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2008 DIGILAW 545 (GAU)

Abul Hussain v. State of Assam

2008-07-30

ANIMA HAZARIKA

body2008
JUDGMENT Anima Hazarika, J. 1. This application under Section 439(2) read with Section 401 of the Code of Criminal Procedure, 1973 for cancellation of bail granted to the accused/opposite party Nos. 2 to 5 in connection with Lakhipur Police Station Case No. 119/07 under Section147 / 148 / 149 / 302 of the IPC has been preferred by the Petitioner contending that the Sub-Divisional Judicial Magistrate (s), Goalpara has no jurisdiction to absolute the interim bail dated 22.12.2007 granted by the learned Sessions Judge, Goalpara in favour of the accused persons/opposite party Nos. 2 to 5 in Misc. Crl. Case No. 718/07. The other grounds urged by the learned Counsel for the Petitioner are that: (i) All the accused persons are the named-accused in FIR. (ii) During investigation sufficient incriminating materials were found against the opposite party Nos. 2 to 5. (iii) Accused persons threatened the Petitioner after being enlarged by the privilege of pre-arrest bail. 2. The facts in brief culminating into tiling of this present petition are narrated below; 3. On 29.8.2007 an FIR has been lodged by the Petitioner before the In-charge, Jaleswar Police Outpost stating inter alia, that on 29.8.2007 at about 8.00 a.m. the accused persons planned to kill his younger brother in a meeting held in the residence of accused Intaz Ali Master (accused No. 7 in the FIR). In the evening on the same day at about 5.00 p.m. his younger brother Ibrahim Ali was doing tuition of some boys in a LP School near their residence and at that time the accused No. 1 in the FIR, i.e., Jahangir Alom secretly entered into the school and sent the boys from there by threatening them. Thereafter accused No. 1 gave dagger blows to his brother and his brother somehow came out from the school. But the accused No. 2, i.e., Amjad Ali assaulted him with a lathi and the accused Jahangir Alom gave several blows by dagger and Ibrahim Ali died instantaneously. 4. On receipt of the aforesaid FIR the in-charge, Jaleswar Police Outpost forwarded the same to the Officer-in-Charge, Lakhpur Police Station to register a case and accordingly Lakhipur P.S. Case No. 119/2007 under Sections 147 / 148 / 149 / 302 of IPC was registered. 5. The opposite party Nos. 2 to 5 filed a bail application before the learned Sessions Judge, Goalpara being Misc. Crl. 5. The opposite party Nos. 2 to 5 filed a bail application before the learned Sessions Judge, Goalpara being Misc. Crl. Case No. 718/2007 praying for granting pre-arrest bail in connection with aforesaid P.S. Case No. 119/2007. The said bail application was registered and numbered as Misc. Case No. 718/2007. The learned Sessions Judge, Goalpara vide its order dated 17.10.2007 called for the case diary fixing 30.11.2007 for production of the same. In the interim granted bail to the accused Petitioner till next date fixed. 6. After getting the pre-arrest bail, the accused persons/opposite party Nos. 2 to 5 tried to influence the witnesses and also threatened the Petitioner and his family members. Thereafter on 30.10.2007 the Petitioner filed a petition before the learned Sessions Judge, Goalpara praying for rejecting the pre-arrest bail granted to the opposite party Nos. 2 to 5. However, on 22.11.2007 the learned Sessions Judge, Goalpara after hearing the learned Counsel for the Petitioner and the learned P.P. appearing for the state as well as upon perusal of the materials available in the case diary, but without considering the objection petition passed the following order: Accused Petitioners Intaz Ali, Monowara Khatun, Jakir Hussain and Mohammad Ali who are on interim bail in connection with Lakhipur P.S. Case No. 119/2007 under Section 147 / 148 / 149 / 302 IPC are present. Heard the learned Counsel for the accused Petitioners and the learned P.P. appearing of the state. Called for CD is received. Perused the called for CD and it appears that there is no material of direct participation of the accused persons in committing the offence under Section 147 / 148 / 149 / 302 IPC. Hence their prayer for anticipatory bail is allowed. In the even of their arrest, the arresting authority shall release them on bail of Rs. 10,000 (Rupees ten thousand) only each with a local surety of like amount to the satisfaction of the arresting authority on condition that they shall not hamper in the investigation nor tamper with the evidence in any manner and they are to co-operate with the investigating police officer as and when required. This anticipatory bail shall remain in force for twenty days from today and the accused-Petitioners are directed to appear before the concerned Elaka Magistrate within twenty days from today and to obtain regular bail. Send back the CD. The Misc. This anticipatory bail shall remain in force for twenty days from today and the accused-Petitioners are directed to appear before the concerned Elaka Magistrate within twenty days from today and to obtain regular bail. Send back the CD. The Misc. Case is disposed of accordingly. 7. On 14.12.2007 the accused/opposite party Nos. 2 to 5 appeared before the learned Sub-Divisional Judicial Magistrate(s), Goalpara and filed (sic) petition praying for "regularizing" the interim bail. The Petitioner also filed an objection Petitioner against granting of bail to the opposite party Nos. 2 to 5. The learned Sub-Divisional Judicial Magistrate(s), Goalpara by rejecting the objection petition filed by the Petitioners passed an order on 14.12.2007 making the interim order dated 26.11.2007 absolute until further. 