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2009 DIGILAW 572 (GAU)

Minakshi Das v. Md. Nur Azam Ali

2009-08-14

T.NANDAKUMAR SINGH

body2009
ORDER T. Nandakumar Singh, J. 1. By this Criminal Misc. Application under Section 439(2) of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) (for short 'Cr. P.C.'), the petitioner (mother of the victim girl) is asking for a direction for cancellation of the pre-arrest bail granted by the learned Sessions Judge, Goalpara vide order dated 2-1-2009 for a indefinite period in Miscellaneous Case No. 939/2008 under Section 438of the Cr. P.C. to the respondent No. 1-accused, Md. Nur Azam Ali alias Md. Nur Alam, in connection with Goalpara P. S. Case No. 353/2008 under Section 366A of I.P.C. 2. Heard Mr. K. Sarma, learned Counsel appearing for the petitioner as well as Mr. B. S. Sinha, learned Public Prosecutor appearing for the respondent No. 1 and Mr. T. Deori, learned Counsel appearing for the respondent No. 1-accused. 3. Background facts, sans unnecessary details, are noted hereunder: The petitioner, Smt. Minakshi Das lodged an Ejahar on 6-1-2008 to the Officer-in-charge, Goalpara P. S. that in the morning at about 5 a.m. of 6-12-2008 when they were sleeping, her minor daughter, Smt. Daisy Baishya (victim girl), aged about 17 years, was kidnapped by the respondent No. 1-accused, Md. Nur Azam Ali alias Md. Nur Alam, S/o. Md. Rahen Ali, by using deceitful means without their knowledge and the victim girl took away cash amounting to Rs. 60,000/- and also gold ornaments weighing about 3/4 toll as with her. 4. On receipt of the said Ejahar, the O/C, Goalpara P. S. registered a case being G. R. Case No. 1335/2008, which corresponds to Goalpara P. S. Case No. 353/2008 under Section 366A of the I.P.C. The statement of the petitioner-informant (mother of the victim girl) was also recorded under Section 164 of the Cr. P.C. in connection with Goalpara P. S. Case No. 353/2008 under Section 366A of the I.P.C. on 19-12-2008 and in her statement under Section 164 of the Cr. P.C. she stated in details as to the fact of kidnappping of her minor daughter, i.e., victim girl, Smt. Daisy Baishya and also taking away the cash amount of Rs. 60,000/- and the gold ornaments weighing about 3/4 tollas by the respondent No. 1-accused, Md. Nur Azam Ali alias Md. Nur Alam. 5. On an application for pre-arrest bail being Miscellaneous Case No. 939/2008 under Section 438 of the Cr. P.C., filed by the respondent No. 1-accused, Md. 60,000/- and the gold ornaments weighing about 3/4 tollas by the respondent No. 1-accused, Md. Nur Azam Ali alias Md. Nur Alam. 5. On an application for pre-arrest bail being Miscellaneous Case No. 939/2008 under Section 438 of the Cr. P.C., filed by the respondent No. 1-accused, Md. Nur Azam Ali alias Md. Nur Alam, the learned Sessions Judge, Goalpara passed the impugned order dated 2-1-2009 for granting pre-arrest bail to the respondent No. 1-accused, Md. Nur Azam Ali alias Md. Nur Alam, for an indefinite period. The operative portion of the impugned order dated 2-1-2009 reads as follows: In the event of arrest, the arresting authority shall release the accused-petitioner, Md. Nur Azam Ali alias Md. Nur Alam on bail of Rs. 10,000/- (Rupees ten thousand) only with a local surety of like amount to the satisfaction of the arresting authority. 6. The power of this Court under Clause (2) of Section 439 of the Cr. P.C. for cancellation of the bail granted by the learned Sessions Judge to the accused and the power to direct the accused to be arrested and commit him to custody had been discussed by the Apex Court in plethora of cases and it is no more stare decisis. It is also equally well settled that the parameter for grant of bail and the cancellation of bail are entirely different. The Apex Court in a catena of cases held that in an application for cancellation of bail there was no reference to any supervening circumstance and only analysis of the materials which were considered by the trial Court to grant bail are highlighted and that even if two views are possible, once the bail has been granted, it should not be cancelled. But in an application for cancellation of bail it is also to be considered that while granting the bail the learned Court below acted on irrelevant materials and if the bail was granted taking into account the irrelevant materials by the learned Court below acted on irrelevant materials and if the bail was granted taking into account the irrelevant materials by the learned Court below, the order for granting bail is liable to be cancelled. It is also equally well settled that it is necessary for the Court for granting bail to consider among other circumstances before granting bail; (a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and (c) prima facie satisfaction of the Court in support of the case. 7. The bail is to be granted if at that stage of investigation from the materials available there is no reasonable ground for believing that the accused has been guilty of the offence punishable with imprisonment for life or etc. At such stage of consideration of bail, the Court is concerned with the existence of materials against the accused and not as to whether those materials are credible or not on the merit. At the time of consideration of the bail, the Court is not deciding the merit of the case on appreciation of the evidence, the Court normally grants the bail on being consideration of the materials available on record, if prima facie satisfies that there are no reason for reasonably believing that the accused has committed the offence. 