Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 597 (PAT)

Manzoor Alam v. State Of Bihar

2005-07-11

INDU PRABHA SINGH

body2005
Judgment 1. This application has been filed for quashing the order dated 5.5.2005 passed by 1st Additional Sessions Judge, Purnea, in ST. No. 743 of 2002 by which the learned Judge has cancelled the bail order granted to the petitioner on 18.12.2000 by the learned Sessions Judge, Purnea in B.P. No. 1635 of 2000 in connection with K. Hat P.S. Case No. 59/99 registered under sec- tion 302/34 of the Indian Penal Code (for short the Code) and 27 of the Arms Act against the petitioner and five others. 2. Brief facts leading to the case is that Late Gulam Mustafa father of Massom Hussain, the informant, was killed by one Jahangir on 16.2.99 near the rice mill Chowk, Purnea. Earlier on 25.1.1999 an attempt to kill the deceased was made by gun shot but he was escaped unhurt. A case of murder was registered as K. Hat P.S. Case No. 59/99 under sections 302, 120B of the Code and 27 of the Arms Act against the petitioner and other accused persons. The main accused Jahangir died. The other four accused Md. Sarfaraz, Md. Julfkar, Md. Sahua and Md. Mahbooba were granted bail by this High Court. However the petitioner Manzoor Alam was granted bail by the Sessions Judge on 18.12.2000. The Addl, Sessions Judge started Sessions trial against the accused persons of the offence under the aforesaid sections vide Tr. No. 743/02. The witnesses after issue of summonses did not appear on the following dates i.e. 23.3.2004, 21.4.2004, 25.5.2004, 10.6.2004, 18.6.2004 and 25.6.2004. On the next day i.e. 14.7.2004 A.P.P. filed an application for issue of summons to the witnesses. But on the next fixed dated i.e. on 14.8.2004 also witnesses did not appear and the A.P.P. prayed for issue of bailable warrant of arrest. On the next dated on 11.9.2004 no witness appeared. On 13.10.2004 the A.P.P. came out with the allegation that on 11.9.2004 when the witnesses, the informant and his brother and his uncle came near the court premises, they were surrounded by the accused persons and threatened to be killed if they tried to depose in the court. However, the case was adjourned to 22.11.2004. On 22.11.2004 the A.P.P. again prayed for issue of bailable warrant of arrest. However, the case was adjourned to 22.11.2004. On 22.11.2004 the A.P.P. again prayed for issue of bailable warrant of arrest. However, the petitioner filed a rejoinder to the effect that the witnesses used to be present out side the court premises on each and every date but they did not choose to file their Haziri. On the next day i.e. 29.11.2004 the trial court referred the allegation of threatening and also the rejoinder of the petitioner to the Chief Judicial Magistrate, Purnea for getting it enquired and report. The Chief Judicial Magistrate got it enquired by a Magistrate who after getting the witnesses examined came to the conclusion and sent report no. 27 dated 5.2.2005 holding that there was no truth in the allegation. However, with the impugned order the trial court rejected the bail of this petitioner only leaving the other accused persons on bail. 3. Learned counsel for the petitioner has submitted that during the enquiry before the Magistrate the witnesses deposed that they informed the A.P.P. on that day itself that they were returning home because of threat. This fact is falsified by the time petition filed by the A.P.P. It also get falsified by the fact that on that day the A.P.P. filed the petition for issue of warrant of arrest and did not inform the court about the threat. It is also submitted that the threatening was on 11.9.2004 and after a delay of one month petition for cancellation of bail was made on 13.4.2004 without explaining the cause of delay. It has been also mentioned that as per informant they chose to inform the Dy. S.P., Purnea about the threat and report by the Dy. S.P. was sent to the trial court on 18.10.2004 recommending cancellation of bail. It appears that the trial court had little reliance on that report and thus referred the matter for judicial enquiry. In that view of the matter he should have relied on the report of judicial enquiry. The report of the police is not to have been relied upon since neither Officer-in-charge of the Police Station nor Dy. S.P. ever enquired from the petitioner or other accused persons about the allegation. No other witness was ever examined and report was sent ex-parte which violates the principles of natural justice. The report of the police is not to have been relied upon since neither Officer-in-charge of the Police Station nor Dy. S.P. ever enquired from the petitioner or other accused persons about the allegation. No other witness was ever examined and report was sent ex-parte which violates the principles of natural justice. Thus the finding of trial court which based on police enquiry report is illegal, without any substance and fit to be quashed. 