2010 Jnaneswari Express tragedy: Calcutta HC grants bail to 6 accused

The Mumbai-bound train had derailed near Jhargram and was then hit by an oncoming goods train, leading to the death of 148 passengers. Authorities said the derailment, which took place at around 1 am on May 28, 2010, was the result of alleged sabotage by Maoists. The incident took place soon after a four-day bandh called by the CPI (Maoist) had begun.

Granting bail to the six accused, Justices Partha Sarathi Chatterjee and Tapabrata Chakraborty said that “whatever may be the nature of the offence”, even in cases filed under the Unlawful Activities (Prevention) Act (UAPA), prolonged trial of the accused “would be violative of Article 21” of the Constitution. The accused have been in jail for around a decade.

The investigation into the incident was handed over to the CBI in June 2010 after demands made by then Railways minister Mamata Banerjee. West Bengal had a Left government at the time.

In a chargesheet filed on November 29, 2010, the CBI named 23 accused in the case.

The six accused granted bail are Mantu Mahato, Laxman Mahato, Sanjay Mahato, Tapan Mahato, Bablu Rana and Dayamoy Mahato — all from West Bengal’s Jhargram district, which was once considered the fulcrum of Maoist activity.

Responding to arguments by the prosecution, the Calcutta High Court said that even in cases involving offences under the UAPA and the Narcotic Drugs and Psychotropic Substances Act, “bail can be granted to an undertrial prisoner who has suffered half of the minimum punishment prescribed, and when the delay which has occurred is substantially attributable to the prosecution… Reasonable procedure implicit in Article 21 creates a right in favour of the accused to be tried speedily and long delay may be taken as presumptive proof of prejudice”.

The court also said that provisions of Section 436-A of the CrPC cannot stand in the way of grant of bail where the delay towards conclusion of trial had occasioned due to no fault on the part of the accused.

Submissions made by the CBI showed that on an average, 17 witnesses were examined per year since the initiation of the trial in 2013. Of the 245 witnesses in the case, only 177 have so far been examined.

“In view thereof, we are of the opinion that there is no possibility towards conclusion of the trial in the near future,” the court said.

The CBI had argued against the grant of bail.

Criminal lawyer Kaushik Gupta, who along with Debashish Roy represented the accused, said, “The Calcutta High Court has granted bail to these six petitioners under Section 439 of the Code of Criminal Procedure, 1973. The court relied on Article 21 and upheld the right to liberty of the accused persons by weighing it with the alleged crime.”

“The question is that investigative agencies have consistently taken away the liberty of individuals through executive action without the judicial determination of guilt. In many cases, such as this one, in the event that the accused is finally acquitted, they have already lost 10-12 years of their life. Article 21 is violated by the executive through investigating agencies under stringent acts, and then not pursuing the case. In this matter, the CBI filed its chargesheets in 2010. In the trial, which is ongoing, there have been few witnesses, with no end to determining guilt in sight,” Gupta told The Indian Express.

The accused have contended that they have been “falsely arraigned and implicated” in the case.

“Your petitioners state that the First Information Report was registered against unknown miscreants and therefore it appears that the petitioners have been implicated based on materials purportedly collected in the course of investigation which are nothing but matters of afterthought concocted by the investigating agency to make a scapegoat out of the petitioners herein,” the petition by the accused stated.

“Your petitioners state that though 239 number of witnesses have been examined, none of such witnesses have been able to throw any direct light on the role played by the petitioners in the purported commission of the offence they have been accused of,” said the petition, adding that, “…Each of the petitioners have already been in custody for 9 years and above, in a manner that can only be described as mere punitive incarceration of the petitioners sans rationale…’’.