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2009 DIGILAW 170 (GAU)

State of Manipur v. Chanambam Binoy Singh

2009-03-09

MAIBAM B.K.SINGH

body2009
JUDGMENT Maibam B.K. Singh, J. 1. This revision application has been filed challenging the legality and propriety of the order passed by the learned Judicial Magistrate First Class, Imphal on 16.10.2008 releasing the present respondent, hereinafter referred as the accused, on bail in connection with FIR Case No. 109 (10) 2008 City Police Station, wherein the accused was alleged to have committed offences under Section 366A and 376 IPC. 2. Heard Md. Jalal Uddin, learned Addl. Government Advocate appearing on behalf of the applicant and Mr. I. Lalitkumar, learned senior counsel appearing on behalf of the respondent-accused. 3. As per records, the above said FIR Case was registered on 07.10.2008 on the basis of a report lodged by one Thounaojam Rabishankar on the same day at about 7.10 p.m. alleging to the effect that his niece aged about 12 (twelve) years had been subjected to physical molestation and sexual intercourse at a remote location by the accused on the same day after coercing the girl out of her father's quarter on the pretext of taking her for watching Puja Festival. In the report, further allegations were that when the girl returned to her father's quarter, after having been found missing for about an hour or so, she was found acting in an abnormal manner with blood stains on her person and that on inquiry made by her mother, she disclosed about the acts of the accused. 4. On 11.10.2008, the accused was produced before the concerned Duty Magistrate and he was remanded to police custody till 1.00 p.m. of 16.10.2008. Then, on 16.10.2008, the concerned I.O. of the case produced the accused before the Learned Judicial Magistrate First Class, Imphal with a prayer for remanding him to judicial custody for 15 (fifteen) days for the purpose of making proper and effective investigation of the case. In the remand prayer, the I.O. stated about examination of good number of witnesses as well as the victim girl. It was also clearly stated, apart the facts of causing medical examination of the accused and taking of various samples for sending to expert for opinion in connection with the alleged offence, about the statement of the victim girl having been recorded by the concerned link Magistrate under Section 164 of the Cr PC. It was also clearly stated, apart the facts of causing medical examination of the accused and taking of various samples for sending to expert for opinion in connection with the alleged offence, about the statement of the victim girl having been recorded by the concerned link Magistrate under Section 164 of the Cr PC. At the said time of production of the accused, the report of the I.O. to the learned Judicial Magistrate First Class, Imphal was to the effect that the accused had committed the alleged offence. 5. On the very day of production of the accused before the Learned Judicial Magistrate for judicial remand, the accused filed an application for allowing him to go on bail by rejecting the prayer for judicial remand. In the said application, the accused stated, inter-alia, that he was having love affairs with victim girl as evident from various love messages having been sent to him by her through mobiles that after having been eloped on 28.03.2008, they had been separated and that since he was suffering from illness in the nature of "Prolaps of the Inter verteeral Disc 13-14 right side" and he was in need of rest for one month as per medical advice given to him. 6. On the same day i.e. on 16.10.2008, after hearing the learned counsel of the accused and the learned APP for the State, Learned Judicial Magistrate First Class, Imphal passed the impugned order for releasing the accused on bail on his furnishing a PR bond of Rs. 40,000/- with a surety of the like amount. In the impugned order, the Learned Judicial Magistrate First Class, Imphal recorded the submission of the learned counsel of the accused and took into consideration of the medical report submitted in respect of the victim girl along with the submission of the Learned APP about the absence of any indication of rape having been committed and also one particular message said to have been sent by the girl to the accused. The learned Judicial Magistrate First Class, Imphal held to the effect that there was doubt of the alleged rape having actually been committed and that in view of report of illness of the accused, he was entitled to bail under proviso Section 437 (1) of the Cr PC. 7. In Chaman Lal vs. State of U.P. & another, 2004(7) SCC, the Hon'ble Apex Court held at para Nos. 7. In Chaman Lal vs. State of U.P. & another, 2004(7) SCC, the Hon'ble Apex Court held at para Nos. 9 and 10. 9. There is a need to indicate in the order reason for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed serious offence. It is necessary for the Courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are: (1) The nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence. (2) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (3) Prima facie satisfaction of the Court in support of the charge. 10. Any order dehors of such reasons suffers from non-application of mind as was noted by this Court in Ram Govind Upadhyay vs. Sudarshah Singh, 2002(3) SCC 598 , Puran vs. Rambilas, 2001(6) SCC 338 and in Kalyan Chandra Sarkar vs. Rajesh Ranjan 2004 (7) SCC 528 . 8. It is well settled that a Court dealing with an application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. Though detailed examination of the materials and elaborate documentation of the merit of the case are to be avoided by the Court while passing orders on bail applications, yet a Court dealing with an application for bail should be satisfied as to whether there is prima facie case. It is also well settled that the Court before granting bail in cases involving non-bailable offences, particularly where the trial has not yet commenced should take into consideration various matters such as, the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, larger interests of the public or the State and similar other considerations. 