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2011 DIGILAW 735 (GAU)

Sevitao v. State of Nagaland

2011-09-02

I.A.ANSARI

body2011
ORDER I.A. Ansari, J. 1. This is an application, made under Section 439 CrPC, 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 Mure 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 following 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self-cheque, which was deposited in the Bank, where the accused has his account and, then, a sum of Rs. 6,78,000/- was withdrawn from the petitioner's account on 18.01.2011 and the said amount was shown to have been seized from the petitioner without disclosing, in the seizure list, that the cheque was obtained from the petitioner by force and the money was withdrawn by the police. The money, so seized, was released on the basis of the order, dated 01.03.2011, passed by the Chief Judicial Magistrate, Dimapur. 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 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 as 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 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. 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 gave disregarded the statutory rights of the accused, under Section 167 CrPC, 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. 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 BANo. 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. Be that as it may. 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-petitioners 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 cosidered 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 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. 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 GMCH, Guwahati. 14. Despite the directions, which were given by the order, dated 19.08.2011, in this bail application, the directions, it is submitted on behalf of the petitioner, have not been complied with. 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 GMCH, Guwahati. 14. Despite the directions, which were given by the order, dated 19.08.2011, in this bail application, the directions, it is submitted on 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 with drawn from the case. Thus, the guarantee, which is provided to an accused under Articles 21 and22 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 consequential 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 lawbreakers 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 his 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 Government of Nagaland, the Director General of Police, Government 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, Government 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).