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2004 DIGILAW 649 (GAU)

Bitem Lego v. Roding Pertin

2004-12-23

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. This application under Section 439(2) of the Code of Criminal Procedure, 1973 is directed against the order dated 13.07.03 passed by the Deputy Commissioner, Lower Dibang Valley District, Roing granting absolute pre arrest bail to the Respondents. 2. The facts are not in dispute. The Petitioners lodged an FIR against the Respondents on 05.07.04 inter alia making allegations of falsification of documents towards constitution of a co-operative Society for the purpose of siphoning Government money. Allegation was also made that some of the Respondents being Government servants could not have become members of the Co-operative Society in violation of relevant conduct rules. On the basis of the FIR a case being Dambuk P.S. case No. 12/04 under Section 468/ 420/ 406/ 409 of the IPC was registered against the Respondents. 3. Within a week of filing of the FIR, the Respondents moved an application under Section 438 of the Code of Criminal Procedure before the Deputy Commissioner, Roing for pre-arrest bail. In the application they admitted that two of them were Government servants and the Respondent No. 1 was the Minister of Environment and Forest, Government of Arunachal Pradesh. Apart from making general submissions like allegations being false and no likelihood of their being absconded, no other grounds were urged by the Respondents in their bail application praying for pre-arrest bail. 4. On the basis of the said bail application, the Deputy Commissioner passed the impugned order dated 13.07.04, granting bail not only to the Respondents but also to all the members of the Co-operative Society whose names were not even disclosed. Ironically the Vakalatnama on the strength of which the bail application was moved on behalf of the Respondents and the members of the Co-operative Society contained the signature of the Respondent No. 3 only. Thus, on the face of it there was no authorization on behalf of other Respondent including the members of the Cooperative Society to pray for pre-arrest bail. They did not execute any Vakalatnama authorizing the counsel to pray for bail on their behalf. The Vakalatnama simply contained the names of the Respondents and there was no mention of the members of the Co-operative Society. 5. The Deputy Commissioner, Lower Dibang Valley District on the very first day of moving the bail application granted the privilege of pre-arrest bail to the Respondents including the members of the Co-operative Society. The Vakalatnama simply contained the names of the Respondents and there was no mention of the members of the Co-operative Society. 5. The Deputy Commissioner, Lower Dibang Valley District on the very first day of moving the bail application granted the privilege of pre-arrest bail to the Respondents including the members of the Co-operative Society. While doing so, he dispensed with even the service of notice on the Public Prosecutor, A.P. On the ground that no regular Public Prosecutor for the State was available. He did not feel it prudent to issue notice which ought to have been the natural course even if the plea of non availability of a regular Public Prosecutor is to be accepted. 6. The Deputy Commissioner upon recording he submissions made by the learned Counsel moving the bail application, came to the conclusion that on two grounds the provision of Section 438 Code of Criminal Procedure are attracted. These are as follows: 1) When some person has been falsely implicated by influential person for the purpose disgracing him by keeping him in Jail for some times the accused should be granted anticipatory bail. 2) If there are reasonable ground to believe that he will neither abscond nor misuse the bail. 7. Upon such conclusion relating to the scope, ambit and application of Section 438 of Code of Criminal Procedure, the Deputy Commissioner on purported careful examination of the status of the Respondents and the nature of allegations, recorded his satisfaction about the probability of the aforesaid two grounds towards his inclination to grant the privilege of pre-arrest bail to the Respondents. 8. It is the legality and validity of the said order dated 13.07.03 granting pre-arrest bail in favour of the Respondents and all the members of the Co-operative Society assailing which the instant application under Section 439(2) of the Code of Criminal Procedure has been filed. 