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2011 DIGILAW 1022 (GAU)

Sevi Tao S/o v. H. Vio VS State of Nagaland

2011-12-23

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. The order, dated 02-09-2011, passed in this bail application is self-explicit and, in order to enable one to clearly understand the catalogue of events leading to this order and the gravity of the situation, let me reproduce the order hereinbelow: This is ah application, made under Section 439 Cr.P.C., by the accused-petitioner, namely, Sri Sevi Tao, in connection with Dimapur East Police Station Case No. 342/2010 (G.R. Case No. 726/2010) under Section 364(A) of the IPC. 2. Perused the above application and materials on record. 3. Heard Mr. D.K. Mishra, learned Senior counsel, appearing on behalf of the petitioner, and Ms. T. Khro, learned Government Advocate, Nagaland, appearing on behalf of the respondents. 4. This bail application reveals a glaringly noticeable picture of the failure of constitutional guarantee provided to every accused person under Article 21 of the Constitution of India. This failure raises a serious question as to whether the Government, in the State of Nagaland, has been able to run the State in accordance with the requirements of the Constitution. In the present case, while the Executive has miserably failed, the picture of judiciary is also not free from blemish. In this sorrow state of affairs, the responsibility lies more with the Executive than anyone else inasmuch as a sense of fear appears to have gripped the society in the State of Nagaland and has made even the judiciary succumb to such fear and, unless something is promptly done to arrest the deteriorating situation, the consequences flowing therefrom may prove disaster. 5. This is a case, wherein the petitioner was arrested, as an accused, in the case aforementioned, on 06.01.2011, on the basis of an FIR lodged on 21.11.2010. Strangely enough, the accused was brought into judicial custody as late as on 22.01.2011. In the meanwhile, however, as alleged by the accused, the accused was forced, in the police custody, to sign a self-cheque, which was deposited in the Bank, where the accused has his account and, then, a sum of Rs. 6,78,000/- was withdrawn from the petitioner's account on 18.01.2011 and the said amount was shown to have been seized from the petitioner without disclosing, in the seizure list, that the cheque was obtained from the petitioner by force and the money was withdrawn by the police. 6,78,000/- was withdrawn from the petitioner's account on 18.01.2011 and the said amount was shown to have been seized from the petitioner without disclosing, in the seizure list, that the cheque was obtained from the petitioner by force and the money was withdrawn by the police. The money, so seized, was released on the basis of the order, dated 01.03.2011, passed by the Chief Judicial Magistrate, Dimapur. It is strange that the learned Court below did not raise any query as to how the money, in question, could be seized, in cash, from the Bank account of the accused, while he was in police custody. Even if the. accused had given the cheque, in question, voluntarily, the fact of the matter remains that such a cheque did not empower the police to withdraw the money from the Bank, while the accused was in custody, and seize the same. These illegal acts of the police were, unfortunately, ignored by the learned Chief Judicial Magistrate, Dimapur. 6. If what is alleged by the accused is true, it is not conceivable as to how the police could have seized the money on the basis of the cheque aforementioned as money realized by the accused by resorting to ransom. What followed, thereafter, reveals a more disturbing state of affairs inasmuch as a news report was published, on 01.03.2011, in the Nagaland Post. The relevant portion of the news report reads as under: Dimapur, Feb 28 (NPN): GPRN/NSCN has appealed to the Nagaland Bar Association and Dimapur Bar Association not to allow any law firm or law practitioners under them to represent the duo involved in the kidnapping of businessman Hariram Gupta on November 25, 2010. 7. On the following day, i.e., 02.03.2011, Ms. Rongsenla Jamir, learned counsel, representing the petitioner, in GR Case No. 726/2010 (Dimapur East Police Station Case No. 342/2010), withdrew from the case. The learned Court below, which was dealing with the matter, did not appear to have enquired from the counsel for the accused as to why she was unwilling to represent the accused nor did it record the reason as to why it was allowing the learned counsel to withdraw her from the case. The learned Court below, which was dealing with the matter, did not appear to have enquired from the counsel for the accused as to why she was unwilling to represent the accused nor did it record the reason as to why it was allowing the learned counsel to withdraw her from the case. Thus, the right of the accused, guaranteed under Articles 21 and 22, to be allowed to be represented by a counsel of his choice or the obligation of the State to provide 'legal aid' to a person, such as, the accused-petitioner, were virtually thrown into the wind. 8. The petitioner claims that the members of his family approached other advocates, but none of them agreed to defend the petitioner and, in the meanwhile, the petitioner's health condition deteriorated, whereupon the jail authority took the petitioner to Dimapur Civil Hospital, wherein a Board of Doctors advised for treatment of the petitioner at Dispur Hospital, Guwahati. Since no advocate was prepared to defend the petitioner and his health condition was deteriorating, the petitioner's wife herself filed a bail application, in the Court of the learned Sessions Judge, on 06.05.2011, on the ground of ill health of the accused. Till then, however, charge-sheet had not been filed. Though, in the application for bail, it was specifically brought to the notice of the learned Sessions Judge, Dimapur, that charge-sheet had not been filed within a period of 90 days, the learned Sessions Judge still rejected the prayer for bail. The learned Sessions Judge, however, ordered for petitioner's treatment at Guwahati; but on account of refusal by the Guwahati Police to provide security, the petitioner was taken back to Dimapur Jail without any medical treatment having been provided to him at Guwahati. 