Officer-In-Charge, Ampati Police Station v. Prohlad Hajong
2013-05-13
S.R.SEN
body2013
DigiLaw.ai
JUDGMENT : S.R. Sen, J. 1. The brief fact of the case in nut shell is that, an FIR was lodged on 02.04.13 by Sub-Inspector, P. Lynshiang of Ampati Police Station on the ground that information from reliable source was received that (L) Ms. Aloki Hajong age about 23 years has committed suicide by hanging herself and suspected that the cause of death is not suicide but murder. Accordingly, a case has been registered as Ampati P.S. Case No. 13(4) 2013 u/s 302 /201 /202 /353 /506 /34 IPC. The accused apprehending arrest approached the Court of Addl. District Magistrate (J) Tura who turned down pre-arrest bail application vide order dated 5.04.13 and 11.04.13. Thereafter the accused approached this Court for pre-arrest bail vide bail application No. 38/2013 and the said bail application was rejected by this Court on 25.04.13. On 26.04.13, the accused surrendered before the Court of Addl. Magistrate (J) Tura, she allowed the surrendering petition and granted them bail. Being aggrieved by the said order dated 26.04.13, the petitioner/Investigating Officer, Ampati, Police Station moved this instant revision petition. 2. While admitting the revision petition and after perusal of the orders referred to above, this Court issued notice to the respondents and also directed the Addl. District Magistrate (J) Tura to appear in person. In response to the said order, the Addl. District Magistrate (J) Tura appeared in person; the respondents accused appeared through their counsel Mr. R. Kar who filed Vakalatnama and the petitioner IO was present along with Mr. N.D. Chullai, the learned PP. 3. On question to the Addl. District Magistrate (J) Tura that, how and under what circumstances she passed an impugned order dated 26.04.13 in spite of the fact that pre-arrest bail has been rejected by this Court vide order dated 25.04.13. She replied to the question that she passed the said order as per her judicial discretion; she also admitted that before passing the order she did not call for the CD nor perused the CD. It has also been observed that her attitude before this Court was hostile and unacceptable for which I expressed my deep anguish and displeasure. 4. On the other hand, Mr. R. Kar, the learned counsel for the accused respondents submits that may be the order has been passed due to some miscommunication; but did not press against bail cancellation petition. 5. On the other hand, Mr.
4. On the other hand, Mr. R. Kar, the learned counsel for the accused respondents submits that may be the order has been passed due to some miscommunication; but did not press against bail cancellation petition. 5. On the other hand, Mr. N.D. Chullai, the learned PP submits that the Addl. District Magistrate (J) Tura passed a blanket order without any reason and without consulting the CD nor give an opportunity to the 10 to place his views. Moreover, by granting such kind of bail has really hampered the investigation and as per the direction of the Addl. District Magistrate (J) Tura, the accused persons till date did not appear before the 10 and prayed that the impugned order dated 26.04.13 may be cancelled. 6. After hearing the submissions advanced by the counsel for both the parties and after careful reading of the order dated 5.04.13 and 11.04.13, I noticed that the Addl. District Magistrate (J) Tura noted: Having heard both sides and on perusal of the FIR, I am not inclined to grant anticipatory bail to the petitioners as the case is very serious in nature. Rather the petitioners are directed to surrender before the O.C. Ampati P.S." Further, on perusal of the order dated 11.04.13,I noticed that the Addl. District Magistrate (J) Tura noted: Having heard both sides and considering the nature of offence as alleged the report of the IO, I am not inclined to grant pre-arrest bail to the petitioners as the same was already rejected on 5.4.13 by the Court having same jurisdiction. 7. I have perused the order dated 25.04.13 passed in AB (SH) No. 38 of 2013 passed by this Court which is reproduced herein below. 25.04.13 Heard Ms. S.G. Momin, the learned counsel for the petitioner who submits that the FIR does not indicate the involvement of the petitioner/accused. The police lodged an FIR and as a result, they are of the apprehension that they may be arrested at any point of time without any rhyme or reason, so pre-arrest bail may be granted at any condition and ready to face the trial. Mr. S Sen Gupta, the Addl. PP submits that the matter is serious and produced the CD. I have perused the CD and from the CD it appears that as many as 17 (seventeen) witnesses were examined till date by the investigating agency.
