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2009 DIGILAW 421 (GAU)

State of Nagaland v. Tito

2009-06-17

A.C.UPADHYAY

body2009
ORDER A.C. Upadhyay, J. 1. By this order I propose to dispose of the aforenoted two applications filed under Section 439(2) of Code of Criminal Procedure by the State of Nagaland, thorough the Chief Secretary, praying for cancellation of interim bail orders 30.04.09 and final bail order dated 03.06.2009 passed by the learned Addl. Sessions Judge, Zunheboto, Nagaland, releasing Mr. Tito Sumi, Samuel, Mughaho, Aloto and Thoro accused in connection with Zunheboto P.S. Case No. 8/09 corresponding to G.R. Case No. 10/09 registered under Sections 376/120B/107/34IPC. 2. Heard Mr. K.N. Balgopal, learned Advocate General, Nagaland on behalf of the State and Mr. K. Sema, learned Counsel for the Respondent/accused. 3. The facts leading to filing of this application may be narrated in brief as follows. 4. Upon a complaint filed by the Sumi Totimi Hoho (STH) on 14th April, 2009 alleging commission of rape of a minor aged girl by the accused above named on 11.04.2009 the Officer-in-charge of the Zunheboto, Police Station registered a case under Section 376 IPC. On 17.04.2009 the accused, were produced on arrest before the Court of learned Civil Judge, (Jr.)-cum-JMFC, Zunheboto, by the local Police, for regular remand. Accordingly, the accused were ordered to be remanded to jail custody till 1.05.2009. However, immediately, on 18.04.2009 a bail petition was submitted before the learned Civil Judge (Jr.)-cum-JMFC, Zunheboto praying for release of four accused persons namely, (1) Mugaho, (2) Samuel, (3) Thoro and (4) Aloto. The learned Magistrate was reported by an Assistant Jailor that a group of people including the Gaon Burah (GB.) and Town councillors submitted an order issued by the Addl. D.C. (Adm.) to release the accused persons, failing which they threatened to break open the jail and take out the arrested persons. Thereafter, the learned Court below recorded the following order in the order sheet. Heard both the parties. The pressure given by the Town councillors and GB.'s is strong besides the pressure given by the public is disorderly, likely to disturb public tranquility and peace. I consulted the Addl. District and Sessions Judge and the same information was imparted to the Sub Divisional Police Officer (SDPO) by phone. Heard both the parties. The pressure given by the Town councillors and GB.'s is strong besides the pressure given by the public is disorderly, likely to disturb public tranquility and peace. I consulted the Addl. District and Sessions Judge and the same information was imparted to the Sub Divisional Police Officer (SDPO) by phone. In consultation and in exercise of power under Section 10(3) Code of Criminal Procedure 1973 I had a strong reason to release the accused persons on conditional bail to diffuse the situation under the following conditions that the accused shall not tamper with the evidence of the prosecution and shall not leave the jurisdiction of the Court and shall appear before the I/O of the case on the Court as and when required and shall in default forfeit the Government of Nagaland a sum of Rs. 25,000/- (Twenty Five Thousand) each. The accused persons shall appear before the Addl. District and Sessions Judge on 30.04.2009 to regularize the bail. (Emphasis supplied) 5. On perusal of the above order of the learned JMFC, Zunheboto it clearly transpires that the bail order was obtained in a rape case registered under Section 376 I.P.C., not just and proper reasons. 6. On 24.04.2009, the learned Civil Judge (Jr. Divn.) Zunheboto reflected in his order that the Addl. D.C. (Admn.) wrote a letter to the Assistant Jailor to release the four accused persons namely, (1) Mugaho, (2) Tito, (3) Samuel, (4) Thoro and (5) Aloto. It is reflected by the Magistrate in his order as follows: The relative of the accd. Then took Assistant Jailor to Addl. Deputy Commissioner (Admn.) then met Addl. S.P., A.P.P. and at last approach Civil Judge to grant bail. The four persons were released on bail. Then the relatives of accd. Tito, compelled this Court to consider bail on the basis of other four accd. In the meantime, S.T.H. ZBTO organized relay on 20.04.09 at and women commission visited ZBTO on 22.4.09 and conducted enquiry and (sic). The bail petition in respect of Tito was fixed for hearing on 30.4.09. There is great pressure to release main accused Tito Kiba on bail from NSCN/GPRN Ato Kilonser and I am compelled to pre-pon the hearing today. Issue notice to A.P.P. to represent the prosecution and inform learned Advocate Akato for hearing bail application No. 56/09 dated 13.04.09 at 2 p.m. of 24.4.09. 