9. Thereafter, the petitioner's brother filed another bail application, which was, again, rejected by the learned Sessions Judge, Dimapur, on 01.06.2011 and this time, the rejection was on a strange ground, the ground being that granting of bail would result in 'hue and cry' in the State of Nagaland. How could the learned Sessions Judge have disregarded the statutory rights of the accused, under Section 167 Cr.P.C., to be released on bail even when the police had failed to submit charge-sheet within the requisite period of 90 days? How could the learned Sessions Judge have disregarded the statutory rights of the accused, under Section 167 Cr.P.C., to be released on bail even when the police had failed to submit charge-sheet within the requisite period of 90 days? The answer is clear and if one chooses to look for an answer, the answer would be that it was a sense of fear, which did not permit the learned Sessions Judge to discharge his judicial function fearlessly. Be that as it may, since the petitioner was, and is still being, claimed to be seriously ill and he had not been granted bail, an application was filed for his proper treatment and the same was allowed, on 06.06.2011, by the learned Sessions Judge, Dimapur. 10. In view of the fact that the petitioner was without any legal assistance, in the State of Nagaland, his family members came to Guwahati and filed a bail application, which gave rise to BA No. 956/2011, and the same was disposed of by order, dated 10.06.2011. The relevant portion of the order aforementioned is reproduced below: Perused the above application and materials on record including a copy of the order, dated 23.05.2011, passed by the learned Sessions Judge, Dimapur, whereby the learned Sessions Judge had directed the accused-petitioner, namely, Savi Tao @ Jacob, to be medically examined and treated at Dispur Hospital, Guwahati, as the accused-petitioner had been suffering from Renal Calculus (kidney stone). The materials on record reveal that on their arrival at Guwahati, the police party, which had brought the accused-petitioner to Guwahati, approached the Senior Superintendent of Police, Guwahati (City), to provide security to the accused-petitioner, but security was refused to be provided by the Senior Superintendent of Police, Guwahati (City), and the accused-petitioner had to be taken back to Dimapur. The accused-petitioner is presently in jail in Dimapur. Considering the fact that there was a judicial order, directing the Superintendent of Police, Dimapur, to provide escort/security to the accused-petitioner during the period of his treatment at Guwahati, it was the duty of the Superintendent of Police, Dimapur, to do the needful so far providing of necessary security to the accused-petitioner was concerned. Considering the fact that there was a judicial order, directing the Superintendent of Police, Dimapur, to provide escort/security to the accused-petitioner during the period of his treatment at Guwahati, it was the duty of the Superintendent of Police, Dimapur, to do the needful so far providing of necessary security to the accused-petitioner was concerned. Be that as it may, having considered the matter in its entirety, this Court is of the view that in the facts and attending circumstances of the present case, the accused-petitioner needs to be examined by a Medical Board, which shall be constituted by the Superintendent, Guwahati Medical College Hospital, Guwahati, and, depending upon the report, which the Medical Board may give, such treatment, which may be necessary but cannot be provided at Dimapur, shall be provided to the accused-petitioner at the Guwahati Medical College Hospital, Guwahati. For the purpose of ensuring the safety and security of the accused-petitioner, it is hereby directed that not only the Superintendent of Police, Dimapur, shall provide necessary escort/security for bringing the accused-petitioner to Guwahati, but even the Senior Superintendent of Police, Guwahati (City), shall ensure that necessary security is provided to the accused-petitioner, while he is examined and, if necessary, treated at the Guwahati Medical College Hospital. Coming to the accused-petitioner's prayer for bail, this Court, after careful consideration of the matter in its entirety and having considered the submissions, made on behalf of the accused-petitioner as well as of the prosecution, is of the view that, at this stage, the accused-petitioner cannot be allowed to go on bail. The accused shall, however, remain at liberty to apply for regular bail in the Court of the learned Sessions Judge, Dimapur, or in the appropriate Bench of this High Court. 11. Pursuant to the direction, given by the High Court, on 10.06.2011, in B.A. No. 956/2011, though the petitioner was brought to Gauhati Medical College & Hospital, treatment still could not be provided to him, because of the fact that the machines, in the Hospital, were not working. As a result thereof, the petitioner was taken back to Dimapur, once again, without providing him requisite medical treatment. 12. As the accused had been arrested on 06.01.2011 and the charge-sheet had not been submitted till 05.03.2011, it was the duty of the Chief Judicial Magistrate, Dimapur, to allow the accused to go on bail provided he could offer reasonable surety. 12. As the accused had been arrested on 06.01.2011 and the charge-sheet had not been submitted till 05.03.2011, it was the duty of the Chief Judicial Magistrate, Dimapur, to allow the accused to go on bail provided he could offer reasonable surety. There was, apparently, no interest taken by the Chief Judicial Magistrate, Dimapur, in this regard, denying thereby to the accused-petitioner his right to be released on bail. Strangely enough, however, when the bail application was made, on 06.05.2011, the same was rejected by the learned Sessions Judge, Dimapur, on 23.05.2011. This was followed by another application, filed before the learned Sessions Judge, Dimapur, seeking bail, but the same was, again, rejected, on 12.07.2011, on a new ground that charge-sheet had been submitted and the case was lying fixed for framing of charge. 