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2010 DIGILAW 588 (GAU)

Bina Rani Debbarma v. State of Tripura

2010-08-13

UTPALENDU BIKAS SAHA

body2010
ORDER U.B. Saha, J. 1. The instant application is filed under Section 439 Code of Criminal Procedure by one Smt. Bina Rani Debbarma for granting bail to her husband accused Dinesh Debbarma who has been arrested in connection with West Agartala P.S. Case No. 175/2008 under Section 4 of the Explosive Substances Act in which the investigating authority after investigation filed charge sheet under Section 120B / 121 / 121A / 122 / 123 / 153 / 153A of the IPC and Section 4, 6 of the Explosive Substances Act and Section 10 and 13 of the Unlawful Activities (Prevention) Act, 1967 against her husband along with Ors. 2. Heard Mr. B.N. Majumdar, learned Counsel for the Petitioner who filed the application on behalf of the accused as well as Mr. A. Ghosh, learned Addl. P.P. for the State, who produced the Case Diary. 3. The prosecution case in sort is as follows: One Abhijit Bhattacharjee, a priest of Sri Radha Madhav Temple situated at Radhanagar lodged an FIR on 05.10.2008 with the Officer-in-Charge of the West Agartala P.S. alleging that on that date at about 10.30 a.m. in the morning he noticed one Aluminium Saucepan inside one plastic bag in the drain situated at the western by-lane and after seeing that he suspected it to be a bomb and accordingly informed the fact to the Ramnagar T.O.P and West Agartala P.S. Later on police and bomb squad personnel arrived and recovered it and after taking it to file open field of the temple diffused the same. On opening the bag they found mobile set, detonator battery, wire, powder and explosive substance could be seen. Seeing all these it seems that it is a live bomb and with an intention to cause harm to person and property it was left there by a few unknown miscreants. On the basis of such information, police investigated the case and ultimately filed the charge sheet upon receipt of the charge sheet the case was committed to the Court of the Sessions and the learned Sessions Judge following the prescribed procedure framed the charge sheet against the accused husband of the Petitioner along with others and the trial has been started in the year 2009. 4. Mr. 4. Mr. Majumdar while urging for bail of the accused, husband of the Petitioner, would contend that while the accused in the aforesaid P.S. Case, was in custody in connection with a case of Khowai P.S., he was again arrested on 06.11.2010 in connection with Agartala P.S. Case 175/2008 and since his arrest he is in custody and by this time almost two years have elapsed and one of the co-accused namely, Budhi Debbarma, night guard of Pragati Bidya Bhawan which is a Govt. aided School, has been released on bail on the ground of examination of his daughter and the accused, husband of the Petitioner, is similarly situated as his daughters are seriously ill. In support of his aforesaid contention he also referred to some medical certificates issued by the Medical Officer, Katlamara PHC, West Tripura and Medical Officer, Baijalbari PHC, Khowai (Annexure-P3 to the instant petition) wherein it is stated that Ms. Reshmi Debbarma, D/o the accused Dinesh Debbarma was suffering from Viral Hepatitis and Ms. Reshma Debbarma was suffering from fever and severe pain in the abdomen. He also relied upon a decision of the Apex Court in Mehmood Mohammed Sayeed v. State of Maharashtra (2002) 10 SCC 677 relying which the learned Addl. Sessions Judge, West Tripura, granted bail to one of the accused, namely Budhi Debbarma. According to him, as the accused, husband of the Petitioner, is in custody for about two years, he is entitled to get bail. Mr. Majumdar finally contended that there is no material against the accused husband of the Petitioner so far the evidences recorded by the learned trial Court. 5. Mr. Ghosh while resisting the submissions of Mr. Majumdar would contend that the accused Dinesh Debbarma is involved in terrorist activities in the state and a case relating to terrorist activities cannot be compared with a normal offence. He further submits that there are enough materials in the case diary which suggests that it is the accused Dinesh who carried the explosive and handed over to the other accused persons involved in the case and more so tried has already been started after filing of the charge sheet. Therefore, it cannot be said that there are no materials against the accused-husband of the Petitioner. Mr. Therefore, it cannot be said that there are no materials against the accused-husband of the Petitioner. Mr. Ghosh also submits that the decision of the Apex Court has no bearing in the instant case so far the present accused person is concerned as in the case of Mehmood Mohammed Sayeed (supra) the Apex Court granted conditional bail taking note of the fact that the accused of that case was in custody for about one year and even after filing of charge sheet there was no possibility of holding trial within a very short period. He further contended that granting bail to a co-accused cannot be the criteria to grant bail to another accused person unless both are similarly situated. More so, in the instant case, though the trial started in the year 2009 but that could not be completed as the accused person filed application before the trial Court but ultimately the trial Court prepared calendar for trial on and from 05.04.2010 and after examination of certain witnesses again the date is fixed today for hearing on the application filed by the accused person. 