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2001 DIGILAW 1013 (BOM)

Justin D'cunha v. State

2001-12-07

P.V.HARDAS

body2001
ORDER (ORAL) P.V. Hardas, J.- The bail granted to the applicant by the Sessions Judge, South Goa. Margao by his Order dated 26th June 2001 was cancelled by the Sessions Judge, South Goa, Margao by his Order dated 13th November 2001. The Order by which the bail of the applicant was cancelled is impugned before me in the present application. The brief facts leading to the cancellation of the bail can be stated as under: 2. The applicant in the present application is being prosecuted vide Crime No. 14 of 2001 for offences punishable under Sections 395, 397, 427, 504 read with Section 34 of the Indian Penal Code. His application for bail was favourably considered by the learned Sessions Judge. South Goa Margao by granting bail to him on 26th June 2001. Thereafter an application for cancellation of bail came to be filed before the learned Sessions Court on 10th October 2001 through the Police Sub-Inspector. Sanguem Police Station. In the application for cancellation of bail it was stated that on 28th September 2001 at about 10.30 a.m. the present applicant had threatened the approver by name Robert Dias in the Court premises by saying 'Police witnesses are being shot'. It is further stated in the said application that the said Robert Dias had informed the concerned Police Officer regarding the threat extended by the applicant and the Police Officer had asked the said Robert Dias that he should complain in writing. Thereafter it appears that on 2nd October 2001 the said witness Robert Dias went to the Police Station and gave a written report narrating the threat extended by the present applicant. The application for cancellation of bail also referred to a complaint of one Shri Babu Dhakle Bandekar whose son is a witness in the Sessions Case regarding some unknown persons assaulting him and attempting to strangulate him. Shri Babu Dhakle Bandekar in his complaint has also referred to the fact of some unknown persons hurling a stone and damaging his motor vehicle. The said report of Shri Babu Dhakle Bandekar was filed on 5th October 2001. Relying on these two instances the Police Sub-Inspector of Sanguem Police Station prayed for cancellation of bail granted to the applicant. 3. In response to the notice from the learned Sessions Judge the applicant filed his reply dated 8th November 2001. The said report of Shri Babu Dhakle Bandekar was filed on 5th October 2001. Relying on these two instances the Police Sub-Inspector of Sanguem Police Station prayed for cancellation of bail granted to the applicant. 3. In response to the notice from the learned Sessions Judge the applicant filed his reply dated 8th November 2001. In the said reply it was contended by the applicant that firstly no such incidents as are referred to in the complaints have taken place and secondly the alleged conversation which the applicant had with Robert Dias does not amount to extending threat to him. In short what is submitted was that the complaint regarding threat was a false complaint. When the application for cancellation of bail was taken up for hearing that is on 5th November 2001. Mr. Albano Viegas advocate produced an affidavit purported to have been signed by Robert Dias. Though the said Mr. Albano Viegas did not file a wakalatnama the learned Sessions Judge permitted him to produce the affidavit and had taken it on record. The learned Sessions Judge in paragraph 11 also remarked that he was informed that the said Robert Dias was present in the Court for filing the said affidavit. Be that as it may this affidavit forms a part of the record. The affidavit in terms states that the applicant had never threatened Robert Dias and it was at the instance of the Investigating Officer that Robert Dias was compelled to give a false complainant to the Police dated 2nd October 2001. 4. The learned Sessions Judge. South Goa. Margao in paragraph 17 of the Order has held that he had no hesitation in accepting the statement made by the P.S.I. Shri Manjunath Dessai (Investigating Officer) in the application filed by him for cancellation of bail. The learned Sessions Judge has further held that it was clear from the complaint dated 2nd October 2001 submitted by Robert Dias that the present applicant/ accused had threatened him that he would be shot in case the said Robert Dias remained a witness. The learned Sessions Judge has further held that it was clear from the complaint dated 2nd October 2001 submitted by Robert Dias that the present applicant/ accused had threatened him that he would be shot in case the said Robert Dias remained a witness. The learned Sessions Judge further observes in the same paragraph that the P.S.I. had done a wise thing in telling the said Robert Dias to bring the complaint in writing rather than writing it himself or making a Station Diary because it would expose the P.S.I. The learned Sessions Judge also came to the conclusion that it could be inferred that the affidavit of Robert Dias had been filed at the behest of the applicant because in the said affidavit Robert Dias did not disclose as to how he had gathered knowledge of the pending proceedings. In respect of the complaint of Shri Babu Dhakle Bandekar the learned Sessions Judge came to a conclusion that the complaint disclosed an atmosphere of terror which was indirectly created. Relying wholly on the complaint of Robert Dias the learned Sessions Judge South Goa. Margao therefore cancelled the bail granted to the applicant earlier by the Order dated 26th June 2001. 