Mr. S Sen Gupta, the Addl. PP submits that the matter is serious and produced the CD. I have perused the CD and from the CD it appears that as many as 17 (seventeen) witnesses were examined till date by the investigating agency. On going through the statements of the witnesses examined so far, I find that there are prima facie matter in the instant case. Hence, I could not satisfy myself that if bail is granted, investigation will not be hampered. On the other hand, it will be proper to note that in such cases, if bail is granted, chaos may cause in the society and the judicial system may be shaken. Hence, bail is hereby rejected and the matter stands disposed of. The Addl. PP is directed to send down back the CD to the IO concerned along with copy of this order. 8. On further perusal of the impugned order dated 26.04.13 wherein it appears that the learned PP has strongly objected for granting bail and specifically submitted for police custody of the accused. In reply, the defence counsel submitted: that the Honourable High Court rejecting the bail plea directed them to surrender before the Police/Court and in compliance with their voluntary surrender before this Court. Moreover, there was no complain from the parents of the victim and they are physically present before this Court who may be examined by the learned Court. 9. After hearing the submissions advanced by the learned counsel the Lower Court has noted that: Perused the case record and upon considering the submission of both sides and on examination of the parents of the victim girl, I am satisfied to accept the surrender petition and allowed them to go on bail for a sum of Rs. 50,000/- (Rupees Fifty Thousand)only with two sureties of like amount on condition that they shall appear before the IO within 24 hours and thereafter as and when call for, cooperate investigation and shall not indulge in similar activities in future. Petition disposed of. 10. On perusal of the impugned order dated 26.04.13 referred to above, firstly I observed that the Addl. District Magistrate (J) Tura has failed to indicate any reason for accepting surrender petition or granting bail.
Petition disposed of. 10. On perusal of the impugned order dated 26.04.13 referred to above, firstly I observed that the Addl. District Magistrate (J) Tura has failed to indicate any reason for accepting surrender petition or granting bail. From the said impugned order, it is very clear that inspite of strong objection raised by the learned PP, the Court did not feel it necessary to call for CD before passing the order which is highly objectionable and irregular. 11. The Court below did not feel it necessary to ask the defence lawyer to produce the order of the High Court when they specifically referred to High Court's order. This shows that the Magistrate has totally failed to apply her judicial mind and passed the order whimsically for reason best known to her which is not only objectionable but against the principle of judicial system. 12. I also could not understand, when from the submissions of the lawyer that she came to know the High Court's order is in existence, how could she passed such an order without seeing or perusing the said order and just note the submissions of the lawyer as gospel truth. 13. The order dated 25.04.13 passed by this Court in AB (SH) No. 38 of 2013 never speaks about surrendering of the accused either before the Court or Police. This Court on perusal of the CD, found that it was not a fit case. Hence, pre-arrest bail was rejected. Noting the submissions of the lawyers about the order of the High Court without going through it is highly objectionable and undesirable for which, I expressed my anguish and displeasure once again. 14. On perusal of the case record as produced by the Addl. District Magistrate (J) Tura, I found that in the said record statements of the witnesses recorded by the IO were already there. I could not understand why the Addl. District Magistrate (J) Tura, did not analysis or evaluate the statement before granting bail. In the case of State of Tripura Vs. Samual Ruhul Askar reported in : 2001 (2) GLT 49, Para-4 was pleased to observed: The fact that the petitioner once moved anticipatory bail petition before this Hon'ble Court in Principal seat at Guwahati has been brought to the notice of the learned Additional Session Judge but he cared little in granting the anticipatory bail petition.
