(Rupees Ten thousand) with two sureties of Rupees 5,000/- (Rupees five thousand) each to the satisfaction of the Sub-Divisional Judicial Magistrate. Serampore. Hooghly. on condition that he shall report to the Officer-in-charge of the Uttarpara Police Station once a week on Sunday until further orders.
N.C. Talukdar, J.
9. I agree.