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2012 DIGILAW 1073 (BOM)

Sandip Kalangutkar v. State

2012-06-19

F.M.REIS

body2012
Judgment : Heard Shri J. P. D' Souza, learned Counsel appearing for the Applicant and Ms. Milena Pinto, learned Addl. Public Prosecutor, appearing for the Respondents. 2. The above application is filed by the Applicant for bail on the ground that the Applicant was arrested by the Respondent Police Station on 16.05.2011 under Section 143, 147, 148, 302 and 307 r/w Section 149 of the Indian Penal Code in F.I.R. no. 73/2011 and thereafter was lodged at the Respondent Police Station. It is further his case that it is alleged by the Respondent that on 03.04.2011 between 3.00 hours to 4.00 hours, near Club Virgin, Gauravaddo, Calangute, Bardez, Goa, the Applicant along with the other accused with the common object formed an unlawful assembly armed with spanners and in furtherance with their common object assaulted one Ravi Rajan V. and his driver by name Sunil with slaps, fist blows, etc., and further assaulted the said Ravi Rajan V. and his driver said Sunil with spanners causing injuries on the head and on such account, the said Ravi Rajan V. suffered grievous injuries and said Sunil succumbed to the injuries. It is further the contention of the Applicant that during the investigation he showed willingness to make full disclosure of the true facts leading to the crime and made a request to the Respondent Police to declare him as an approver witness. It is his case that the Respondent Police Station moved an application before the learned Chief Judicial Magistrate, Panaji, and that by Order dated 28.06.2011, the learned Chief Judicial Magistrate acting on the statement recorded by the Spl. Judicial Magistrate, granted pardon to the Applicant under Section 306 of the Cr. P.C. It is further his case that an application under Section 307 of the Cr.P.C. Came to be filed upon which the learned Addl. Sessions Judge remitted the matter back to record fresh statement of the Applicant by the Spl. Judicial Magistrate under Section 306 of the Cr.P.C. It is further the case of the Applicant that such statement of the Applicant came to be recorded on 21.11.2011. It is further his case that after the charge came to be filed, the Applicant was examined as Pw.1 by the prosecution and was also cross examined by the Advocates appearing for the other Accused. It is further his case that after the charge came to be filed, the Applicant was examined as Pw.1 by the prosecution and was also cross examined by the Advocates appearing for the other Accused. The Applicant thereafter filed an application for bail before the learned Sessions Judge which came to be rejected by Order dated 23.02.2012. Thereafter, an application came to be filed before this Court for bail which came to be disposed of by Order dated 16.04.2012, inter alia, permitting the Applicant to file a fresh application for bail after three crucial witnesses claimed by the Respondent were examined within a period of four months. Thereafter, two of the Accused in the said crime filed an application for bail before this Court being Criminal Application (Bail) No. 84/2012 which was disposed of by Order dated 08.05.2012 whereby the said Accused nos. 2 and 4 in the said case were granted bail subject to conditions stipulated therein. It is further brought to my notice by the Applicant that thereafter, another Accused being Accused no. 3 also filed an application for bail which came to be granted by the learned Sessions Judge by Order dated 07.06.2012. The Applicant as such filed the present application praying that he be released on bail. 3. The Respondents have filed their reply admitting the fact that some of the Accused have been granted bail. A reply came to be filed on 16.05.2012 by the Respondents objecting the grant of bail on the ground that the Applicant may tamper or instill fear in the minds of the prosecution witnesses. When the matter came for hearing of the above application, the learned Addl. Public Prosecutor has filed another reply on behalf of the Respondents dated 18.06.2012, inter alia, stating that the Accused nos. 2, 3 and 4 have been granted bail and that in view of the Order passed by this Court in Criminal Application No. 246 of 2009, the above application may be considered and condition be imposed that the Applicant shall remain present before the Addl. Sessions Judge, Mapusa, at the time of the trial on every date of hearing and shall not leave the State of Goa without prior permission from the Court. 4. Sessions Judge, Mapusa, at the time of the trial on every date of hearing and shall not leave the State of Goa without prior permission from the Court. 