AI Drafter 
TaxTMI 
TaxTMI 
2025 (12) TMI 445
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....tion for modification, which we propose to dispose of by this common order, are not in dispute. 2. SK. Md. Anisur Rahaman [Anisur] along with several co-accused is facing trial, inter alia, for the offence of murder. By an order of this Court dated 3rd January, 2025, Anisur has been granted bail. While Anisur seeks modification of the condition that requires him to remain confined to the city of Kolkata after his release on bail, Afjal Ali Sha @ Abjal Shaukat Sha [Afjal] (brother of Kurban Sha [the victim] ) seeks cancellation of bail granted to Anisur on the grounds urged in the application for cancellation. 3. Panskura P.S. Case No. 496 of 2019 dated 8th October, 2019 was registered under Section 302/120B, Indian Penal Code, 1860 [IPC] read with section 25/27 of the Arms Act, 1959 at the instance of one Jahar Sha [the de-facto complainant] (nephew of the victim). The allegation levelled is that Anisur had entered into a conspiracy with the co-accused to eliminate his political rival, viz. the victim, and that in furtherance of such conspiracy, on 7th October, 2019, the victim was shot in the presence of the de-facto complainant for taking up vendetta against Anisur. On 16th....
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....assed the order dated 2nd March, 2021 shall continue. 10. Since Anisur was already in custody and the Division Bench had not directed his release, the Single Judge observed that he would continue in such custody unless order to the contrary is passed by an appropriate court. 11. On 28th April, 2021, the Single Judge hearing the writ petition of the de- facto complainant was urged by him to allow his prayer for withdrawal of the writ petition based on an apprehended threat to his life and liberty. The prayer for withdrawal of the writ petition was disallowed for the reasons recorded by the Single Judge, which are not required to be noted in details here. Suffice it to note that Afjal having scent of the de-facto complainant's desire to withdraw the writ petition had moved an application for addition of party [CAN 1 of 2021]. The Single Judge found that Afjal was the brother of the victim and hence had the locus standi to continue with such writ petition. Afjal, thus, came to be transposed as the petitioner in place of the de-facto complainant. 12. Crestfallen by such development, whereby the writ petition survived, Anisur carried the order dated 28th April, 2021 in an i....
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.... (i) Criminal Trial bearing ST No. 1 (03) of 2020 arising out of FIR No. 495/2019 registered at Police Station Panskura, District Purba Medinipur is ordered to be transferred from the Court of Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal to the Court of Chief Judge, City Sessions Court at Calcutta. (ii) The trial shall be conducted by the Chief Judge, City Sessions Court and he shall not entrust the case to any other Additional Sessions Judge. (iii) The Chief Judge, City Sessions Court shall endeavour to take up the trial on a weekly basis and shall make an effort to conclude the same within a period of six months. (iv) The State of West Bengal is directed to appoint a Special Public Prosecutor on the recommendations of the Chief Judge, City Sessions Court, Calcutta with the prior approval of the High Court. This exercise shall be completed within two weeks. (v) The wife of the Deceased, the Petitioner and other crucial prosecution witnesses shall be provided adequate security. The State of West Bengal is directed to ensure that no harm is caused to the life and liberty of the witnesses and no direct or indirect attempt is m....
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....milar fashion cross-examination of the witness shall not exceed 2/3 consecutive dates; (iii) Subject to the pendency in the file of the trial Judge, the judge shall ensure at least two hours are allotted on each day to conduct trial particularly when witness action is in progress. No adjournment shall be given to either of the parties on unnecessary grounds including resolutions of the bar association not to attend proceedings. (iv) We hope and trust that the trial Court and all stake holders shall make efforts to conclude the examination of all vulnerable witnesses by 30th April, 2024." 23. Close on the heels of such rejection, Anisur once again applied for bail before the High Court by filing an application [CRM (DB) No. 1510 of 2024] under Section 439, Cr. PC. It was rejected by an order of another Division Bench dated 8th November, 2024. Both the Judges constituting the Division Bench penned individual opinions and recorded reasons as to why Anisur did not deserve to be released on bail, despite being incarcerated for more than five years. 24. The said order of rejection was carried in appeal [Criminal Appeal No. 43/2025] before this Court. Fortune smile....