8. Aggrieved by the aforesaid orders dated 22.11.20007 and 14.12.2007 the Petitioner has filed the instant petition seeking cancellation of bail. 9. Heard Mr. T.J. Mahanta, learned Counsel for the Petitioner. Also heard Mr. J. Ahmed, learned Counsel appearing for the opposite party Nos. 2 to 5 and Mr. B.S. Sinha, learned A.P.P., Assam for opposite party No. 1. 10. This Court vide order dated 4.6.2008 directed the learned A.P.P. to produce the relevant case diary. Accordingly learned A.P.P. has produced the case diary before this Court. I have perused the same. Perusal of the case diary reveals sufficient incriminating materials against the accused/opposite party Nos. 2 to 5. 11. From a reading of the impugned orders it is found that both the orders were passed after perusal of the case diary wherein and whereunder there are sufficient materials available against the accused persons. Therefore, reasons given by the learned Sessions Judge as well as learned SDJM(S), Goalpara in the impugned order for grant of bail are contrary to case diary and, therefore, not tenable. The other reasons given by the SDJM, Goalpara in the order dated 14.12.2007 to the effect that - "It revealed that no investigation was made after 28 9.2007 by the I.O. hon'ble Sessions Judge granted the permanent bail 22.11.2007. Hence, there is no new material to take a second view then of hon'ble Sessions Judge on the materials collected so far by the Investigating Officer. Hence, there is no new material to take a second view then of hon'ble Sessions Judge on the materials collected so far by the Investigating Officer. No adverse report is received against the accused on interim bail", also can not be accepted and not tenable in view of the materials available in the case diary as well as on the face of the objection petition filed seeking cancellation of bail. 12. Mr. J. Ahmed learned Counsel appearing for the opposite party Nos. 2 to 5 has submitted that this Court should not ordinarily interfere in the matters relating to the bail, moreso, when the opposite party Nos. 2 to 5 in the instant case have not misused the liberty granted to thems. 13. There is no doubt that ordinarily court does not interfere in the matter of granting bail but the same is subject to certain exception. When the basic requirement necessary for grant of bail tire completely ignored by the courts below, this Court would be justified in canceling the bail. In the present case perusal of the case diary reveals that in the statements made under Section 161 as well as 164, Code of Criminal Procedure several witnesses unequivocally have stated the involvement of the opposite party Nos. 2 to 5 in the commission of the crime. Therefore, prima facie a case for grant of bail was not made out. 14. Mr. T.J. Mahanta, learned Counsel appearing for the Petitioner has strongly relied on a decision in Gobarbhai Naranbhai Singala v. State of Gujarat and Ors., 2008 Cri. LJ 1618 wherein at para 25 the Apex Court referring to Amarmony Tripathi's case, (2005) 8 SCC 21 has held as thus: 25. This Court in Amarmony Tripathi's case (supra) has held that while considering the application for bail, what is required to be looked is, (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tempered with and (viii) danger, of course, of justice being thwarted by grant of bail. In Gobarbhan (supra) the Apex Court at para 26 further held as thus: 26. In Panchanan Mishra v. Digambar, (2005) 3 SCC 143 , this Court while considering the question of cancellation of bail, observed: The object underlying the cancellation of bail is to protect that fair trial anti-secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime.... It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situated. 15. In the present case in hand this Court is of the view that the learned trial courts below have completely ignored the principles to be followed while granting bail in a heinous crime of commission of murder in which the sentence, if convicted, is death or life imprisonment. 16. Another factor is to be considered in the present case is as to whether the learned SDJM is empowered under the law to make the interim bail dated 26.11.2007 passed by the learned Sessions Judge, Goalpara as absolute in the case of privilege of pre-arrest bail under Section 438, Code of Criminal Procedure. The power under Section 438, Code of Criminal Procedure has been illegally exercised by the learned SDJM(S), Goalpara, though the order of the learned Sessions Judge, Goalpara speaks otherwise and, therefore, orders granting the privilege of pre-arrest bail initially by the learned Sessions Judge, Goalpara and making the interim bail absolute by the learned SDJM(S), Goalpara cannot be sustained in the facts and circumstances of the case. 17. Considering the matter in its entirety and upon perusal of the materials available on records, this Court is of the view that it was not a fit case to grant bail to the opposite party Nos. 2 to 5. The impugned order dated 22.11.2007 and 14.12.2007 passed by the Sessions Judge, Goalpara and learned SDJM(S), Goalpara granting bail to the opposite party Nos. 2 to 5 are hereby set aside. The opposite party Nos. 2 to 5. The impugned order dated 22.11.2007 and 14.12.2007 passed by the Sessions Judge, Goalpara and learned SDJM(S), Goalpara granting bail to the opposite party Nos. 2 to 5 are hereby set aside. The opposite party Nos. 2 to 5 are directed to surrender before the Chief Judicial Magistrate, Goalpara on or before 22.8.2008. In case, the opposite party Nos. 2 to 5 do not surrender within the period as aforesaid, steps be taken in accordance with law to apprehend them. 18. With the above direction this Crl. Misc. Case stands disposed of.