8. The Apex Court in Gurcharan Singh and Ors. v. State (Delhi Administration) held that Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position under Section 498, Cr. P.C. of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under Sub-section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to ball by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court. 9. The question of cancellation of bail under Section 439(2), Cr. P.C. of the new Code is certainly different from admission to bail under Section 439(1), Cr. P.C. Power of the High Court or Sessions Judge to admit persons to bail under Section 498, Cr. P.C. (old) was always held to be wide without any express limitations in law. In considering the question of bail justice to both sides governs the judicious exercise of the Court's judicial discretion. P.C. Power of the High Court or Sessions Judge to admit persons to bail under Section 498, Cr. P.C. (old) was always held to be wide without any express limitations in law. In considering the question of bail justice to both sides governs the judicious exercise of the Court's judicial discretion. The Apex Court cancelled bail granted by the High Court in The State v. Captain Jagjit Singh. The Captain was prosecuted along with others for conspiracy and also under Sections 3 and 5 of the Indian Official Secrets Act, 1923 for passing on official secrets to a foreign agency. This Court found a basic error in the order of the High Court in treating the case as falling under Section 5 of the Official Secret Act which is a bailable offence when the High Court ought to have proceeded on the assumption that it was under Section 3 of that Act which is a non-bailable offence. It is because of this basic error into which the High Court felt that Apex Court interfered with the order of bail granted by the High Court. 10. Without even considering as to whether the learned Sessions Judge granted the pre-arrest bail under the impugned order dated 2-1-2009 in connection with Goalpara P. S. Case No. 353/2008 under Section 366A of the I.P.C. to the respondent No. 1-accused on the basis of irrelevant materials or without taking into consideration of the relevant materials the impugned order dated 2-1-2009 is ex facie illegal inasmuch as no pre-arrest bail for an indefinite period can be granted to the respondent No. 1-accused under Section 438 of the Cr. P.C. Only on this count the impugned order dated 2-1-2009 passed by the learned Sessions Judge, Goalpara is required to be interfered with for the reasons discussed in the following paragraphs. 11. The operation of Sections 438 and 439 of the Cr. P.C. are not overlapped inasmuch as they are meant for different purposes. Undisputedly, there is a clear distinction between post arrest and pre-arrest bail. For making an application in terms of Section 439 of the Code a person has to be in custody and Section 438 of the Code deals with direction for grant of bail to person apprehending arrest. P.C. are not overlapped inasmuch as they are meant for different purposes. Undisputedly, there is a clear distinction between post arrest and pre-arrest bail. For making an application in terms of Section 439 of the Code a person has to be in custody and Section 438 of the Code deals with direction for grant of bail to person apprehending arrest. The Apex Court in Balchan Jain v. State of M. P. (1976) 4 SCC 572 : 1977 Cri LJ 225 observed that an expression anticipatory bail is really a misnomer because what Section 438 contemplates is not an anticipatory bail but merely an order directing the release of an accused on bail in the event of arrest. There is no question of bail unless a person is arrested in connection with non-bailable offence by the police. Constitution bench of the Apex Court in Gurbaksh Singh Sibbia Seth v. State of Punjab, observed that "distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, latter is granted in anticipation of the arrest and is, therefore, effective at the very moment of arrest". The Apex Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra held that an anticipatory bail should be of a limited duration only, Ordinarily on the expiry