6. This Court has seen the order of the learned Addl. Session Judge, West Tripura by which one of the co-accused has already been granted bail as well as the decision of the Apex Court in Mehmood Mohammed Sayeed (supra). It appears from the decision of the Apex Court that their Lordships while granting bail to the accused of that case noted, inter alia, "We do not know how long the trial will take, particularly, seeing the condition of the trial Courts in Maharashtra". Therefore, it can be safely said that bail was granted due to delay of trial, not on any other ground. 7. In the instant case, trial has already been started and the offences, in connection with which the accused is in custody, are very serious in nature and from the record it also appears that the accused is alleged to be involved with terrorist activities. An alleged terrorist cannot be equated with normal criminals and more so, the accused husband of the Petitioner is also not similarly situated like the co-accused who is an employee of a government aided school. An alleged terrorist cannot be equated with normal criminals and more so, the accused husband of the Petitioner is also not similarly situated like the co-accused who is an employee of a government aided school. The learned Trial Court while granting bail to the co-accused considered that being the co-accused is an employee of a government aided school, there is no possibility of his absconsion and evading the trial and in the order the learned Addl. Sessions Judge put some conditions so that the presence of the co-accused can be ensured. 8. Terrorism is not an offence against any individual but it is an offence against the society as well as the nation. In Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) 2 SCC 684 the Apex Court noted: Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution. The aforesaid case of Shahzad Hasan Khan (supra) was considered by the Apex Court in one of its subsequent decision in the case of Masroor v. State of Uttar Pradesh and Anr. (2010) 1 SCC 1368wherein the Apex Court stated: There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the Courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In view of the aforesaid observation of the Apex Court it can be safely said that liberty of a citizen involved in terrorism and liberty of a citizen simplicitor should not be treated at par. 9. This Court has also considered the submission of Mr. Majumdar so far the ailment of the daughters of the accused Dinesh Debbarma is concerned. In view of the aforesaid observation of the Apex Court it can be safely said that liberty of a citizen involved in terrorism and liberty of a citizen simplicitor should not be treated at par. 9. This Court has also considered the submission of Mr. Majumdar so far the ailment of the daughters of the accused Dinesh Debbarma is concerned. It appears from the record that one of the daughters was suffering from Viral Hepatitis and another was suffering from fever and those certificates were issued on 29.09.2010 and 27.07.2010 and in those certificates there is no whisper that they need admission in any hospital but only require the psychological support from their father. If the Court is to grant bail to a alleged terrorist only to give mental support to the family members then probably no terrorist can be detained even if it is found that those terrorists are allegedly involved with offences against the society and the nation, more so, mankind. 10. In the case of State of U.P. v. Amarmani Tripathi (2005) 8 SCC 21 the Apex Court while discussing regarding granting of bail held in particular: 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. 11. From the submission of Mr. Majumdar, it is admitted that the present accused is not only involved in the instant sessions trial, but also involved in connection with other offences for which charge sheet has been filed and Sessions trial is waiting. Finally in the instant case trial has already started. It cannot be ruled out that if the present accused person is released on bail he would hide again for doing similar offences, more so, when there are materials in the case diary which directly connects the accused person with the alleged offence. 12. The submission of Mr. Finally in the instant case trial has already started. It cannot be ruled out that if the present accused person is released on bail he would hide again for doing similar offences, more so, when there are materials in the case diary which directly connects the accused person with the alleged offence. 12. The submission of Mr. Majumdar that there is no material against the present accused, so far evidence recorded by the trial Court as on today, cannot be considered for granting bail as near about 12 witnesses are still to be examined. More so, whether there are evidence or not that can only be looked into by the trial Court, not by this Court. If this Court expresses any opinion regarding the evidence on record, that will affect the trial. At the time of consideration of bail of an accused, after filing of the charge sheet, the Court is to consider only the parameters laid down by the Apex Court. 13. In view of the above this Court is of the considered opinion that this is not a fit case where bail should be granted. Rather it would be proper to complete the trial keeping the present accused in custody. However, as there is no prayer from the side of the prosecution for keeping the present accused in custody, this Court is not passing any order on that aspect. The matter is left to the trial Court as the trial is going on. 14. With the above, this bail application stands rejected. 15. It is made clear that an observation of this Court touching the merits of the case against the accused before this Court is purely for the purpose of deciding the question relating to bail and shall not be construed as an expression relating to the merit of the prosecution case. Hence, the trial Court should not be influenced by the observation of this Court while considering the evidences on record at the time of deciding the case. Application dismissed.