Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 488 (GAU)

Bamang Anthony v. State of Arunachal Pradesh

2008-07-02

BROJENDRA PRASAD KATAKEY, J.CHELAMESWAR, RANJAN GOGOI

body2008
ORDER 1. Two public spirited citizens, who are the residents of State of Arunachal Pradesh, filed the Public Interest Litigation, registered as PIL No. 50/2004, alleging gross anomalies in public distribution system in the State of Arunachal Pradesh in the form of exaggerated allotments of food grains to the PDS contractors under several scheme like SGRY; Below Poverty Line (BPR); fictitious transportations of food items to different PDS Centres of the State; sale of such food items made for public distribution system in the black market; payment of fictitious claims for transportation and that too at inflated and unjustified rate. The public interest litigants in the said petition has prayed for issuance of a writ of mandamus directing investigation by the Central Bureau of Investigation (CBI) into the allegations made in the petition and to take all possible consequential actions as may be deemed fit and proper. 2. On the basis of the allegations made in the PIL, an FIR was lodged by the Superintendent of Police, Crime Branch, on the basis of which Crime Branch Police Station Case No. 8/2005 has been registered. During the course of hearing of the PIL, it is also revealed that several other cases, namely Crime Branch Police Station Case Nos. 3/2005, 6/2005 and 7/2005, were registered based on the allegation of anomalies relating to public distribution system. The Special Investigation Cell (SIC) constituted for the purpose of investigating the various Police Station Cases, from time to time submitted the status reports about the progress of investigation in different such cases. In course of such deliberation, a Division Bench of this Court vide order dated 30.8.2007, keeping in view the interest of justice, passed an order for consideration of the applications for pre-arrest bail filed under Section 438, Code of Criminal Procedure, arising out of Crime Branch P.S. Case Nos. 3/2005, 6/2005, 7/2005, 8/2005 and such cases, which have been registered in course of investigation of the alleged anomalies with regard to distribution of PDS items, by a Bench of this Court as may be nominated by the hon'ble Chief Justice. By the said order, it has further been directed that all pre-arrest bail applications that may be pending shall also stand transferred to the nominated Bench of this Court. By the said order, it has further been directed that all pre-arrest bail applications that may be pending shall also stand transferred to the nominated Bench of this Court. In so far as the post bail applications are concerned, the said Division Bench of this Court, keeping in view the constitutional right of an arrested person to seek and apply for bail, allowed the competent courts to entertain the applications for post arrest bail and to pass orders thereon and further directing the head of the SIC to place before this Court the details of such cases including the orders passed by the court by submitting status report from time to time to enable the nominated Bench of this Court to exercise the power under Section439(2), Code of Criminal Procedure, if deemed necessary. 3. The Superintendent of Police of SIC (Vigilance) in course of the hearing of the PIL filed an application dated 27.9.2007 praying for cancellation of the bail granted to the following 10 (ten) accused persons by the learned Deputy Commissioner-cum-Special Judge on various dates contending inter-alia that the release of the accused persons on bail has hampered the progress of investigation as their custodial interrogation is essential: 1. Hage Batt Former Director Supply and Transport, Arunachal Pradesh, Naharlagun presently posted as Deputy Commissioner, changlang. 2. Sri Likha Maj PDS Nominee-Cum-Carriage Contractor, Naharlagun. 3. Sri Likha Saya PDS Nominee-Cum-Carriage Contractor, Nirjuli. 4. Sri Takam Pario PDS Nominee-Cum-Carriage Contractor, Itanagar. 5. Sri Gyati Koyang S.O. Office of the Director Supply & Transport, A.P. Naharlagun. 6. Sri Bijay Gupta Carriage contractor, Desali C.P.O. centre. 7. Sri Firoj Modi Former ADST, Lilabari Presently posted as Assistant Director Food and supply, Naharlagun. 8. Sri Midayang Pertin Former C.O. Desali Presently posted as S.D.O. Hunli. 9. Sri Cheechung Former C.O. Pakke Kesang presently posted as C.O. Toru, papumpare District. 10. Sri C.N. Bailung Former ADST, Mohanbari. 