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2003 DIGILAW 1151 (PAT)

Pappu Rai v. State Of Bihar

2003-11-10

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for setting aside the order dated 2nd of May, 2002 passed by the Sessions Judge, Saran at Chapra in Cr. Misc. No. 62 of 2001 whereby he has set aside the order dated 2-8-2001 passed by the Chief Judicial Magistrate, Chapra granting bail to the petitioners in Rasulpur PS Case No. 39 of 2001. 2. Facts giving rise to the present application are that one Doodhnath Manjhi, an ex-army personnel and belonging to the scheduled caste, gave a statement in the emergency ward of the Chapra Sadar Hospital on 13-6-2001 before the Sub-Inspector of Bhagwanpur Police Station, stating therein that on 12-6-2001 he has gone to Rasulpur Bazar for purchasing material for construction of the house and while he was returning to his house, he was followed by three accused persons namely Pappu Rai, Harendra Rai and Yashwant Rai. According to the first information report when the informant reached nearthe house of one Shashi Bhushan Upadhya, two accused persons namely Hari Shankar Rai and Manhu Rai caught hold of his hand and started assaulting him by Chapal and threatened that in case he will not withdraw the case, he will be killed. Further case, according to the first information report, is that in the meanwhile the aforesaid three accused persons namely Pappu Rai, Harendra Rai and Yashwant Rai came from behind and when the informant wanted to flee away, Yashwant Rai fired from the pistol which caused injury to him. According to the informant/on hearing the should, of firing villagers gathered and the accused persons fled away from the place of occurrence. 3. It appears that the three accused persons namely, Pappu Rai, Harendra Rai and Yashwant Rai surrendered in the Court of the Chief Judicial Magistrate, Chapra on 2-8-2001 arid prayed for grant of bail. The learned Magistrate considered the application of the aforesaid three accused persons, who ape petitioners herein, for grant of bail and having found that genesis of occurrence is the land dispute between the parties and observing that enmity cuts both ways, ordered for release of the petitioners on bail. The learned Magistrate also took note of the submission of the petitioners that injuries caused on the informant were simple in nature. 4. Aggrieved by the grant of bail to the petitioners, the informant filed Cr. Misc. The learned Magistrate also took note of the submission of the petitioners that injuries caused on the informant were simple in nature. 4. Aggrieved by the grant of bail to the petitioners, the informant filed Cr. Misc. No. 62 of 2001 before the Sessions Judge for cancellation of bail. The learned Sessions Judge observed that from perusal of the first information report it is clear that the informant was shot at by a pistol causing injury. The learned Judge observed that the informant sustained multiple wound with charred margin on upper back 2" in radius of small p size. He also found that 10 pellets were recovered from the person of the informant in the emergency operation theatre and 13 in general operation theatre. The learned Sessions Judge also found that the learned Chief Judicial Magistrate on the very day of surrender of the accused granted bail without looking into the injury report and the case diary. Ultimately, the learned Sessions Judge concluded that in view of the allegation contained in the first information report together with injuries found on the person of the informant and recovery of as many as 23 pellets from the person of the informant, the learned Chief Judicial Magistrate ought not to have granted bail to the petitioners. 5. Mr. Anil Kumar Singh appearing on behalf of the petitioners submits that yardstick not to grant bail in a particular case amount be applied for cancellation of the bail. He points out that the bail granted to an accused can be cancelled only when such an accused misuses the privileges of bail. In support of his submission learned Counsel has placed reliance on a judgment of this Court in the case of Suman Kumar Sah V/s. State of Bihar, 2003 (2) BCCR 209, and my attention has been drawn to paragraph 4 of the judgment, which reads as follows: "At present, generally lower Courts are not granting bail in cases having such type of allegation supported by injury report. Since bail has already been granted to opposite party No. 2 and there is no allegation of petitioner that after grant of bail, opposite party No. 2 has in any way misused the privileges of bail in any mariner, I do not think it proper to cancel the bail of opposite party No. 2 already granted by Court below but then this matter must be placed before the Standing Committee for showing the nature of order which has been passed by Court below in such type of case." 6. Yet another decision on which the learned Counsel has placed reliance is the judgment of Jharkhand High Court in the case of Abdul Sattar and five Ors. V/s. State of Bihar and Anr., 2001 (1) BCCR 55, and my attention has been drawn to paragraphs 9 and 10 of the judgment, which reads as follows: "9. It must be remembered that rejection of bail stand on one footing but cancellation of bail is harsh order because it interferes with the liberty of the individual and it is well settled that the liberty once granted to a person may not be curtailed unless otherwise circumstances arise. Therefore, the power to take back in custody an accused, who has been enlarged on bail has to be exercised with care and circumspection, but that does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand. 10. In the instant case, it is evident that there is no cogent material to show about any threat or pressure for withdrawal of the case before filing of the application for cancellation of bail and whatever evidence or material collected those are after 17-8-2000, the day, the complainant had filed an application before the Sessions Judge for cancellation of bail which makes the story of threat of tampering with the evidence fasified and is after though." 