7. On 24.04.2009, learned Addl. There is great pressure to release main accused Tito Kiba on bail from NSCN/GPRN Ato Kilonser and I am compelled to pre-pon the hearing today. Issue notice to A.P.P. to represent the prosecution and inform learned Advocate Akato for hearing bail application No. 56/09 dated 13.04.09 at 2 p.m. of 24.4.09. 7. On 24.04.2009, learned Addl. Sessions Judge, Zunheboto, Nagaland reflected in his order that there have been disturbance outside the Court and non stop demand from outside element to release the accused, on bail. The Court also reflected that the Court staffs were also put on heavy pressure giving panic and sleepless night. Order sheet of the learned JMFC, Zunheboto reflected the name of NSCN and GPRN among the pressure groups on behalf of the accused. 8. In view of the situation so created by the accused, learned Court below re-fixed the date of bail hearing on 24.04.2009 and notice was accordingly served to the Asstt. P.P. for appearance on that day. The order passed by the Addl. Sessions Judge, Zunheboto, on 24.4.2009 reflects as to how he has been influenced and pressurized by various groups of people including Addl. D.C. (Admn) on behalf of the accused, Tito. 24.4.2009 Bail application No. 56/09 in respect of accd. Tito was registered on 17.4.09 and fixed for hearing on 30.4.09. Accd. Tito was forwarded to judicial custody till 1.5.09. Four co-accd. persons were released on conditional bail on 18.4.09. It was reported that four accd. persons did not commit the offence of rape. There was countless disturbance to the Judicial Officers by the outside element forcing to release main accd Tito. The Deputy Commissioner organized a coordination meeting on 22.4.09 in his office Chamber at 9:00 a.m. In the meeting all the Administrative Officers, Police Administration and Judicial Officers were invited. In the said meeting the threat made to the Judicial Officers were also discussed and was advised to pre-pone of hearing the bail which is recorded in the minutes of the said meeting. There was nonstop demand from outside element to release the main accd. and Court Staffs were put on heavy pressure causing panic and sleepless night. Because of the abnormal situation that has been taken place the hearing date was fixed on 24.4.09 and notice was served to the Advocate and Asstt. P.P. for appearance. Shri Akato Yeptho Advocate appeared for the lone Petitioner. Mrs. Bendangienla Asstt. and Court Staffs were put on heavy pressure causing panic and sleepless night. Because of the abnormal situation that has been taken place the hearing date was fixed on 24.4.09 and notice was served to the Advocate and Asstt. P.P. for appearance. Shri Akato Yeptho Advocate appeared for the lone Petitioner. Mrs. Bendangienla Asstt. P.P. appeared on behalf of the prosecution. Heard both the Counsels in brief. The Learned Counsel pray to the Court that his client Tito be released on conditional bail in parity with four other accd. persons who were released on 18.4.09 on the advice of Deputy Commissioner and Addl. Deputy Commissioner (Admn.) A chit written by A.D.C. (Admn) is reproduced here below. To, The Asstt. Jailor, Zunheboto. As per the findings of the evidence, the following persons are innocent and deserved to be released. (1) Shri Thoro s/o Shitoli, (2) Shri Mughaho s/o Thiliho, (3) Aloto s/o Phuhoshe and (4) Samuel s/o Ghovito. However they may be produced in the Hon'ble Court as and when required and they may not be absconding anywhere. Release them accordingly on bail bond. H.S. Phukton Addl. Deputy Commissioner (Admn). The Learned Counsel pray to the Court to release his client on conditional bail like those four already released to defuse the situation and to maintain equality in the eye of law. The Learned A.P.P. submitted that the accd. is on 15 days judicial remand i.e. till 1.5.09. The accd. is being booked under non-bailable section. The gravity of offence committed by accd. Tito and the other co-accd. persons is different. Therefore the prayer of the Learned Counsel on behalf of the accd. to the Hon'ble Court for equal treatment is illogical and the accd. must not be released on bail. However owing to the sensitive situation the Court faced. I left to the discretion of the Hon'ble Court to apply its judicious mind and wisdom. I have heard both the Counsels. In the first place I do not believe that accd. persons have been guilty of an offence punishable with death or imprisonment for life. Secondly, there is no previous conviction record punishable with death or imprisonment for 7 (seven) years. Granting bail is a rule under