5. Mr. Desai the learned senior advocate appearing for the applicant, has submitted before me that the complaint of Robert Dias on its face cannot be accepted in view of the fact that Robert Dias through an advocate, had submitted an affidavit proclaiming that the said complaint had been obtained by the concerned Police Officer under duress. Mr. Dessai the learned senior advocate has further submitted that no reliance at all could have been placed on the statement of such a prevaricating witness. According to the learned counsel for the applicant for cancellation of bail strong very cogent and overwhelming circumstances are necessary. Therefore, according to the learned counsel for the applicant, the learned Sessions Judge was wholly in error in cancelling the bail of the present applicant. 6. Ms. W. Coutinho, the learned Additional Public Prosecutor for the respondent State who has ably argument in support of the Order of the learned trial Court has placed strong reliance on the Judgment of the Supreme Court in the case - of the State through the Delhi Administration v. Sanjay Gandhi1. 6. Ms. W. Coutinho, the learned Additional Public Prosecutor for the respondent State who has ably argument in support of the Order of the learned trial Court has placed strong reliance on the Judgment of the Supreme Court in the case - of the State through the Delhi Administration v. Sanjay Gandhi1. She has in particular placed reliance on a portion of paragraph 14, which is reproduced below: "Indeed proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because in cases where the statute raises a presumption of guilt as for example the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail." 7. Ms. Coutinho has further submitted that the affidavit has rightly not been taken into consideration as on plain reading of the affidavit it is clear that this affidavit of Robert Dias has been produced at the behest of the applicant. According to her the affidavit shows that Robert Dias is major whereas according to her the records show that Robert Dias is less than 17 years of age. She has also submitted that the applicant had sought time from the learned Sessions Court for filing his reply and this was obviously done with an oblique motive to facilitate the filing of the affidavit of Robert Dias. She has supported the Order of the learned Sessions Judge canceling the bail. 8. Granting of bail is one thing and canceling bail is a different matter altogether. She has supported the Order of the learned Sessions Judge canceling the bail. 8. Granting of bail is one thing and canceling bail is a different matter altogether. While canceling the bail the Court has to be circumspect because the cancellation of bail affects the personal liberty of a person. No doubt while appreciating the material produced in support for cancellation of bail the Court must decide on the preponderance of probabilities that the material so placed before the Court should render the version as probable. 9. This is a peculiar case where the approver lodged a complaint no doubt after four days of the incident complaining that the applicant had threatened him. Thereafter, during the hearing of the application for cancellation of bail the approver through an advocate produced an affidavit. The contents of the affidavit show that. according to the said approver Robert Dias the complaint dated 2nd October 2001 had been submitted at the behest of the Investigating Officer. When the Court is confronted with such a prevaricating statement of a witness the Court is not to embark on a detailed inquiry to find the truthfulness of the subsequent statement. Such prevaricating statements of the witness ought to put the Court on its guard. The Courts therefore should not place implicit reliance on a witness unless there are circumstances to suggest that one of the statements made by him may be incorrect. In this case the Court was confronted by the complaint of Robert Dias dated 2nd October 2001 complaining of threats being given by the applicant on one hand and the affidavit dated 5th November 2001 containing an averment that the said complaint was false. In such a situation no implicit reliance could be placed by the Court on the complaint dated 2nd October 2001 in the absence of any other material on record to show that the affidavit had been prepared or presented either at the behest of the person who was to derive any advantage from it or because of any threat or duress. Curiously the said Robert Dias was present in the Court when the affidavit was produced through an advocate and the learned Sessions Judge unfortunately made no inquiries from the said Robert Dias regarding the contents. Curiously the said Robert Dias was present in the Court when the affidavit was produced through an advocate and the learned Sessions Judge unfortunately made no inquiries from the said Robert Dias regarding the contents. Be that as it may applying the test of preponderance of probabilities it does not appear probable that Robert Dias was threatened by the applicant as mentioned by him in the complaint dated 2nd October 2001. 10. In respect of the complaint of Babu Dhakle Bandekar, Ms. Coutinho, the learned Additional Public Prosecutor appearing for the State, has very fairly conceded that it was a vague complaint and that it was a complaint against unknown persons, having no nexus with the accused in this case. The complaint of Babu Dhakle Bandekar is, according to me, a vague and an omnibus complaint. The said complaint cannot be pressed into service for cancellation of bail. It is rather difficult to imagine how the applicant can be said to have created an atmosphere of terror. 11. In view of my above findings, the Order of the learned Sessions Judge canceling the bail of the applicant is unsustainable. 12. The Order of the learned Sessions Judge, South Goa, Margao dated 13th November 2001 in Criminal Miscellaneous Application No. 84 of 2001, canceling the bail of the applicant, in Crime No. 14 of 2001, is hereby quashed and set-aside. The Order by which the applicant was released on bail dated 26th June 2001 is restored. The applicant shall be forthwith released on the same bail and on the same bond furnished by him earlier. The Criminal Miscellaneous (Bail) Application is, therefore, allowed on the above terms. Application allowed. 1. AIR 1978 S.C. 961 .