of that duration or extended duration, the Court granting anticipatory bail should left it to the regular Court to deal with the matter on appreciation of evidence placed before it after investigation has been made progress or charge-sheet is submitted. It should be realized that an order of anticipatory bail could have been obtained in the cases of serious nature as for example murder and, therefore, it is essential that duration of that order should be limited. Ordinarily the Court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the offence. It is that Court which is then to consider whether, having regard to the material Placed before it. the accused person is entitled to bail. Ordinarily the Court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the offence. It is that Court which is then to consider whether, having regard to the material Placed before it. the accused person is entitled to bail. Therefore, the Apex Court in Salauddin Abdulsamad Shaikh's case (supra) clearly held that order for anticipatory bail should be of a limited duration only and leave it to the regular Court to deal with the matter on appreciation of the evidence placed before it after investigation has been made progress or charge-sheet is submitted. 12. On bare perusal of the impugned order dated 2-1-2009 passed by the learned Sessions Judge, Goalpara for granting pre-arrest bail for an unlimited period by not even allowing the regular Court to deal with the application for bail on appreciation of evidence placed before it after investigation has been made progress is in absolute infraction of the ratio laid down by the Apex Court in Salauddin Abdulsamad Shaikh's case (1996 Cri LJ 1368) (supra). 13. The ratio laid down by the Apex Court in Salauddin Abdulsamad Shaikh's case (1996 Cri LJ 1368) (supra) is also followed by the Apex Court in K. L. Verma v. State and Anr. (1998) 9 SCC 348 wherein the Apex Court observed that "anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular Court, which is to is the offender, is sought to be bypassed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has been made progress or the charge-sheet is submitted. By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular Court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular Court for bail and to give the regular Court sufficient time to determine the bail application. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular Court for bail and to give the regular Court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the Court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the High Court, if they so desire. This decision was not intended to convey that as soon as the accused persons are produced before the regular Court the anticipatory bail ends even if the Court is yet to decide the question of bail on merits. The decision in Salauddin case has to be so understood." Therefore, the Apex Court reiterated the view that order of anticipatory bail must be of a limited duration as the regular Court cannot be bypassed. It is the regular Court to determine the bail application on appreciation of evidence placed before it after investigation has made progress or charge-sheet is submitted. 14. The ratio laid down in Salauddin Abdulsamad Shaikh's case (1996 Cri LJ 1368) (supra) and K. L. Verma's case (supra) are also followed and discussed by the Apex Court in Sunita Devi v. State of Bihar and Anr. AIR 2005 SC 498 , Paras 21, 22, 23 and 24 of the AIR in Sunita Devi's case (supra) read as follows: 21. For making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case (supra) the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Section 438 and 439 shall be rendered meaningless and redundant. 22. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody. Otherwise, the distinction between orders under Section 438 and 439 shall be rendered meaningless and redundant. 22. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies up to higher Courts, the requirements of Section439 become dead letter. No part of a statute can be rendered redundant in that manner. 23. These aspects were recently highlighted in Mirmal Jeet Kaur v. The State of Madhya Pradesh and Anr. JT 2004 (7) SC 161. Therefore the order of the High Court granting unconditional protection is clearly untenable and is set aside. However the petitioner is granted a month's time from today to apply for regular bail after surrendering to custody before the concerned Court which shall deal with the application in accordance with law. We express no option about the merits of the case. 24. Respondent No. 2 would surrender to custody as required in law so that his application under Section 439 of the Code can be taken for disposal. 