4. Shri J. P. D'Souza, learned Counsel appearing for the Applicant has pointed out that though an Order came to be passed by this Court on 16.04.2012 in the bail application filed by the Applicant permitting the Applicant to file fresh application for bail after the examination of three witnesses within a period of four months, no witnesses have been examined at the instance of the prosecution upto this date. Learned Counsel further pointed out that three other Accused have been released on bail and, as such, there is no justification to allow the Applicant to be in custody when his statement has already been recorded. Learned Counsel further pointed out that though Section 306(4) of the Cr.P.C. does not entitle the approver for bail as a matter of right nevertheless, the provisions of Section 306(4) of Cr.P.C. cannot curtail the rights guaranteed under Article 21 of the Constitution of India. Learned Counsel further pointed out that as the other Accused have been released on bail and taking note of the fact that the evidence of the Applicant has already been recorded and that pardon has also been granted to the Applicant, there is no justification to allow the Applicant to remain in custody. In support of his submissions, learned Counsel has relied upon the Judgments of this Court in the case of Al Saleha Beig vs. The State of Goa in Criminal Application (Bail) No. 246 of 2009 and the Judgment of the Full Bench of the Rajasthan High Court reported in AIR 1987 Raj 52 in the case of NoorTaki alias Mammu vs. State of Rajasthan. Learned Counsel as such submits that the Applicant be released on bail upon such terms as deemed fit by this Court. 5. The learned Addl. Public Prosecutor, has pointed out that the Respondents have no objection in case the Applicant is released on bail but, however, conditions are to be imposed to the effect that the Applicant should remain present on every date of hearing of the Criminal case before the learned Sessions Judge and that he shall not leave the State of Goa without the permission of the Court. 6. 6. I have duly considered the submissions of the learned Counsel appearing for the respective parties. In the Judgment in the case of NoorTaki alias Mammu vs. State of Rajasthan (supra) relied upon by the learned Counsel appearing for the Applicant, it has been held at Para 16 and 19 thus: “16. …... But Article 21 of the Constitution can be looked into for seeking an aid to the contention that the scope of inherent powers of this Court should be so explained so as to cover the cases of an approver for consideration of bail in proper cases. In Francis Coralis Mullin's case (1981 Cri. LJ 306) (SC) (supra), their Lordships of the Supreme Court defined the scope of Article 21 of the Constitution. In that case the petitioner had challenged his detention under COFEPOSA Act and an argument was advanced challenging the constitutional validity of certain clauses of the detention order. Their Lordships held, "It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Article 21. This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. ..... The position now is that Article 21 as interpreted in Maneka Gandhi's case (supra) required that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise." 17. … 18. ... 19. … 18. ... 19. A perusal of the aforesaid cases coupled with that of many other cases, like that of Sunil Batra v. Delhi Administration: : : 1980 Cri LJ 1099; ( AIR 1980 SC 1579 ), and yet another case of Hussainara Khatoon reported in AIR 1979 SC 1360 : (1979 Cri LJ 1036), we have no hesitation in holding that detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Article 21 of the Constitution. Reasonable expeditious trial is warranted by the provisions of the Criminal Procedure Code and in case this is not done and an approver is detained for a period which is longer than what can be considered to be reasonable in the circumstances of each case, this Court has always power to declare his detention either illegal or enlarge him to bail while exercising its inherent powers. Section 482. Cr.P.C, gives wide power to this Court in three circumstances. Firstly, where the jurisdiction is invoked to give effect to an order of the Court. Secondly if there is an abuse of the process of the Court and thirdly, in order to secure the ends of justice. There may be occasions where a case of approver may fall within latter two categories. For example in a case where there are large number of witnesses a long period is taken in trial where irregularities and illegalities have been committed by the Court and a retrial is ordered and while doing so, the accused persons are released on bail, the release of the approver will be occasioned for securing the ends of justice. Similarly, there may be cases that there may be an abuse of the process of the Court and the accused might be trying to delay the proceedings by absconding one after another, the approver may approach this Court for seeking indulgence. But this too will depend upon the facts and circumstances of each case. Broadly, the parameters may be given but no hard and fast rule can be laid down. But this too will depend upon the facts and circumstances of each case. Broadly, the parameters may be given but no hard and fast rule can be laid down. For instance, an approver, who has already been examined and has supported the prosecution version, and has also not violated the terms of pardon coupled with the fact that no early end of the trial is visible, then he may be released by invoking the powers under Section 482, Cr.P.C. Section 482, Cr.P.C. gives only power to the High Court. Sessions Judge cannot invoke the provisions of the same. High Court therefore in suitable cases can