9. Mr. P.K. Tiwari, learned Counsel for the Petitioner referring to the decisions of the Apex Court as reported in AIR 1977 SC 366 Balchand Jain v. State of Madhya Pradesh and in : (2001) 6 SCC 338 Puran v. Rambilash and Anr. argued that the impugned order granting pre-arrest bail to the Respondent is per se illegal. 9. Mr. P.K. Tiwari, learned Counsel for the Petitioner referring to the decisions of the Apex Court as reported in AIR 1977 SC 366 Balchand Jain v. State of Madhya Pradesh and in : (2001) 6 SCC 338 Puran v. Rambilash and Anr. argued that the impugned order granting pre-arrest bail to the Respondent is per se illegal. He submitted that the Deputy Commissioner could not have granted the pre-arrest bail to the Respondents and that too making the same absolute on the very first day of moving the bail application without even issuing notice to the Public Prosecutor, A.P. According to him the entire episode towards granting anticipatory bail to the Respondents depicts undue haste and that the manner and method in which the absolute anticipatory bail has been granted to the Respondents is unknown in the matter of exercising discretionary power of granting pre-arrest bail. 10. Mr. C. Baruah, learned Sr. counsel representing the Respondents, on the other hand questioned the very locus standi of the Petitioners to file the application under Section 439(2) of the Code of Criminal Procedure for cancellation of bail. Placing reliance on various decisions of the Apex Court and this Court, he submitted that there being no changed circumstances warranting cancellation of bail granted in favour of the Respondents, there is no question of acceding the prayer made by the Petitioners for cancellation of bail. Various other submissions were made by Mr. Baruah touching the very merit of the allegations made against the Respondents which really speaking need not be gone into at this stage. 11. The moot question for consideration is as to whether the Deputy Commissioner, Lower Dibang Valley District was justified in granting absolute pre-arrest bail by the impugned order even without issuing any notice to the Public Prosecutor. What was that great hurry which prompted the Deputy Commissioner to grant the privilege of pre-arrest bail to the Respondents on the very first day of moving the bail application without even waiting for service of notice on the Public Prosecutor, A.P. Not only that, he has even gone to the extent of entertaining the application on the basis of the Vakalatnama executed only by the Respondent No. 3. Thus, there was no authorization to file and move the bail application on behalf of the other Respondents, not to speak of the members of the Co-operative Society. 12. Thus, there was no authorization to file and move the bail application on behalf of the other Respondents, not to speak of the members of the Co-operative Society. 12. The manner and method in which the Deputy Commissioner exercised the power and jurisdiction under Section 438 of the Code of Criminal Procedure made shocking revelation. Within seven days of filing of the FIR, the bail application was moved and the Deputy Commissioner on the plea of non availability of the Public Prosecutor on regular basis dispensed with the service of notice and passed the ex-parte absolute order granting privilege of pre-arrest bail not only to the Respondents, but also to all the members of the Co-operative Society who were not even named in the bail application and who did not execute any Vakalatnama authorizing the counsel to move such bail application. 13. On bare perusal of the impugned order of grunting bail leads to the irresistible conclusion that not only the Respondents were in great hurry towards obtaining the pre-arrest bail, but the Deputy Commissioner was also in a great hurry to favour the Respondents by way of granting the privilege of pre-arrest bail. In this connection, the observations of the Apex Court in the case of Balchand Jain (supra) is worth mentioning. In that case the Apex Court referred to the Forty-eight report of the Law Commission and the observations made by it. The Law Commission observed that in order to ensure that the provisions relating to grant of anticipatory bail is not put to abuse at the instance of unscrupulous Petitioners, the final order should be made only after notice to the Public Prosecutor and that the initial order should only be an interim one. It went on the observe that the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice. 14. Referring to the aforesaid observations of the Law Commission, the Apex Court in the said case emphasized that the rule of prudence requires that notice should be given to the other side before passing a final order for anticipatory