9. On perusal of the impugned order, I find that there is a complete non-application of mind on the part of the Learned Judicial Magistrate First Class, Imphal in respect of relevant factors required to considered before granting the bail. 9. On perusal of the impugned order, I find that there is a complete non-application of mind on the part of the Learned Judicial Magistrate First Class, Imphal in respect of relevant factors required to considered before granting the bail. Both the alleged offences are non-bailable and in respect of the offence under Section 376 of IPC, the maximum punishment provided by law is life imprisonment. Before the day on which the bail application was heard, the statement of the victim girl had been recorded by the concerned link Magistrate under Section164 of the Cr PC. As per record, the victim girl gave her statement supporting the prosecution case. Apart from non-consideration of the effect of the statements of other PWs. the said recorded statement of the victim girl was never taken into account by the learned Judicial Magistrate as a supporting material of the prosecution case before arriving to a satisfaction as to whether there was a prima facie case or not. The opinion of the Learned Judicial Magistrate First Class, Imphal regarding having doubt about the alleged offence of rape formed merely on the report of the Medical Officer without taking into consideration of other relevant materials including the statement of the victim girl recorded under Section 164 of the Cr PC and also the statement of the mother to whom the girl narrated about the occurrence on the same day of it within a few hours is not acceptable in law. The medical report ought to have been considered along with the statements of the victim girl and her mother. In the above circumstances, the said opinion of the Learned Judicial Magistrate is perverse. It was one formed without due application of mind on the part of the Learned Judicial Magistrate. It also appears that the Learned Judicial Magistrate produced on the unfounded assumption of having consent on the part of the victim at the relevant time at the time of consideration of the bail application of the person accused of having committed the heinous crime of rape on a minor girl. By the very nature of the offence it is an obnoxious act of the highest order. Keeping in view the serious nature of the offence, the Learned Judicial Magistrate First Class, Imphal ought to have considered the bail application with due care and attention by taking all the relevant factors into consideration. 10. By the very nature of the offence it is an obnoxious act of the highest order. Keeping in view the serious nature of the offence, the Learned Judicial Magistrate First Class, Imphal ought to have considered the bail application with due care and attention by taking all the relevant factors into consideration. 10. In the light of the above considerations, I am of the considered opinion that the impugned order having been passed without due consideration of the relevant factors is not sustainable in the eye of law. Mr. I. Lalitkumar, learned senior counsel of the accused submits that the impugned bail order passed by the Learned Judicial Magistrate is an interlocutory order, and as such, the revision application is not maintainable in view of the provisions of Section 397 of the Cr PC. The learned counsel of the accused cites Amar Nath vs. State of Haryana, 1997(4) SCC 137 in support of his submission. This proposition of law will not however bar this Court from exercising its power under Section 439(2) of the Cr PC for cancellation of the impugned bail order which is found to have been passed without consideration of all the relevant factors as well as ignoring the relevant materials in support of the prosecution case. The arbitrary and wrong exercise of discretion by the Learned Judicial Magistrate First Class, Imphal has to be corrected. Since the impugned bail order is found to have been vitiated by serious infirmity for which it will be right and proper for this Court, in the interest of justice, to interfere. The present application can be treated as an application under Section 439(2) of the Cr PC. It is well settled that the power of the High Court under Section 439(2) of the Cr PC can be exercised even on suo motu by the High Court if it feels that there are sufficient reasons for doing so. In this connection, one may also refer to the decision of the Apex Court in Puran vs. Rambilas 2001(6) SCC 338 . In the said case the Apex Court, apart from holding to the above said effect, held at para No. 17: 17. Further, even if it is an interlocutory order, the High Court's inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. In the said case the Apex Court, apart from holding to the above said effect, held at para No. 17: 17. Further, even if it is an interlocutory order, the High Court's inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482on the basis of the self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or unjustified Modh Limaye vs. State of Maharashtra, 1997(4) SCC 551 and Krishnan vs. Krishnanaveni, 1997(4) SCC 241 . 11. Having regards to the above well settled principles of law, in my opinion, there is no any legal impediment or bar in interfering with the impugned bail order which has been found palpably illegal and unjustified inasmuch as the same having been passed without due application of mind in respect of all the relevant factors and also ignoring the relevant materials on the side of the prosecution. The submission made by the learned counsel of the petitioner for not interfering with the impugned order is rejected. Apart from right and liberty of the accused, the interest of the victim, her relative and also the larger interest of the public or the State are also to be kept in mind at the time of consideration of the bail application by the Learned Magistrate. 12. In the result, the impugned bails order dated 16.10.2008 is hereby set aside and cancelled. The accused namely, Chanambam Binoy Singh is to surrender before the Learned Judicial Magistrate First Class, Imphal within a period of 7 (seven) days from today. On his failure to surrender before the Learned Judicial Magistrate First Class, Imphal within the said period, the Learned Judicial Magistrate shall take all the necessary steps for causing arrest and keeping of him in custody. The Learned Judicial Magistrate First Class, Imphal is directed to consider the bail application afresh. Both the parties may be given opportunity to bring subsequent development in respect of the investigation of the case to the notice of the Learned Judicial Magistrate First Class, Imphal. 13. With this direction and order, this case stands disposed of. The Learned Judicial Magistrate First Class, Imphal is directed to consider the bail application afresh. Both the parties may be given opportunity to bring subsequent development in respect of the investigation of the case to the notice of the Learned Judicial Magistrate First Class, Imphal. 13. With this direction and order, this case stands disposed of. Send the records of the Court of the Learned Judicial Magistrate First Class, Imphal back to the concerned Court with a copy of this order for information and necessary action and another copy of this order be furnished to the learned counsel of the respondent-accused for information.