examine the expediency of the release of an approver. We are not inclined to accept the contention of the learned Public Prosecutor that since there is a specific bar under Section 306(4)(b), Cr.P.C., Section 482, Cr.P.C., should not be made applicable. Their Lordships of the Supreme Court have said in lines without number, that there is nothing in the Code to fetter the powers of the High Court under Section 482, Cr.P.C. Even if there is a bar in different provisions for the three purposes mentioned in Section 482, Cr.P.C., and one glaring example quoted is that though Section 397 gives a bar for interference with interlocutory orders yet Section 482, Cr.P.C. has been made applicable in exceptional cases. Second revision by the same petitioner is barred yet this Court in exceptional cases invokes the provisions of Section 482, Cr.P.C. Therefore. Section ,482 Cr.P.C. gives ample power to this Court. However, in exceptional cases to enlarge the approver on bail, we answer the question that according to Section 306(4)(b), Cr.P.C. the approver should be detained in custody till the termination of trial, if he is not already on bail, atthe same time, in exceptional and reasonable cases the High Court has power under Section 482, Cr.P.C., to enlarge him on bail or in case there are circumstances to suggest that his detention had been so much prolonged, which would otherwise outlive the period of sentence, if convicted, his detention can be declared to be illegal, as violative of Article 21 of the Constitution.” 7. The learned Single Judge of this Court in the Order in the case of Al Saleha Beig vs. State of Goa (supra) has relied upon a Judgment of another learned Single Judge of this Court dated 10.01.2007 in the case of Shri Pratham Gadhagkar vs. State (Criminal Misc. Application (Bail) no. 409 of 2006), wherein it has been observed as follows: “This Court in the case of Shri Yogesh Dhadellu v. State (Criminal Misc. Application no. 125 of 2003) by unreported Judgment dated 24.07.2003 after relying on the aforesaid Full Bench decisions of the Delhi and Rajasthan High Courts exercised powers under Section 482 of the Code and ordered the release of the applicant on bail by executing a bond to appear before the Court, as and when directed by the Court. As already stated, the applicant/approver in this case has been already examined in the trial. No useful purpose would be served by continuing with his detention, even of the trial is likely to be completed in a month or two. The object to be achieved even by a provision like Section 306(4)(b) would not be defeated in case the applicant is ordered to be released on bail apart from the fact that the said provision would also be inapplicable to the facts of the case considering that the applicant was made an approver in terms of Section 307 of the Code. I have no reason to differ with the view held in R.T.O., Kolar vs. S. R.V. Pathi (supra).” 8. Considering the ratio of the Judgments referred to herein above, there is no bar to grant bail to the Accused in specific circumstances where the trial of the case is unduly prolonged and there are other circumstances which would justified to grant such bail. The learned Addl. Public Prosecution did not dispute the contention of the learned Counsel appearing for the Applicant that despite of the Order passed by this Court on 16.04.2012, the Respondents were not in a position to examine any witnesses up to this date. Apart from that, three of the other Accused have also been granted bail in the same case. There is no grievance by the Respondents that the Applicant has violated the terms of pardon and it is also not in dispute that the Applicant has already been examined. Apart from that, three of the other Accused have also been granted bail in the same case. There is no grievance by the Respondents that the Applicant has violated the terms of pardon and it is also not in dispute that the Applicant has already been examined. Apart from that, it is not disputed that though the Applicant is in custody from May 2011, only the Applicant has been examined and no other witness upto this date which shows that the trial will be prolonged. Considering the said aspect and taking note of the stand of the Respondents that the Applicant may be granted bail subject to conditions and in view of the ratio in the Judgments referred to herein above, I have no reason to refuse bail to the Applicant herein in the peculiar circumstances referred to above. 9. In view of the above, I pass the following: ORDER (i) The Applicant is directed to be released on bail subject to executing a personal bond of Rs.25,000/- with one surety in the like amount to the satisfaction of the learned Addl. Sessions Judge, Mapusa. (ii) The Applicant shall remain present before the Trial Court on every date of hearing in Sessions Case no. 19/2011 before the learned Addl. Sessions Judge, Mapusa. (iii) The Applicant shall report to the Calangute Police Station on any one day of the last week of every month in the afternoon sessions until the disposal of the said Sessions Case. (iv) Application stands disposed of accordingly. (v) Authenticated copy of this Order be issued to the parties in accordance with law.