4. This Court vide order dated 28,9.2007 has directed issuance of notice to all the aforesaid 10 (ten) accused persons to show cause as to why the bail orders passed by the learned trial court should not be cancelled and further directing the Chief Secretary to the State of Arunachal Pradesh to ensure service of such notices on the said 10 (ten) accused persons forthwith. Accordingly, the notices were served on all the aforesaid 10 (ten) accused persons, who except Sri Bijay Gupta and Sri Cheechung Chukhu filed their objections to the prayer for cancellation of the bail granted by the learned trial court. This Court on 10.1.2008 heard the learned Counsel for the aforesaid 10 (ten) accused persons, except accused Hage Batt, on the plea for cancellation of bail granted by the learned trial court. By the said order, the head of the SIC was also directed to apprise this Court as to whether the learned trial court has granted the interim bail or the bail matter has been disposed of finally, as during the course of hearing this Court has noticed that by initial orders passed by the learned trial court interim bail was granted. The Superintendent of Police, SIC (Vigilance) thereafter, intimated this Court that regular bail has been granted by the learned trial court to Sri Hage Batt, and Sri Gyat. Koyang on 24.8.2007 and 6.8.2007, though they were arrested on 24.8.2007 and 3.8.2007, respectively. 5. The documents made available reveal that the following accused persons in GR Case No. 92/2005 registered under Section 120(B)/420/468/409, IPC read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 were granted interim bail upon surrender before the learned trial court, which includes the aforementioned 10 (ten) accused persons, except Sri Hage Batt and Sri Gyati Koyang, to whom the notices to show cause as to why the bail orders shall not be cancelled were issued: Sl. No. Name & Address of Arrestee Date of Arrest Date of Release on Bail 1. Shri Feroj modi, S/o Shri P. Modi, (Former ADST, Lilabari) ADST, Directorate of Civil Supplies, Nahsrlagun. 13.9.2006 13.9.2006 2. Shri tapik Pertin, S/o kalam Pertin, (Former CO/EAC Upper Siang) SDO, Chayangtajo, East Kameng District. 13.9.2006 13.9.2006 3. Shri Cheechung Chukhu, S/O Lt. Chuky Nitin (Former CO/Pakkekessang) Co. Toru, Papum Pare District. 13.9.2006 13.9.2006 4. Shri C.N. Bailung, S/o Lt. L.N. Bailung, Former ADST, Mohanbari. 4.10.2006 4.10.2006 5. Shri Midiang Pertin, S/o Lt. K. Pertin, I/C SDO, Hunli, Lower Dibang Valley 13.10.2006 30.10.2006 6. Shri Mridul Deka, S/o Shri Gunaram Deka, Former Gate Keeper at DDST, Moanbari 31.7.2007 31.7.2007 7. Shri Subrata Bhattacharjee, S/o Lt. Dhakinaranjan Bhattacharjee, store Keeper, DDST, Mohanbari. 31.7.2007 31.7.2007 8. Shri Bijay Gupta, S/o Shri Shrinath Gupta, PDS Nominee-Cum-Carriage Contractor, M/s. A.K. Traders, Naharlagun. 31.7.2007 31.7.2007 9. K. Pertin, I/C SDO, Hunli, Lower Dibang Valley 13.10.2006 30.10.2006 6. Shri Mridul Deka, S/o Shri Gunaram Deka, Former Gate Keeper at DDST, Moanbari 31.7.2007 31.7.2007 7. Shri Subrata Bhattacharjee, S/o Lt. Dhakinaranjan Bhattacharjee, store Keeper, DDST, Mohanbari. 31.7.2007 31.7.2007 8. Shri Bijay Gupta, S/o Shri Shrinath Gupta, PDS Nominee-Cum-Carriage Contractor, M/s. A.K. Traders, Naharlagun. 31.7.2007 31.7.2007 9. Shri Pranay Kr. Nath, S/o Prabesh Ch. Nath, Former Store Keeper of Desali CPO Centre, Presently Posted at the O/o Dy. Commissioner, Lower Dibang Valley. 8.8.2007 9.8.2007 10. Shri Nikh Kamin, S/o Lt. Nikh Khopi, Presently MLA of Yachuli Assembly Constituency 17.8.2007 17.8.2007 11. Shri Kikha Maj, Wholesale Nominee-Cum-Carriage Contractor, M/s. Sahil Enterprise, Nriharlagun. 27.8.2007 27.8.2007 12. Shri Takam Pario, Prop, of M/s. Renia Enterprises & M/s. K.K. Lamps Palin, Kurung Kumey District. 27.8.2007 27.8.2007 13. Shri Likah Saaya, PDS Wholesale Nominee-Cum-Carriage, Contractor, Prop. Of M/s/. N.L. Yameen Enteprise, Bage Tinali, Nirjuli. 31.8.2007 31.8.2007 6. The various bail orders passed by the learned trial court granting interim bail to the aforesaid 8 (eight) accused persons to whom the notices for cancellation of the bail orders were issued, apart from other accused persons mentioned above, reveal that interim bail was granted to them purportedly in exercise of the power conferred by Section 439, Code of Criminal Procedure, on the date when they surrendered before the court, and without giving any effective opportunity of hearing to the learned Public Prosecutor. Such interim orders of bail passed by the learned trial court is yet to be confirmed, meaning thereby those persons are on interim bail till date except Sri Hage Batt and Sri Gyati Koyang, who are granted regular bail. 7. Regulation 32 of the Assam Frontier (Administration of Justice) Regulation, 1945, which applies in the State of Arunachal Pradesh, provides that the High Court, Deputy Commissioner, the Assistant Commissioner shall be. guided, in regard to the procedure, by the principles of the Code of Criminal Procedure, so far as they are applicable to the circumstances of the district and consistent with the provisions of the Regulation, with certain exceptions. There is no provision in the said Regulation relating to the granting of bail to an accused person. Therefore, in the matter of granting of bail, the trial court is required to be guided by the principles of the Code of Criminal Procedure. There is no provision in the said Regulation relating to the granting of bail to an accused person. Therefore, in the matter of granting of bail, the trial court is