13. One may pause here to point out that before the application for bail had been made in the High Court, charge-sheet already stood filed. Thereafter, this Bail Application was moved and the Court [Hon'ble A.C. Upadhyay, J] passed an order, on 19.08.2011, directing the respondents to, inter-alia, produce the petitioner, immediately, before a Medical Board, at Guwahati, for treatments of the petitioner. The relevant portion of the order, dated 19.08.2011, is reproduced below: In view of the above, in the attending facts and circumstances, it is directed that the petitioner shall immediately be produced before a Medical Board, to be constituted by the Medical Superintendent, Guwahati Medical College & Hospital, Guwahati. The Medical Board, upon examining the petitioner, shall provide such treatments at the Guwahati Medical College & Hospital, which are necessary for treatment of the petitioner and which are not available at Dimapur. However, for the purpose of ensuring safety and security of the accused-petitioner, it is directed that the Superintendent of Police, Dimapur, shall provide all necessary adequate security measure for bringing the petitioner from Dimapur to GMCH, Guwahati, and the Sr. Superintendent of Police, Guwahati (City), shall ensure for providing necessary escort/security, etc. to the accused-petitioner, while he is examined and, if necessary, treated at the GMC&H, Guwahati. 14. Despite the directions, which were given by the order, dated 19.08.2011, in this bail application, the directions, it is submitted an behalf of the petitioner, have not been complied with. To a query made by this Court, Ms. to the accused-petitioner, while he is examined and, if necessary, treated at the GMC&H, Guwahati. 14. Despite the directions, which were given by the order, dated 19.08.2011, in this bail application, the directions, it is submitted an behalf of the petitioner, have not been complied with. To a query made by this Court, Ms. T. Khro, learned Government Advocate, appearing on behalf of the State of Nagaland, has not been able to assign any reason, far less convincing reason, explaining as to why the directions of the Court, given by the order, dated 19.08.2011, have not been complied with. 15. What crystallizes from the above observations is that the Government, in the State of Nagaland, has not been able to function in accordance with the Constitution inasmuch as lawyers have been prohibited by organizations, which have been known as terrorist organizations, from taking up cases and, as a result thereof, the engaged counsel, for the accused-petitioner, had withdrawn from the case. Thus, the guarantee, which is provided to an accused under Articles 21 and 22 of the Constitution, has been denied in the present case. Even the judiciary appears to be in the grip of fear or else, there is no reason for the learned Sessions Judge to reject the petitioner's bail application on the ground that it would raise 'hue and cry' in the society. Had the bail application been rejected on some other ground, the situation could have, perhaps, been a little different; but on the ground that the release of the petitioner on bail would raise 'hue and cry' is a clear index of a deep sense of fear, which has gripped the members of the society in the State of Nagaland, in general, and the members of the judiciary, in particular, and, in consequence thereof, none, not even the members of the judiciary, could function in accordance with the constitutional requirements. This calls for action by the High Court, on the administrative side, against erring judicial officers. 16. Confronted by such a situation, as depicted above, this Court is constrained to observe that responsibility squarely lies with the Executive of the State inasmuch as they have not been able to ensure that members of the society, in general, and the members of the judiciary, in particular, function fearlessly. 16. Confronted by such a situation, as depicted above, this Court is constrained to observe that responsibility squarely lies with the Executive of the State inasmuch as they have not been able to ensure that members of the society, in general, and the members of the judiciary, in particular, function fearlessly. Independence of judiciary does not mean discharge of judicial functions without favour, but it would also require discharge of judicial functions fearlessly. To protect the members of the judiciary from the threat of law-breakers is the responsibility of the Executive of the State, where the Executive appears to have completely failed. 17. The matter is, as indicated above, too serious to be ignored. This apart, no justifiable reason, far less convincing reason, could be assigned for the omission to carry out the directions, given by this Court by order, dated 19.08.2011, aforementioned. Situated thus, this Court cannot ignore its constitutional obligation to protect the Constitutional guarantees, which an accused, in India, has. 18. Considering, therefore, the matter in its entirety and in the interest of justice, the State of Nagaland is hereby directed to, forthwith, comply with the directions, given in this Bail Application, on 19.08.2011, and the Chief Secretary to the Govt. of Nagaland, the Director General of Police, Govt. of Nagaland, and the Superintendent of Police, Dimapur, are hereby directed to appear, in person, and explain as to why action, in accordance with law, shall not be taken against them for their failure to prevent violation of the Constitutional and legal rights of the accused-petitioner leading to the manner in which the criminal justice system has been made to function, at' least, in the district of Dimapur. 19. Let this Bail Application come up, on 19.09.2011, as a fixed item, for further orders and for personal appearance as directed hereinabove. As the case relates to almost breakdown of the Constitutional guarantees provided not only to every citizen of India, but also to every person in India, the learned Advocate General, Nagaland, is hereby requested to be present, in this case, on 19.09.2011. 20. The Registry is directed to call for, immediately, the record of GR Case No. 726/2010 (Dimapur East Police Station Case No. 342/2010) along with its case diary. 21. 20. The Registry is directed to call for, immediately, the record of GR Case No. 726/2010 (Dimapur East Police Station Case No. 342/2010) along with its case diary. 21. Send copies of this order, by fax, to the Chief Judicial Magistrate, Dimapur, and Sessions Judge, Dimapur, who shall ensure immediate compliance of the directions given hereinbefore. Send also, by fax, copies of this order' to the Chief Secretary, Govt. of Nagaland, Director General of Police, Nagaland, and Superintendent of Police, Dimapur. 22. Furnish a copy of this order to the learned Government Advocate, Nagaland. 