the procedure and refusal is an acceptional depending on the gravity of the offence, local situations and apprehension of law and order problems. In the particular case 5 (five) accd. Secondly, there is no previous conviction record punishable with death or imprisonment for 7 (seven) years. Granting bail is a rule under the procedure and refusal is an acceptional depending on the gravity of the offence, local situations and apprehension of law and order problems. In the particular case 5 (five) accd. persons were arrested and forwarded to judicial custody under Section 376 IPC and release of the 4 (four) accd. persons on 18.4.09 as stated above has aggravated the situation beyond human tolerance. Reasons discussed above and on apprehension of the situation and the continuous threat made to the Court Officers. I find no alternative but to apply the same yardstick to the lone accd. who is in judicial custody to go on conditional bail on the same terms and conditions imposed to the four accd. persons that was granted on conditional bail on 18.4.09 by Civil Judge (Junior)-cum -J.M.S.C. invested with J.M.F.C. Power who exercise the power under Section 10(3) Code of Criminal Procedure 1973 on the following terms and conditions. The accd. shall not tamper with the evidence of the prosecution and shall not leave the jurisdiction of the Court and shall appear before the I/O of the case or the Court as and when required and shall in default forfeit the Govt. of Nagaland a sum of Rs. 25,000/- (twenty five thousand) each. 9. It is apparent from the aforesaid order that the learned Court of Addl. Sessions Judge, Zunheboto, was made to surrender his power as a judicial officer. It would not be proper for this Court to take a particular view on the administrative aspect of the matter without having made appropriate enquiry in the subject. However, the sequence of events narrated above, only leaves grim picture of the functioning of the Court due to pressure mounted on behalf of the accused through various groups. 10. On 3.6.09, learned Addl. Sessions Judge, Zunheboto, regularized the interim bail granted to all the accused in the case. 11. It may be pointed out that during the course of investigation the statement of the victim and the confessional statement of the accused have also been recorded. The Charge sheet has been filed against all the accused for commission of offence under Section 376/120B/107/34 IPC. 12. The learned Advocate General, Nagaland, Mr. 11. It may be pointed out that during the course of investigation the statement of the victim and the confessional statement of the accused have also been recorded. The Charge sheet has been filed against all the accused for commission of offence under Section 376/120B/107/34 IPC. 12. The learned Advocate General, Nagaland, Mr. Balgopal, expressing his deep sense of remorse, submitted that unfortunately when a minor girl was raped in her own village all authorities, administration and Police and local villagers came forward to scuttle the rule of law only to protect the accused of rape case. The learned AG, Nagaland has pointed out that all irrelevant materials were taken up for consideration by the learned Court for passing of bail order upon being pressurized by the accused. Learned Advocate General, Nagaland submitted that on most irrelevant considerations the bail order was granted by the learned Court upon a tremendous pressure and threat put by the accused. Learned AG, Nagaland, submitted that the bail order granted by the Addl. Sessions Judge, Zunheboto is liable to be cancelled not only because of irregularity in bail order but for the modus operandi adopted by the accused while securing bail from a judicial Court. As pointed out by learned Advocate General, all pervasive influence of the accused coupled with their potential to penetrate into the bastion of the administration of justice can not be ignored during trial and the witnesses would not be safe either. 13. Learned Advocate General submitted that the charge sheet has already been submitted against the accused alleging commission of rape of a minor girl, therefore cancellation of bail has become equally important to prevent the accused from indulging in influencing the trial in the same fashion. In support of his contention, learned AG, has cited a decision of the Apex Court, in Dolat Ram and Ors. v. State of Haryana (1995) 1 SCC 349 and submitted that rejection and cancellation of bail stand in a different footing and the cancellation of bail order has to be allowed only on the proof of very cogent and overwhelming circumstances necessitating such cancellation. However, over and above, the grounds spelt out in the Dolat Ram's case (supra) the Hon'ble Supreme Court in Puran v. Rambilas and Anr. (2001) 6 SCC 338 held that perverse order granting bail in heinous crime without giving reasons is liable to be cancelled. However, over and above, the grounds spelt out in the Dolat Ram's case (supra) the Hon'ble Supreme Court in Puran v. Rambilas and Anr. (2001) 6 SCC 338 held that perverse order granting bail in heinous crime without giving reasons is liable to be cancelled. Decision of the Hon'ble Supreme Court in this context may be quoted as follows : 10. Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram v. State of Haryana (1995) 1 SCC 349 . In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected. 14. In yet another decision of the Hon'ble Supreme Court reported in Dinesh M.N. (S.P.) v. State of Gujarat AIR 2008 SC 2318 , held that the Court can consider whether irrelevant material has been taken into consideration while considering the prayer for bail on behalf of the accused. 14. In yet another decision of the Hon'ble Supreme Court reported in Dinesh M.N. (S.P.) v. State of Gujarat AIR 2008 SC 2318 , held that the Court can consider whether irrelevant material has been taken into consideration while considering the prayer for bail on behalf of the accused. Observation of the Hon'ble Supreme Court reads as follows: 12. Even though the re-appreciation of the evidence as done by the Court granting bail is to be avoided, the Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail. 15. On careful scrutiny of the various orders on different dates passed by the learned Court below it clearly transpires that at every stage, irrelevant materials have been taken into consideration due to obvious reasons. In the present case also, the trial Court appears to have been influenced by the pressure that was exerted on it by the accused. 16. The learned A.G., Nagaland submitted that even the order dated 03.06.09 making the bail order of the accused absolute passed by the learned Court below is not free from influence and pressure for enlarging the accused person on bail. Obviously, such pressure has to be sponsored and triggered by and on behalf of the accused. 17. Learned AG, Nagaland submitted that in the facts and circumstances of the present case, if the bail of the accused is not cancelled a fair trial cannot be expected. He further pointed out that if appropriate steps are not taken to day, such episode may multiply in future, even may not be reported for fear of reprisal. 18. On the other hand, learned Counsel for the accused/Respondents submitted that the victim was a consenting party and she was major in age when the occurrence took place. 19. The topic as aforesaid broached by the learned Counsel for the Respondent accused during the argument would trigger a discussion on merit, which I shall desist from entering into. However, a plain reading of the statement of the victim recorded under Section 164 Code of Criminal Procedure, would bare the brutality and involvement of all the accused in the alleged offence. 20. However, a plain reading of the statement of the victim recorded under Section 164 Code of Criminal Procedure, would bare the brutality and involvement of all the accused in the alleged offence. 20. Learned Counsel for the accused/Respondent submitted that there is no allegation of violation of any of the conditions of bail imposed by the learned Court below, and the post bail conduct of the accused do not justify cancellation of his bail Learned Counsel for the accused pointed out that the victim is major in age as against the birth certificate of the victim issued by the Registrar of birth and death, produced by the prosecution, the accused produced another certificate of the local Church showing the date on which the victim was baptized. 21. Per contra, the record of the case and the order sheet of the Magistrates and Addl. Sessions Judges reflect the post bail conduct of the accused. Pressure was mounted upon the Courts on behalf of the accused through local pressure groups, for which the courts were compelled to grant adjournments and bail to the accused. The accused persons so easily obtained certificates of birth of the victim from a local Church. And all the above acts were committed by the accused when they were on interim bail. Therefore, as submitted by the learned Counsel for the accused, post bail conduct does not seem to be good at all. 22. However, now the charge sheet has been filed and thus trial will ensure to churn every such statement and evidence of the witnesses. But only question is whether accused with their tract record and antecedents would allow the trial to go on smoothly. 