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....Court shall give hearing to the counsel for the State and the second respondent on the terms and conditions of bail. In the event the appellant commits any breach of the terms and conditions, it will be always open for the respondents to apply to this Court for cancellation of bail. The appeal is accordingly disposed of." 25. Despite being granted bail by the aforesaid order, Anisur felt dissatisfied with the condition that restricted his movements. He applied for modification of such condition [Misc. Application Diary No. 18397 of 2025]. By an order dated 5th May, 2025, a coordinate Bench (cor. Abhay S. Oka and Ujjal Bhuyan, JJ. ) rejected the application holding that no case is made out "at this stage". 26. Undeterred, Anisur has now renewed his prayer for modification of the condition requiring him to remain confined to the city of Kolkata after his release on bail. According to Anisur, such a condition is an unreasonable restriction on his right to liberty protected by Article 21 of the Constitution of India. 27. Also, Afjal has prayed for cancellation of bail granted to Anisur contending that there can be no fair trial if Anisur is not taken into cus....
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....custody till completion of the trial. 32. Per contra, Mr. Vikas Singh contended that a witch-hunt is in progress to anyhow nail Anisur despite he having absolutely no nexus with the incident of murder of the victim and no material having surfaced that he conspired to murder the victim. According to him, because of the restrictions imposed on movements of Anisur, he has been deprived of leading a meaningful life in his home district which happens to be Purba Medinipur, West Bengal. Not only has Anisur been unable to attend to his ailing parents (one of whom has since passed away), he could not even attend the last rites of his deceased brother-in-law who too passed away recently. 33. Mr. Singh further contended that since the trial is on the verge of completion and that the remaining witnesses are all public officials, there is no possibility of tampering evidence or influencing witnesses; thus, the condition of bail that Anisur should be confined to the city of Kolkata may be revoked. 34. We had enquired from Mr. Farasat as to the existence of any order passed by the Superintendent of Police on assessment of threat perception of Anisur after his release on bail. The answer....
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....ate is heavily loaded in favour of the petitioner-accused, it would be prudent for us to tilt in favour of protection of the witnesses and family members of the deceased and ensure a fair and just prosecution. Hence, we are not inclined to release the petitioner on bail. 37. The aforesaid order was upheld by a coordinate bench of this Court on 15th December, 2022 by recording that there was no reason to interfere. 38. As has been noted above, the Single Judge set aside the order dated 26th February, 2021 by a judgment and order dated 2nd August, 2022. The following observations may be read: "45. Mere lip-service to the settled legal criteria in the application under Section 321, Cr.PC does not, by itself, lend sanctity to the motive behind non-prosecution. Rather, the dubious manner in which the application was shifted back early at the behest of the State and allowed by the trial Court on the very same date when the present writ petition was fixed and was being taken up for hearing by this court in the first round of litigation, even after the trial court being informed and well aware of such fixation in this court, evokes suspicion about the motive rather than conf....
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.... persons is conducted properly and with the same zeal as the withdrawal of prosecution has been pursued, and not vice versa." 39. Certain passages from the order of this Court dated 17th March, 2023, while disposing of the transfer petition read as under: "33. Adverting to the facts of the case in hand in light of the principles enunciated by this Court from time to time, it is true that the State of West Bengal has taken a complete u-turn with a view to help the main accused, namely, Respondent No. 2 and it went to the extent of resorting to its powers under Section 321 of CrPC to withdraw the prosecution itself. A plain reading of Section 321, CrPC leaves no room to doubt that it is the Public Prosecutor in-charge of the case who has to apply his mind independently and impartially to form a view for withdrawal from the prosecution with the consent of the court. The procedure followed in the case in hand was completely alien to the scheme of Section 321, CrPC as the decision to withdraw prosecution was taken at the level of the State Government and the Public Prosecutor was merely asked to act upon the said Government notification. The Link Judge also showed tearing hu....
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....rder. We do not wish to make further observations with regard to the evidence on record lest the same prejudices either the prosecution or the defence. 10. We have also taken note of the fact one of the prosecution witnesses, PW 29, deposed that he had been intimidated by associates of the petitioner. As per the special Public Prosecutor 18 vulnerable witnesses are yet to be examined. Offences, if proved, would attract mandatory life imprisonment. Gravity of the offence and the evidence led against the accused are relevant considerations for bail. Similarly, impact of release of the petitioner on bail on the vulnerable witnesses also needs to be kept in mind. But the Court cannot turn its eyes away from the protracted undertrial detention already suffered by the petitioner i.e. more than 4 years. One cannot be unmindful of the systematic and infrastructural shortcomings which may inspite of earnest efforts on the part of the trial Court and the stakeholders stand in the way of conclusion of trial at an early date. In order to balance the right to liberty of an undertrial which is an enshrined right under Article 21 of the Constitution of India on the one hand with the righ....