23. Bring the above directions to the notice of the Joint Registrar (Judicial-I). In terms of the directions, which had been issued on 02-09-2011, the Chief Secretary of the State, the Director General of Police of the State and the Superintendent of Police, Dimapur, appeared, in this bail application, on 28-09-2011, and, upon hearing Mr. BN Balagopal, learned Advocate General, Nagaland, and Mr. DK Mishra, learned Senior counsel, appearing on behalf of the accused, the said officers were directed to file their affidavits. They have accordingly filed their affidavits and the petitioner has filed his counter thereto. The affidavits have been carefully perused in the light of the accused-petitioner's response thereto. 2. Heard Mr. DK Mishra, learned Senior counsel, appearing on behalf of the petitioner, and Mr. BN Balagopal, learned Advocate General, Nagaland. 3. The order, dated 02-09-2011, reproduced above, gives an indication that though the accused was arrested on 06-01-2011, he was produced and remanded to judicial custody as late as on 22-01-2011. A mountain is sought to be built up by the said three officers, because of the fact that the order, dated 02-09-2011, aforementioned reflects that though the accused was arrested on 06-01-2011, he was produced and remanded to judicial custody as late as on 22-01-2011; whereas the real state of affairs was that the accused was arrested on 06-01-2011 and, on his being produced before the Magistrate, on 07-01-2011, he was given on police remand for a week and, then, on his reproduction before the Magistrate on 15-01-2011, he was, again, sent on police remand for further one week. The accused was, thus, sent on judicial remand, eventually, on 22-01-2011. 4. The accused was, thus, sent on judicial remand, eventually, on 22-01-2011. 4. The idea behind dealing with the above aspect of the order by the said three officers is clearly to show that it is the accused, who had made false accusations by claiming that though his date of arrest was 06-01-2011, his judicial remand was as late as on 22-01-2011 intending to indicate thereby as if he (accused) was in police custody between 07-01-2011 and 22-01-2011 without being produced before the Magistrate at all. In this regard, it is worth pointing out that though unusual and may be rare in some States, which are governed by an effective machinery of law, the case at hand clearly suffered from lack of information inasmuch as the accused, as would be noticed from the order, dated 02-09-2011, which has been reproduced above, was handicapped in making all requisite information, orders and materials available to his counsel and whatever were available, on record, reflected as if the accused, having been arrested on 06-01-2011, was produced, for the first time, in the Judicial Magistrate's Court as late as on 22-01-2011. The correct state of affairs, as discernible from the three affidavits aforementioned and the case record, is that the accused was arrested and taken into custody on 06-01-2011; he was produced before the Magistrate on 07-01-2011 and was remanded to police custody for a period of one week with effect from 07-01-2011. In course of time, a further remand of 7 days was granted by the Magistrate on 15-01-2011, when the police requested for second remand of the accused to their custody. Thus, after the two police remands, were completed on 22-01-2011, the accused was produced before the Judicial Magistrate and was sent to judicial custody. Because the accused was given into police custody for as many as 15 days, this Court deemed it proper to peruse the case diary thoroughly in this regard. 5. The case diary does not, in any manner, indicate that the investigation required the police to obtain custody of the accused for as long a period as 15 days. It is shocking to note that the learned Magistrate had not even perused the case diary, at the stage of investigation, before allowing the police remand. 5. The case diary does not, in any manner, indicate that the investigation required the police to obtain custody of the accused for as long a period as 15 days. It is shocking to note that the learned Magistrate had not even perused the case diary, at the stage of investigation, before allowing the police remand. It needs to be borne in mind that judicial remand is a general rule and the police remand is, and shall always remain, an exception. Not a word was mentioned in the order, dated 07-01-2011, passed by the learned Judicial Magistrate, while readily granting police remand of the accused, as to why the accused was sought to be taken into police custody. 6. It is, thus, not discernible from the order, dated 15-01-2011, as to why the learned Magistrate granted police remand for a week. In fact, when the police applied for police remand on 07-01-2011, even the Investigating Officer did not assign any reason whatsoever for obtaining the police remand. Thus, the police remand was given without any reason having been assigned by the Investigating Officer and the learned Magistrate too, without knowing as to why the Investigating Officer was seeking police remand, granted freely police remand for as long a period as 7 days. 7. Even when the second police remand was granted, the Investigating Officer did not assign any reason except the fact that the co-accused was yet to be arrested. Why pending arrest of the co-accused, the police remand of the present accused was required, the police had nothing to say and the learned Magistrate too did not bother to find out the reason and readily granted yet another police remand for one week. This apart, upon completion of the first police remand, when the accused was produced, on 15-01-2011, with a request from the Investigating Officer seeking remand of the accused to police custody for 7 more days, the learned Magistrate did not even ask the accused as to how he had been treated in the police custody. The learned Court below, without examining the case diary, without ascertaining if such a remand was at all needed and without ascertaining as to how the police had treated the accused, while he was in police custody, gave the remand merely on the request of the Investigating Officer that the co-accused were yet to be arrested. 8. The learned Court below, without examining the case diary, without ascertaining if such a remand was at all needed and without ascertaining as to how the police had treated the accused, while he was in police custody, gave the remand merely on the request of the Investigating Officer that the co-accused were yet to be arrested. 