23. In support of his contention, learned Counsel for the accused/Respondent relied on the decisions of the Hon'ble Supreme Court; (1) Bhagirathsinh Judeja v. State of Gujarat AIR 1984 SC 372 and (2) Aslam Babalal Desai v. State of Maharashtra AIR 1993 SC 1 . In Bhagirathsinh Judeja's case (supra) their Lordships held that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail and the only material consideration in such situation are whether the accused would be readily available for trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. In Bhagirathsinh Judeja's case (supra) their Lordships held that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail and the only material consideration in such situation are whether the accused would be readily available for trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. In Aslam Babalal Desai's case their Lordships set out the grounds for cancellation of bail under Sections 437(5) and 439(2) of the Code of Criminal Procedure as follows: As stated in Raghubir Singh's case AIR 1987 SC 149 the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or 439(1) can be cancelled where (i) 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 scared by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. 24. Learned Counsel for the accused/Respondent also referred to the decision of the Hon'ble Supreme Court in Dolat Ram and Ors. v. State of Haryana (supra) wherein it is held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have been thoroughly analyzed. The Hon'ble Supreme Court differentiated rejection of bail in non-bailable cases at the initial stage and cancellation of bail already granted, as follows: 4. Rejection of bail in non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Rejection of bail in non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. 25. It may be pertinent to note here that the Hon'ble Supreme Court in Dinesh M.N. (S.P.) v. State of Gujarat (supra) held that the Court can consider whether irrelevant materials were taken into consideration at the time of granting bail by the Court, para 12 of which reads as follows: 12. Even though the re-appreciation of the evidence as done by the Court granting bail is to be avoided, the Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail. 26. Overwhelming circumstances reproduced above reveal that the accused succeed in their attempt to interfere with the due course of administration of justice. Accused virtually terrorized the Courts and obtained suitable orders in their favour, which cannot be legally valid bail orders. 27. Upon careful analysis of the entire episode and the materials on record vis-a-vis the situation which was confronted by the learned Court below while dealing with this case clearly spells out that they were thoroughly pressurized and cowed down to pass orders in favour of the accused persons. 27. Upon careful analysis of the entire episode and the materials on record vis-a-vis the situation which was confronted by the learned Court below while dealing with this case clearly spells out that they were thoroughly pressurized and cowed down to pass orders in favour of the accused persons. The accused above named, easily scuttled the law to obtain favourable bail orders, which leaves no room for doubt that the accused wield enough power and influence to obtain any order from the learned Courts with impunity. The interim and final bail orders as aforesaid granted by the respective learned Courts below cannot be said to be judicial orders, passed without fear or favour. 28. After having given thoughtful considerations, I am constrained to believe that with the track record and the clout maintained and exhibited on behalf of the accused, there is very strong apprehension that the accused, in all likelihood, like in the past would interfere with the administration of justice during trial of the case. Therefore, it would not be fair to allow the accused to remain on bail during trial. 29. Accordingly, I set aside and cancel the bail order dated 03.06.2009 passed by the learned Addl. Sessions Judge, Zunheboto, Nagaland in connection with the above noted case and direct all the accused to surrender before the trial Court for formal remand to judicial custody during trial. The bailor may be directed to produce the accused. 30. As the charge-sheet in the case has already been filed, learned Court below shall take all necessary steps in accordance with law and shall do the needful so that the trial in the case is completed as expeditiously as possible. In terms of the above order both the misc. applications are accordingly disposed of.