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....ndition under consideration either. 46. Anisur's previous application for modification was rejected by the bench presided over by A.S. Oka, J. The present application has been filed on 8th August, 2025, i.e., a couple of months after His Lordship demitted office. In between, there were Partial Working Days from 26th May, 2025 till 11th July, 2025. The purpose is not far to seek. We perceive this to be an attempt to take a chance because of the changed scenario. 47. Though elementary, it requires restatement that it is fundamental to the rule of law to maintain the sanctity and finality of judicial verdicts. Judicial orders which determine issues arising between the parties to the lis bind them and its conclusive nature ensures resolution of disputes so that justice is served. The strength of judicial power lies less in the hope of perfection and more in the confidence that decisions, once made, are settled. As Justice Robert Jackson [Associate Justice of the U.S. Supreme Court in Brown v. Allen] famously said "We are not final because we are infallible, but we are infallible only because we are final". By upholding the finality of verdicts, not only is endless litigation ....
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....also inseparable parts of a just and proper decision-making process, demand that a subsequent bench of different combination defers to the view expressed by the earlier bench, unless there is something so grossly erroneous on the face of the record or palpably wrong that it necessitates a re-look in exercise of inherent jurisdiction either by a review petition or through a curative petition as explained in Rupa Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 388]. 50. The very purpose of the order granting bail, in this case, would stand frustrated if the condition requiring Anisur not to leave Kolkata were modified. This Court granted bail bearing in mind two factors. First, Anisur was in custody for more than 5 years and second, despite this Court's order dated 17th May, 2023 requiring completion of trial within 6 months, the trial had not concluded. Grant of bail being discretionary and having regard to the developments over the years, refusal to grant bail to Anisur was indeed a distinct option available to the bench. However, the bench leaned in favour of granting the concession of bail on stringent conditions which this Court found fit to impose considering the attendant circ....
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....ing the proceedings of the trial and committed a serious lapse in filing a belated application and that too, without assigning any reason. According to him, the Special Public Prosecutor has been prosecuting the case fairly and with a good deal of competence and Afjal has no dissatisfaction with the manner of conducting of the trial. He expresses an apprehension that unless some observations are made, the trial would end up meandering into a mere ritual being completed with the conclusion written on the wall. 57. Mr. Bedi, for Anisur, submitted that any interference with the order dated 21st November, 2025 in course of these proceedings would not be proper. According to him, Anisur is not responsible for the order made by the Sessions Court; Anisur is entitled to a fair trial and if any party is dissatisfied with partial allowing of the application of the prosecution, he/it may move the appropriate forum. 58. It is noted in such order dated 21st November, 2025 as follows: "3. The learned Special Public Prosecutor has submitted that the prosecution wants to get the indulgence of this Court to - (a) Re-examine CSW 83; (b) Examine fresh witnesses namel....
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....viction, and completeness. 31. It is more so, when Mr. ***, is well aware about the directives of the Hon'ble Apex Court whereby we all are enjoined to dispose of this case within a stipulated period - a circumstance that ought to have impelled greater vigilance and circumspection on the part of Mr. Maity. 32. This Court, therefore, deems it imperative ex debito justitiae to express its profound disquiet the manner in which Mr. *** has represented the State in the present proceeding. His torpid and indifferent approach, contra officii dignitatem, stands in glaring discord with the solemn responsibility reposed in a Public Prosecutor. In a prosecution touching the very vitals of societal order and moral rectitude, such apathy is non toleranda. 33. Accordingly, this Court, suo motu et cum gravi animi sensu, urges the Learned Legal Remembrancer, Government of West Bengal, to take due cognizance of this lapse and to ensure that cases of such grave import and societal impact are hereafter conducted cum summa diligentia et fide publica (with the greatest diligence and public faith). 34. A copy of this order be accordingly forwarded to the Learned L....