8. A careful reading of the provisions contained in Section 167 Cr.P.C., as a whole, shows that it is not in each and every case that an investigating officer can seek police remand or even judicial remand of an accused. Sub-Section (1) of Section 167 makes it clear that upon arrest of the accused and his detention in custody, if it appears to the Investigating Officer that investigation cannot be completed within 24 hours and that there are grounds for believing that the accusation or information, received against the accused, is well founded, then, the Officer-in-Charge or the Investigating Officer, as the case may be, shall, forthwith, transmit to the nearest judicial Magistrate a copy of the entries in the diary and shall, at the same time, forward the accused to such a Magistrate. 9. The role of the Magistrate, with regard to the above, is engrafted in Sub-Section (2) of Section 167 Cr.P.C. inasmuch as it lays down that the Magistrate may authorize detention of the accused, in police or judicial custody, as he may deem fit, for a period not exceeding 15 days in the whole. Sub-Section (2) of Section 167 makes it' further clear that the Magistrate may authorize detention or judicial remand of an accused person beyond the period of 15 days provided that the Magistrate is 'satisfied' that adequate grounds exist for doing so, though no such detention can be authorized for a total period exceeding 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years, or 60 days, where the investigation relates to any other offence. 10. From a cautious consideration of the provisions, embodied in Section 167, what becomes transparent is that before the police seeks remand of an accused, in police custody or judicial custody, there must be reasons for believing that the accusation or information, received against the accused, is well-founded, but the investigation can not be completed within the prescribed period of 24 hours. If the police officer decides to obtain the remand, police or judicial, of such an accused; he must transmit to the Magistrate concerned a copy of the entries in the case diary. Though the Magistrate is authorized to order for detention of the accused in police or judicial custody, Section 167 makes it clear that police custody cannot be permitted beyond the period of 15 days in the whole and even judicial remand cannot be granted unless the Magistrate is satisfied that adequate grounds exist for authorizing such detention. As police custody shall be resorted to in special and exceptional circumstances, and not ordinarily, the order, authorizing police remand, must reveal cogent reasons for authorizing detention of the accused in police custody. Even an order, directing judicial remand of an accused, must disclose application of mind by the Court and, if the application of mind is to be disclosed, it necessarily follows that the reasons, howsoever briefly, must be stated in the order. Beyond the period of 15 days, neither police remand nor judicial remand shall be permitted by the Magistrate unless he is 'satisfied' that 'adequate grounds' exist for remanding he accused to judicial custody. Here, again, the order must disclose why the Magistrate has authorized detention of the accused in judicial custody beyond a period of 15 days. This 'satisfaction' of existence of 'adequate material' has to be on objective satisfaction based on materials, which may be placed before the Magistrate. 11. The remand of an accused, beyond the period of 15 days from the date of his first production before the Magistrate, cannot be granted unless the investigating officer satisfies the Court as regards existence of adequate materials warranting further judicial remand of the accused. This would necessarily require some kind of communication from the end of the investigating agency to the Magistrate indicating existence of such adequate materials warranting further judicial remand of the accused beyond the said period of 15 days. If no such material is produced or communicated to the Magistrate, there cannot be any mechanical extension of judicial remand by the Magistrate. The State of Nagaland shall, therefore, ensure that its investigating officers and its prosecutors lay before the Magistrate such materials as would justify remand of the accused beyond the prescribed period of 15 days. 12. If no such material is produced or communicated to the Magistrate, there cannot be any mechanical extension of judicial remand by the Magistrate. The State of Nagaland shall, therefore, ensure that its investigating officers and its prosecutors lay before the Magistrate such materials as would justify remand of the accused beyond the prescribed period of 15 days. 12. In the case at hand, the case diary discloses that the police interrogated the accused-petitioner on 07-01-2011 and, having obtained police remand, they merely kept the accused in their custody except eliciting from him, on 10-01-2011, his bank account number and, on 11-01-2011, an application was made to the bank concerned to freeze the operation of the bank account of the accused-petitioner. Thereafter, there has been no interrogation or any kind of questioning of the present accused-petitioner. Having obtained the remand of the accused, on 15-01-2011, for another period of 7 days, I am aghast to note that police did nothing except, with the help of the self-cheques signed by the accused-petitioner, withdraw, on 18-01-2011, the money lying in the bank account of the accused-petitioner. The accused-petitioner was, then, examined on 21-01-2011, but this examination was more of a formal nature. 13. By no means, therefore, the second police remand of the accused can, in the facts and attending circumstances of the present case, be justified, because it was not a duty of the police to obtain the money lying in the bank account of the accused-petitioner and seize the same so that the informant receives the seized money, when they had already got the account freezed. The obvious purpose of seizure of the money was to hand over the same to the informant. No wonder, therefore, that neither the police raised any objection to the informant's prayer made to the Chief Judicial Magistrate, for obtaining the zimma of the seized money, nor did the Court give any opportunity to the accused-petitioner to have his say in the matter, though the money was seized from the bank account of the accused-petitioner. 