7. Mr. Ashwani Kumar Roy however, appearing on behalf of opposite party No. 2 submits that allegation made against the petitioner constitutes offence under Sec. 307 of the Indian Penal Code, same being supported by the medical evidence, it was not a fit case in which the learned Chief Judicial Magistrate should have granted bail to the petitioners and that too on the date of their surrender without even calling for the case diary and examining the material. In such circumstances, the learned Sessions Judge rightly cancelled the bail, submits Shri Roy. 8. Having considered the rival contention I do not have the slightest hesitation in holding that yardstick for rejection of bail stands on one footing and its cancellation on a different footing. No hard and fast rule can be laid down for cancellation of bail. Generally speaking bail granted to an accused is cancelled when such an accused misuses his liberty by indulging in similar activities, interferes with the course of investigation, attempts to temper with the evidence or witnesses, threats witnesses or indulges in similar activities which would be tampering with smooth investigation or there is likelihood of accused fleeing in another country of the accused attempting to make himself scare by going underground, or becoming unavailable to the investigating agency or attempts to place himself beyond the reach of his sureties. The power to cancel the bail to though extra ordinary in character but in any my opinion, same has to be exercised if the ends of justice, so demands. In other words, the grant of bail by a interior Court in a case involving serious offence, which is, shocking to the conscience of the Court/nothing prevents the superior Court to exercise the power to cancel the bail? 9. Bearing in mind the aforesaid principle I proceed to examine the present case. Petitioners are named in the FIR one of them is alleged to have fired from pistol which caused injuries to the informant which led to the registration of the case in the emergency ward of the hospital. Altogether 23 pellets were recovered from the person of the informant petitioners surrendered in the Court on 2-8-2001. The learned Chief Judicial Magistrate with out calling for the case diary proceeded to consider the prayer for bail and on the ground that enemity cuts both ways false implication of the petitioners cannot be ruled out, granted bail to the petitioners. Had the learned Chief Judicial Magistrate called for the case diary, which is generally. done, he should have found that the informant had sustained fire arm injuries and 23 pellets were recovered from his person. Had the learned Chief Judicial Magistrate called for the case diary, which is generally. done, he should have found that the informant had sustained fire arm injuries and 23 pellets were recovered from his person. In my opinion grant of bail to accused of such crime by the learned Magistrate on the very, date of appearance is shocking to the conscience of the Court and hence in my opinion the learned Sessions Judge was right in cancelling the bail. 10. Before I part with the case I may observe that the conduct of the Chief Judicial Magistrate, who had granted bail does not seem to be above board and requires action in the administrative side. As stated earlier accused persons appeared before the learned, Magistrate on 2-8-2001 and prayed for bail, allegation was of causing injury by fire arm, the learned Chief Judicial Magistrate without calling for the case diary, which is the usual practice enlarged the petitioners on bail by invoking the principle that enmity cuts both ways and false implication of the petitioners cannot be ruled out. Had the learned Magistrate called for the case diary, he should have seen that the informant had sustained fire arm injuries and 23 pellets were recovered from his person, I am of the considered view that the learned Chief Judicial Magistrate was in hurry to pass the order for reasons other than merits. 11. I have called for a report from the Registry as to officer who was posted at Chapra Chief Judicial Magistrate on 2-8-2001 and I have been informed that the said post was held by one Sri Mahendra Pratap Singh, an officer of ad hoc batch of Munsif, who had ultimately superannuated from service on 31-5-2002. A feeling has generated amongst some of the judicial officers to indulge in activities at the time of their superannuation with the hope that after superannuation they shall be beyond the reach of the High Court and nothing can be done to them. It is high time that the said feeling be dispelled and such persons be told that the arm of law is not so small and such persons can be appropriately dealt with even after superannuation. Rule 43 of the Bihar Pension Rules, in my opinion can be exercised in appropriate cases. It is high time that the said feeling be dispelled and such persons be told that the arm of law is not so small and such persons can be appropriately dealt with even after superannuation. Rule 43 of the Bihar Pension Rules, in my opinion can be exercised in appropriate cases. I would, therefore, desire that this order be placed before Hon ble the Chief Justice for taking action against the officer as it deem fit and proper. 12. It is made clear that any observation made by me in the present application is for the purpose of its disposal and shall have no bearing at a later stage. 13. In the result I do not find any merit in the application and it is dismissed accordingly, with the observation aforesaid.