required to be guided by the principles of the Code of Criminal Procedure. The principles of Section 439, Code of Criminal Procedure, while granting the bail to an accused person, has to be followed and the provisions contained in Chapter-XXXIII Code of Criminal Procedure, relating to the grant of bail cannot completely be given a go by. 8. Section 437, Code of Criminal Procedure empowers the court to release an accused person on bail, in case of non-bailable offence, on the circumstances enumerated therein. The fourth proviso to Sub-section (1) of Section 437, Code of Criminal Procedure, which has been inserted by Act 25 of 2005 and came into effect from 23.6.2006, requires the court to give an opportunity of hearing to the Public Prosecutor before passing any order granting bail under Sub-section 1 if the offence alleged to have been committed by the accused person is punishable with death, imprisonment for life or for seven years or more. Proviso to Sub-section (1) of Section 439, Code of Criminal Procedure empowers the High Court or the Court of Sessions to grant bail to person accused of an offence, which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, only after giving notice of the application for bail to the Public Prosecutor. The High Court or the Court of Sessions, however, for the reasons to be recorded in writing and if of the opinion that it is not practicable to give such notice, grant the privilege of bail to an accused person even in such cases, without giving notice to the Public Prosecutor. 9. In the instant case, it appears from the materials available on record that the aforesaid accused persons were released on interim bail on the date when they surrendered before the court, even without giving any opportunity to the Public Prosecutor. No reason has also been recorded why it is not practicable to give notice to the Public Prosecutor. The learned trial court for recording its satisfaction, in such cases, has to give an opportunity to the Public Prosecutor to place all the relevant available materials, before it. No reason has also been recorded why it is not practicable to give notice to the Public Prosecutor. The learned trial court for recording its satisfaction, in such cases, has to give an opportunity to the Public Prosecutor to place all the relevant available materials, before it. One of the offences alleged against the accused persons being under Section 409, IPC, which is punishable with imprisonment for life and the other offences under Sections 420/468, IPC being punishable with imprisonment for seven years and there also being allegation of criminal conspiracy under Section 120(B), IPC apart from the allegation of commission of offences under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and such offences being punishable with imprisonment for seven years; the learned trial court cannot pass even an order granting interim bail, without furnishing a copy of the bail application to the Public Prosecutor or recording reason why it is not practicable to give notice to the Public Prosecutor. The whole object of such opportunity of hearing to be given to the Public Prosecutor is to afford an opportunity to produce the relevant materials before the court so as to enable the court to exercise its discretion of granting or refusing the bail, by recording satisfaction and by giving reasons thereof. As noticed above, the interim bail orders were passed without giving any opportunity to the Public Prosecutor or recording any reason for not giving notice, therefore, those orders are contrary to the provisions of Code of Criminal Procedure, even when its spirit is applicable. 10. In view of the aforesaid discussion as well as keeping in view the fact that the accused persons are on interim bail for a period ranging from 1 year to 11/2 year, instead of setting aside the. interim bail orders passed by the learned trial court, we direct the learned trial court to serve copies of the bail applications filed by each of the accused persons, who have been granted interim bail, to the Public Prosecutor and to provide opportunity to the Public Prosecutor to place the materials before it and thereafter, to decide the bail applications finally on the basis of the materials so placed and in accordance with law. The learned court below is further directed to dispose of the bail applications within a period of one month from today after issuing notice to them. The learned court below is further directed to dispose of the bail applications within a period of one month from today after issuing notice to them. This order shall also be applicable to all the accused persons, who were granted the interim bail by the learned trial court in connection with G.R. Case No. 92/2005, including the aforesaid 8 (eight) accused persons to whom the notices for cancellation of the bail orders were issued by this Court. Since the accused Sri Hage Batt and Sri Gyati Koyang have been granted regular bail, their cases for cancellation of the bail shall be considered separately.