14. The case diary, in the present case, has not been maintained in accordance with law. What has been presented before this Court, in the form of a case diary, is a collection of loose sheets of papers, where progress of the case has been, intermittently, noted. 14. The case diary, in the present case, has not been maintained in accordance with law. What has been presented before this Court, in the form of a case diary, is a collection of loose sheets of papers, where progress of the case has been, intermittently, noted. It is difficult to treat the materials, i.e., the loose sheets of papers, presented in the form of case diary, as the case diary of a criminal case envisaged by law, i.e., in terms of the provisions of Section 172 Cr.P.C. as well as the Police Manual inasmuch as the case diary, in the present case, does not contain contemporaneous records nor is it a bound book with printed pagination. In no uncertain words, the Supreme Court has held, in CBI, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarnai, reported in (1992) 3 SCC 141 , that the entries in the diary are meant to afford to the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or not. The object of the case diary and its importance stands succinctly described by the Supreme Court, in Bhagwant Singh v. Commr. of Police, Delhi, wherein it has been observed that the entries in a police Case Diary should be made with promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity. The Chief Secretary to the Govt. of Nagaland and the Director General of Police, Government of Nagaland, shall ensure that the case diaries are maintained in the form of a bound book with printed pagination. 15. What emerges from the above discussion is that the provisions, embodied in Section 167 Cr.P.C., make it abundantly clear that while forwarding an accused to a Magistrate, the Investigating Officer must forward, therewith, the extract of the statements of the witnesses meaning thereby that either the case diary has to be produced before the Magistrate or the extract of the statements of the witnesses has to be furnished to the Magistrate, particularly, when the investing officer seeks police remand of the accused so that the Magistrate can carefully examine the case diary and/or the extracts of statements, as the case may be, and determine for himself if the accused is required to be given to police custody. No such precaution and care appear to have been taken by the learned Court below. By no means, therefore, such a long police remand of the accused can be justified in the present case, when the case diary does not reveal that the accused was interrogated or examined by the police more than thrice and out of these three occasions of interrogations, the interrogation really took place on 07-01-2011 and, partially, on 10-01-2011 for the purpose of obtaining, as already indicated above, the bank account number of the accused-petitioner. The next interrogation, which took place on 21-01-2011, was nothing substantive. 16. What the police appear to be more interested was taking out the money, lying in the bank, in the account of the accused-petitioner and get the same handed over to the informant oblivious of the State's obligation to protect constitutional and legal rights of every accused to be defended by a counsel of his choice. 17. Coming to the question of the state of health of the accused and lack of medical treatment, it is of utmost importance to note that though the accused was sick and required special care and medical treatment, the same had not been provided to the accused by the State for one reason or the other. 18. In the case at hand, the conduct of the police has not been in tune with the law contained in that behalf. The accused has been, undoubtedly, harassed and failure of the State of Nagaland to provide legal aid to the accused has led to denial of release of the accused on bail despite the fact that the investigating officer did not submit charge-sheet within the prescribed period. The State has also failed, and failed miserably, to protect the constitutional right of the accused inasmuch as it has not been able to place on record any step, which it had taken to ensure that the call given by the NSCN does not deny to the accused his right to be represented by an advocate of his choice and/or legal aid at the cost of the State. 19. 19. It is trite that while the power to grant bail cannot be exercised by High Court under Section 482 Cr.P.C., the duty on the High Court, imposed by Section 482 and Section 483 Cr.P.C., even while dealing with an application for bail, cannot and must not be ignored, because Section 482 Cr.P.C. obliges the High Court to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure, or to prevent abuse of the process of any court or otherwise to secure the ends of justice and Section 483 Cr.P.C. requires the High Court to exercise continuous superintendence over the Courts of Judicial Magistrates subordinate to it so as to ensure that there is expeditious and proper disposal of cases by such Magistrates. 20. Because of peculiarities of the present case, this Court, in the present case, is not only concerned with the individual denial of rights of the accused, but also with the general state of affairs, in the State of Nagaland, as regards protection of the rights of every accused, the duty of the police and the obligation of the Court. 21. No amount of cosmetic arguments or explanation, which has been offered by the State, can undo the illegality, which has been done by the police. What the State has contended, in this regard, is that the accused had made a voluntary disclosure that a portion of the amount/which had been collected as ransom, was lying in his bank account. The Investigating Officer accordingly asked the bank to freeze the account. Once the money had been kept in the bank, its colour was lost and it was, therefore, not necessary to take out the money from the bank and seize the same. What the police and the Court were concerned was evidence and not the fact as to whether the money is or is not released in favour of the informant. Once the money had been kept in the bank, its colour was lost and it was, therefore, not necessary to take out the money from the bank and seize the same. What the police and the Court were concerned was evidence and not the fact as to whether the money is or is not released in favour of the informant. The police, it transpires, took the accused to the bank, cheques were signed by the accused, while in police custody, and, on the strength of the cheques, so signed by the accused, while he was in the police custody, money was withdrawn from the account of the petitioner and the same was seized as incriminating piece of evidence and, thereafter, the money was released by the Court in favour of the informant without providing any opportunity of hearing to the accused, though no order, to the detriment of the accused, could have been passed without hearing him, especially, when the money, released in favour of the informant, had been taken out from the bank account of the accused. The entire act of seizure of the money by taking out the same on the basis of self-drawn cheques is negation of the power of the police for investigation and can never be justified. The purpose of an investigation is to determine the person, who has committed the offence, if any, and the evidence, which can prove the commission of offence. 