bail so that wrong order of anticipatory bail is not obtained by a party by placing incorrect or misleading facts or suppressing material facts. The Apex Court further observed that in future the Courts will exercise the power keeping the observations in view. 15. The note of caution conveyed by the Law Commission as well as by the Apex Court in the aforesaid case of Balchand has been totally ignored by the Deputy Commissioner in passing the impugned order. Notice to the Public Prosecutor has been dispensed with the simplistic logic and reason of non availability of a regular Public Prosecutor. It is not understood as to what was the great hurry so as to dispense with service of notice on the Public Prosecutor. The ex-parte absolute bail in favour of the Respondents could have been by way of an interim measure upon issuance of notice to the Public Prosecutor. However, amazingly the Deputy Commissioner did not take recourse to such a course of action which was quite open to him even if he was of the opinion in exercise of sound discretion that it was a fit case for granting interim bail. He could have done so as an interim measure while issuing notice to the Public Prosecutor, A.P. 16. The questions raised on the basis of the submissions made by Mr. Baruah, learned Sr. Counsel for the Respondents on the basis of the supporting case laws are all well answered in the decision of the Apex Court in the case of Puran v. Rambilash (Supra). In that case the Apex Court was dealing with an order passed by the High Court canceling the bail which was earlier granted by the Addl. Session Judge. In the said case dealing with the same very argument as was advanced by Mr. Baruah, the Apex Court observed that the concept of setting aside unjustified, illegal or perverse order is totally different from the concept of canceling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. Placing reliance on the earlier decision of the Apex Court in the case of Gurcharan Singh v. State as reported in AIR 1978 SC 179 , the Apex Court further observed that the approach should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice to interfere. 17. 17. As regards the plea of locus standi on the part of the third party as has been raised by Mr. Baruah in the instant case also, the Apex Court found that the application for cancellation of bail in that case was not by a total stranger. In the instant case also it is the very first informants who are before this Court seeking cancellation of bail and for that matter interference with the impugned order granting bail to the Respondents. The Apex Court in the said case placed reliance on the decision in R. Rathinam v. State as reported in AIR 2000 SC 1851 . In that case the Apex Court held that the frame of Sub-Section 2 of Section 439 indicates that it is power conferred on the Courts mentioned therein. It was also held that there is nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor moves by a petition. It was held that the powers vested in the High Court can be invoked either by the State or by any aggrieved party. 18. Dealing with the submissions made on behalf of the beneficiary of the interim bail in the aforesaid case of Puran v. Rambilash (supra) that the order granting bail being an interlocutory order, the High Court could not have exercised the power towards cancellation of bail and that it was only the Sessions Court which on earlier occasion granted the bail could have entertained the application for cancellation of bail and that the High Court could not have sat in appeal or revision over the order of the Court of Sessions, the Apex Court held that there was no substance in the submission. It held that in the hierarchy of the Courts, the High Court is the superior Court and that the restrictive interpretation which would have effect of nullifying Section 439(2) cannot be given. It was observed that when Section 439(2) grants to the High Court the power to cancel bail, it necessarily follows that such powers can be exercised also in respect of the orders passed by the Court of Sessions. 19. In the instant case as noticed above, the Deputy Commissioner passed the impugned order granting the pre-arrest bail to the Respondents without issuing notice to the Public Prosecutor. 