15. The ratio laid down in Sunita Devi's case AIR 2005 SC 498 (supra) is clear that protection in terms of Section 438, Cr. P.C. is for a limited duration during which the regular Court has to be moved for bail and that if the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin Abdulsamad Shaikh's case (1996 Cri LJ 1368) (supra) result will be clear bypassing of its mandate in Section 439 regarding custody. No portion of the statute can be redundant bypassing order for anticipatory bail under Section 438, Cr. P.C. to the accused for an indefinite period. Therefore, the impugned order dated 2-1-2009 for anticipatory bail for an indefinite period is not sustainable in the eye of law as it was passed by the learned Sessions Judge, Goalpara by misusing the power under Section 438 of the Cr. P.C. Accordingly. the impugned order to extent of granting pre-arrest bail for an indefinite period is set aside. 16. This Court also has carefully applied the mind to the number of cases cited by the learned Counsel appearing for the respondent No. 1-accused. P.C. Accordingly. the impugned order to extent of granting pre-arrest bail for an indefinite period is set aside. 16. This Court also has carefully applied the mind to the number of cases cited by the learned Counsel appearing for the respondent No. 1-accused. It may here be recalled that the Apex Court in Commissioner of Income Tax v. Sun Engineering Works (P) Ltd. (1992) 4 SCC 363 : AIR 1993 SC 43 held that 'judgment should be considered as a whole in the light of the question involved in the case and not the words or sentence from the judgment divorced from the context'. The Apex Court further observed that "it is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. In Madav Rao Schindia v. Union of India (1971) 1 SCC 85 : AIR 1971 SC 530 this Court cautioned: It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as contained a full exposition of the law on a question when the question did not even fall to be answered in that judgment. 17. The Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. (2003) 2 SCC 111 : AIR 2003 SC 511 observed that 'a little difference in fact or additional fact may make a lot of difference in the precedential value of a decision under Article141 of the Constitution of India. Para 59 of the SCC in Bhavnagar University's case AIR 2003 SC 511 (supra) read as follows: 59. (2003) 2 SCC 111 : AIR 2003 SC 511 observed that 'a little difference in fact or additional fact may make a lot of difference in the precedential value of a decision under Article141 of the Constitution of India. Para 59 of the SCC in Bhavnagar University's case AIR 2003 SC 511 (supra) read as follows: 59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. (See Ram Rakhi v. Union of India AIR 2002 Dl 458 (FB), Delhi Admn. (NCT of Delhi) v. Manohar Lal (2002) 7 SCC 222 : 2002 Cri LJ 4295, Haryana Financial Corpn. v. Jagdamba Oil Mills 2002) 3 SCC 496 : AIR 2002 SC 834 and Nalini Mahajan (Dr) v. Director of Income Tax (Investigation) (2002) 257 ITR 123 : 2003 Tax LR 18 (Del). 18. This Court is of the considered view that the cases cited by the learned Counsel appearing for the respondent No. 1-accused and the respondent No. 2 will not help the respondents in defending the impugned order dated 2-1-2009 for granting pre-arrest bail for an indefinite period which is illegal and also contrary to the decision of the Apex Court in the cases discussed above. The anticipatory bail, as discussed above, is only for a limited duration. 19. For the reasons discussed above, the impugned order dated 2-1-2009 is hereby interfered with. The respondent No. 1-accused, Md. Nur Azam Ali alias Md. Nur Alam, is directed to approach the concerned Court for regular bail within a period of one month from today and the concerned Court, on so approach by the respondent No. 1-accused by filing application for bail, shall consider and dispose of the bail application on appreciation of the materials, i.e. case diary and others place before it before the expiry of 15 (fifteen) days from the date of receipt of the regular bail application filed by the petitioner. It is made clear that any observation made by the learned Sessions Judge, Goalpara in the impugned order dated 2-1-2009 as well as this Court in this judgment and order shall not be in the way in deciding the regular bail filed by the respondent No. 1-accused by the concerned Court/Magistrate in accordance with law. The respondent No. 1-accused is further directed to appear along with the victim girl to the I/O for assisting the investigation within 30 (thirty) days from today. 20. In the result, the impugned order dated 2-1-2009 passed by the learned Sessions Judge, Goalpara is interfered with and the same is quashed to the extent of grant of pre-arrest bail for the indefinite period. The Registry is directed to send a copy of this order to the Superintendent of Police concerned for information and necessary action. The Registry is also directed to send down the lower Court record.