22. In the case at. hand, what is required to be proved is that the accused was the one, who was involved in the abduction and collection of ransom or was involved in the disposal of the money collected by ransom. The withdrawal of money., lying in the account of the accused, in the bank, was not at all essential for effective investigation or meaningful trial. The explanation, offered by the police that it was pursuant to a voluntary disclosure made by the accused that the money was withdrawn, does not absolve the police from taking a step as described above, which was unjustified if not completely illegal. 23. Yet another reason assigned was that keeping of the money, in the banks, was unsafe. How the money was unsafe, when the account was freezed could not be explained by the State. Merely because the accused had signed a self-cheque, it does not mean that his withdrawal of money is voluntary. 23. Yet another reason assigned was that keeping of the money, in the banks, was unsafe. How the money was unsafe, when the account was freezed could not be explained by the State. Merely because the accused had signed a self-cheque, it does not mean that his withdrawal of money is voluntary. The accused has to have a reason for withdrawing the money. The case diary does not disclose as to why the accused, suddenly, opted to withdraw the money and hand over the same to the police so that the money could be, in turn, handed over to the informant without the accused having any right to have his say in the matter. 24. The contention of the State, therefore, that the accused had voluntarily signed the self-cheques and he was the one, who had withdrawn the money and handed over the same to police, cannot be accepted. It was entirely at the initiative of the police that the money was withdrawn; otherwise, the State owes a duty to explain as to why the accused wanted to withdraw the money lying in his account, in the bank, which stood freezed. If the act of the accused was voluntary, he would have had some reason to withdraw the money. There is not even an iota of material in the case diary to show that the accused suffered from a sense of remorse, which impelled him to withdraw the money from the bank and do whatever was required so that the money could be handed over to the informant. In fact, the accused was not even heard, as already indicated above, when it was decided by the learned Court below to hand over the money to the informant. Situated thus, the plea of the accused that he had been forced to sign the cheques in order to enable the police to withdraw the amount, lying in his bank account., has considerable force. 25. Situated thus, the plea of the accused that he had been forced to sign the cheques in order to enable the police to withdraw the amount, lying in his bank account., has considerable force. 25. With regard to the contention of the accused that he could not get a counsel to defend himself, because of the threats given by the NSCN(K)/GPRN to the members of the Bar that they shall not represent the accused, the Chief Secretary's affidavit has relevance inasmuch as it states, at Para-4, as under: Whenever such threats are carried out, the Government ensures that people abide by the law despite such threat as would be evident from the fact that Bar Associations and the learned lawyer were not influenced by such threats as the factual position is the accused petitioner did not approach any other lawyer as would be evident from the fact that there is no mention of any lawyer having been approached by the petitioner. That for any reason if threats issued by any persons tends to cause any disturbance in society, the police immediately takes action. Therefore, no constitutional guarantee of the petitioner was violated. The learned counsel for the petitioner themselves had mentioned before the Court that they have no grievance whatsoever on the medical treatment. The investigating officer taking into consideration the facts that earlier there have been causes of abduction of employees working with SBI Dimapur to prevent such reoccurrence leading to multiplicity of crime, after the accused disclosed the fact that the money was lying with the SBI at Dimapur, the police took the accused who had volunteered the disclosure and money was withdrawn through withdrawal slip which were tendered to the bank and after the withdrawal of the money the same was seized by a proper seizure memo in terms of Section 102 Cr.P.C. That up to the stage of approaching this Hon'ble Court for bail the accused in the past had filed various bail application and in none of them he had alleged that his signature was taken by force or that the withdrawal was without his consent, which falsify the allegations now being sought to be made in the present petitioner. It may be worthwhile to point out that the investigating authorities, merely transferred the money from the bank to a more secure place. It may be worthwhile to point out that the investigating authorities, merely transferred the money from the bank to a more secure place. The relevant entry in the CD showing that the accused was taken to Bank is being filed separately. Therefore, for reasons by this act the police have violated any right, unqualified apology in this regard is being tendered. Therefore, the Hon'ble Court on 28-02-2011 released the amount to Shri Hariram Gupta, after recording the requisite undertaking/zimma. The accused is in the business of crime and has no other business and copies of the bank statement for ready reference is filed hereto which will show massive transaction in this accounts. 