4. In granting bail the court has to exercise its discretion judiciously. However, while cancelling the bail the court has to examine the fact and circumstances of the case. It is well settled that grant of bail is something different than cancellation of bail. For cancellation of bail there are two main principles which have to be tested. The court has to see whether there was attempt to tamper with the evidence. Secondly there is attempt to delay the trial by non-cooperating with the process of the court. In a number of decisions these principles have been elaborated and certain grounds have been laid down by the apex court for cancelling the bail. In this connection reference may be made of the decision in the case of Aslam Babalal Desai vs. State of Maharashtra ( AIR 1993 SC 1 ) in which the apex court has given grounds for cancellation of bail which are: (i) where the accused misuses his liberty by indulging in similar criminal activity (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation (v) there is likelihood of his fleeing to another country (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency and (vii) attempts to place himself beyond the reach of his surety, etc. 5. In the present case the allegation against the petitioner was that he along-with other accused was threatening to the informant and his family members for not depositing in Sessions Trial No. 586 of 2000 arising out of K. Hat RS. Case No.59/99. It was alleged that they were threatened to be killed. To be specific, on 11.9.2004 the informant Md. In the present case the allegation against the petitioner was that he along-with other accused was threatening to the informant and his family members for not depositing in Sessions Trial No. 586 of 2000 arising out of K. Hat RS. Case No.59/99. It was alleged that they were threatened to be killed. To be specific, on 11.9.2004 the informant Md. Massom his brother Maroo and his uncle were coming to the court for deposing but before they reached near the court premises, they were surrounded by the accused persons and threatened to be killed if they went to depose. They have also stated that they gave information to the Officer-in-charge of the concerned police station and Dy. S.P., Purnea. The prosecution on 13.10.2004 filed a petition for cancellation of bail on which the trial court entrusted enquiry to the Chief Judicial Magistrate who got the matter enquired by a Magistrate and the Magistrate after holding enquiry found that alle-gption of threatening on 11.9.2004 was not found prima facie true. In the meantime a petition was also filed before this High Court vide Cr. Misc. No. 10504 of 2005 for cancellation of bail which was disposed of on 11.4.2005 with a direction to the court below to pass an appropriate order in accordance with law preferably within four weeks. The trial court thus heard the matter and relied on the report of the Officer-in-charge of the concerned Police Station and the Dy. S.P. regarding the allegation so made. The court below also cited a decision of Supreme Court reported in the case of Sant Ram vs. State of Haryana & Ors. 1994 SCC Criminal 1217 in which it was held that if on the enquiry by the police officer it was found that/allegation of threatening was true then the bail should be cancelled. The court below also opined that if there was enquiry report of police officer then there was no need of further enquiry. Relying on the allegation of threat and report of police supporting the threat the trial court by the impugned order was pleased to cancel the bail of the petitioner granted earlier and did not cancel the bail of other four co-accused. According to the petitioner the report sent by Dy.S.P. and Officer-in-charge was ex parte and the police officers never made enquiry from the accused. According to the petitioner the report sent by Dy.S.P. and Officer-in-charge was ex parte and the police officers never made enquiry from the accused. They were never asked by the police officer to give their version about the allegation so made. Thus it is against the principles of natural justice. 6, Such one sided report should not have been given due credential. The petitioner had attached the copy of order sheet to show that the witnesses were not coming to depose and on 14.7.2004 even service report of summons was not available on the record. On the next date i.e. on 14.8.2004 again they did not come to the court and for dispensing with their attendance a petition under section 317 Cr.P.C. was filed. On that day warrant of arrest was also issued against them. Again on the date of allegation i.e. 11.9.2004 a petition to dispense with their attendance under section 317, Cr.P.C. was filed. On hat day report of service of warrant was not available in the court. Thus, as submit-ted, actually witnesses were not very prompt n attending the court to depose in the case. The Addl. P.P. did not file petition about threatening on that day of occurrence though the informant during enquiry had stated that they had informed the Addl. P.P. about the occurrence and also informed that they were afraid by the threatening and were returning back. Instead, Addl. P.P. requested the court on that day to issue warrant of arrest which shows that the Addl. P.P. was not aware of the incident of alleged threatening. All the more it is interesting that why the court was informed about the threatening after a month. it is also pertinent to note that if the court had to reply on the report of police officer why it sent the allegation petition to the Chief Judicial Magistrate for getting it enquired. Admittedly, enquiry report by the Magistrate is on consideration of points aised by parties and hearing them. The trial court was not judicious in rejecting the finding of the Magistrate and also there was no justification for believing on the police report which was not given after proper enquiry. In view of above discussions the impugned order is lop sided and cannot be allowed to sustain. Accordingly it is quashed. In the result, this application is allowed.