19. In the instant case as noticed above, the Deputy Commissioner passed the impugned order granting the pre-arrest bail to the Respondents without issuing notice to the Public Prosecutor. Thus, the order was an ex parte one without hearing the version of the prosecution. No materials were available before the Deputy Commissioner except the bail application and the FIR on the basis of which the police case was registered. As emphasized by the Apex Court in the aforesaid case of Puran v. Rambilash, one of the grounds for cancellation of bail would be whether ignoring the materials and evidence on record a perverse order granting bail is passed and that too without giving any reasons. Such an order would be against the principles of law. Interest of justice would also require that such perverse order be set aside and the bail be cancelled. An arbitrary and wrong exercise of discretion by the Deputy Commissioner has to be corrected. 20. As noticed above, there was no material before the Deputy Commissioner except the bail application and the copy of the FIR and within a week of lodging the FIR and registering the police case, the bail application was moved on behalf of the Respondents, without however, any authorization by all the Respondents. On the very first day of moving the bail application, the Deputy Commissioner not only dispensed with the service of notice on the Public Prosecutor with the excuse of non availability of regular Public Prosecutor, but even granted the absolute bail to the Respondents on his own innovation of the scope and application of Section 438 of the Code of Criminal Procedure conveniently ignoring the principles involved and time and again emphasized by various Courts including the Apex Court in the matter of granting pre-arrest bail. Apart from not following the settled principles in such a serious matter, the Deputy Commissioner also committed procedural irregularity in not issuing notice to the Public Prosecutor on the poor excuse of non availability of regular Public Prosecutor. In the process he also ignored the fact that there was no authorization to move the bail on behalf of the Respondents except the Respondent No. 3. 21. In the process he also ignored the fact that there was no authorization to move the bail on behalf of the Respondents except the Respondent No. 3. 21. Above being the position of factual as well as legal aspect of the matter, I have no hesitation to allow this application canceling the pre-arrest bail granted in favour of the Respondents by the impugned order dated 13.07.04 passed by the Deputy Commissioner, Lower Dibang Valley District, Roing in Dambuk P.S. No. 12/04 under Section 468/ 420/ 406/ 409 of the IPC. The said order granting pre-arrest bail is nonest in the eye of law. However, it will be open for the Respondents to move further bail application praying for pre-arrest bail. In the event of making such application by the Respondents or for that matter any other person involved in the said case, the Deputy Commissioner shall consider the bail application on its own merit on the basis of materials available on record and upon hearing the Public Prosecutor, A.P. He will bear in mind the principles involved in the matter of granting pre-arrest bail as per the provisions of Section 438 of the Code of Criminal Procedure and the observations made by the Apex Court as discussed above. 22. Before parting with the case records, I feel it prudent to place on records, the decisions cited by Mr. Baruah, learned Counsel for the Respondents. All these decisions are primarily on the point of changed circumstances requiring cancellation of bail. None of the decisions is on the point with which the instant proceeding is involved about which discussions have been made above. The decisions are as follows: 1) (1982) I GLR 706 Shri Khagendra Nath Bayan and Ors. v. State of Assam 2) (1982) 1 GLR 712 Shri Bimal Indwar v. State of Assam 3) (1984) 1 SCC 284 Bhagirathising v. State of Assam 4) (1995) 1 SCC 349 Dolat Ram and Ors. v. State of Assam 5) (2003) 1 SCC 326 Mahant Chand Nath Yogi and Anr. v. State of Haryana 6) (2003) 1 SCC 335 Northern Indian Glass Industries v. Jaswant Singh and Ors. 7) (2003) 8 SCC 50 State of Gujrat v. Salimbhai Abdulgaffar Shaikh and Ors. 8) (2004) 2 SCC 362 Mehboob Dawood Shaikh v. State of Maharashtra 9) (2004) 3 SCC 388 Biman Chatterjee v. Sanchita Chatterjee and Anr. 23. v. State of Haryana 6) (2003) 1 SCC 335 Northern Indian Glass Industries v. Jaswant Singh and Ors. 7) (2003) 8 SCC 50 State of Gujrat v. Salimbhai Abdulgaffar Shaikh and Ors. 8) (2004) 2 SCC 362 Mehboob Dawood Shaikh v. State of Maharashtra 9) (2004) 3 SCC 388 Biman Chatterjee v. Sanchita Chatterjee and Anr. 23. The application under Section 439(2) stands allowed setting aside the order dated 13.07.04 passed in Misc. petition No. 04/04 in Dambuk P.S. No. 12/04 by the Deputy Commissioner, Lower Dibang Valley District, Roing, A.P. However, there shall be no order as to costs. Application allowed