26. The above averments, made in the affidavit of the Chief Secretary, are completely silent as to why the counsel for the accused, on publication of the news that NSCN(K)/GPRN had given a call to lawyers to withdraw from the case, opted to withdraw from the case. Surprisingly enough, and as already noted in the order, dated 22-01-2011, even the Court did not enquire from the counsel as to why he had chosen to withdraw from the case, for, withdrawal of a counsel from a case is with the leave of the Court and not at the whims and fancies of the counsel. The Chief Secretary claims, in his affidavit, that if any threat comes from the underground, the Government ensures that the people abide by law. The Chief Secretary's affidavit does not disclose the particulars of the steps, which were taken by the State Government, in the present case, to infuse in the people, in general, and the lawyers, as a class, in particular, a sense of confidence so that everyone could have faith that the State stands as the sentinel of their democratic and constitutional rights. 27. The tall claim of the State Government, therefore, made with the help of the Chief Secretary's bald affidavit, can be given no credence at all. The Chief Secretary has tried to point out, in his affidavit, that the accused has not indicated, in his petition, as to who was the lawyer, whom he has approached and who had declined to represent the accused. The Chief Secretary has tried to point out, in his affidavit, that the accused has not indicated, in his petition, as to who was the lawyer, whom he has approached and who had declined to represent the accused. The Chief Secretary's affidavit is trying to find fault with the accused without disclosing to this Court as to what steps were taken to resolve the problem and what action was taken against the NSCN(K)/GPRN for the call, which they had given to the members of the Bar not to represent the accused-petitioner. Learned Advocate General has tried to explain away this matter by submitting that the Government of India has entered into a 'truce' with NSCN(K) How such a 'truce' can absolve the State of Nagaland from its constitutional obligations to protect the rights of an accused or of a counsel or, for that matter, of everyone, in the society, is beyond the comprehension of this Court. 28. Coupled with the above, the state of affairs in the State of Nagaland and the inherent unfairness of the investigation can be gauzed from the fact that according to the affidavit of the Superintendent of Police, Dimapur, the accused was handed over to the police by the NSCN(K) through the members of the Ceased Fire Monitoring Cell. Strangely enough, however, the names of those persons, who had allegedly apprehended the accused and/or handed over the accused to the police, have not been cited in the charge-sheet as witnesses. Why the names of the persons, who had allegedly apprehended the accused and handed him over to the police, have been suppressed was a mystery and remains a mystery. 29. Despite the underground elements issuing threats to the members of the Bar, in general, the Chief Secretary has tried to show as if the fault lies with the accused and he had not contacted any lawyer at all. When a lawyer withdraws from a case due to call from the underground elements, there is no reason for the Court not to believe that when the threat was issued by the underground elements, the State failed to take any consequential steps. The plea of the accused that he did not get the lawyer of his choice cannot and must not be ignored by this Court, when the counsel, appearing for the accused, chose to withdraw. The plea of the accused that he did not get the lawyer of his choice cannot and must not be ignored by this Court, when the counsel, appearing for the accused, chose to withdraw. The learned Court below, if I may reiterate, ought to have asked the counsel as to whey she had chosen to withdraw. The learned Court below also failed to find out from the accused if he had any lawyer of his choice to take up his case so that the State, if needed, would provide a counsel at the cost of the State as an effective step of legal aid.' Neither the Court nor the Public Prosecutor discharged this constitutional duty imposed on them as important instruments of the State in running its administration of justice. 30. Apart from what have been indicated above, in the order, dated 02.09.2011, as has already been pointed out, the learned Sessions Judge, in his order, dated 01-06-2011, took a strange ground, while rejecting the prayer for bail made on behalf of the accused-petitioner, the ground being that granting of bail could result in 'hue and cry' in the State of Nagaland. How could the. learned Sessions Judge have disregarded the statutory rights of the accused, under Section 167 Cr.P.C. to be released on bail, when the police had failed to submit 'charge sheet' within the prescribed period. This indicates, if one may reiterate, that the ground, so taken to reject the application for bail, demonstrates a sense of fear, which has gripped even the members of the judiciary restraining them from discharging judicial function fearlessly. The matter, therefore, needs to be considered on the administrative side, by the High Court so that the High Court can take corrective steps in the matter. The Registry shall, therefore, place the matter on the administrative side before the Hon'ble Chief Justice. 31. Considering, therefore, the matter in its entirety and in the interest of justice, the State of Nagaland is hereby directed to pay to the accused, for violation of the guarantees given to him by the Constitution of India, within a period of six weeks from today, a sum of Rs. 50,000/- as compensation. The State of Nagaland is hereby directed to ensure a fair trial to the accused and the learned Sessions Judge, Dimapur, is hereby directed to ensure that no miscarriage of justice takes place. 32. 50,000/- as compensation. The State of Nagaland is hereby directed to ensure a fair trial to the accused and the learned Sessions Judge, Dimapur, is hereby directed to ensure that no miscarriage of justice takes place. 32. The Registry is directed to circulate a copy of this order amongst the judicial officers of the States of Nagaland. With the above observations and directions, this Bail Application shall stand disposed of.