Samual Ruhul Askar reported in : 2001 (2) GLT 49, Para-4 was pleased to observed: The fact that the petitioner once moved anticipatory bail petition before this Hon'ble Court in Principal seat at Guwahati has been brought to the notice of the learned Additional Session Judge but he cared little in granting the anticipatory bail petition. In the impugned order sheet itself it reflects the fact of the anticipatory bail petition having been rejected by this Court at Principal Seat was brought to the notice of the learned Additional Session Judge but unfortunately the learned Additional Session Judge, without paying any attention allowed the anticipatory bail petition. The action of the learned Additional Session Judge in passing the impugned order granting anticipatory bail is highly depreciable, deserves to be disapproved. The power of granting anticipatory bail is a coordinate power vested both in the High Court as well as the Court of Session u/s 438 Cr.P.C. But, once such petition being moved by a particular accused is rejected by the High Court the same ought not to have been entertained by the Session Judged/Additional Session Judge being a subordinate Court to the High Court uphold the judicial propriety and to maintain the judicial discipline. Once a matter gets refusal from a superior Court the subordinate Court should not have entertained the same at all the instance of the same party. But, unfortunately reversed happened in the instant case. It is also made clear that once an anticipatory bail petition stands rejected by a particular Presiding Judge of the Session Court though successive petition is entertainable under law the subsequent one must be attended by the same Presiding Judge if available at station, that should be strictly followed to maintain the judicial propriety and discipline. 15. Similarly in this instant case, once pre arrest bail has been moved before this Court and the same was rejected, the learned Addl. District Magistrate (J) Tura should have perused the order of this Court and should have considered the materials on record and then to come to a conclusion. Therefore, I find that the impugned order dated 26.04.13 is not only irregular but against the judicial propriety and discipline. 16.
District Magistrate (J) Tura should have perused the order of this Court and should have considered the materials on record and then to come to a conclusion. Therefore, I find that the impugned order dated 26.04.13 is not only irregular but against the judicial propriety and discipline. 16. Since bail has been granted vide impugned order dated 26.04.13 by the Lower Court ignoring the materials and evidence on records in a heinous crime, such order cannot survive and liable to be set aside otherwise it will send a wrong message to the society and the entire judicial system will be shaken. The Hon'ble Supreme Court in the case of Puran Vs. Rambilas & Anr. reported in (2001) 6 SCC 338 was pleased to observed: 10. Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bai are being infringed. In support of his submission here lies upon the authority in the case of Dolat Ram Vs. State of Haryana: (1995) 1 SCC 349 . In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society.
Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial Court has to be corrected. For the reasons discussed above, I find it is a fit case where bail granted by impugned order dated 26.04.13 need to be set aside. Accordingly, the impugned order dated 26.04.13 passed by the Addl. District Magistrate (J) Tura is hereby set aside and cancelled. 17. Before I part with this case record, I express my displeasure and anguish once again in passing such whimsical order i.e. impugned order by the Addl. District Magistrate (J) Tura. I also warn her to be courteous and well mannered whenever she appears before the Higher Courts in the near future failing which one day she may face the consequence. 18. The Deputy Commissioner, West Garo Hills, Tura is directed to issue notice to the lawyer/lawyers who appear in this case before the Addl. District Magistrate (J) Tura in connection with bail application and who submit before the Lower Court that" High Court while rejecting pre-arrest bail has directed them to surrender before the Court or Police" as the whole fact was not only misleading but blatant lie and beyond the order of this Court passed on 25.04.13 referred to above and to record their statements and to submit the report in details within 15(fifteen) days from the date of this order. 19. Henceforth, it is further directed that all bail applications moved before any Court should be supported by an affidavit stating whether the bail applications moved earlier with result, secondly, whether any bail application moved before the Higher Court with result, thirdly, whether any bail application is pending before the Higher Court and also to annex a copy of the order passed by the respective Courts. 20. With these observations and directions, this instant revision petition is allowed by setting aside the impugned order dated 26.04.13 and the matter stands disposed of. 21.
20. With these observations and directions, this instant revision petition is allowed by setting aside the impugned order dated 26.04.13 and the matter stands disposed of. 21. Registry is directed to roll back the Lower Court case record to the concerned Court immediately and to circulate a copy of this judgment & order to the Deputy Commissioner, West Garo Hills, Tura for compliance and to all subordinate Courts of Meghalaya for their perusal and information. Registry is further directed to place a copy of this judgment & order before the Hon'ble Chief Justice, High Court of Meghalaya and also before the Hon'ble senior Judge of this Court for their Lordships information.