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2013 DIGILAW 174 (GAU)

Kishor Majumder v. State of Tripura

2013-03-13

SUBHASIS TALAPATRA

body2013
JUDGMENT Subhasis Talapatra, J. 1. The petitioners namely, Kishore Majumder and Surjya Kanta Majumder filed this criminal petition under Section 482 of the Criminal Procedure Code, 1973, the Cr.P.C. in short, for quashing the prayer dated 07.01.2013 (Annexure P-4 to this petition) as pressed by the Investigating Officer in Airport P.S. Case No. 117 of 2012 registered under Section 365/34 with added Section 302 of the IPC for cancellation of the bail as granted to the petitioners by the order dated 21.12.2012 in AB No. 245 of 2012 by this Court and for setting aside the orders dated 16.10.2013 (Annexure P-3 to this petition), 22.01.2013 (Annexure P-6 to this petition) and 27.1.2013 (Annexure P-7 to this petition) by the Chief Judicial Magistrate, West Tripura, Agartala. A written ejahar was lodged by one Samir Dutta on 06.12.2012 to the Officer-in-charge, Airport Police Station alleging amongst other things that from 02.12.2012 his son namely Bapi Dutta was missing when he went out with his auto rickshaw on hire from his house situated at Narsingarh. Later on even if the auto rickshaw was found in a place under Bodhjungnagar police station but his son was not recovered. The complainant suspected involvement of the petitioners in the said abduction of his son. On the written ejahar as stated, Airport P.S. Case No. 117 of 2012 was initially registered under Section 365 of 34 of the Indian Penal Code, the IPC in short. On apprehension of arrest in connection with the said Airport police station case, the petitioners approached the Sessions Judge, West Tripura, Agartala for pre arrest bail, but the Sessions Judge refused to extend the said benefit to the petitioners. Thereafter, they had approached this Court for having the benefit of the pre arrest bail contending that for the previous enmity they have been falsely framed in the said Airport police station case. Having considered the materials collected till 21.12.2012, this Court allowed the petitioners the benefit of pre arrest bail by the order dated 21.12.2012 with the conditions as extracted hereunder: Thus, in the event of arrest of the petitioners namely, Sri Kishore Kr. Majumder and Sri Surjya Kanta Majumder in connection with Airport P.S. Case No. 117 of 2012 under Section 365/34 of the IPC, they shall be released on bail on furnishing a bail bond of Rs. Majumder and Sri Surjya Kanta Majumder in connection with Airport P.S. Case No. 117 of 2012 under Section 365/34 of the IPC, they shall be released on bail on furnishing a bail bond of Rs. 40,000/- each supported by two sureties of the like amount to the satisfaction of the arresting authority, subject to the condition that they shall appear before the Investigating Officer on 24.12.2012 for their examination and for any other purpose as would be required in the interest of justice. Apart that the petitioners shall not leave their ordinary place of residence as described in the petition without leaving written intimation to the I.O. as well as they shall not induce or pose threat to any person seized of any information/materials related to the investigation. It is made clear that as and when the I.O. would seek their presence or co-operation for recovery of the abducted they shall extend so. If any breach is reported of the condition by the I.O. or any other person, the proceeding for cancellation of the bail as granted by this Court may be taken up by the Chief Judicial Magistrate. Agartala without any reference to this Court. (Emphasis added) The petitioners on surrender in the police station obtained the regular bail from the arresting authority on execution of the bond of bail supported by the surety in terms of the said order dated 21.12.2012. On 07.01.2013 the Investigating Officer made a prayer in the Court of the Chief Judicial Magistrate for cancellation of bail of the petitioners and for the police remand of the petitioners for interrogation in the custody for unearthing the truth. It has been stated in the said prayer that the petitioner did not appear before the I.O. on complying the condition of the bail and the petitioner No. 2 left his ordinary place of residence as described in 'the petition' without leaving any written intimation to the Investigating Officer. It has been further stated that on 31.12.2012 the Investigating Officer received information from the source that the accused petitioner No. 2 left their ordinary place of residence for Kolkata. On enquiry it transpired that on 04.01.2013 the petitioner No. 2 left Agartala for Kolkata without intimation to the Investigating Officer (the IO) by Spice Jet flight No. SG-874. It has been further stated that on 31.12.2012 the Investigating Officer received information from the source that the accused petitioner No. 2 left their ordinary place of residence for Kolkata. On enquiry it transpired that on 04.01.2013 the petitioner No. 2 left Agartala for Kolkata without intimation to the Investigating Officer (the IO) by Spice Jet flight No. SG-874. The details of the journey have been collected by the Investigating Officer and provided in the said petition for cancelling the bail. During investigation it transpired that the abducted person was murdered by the miscreants and his body was thrown in the river, Gomati. His decomposed body was recovered by the Officer-in-Charge, Sonamura Police Station and the inquest was made. All those instances have been recorded in the GD of the said police station. The post mortem was conducted by the Department of Forensic Science and Toxicology, Agartala Government Medical College and G.B.P. Hospital on 05.01.2013 and the body of the deceased was handed over to his father. It has been further asserted in the said petition for cancelling the bail petition that the petitioners made conspiracy and had taken active role in the said gruesome murder. The Chief Judicial Magistrate, West Tripura, Agartala by the order dated 07.01.2013 observed as under: Before passing appropriate order the accused persons should be heard personally so, issue notice to the sureties to produce the accused persons before the Court on the next date positively when on their appearance appropriate order would be passed after hearing both the sides. Accordingly, the date was fixed on 16.01.2013 for service return and hearing. In the meanwhile, the driver of the accused petitioner No. 2 namely, Pramananda Biswas was arrested and produced before the Chief Judicial Magistrate on 09.01.2013. On 16.01.2013 the Chief Judicial Magistrate, West Tripura, Agartala heard the Assistant Public Prosecutor appearing for the State as well as the defence counsel for the accused petitioners. But the Chief Judicial Magistrate, West Tripura, Agartala asked for production of the case diary and fixed the case on 18.01.2013 and the accused petitioners were asked to appear on the date so fixed. 2. On 18.01.2013 the Chief Judicial Magistrate, West Tripura, Agartala could not pass any order for the interim order dated 18.01.2013 as passed by this Court in Crl. Pet. No. 03 of 2013 along with Crl. (M) Appl. 2. On 18.01.2013 the Chief Judicial Magistrate, West Tripura, Agartala could not pass any order for the interim order dated 18.01.2013 as passed by this Court in Crl. Pet. No. 03 of 2013 along with Crl. (M) Appl. No. 20 of 2013 whereby it was directed not to take any coercive measure till the matter was place before the appropriate bench and the due order was passed. But on 22.01.2013 the Chief Judicial Magistrate, West Tripura, Agartala passed the order as the said Crl. Pet. No. 3 of 2013 was disposed of as not pressed and the copy of the order was placed in the record. By the order dated 22.01.2013 the Investigating Officer was again asked to produce the case diary on 27.01.2013. It would be apparent from the order dated 22.01.2013, the Chief Judicial Magistrate heard the counsel for the accused- petitioners at length and the concluding part of that order dated 22.01.2013 runs as under: The I.O. be asked to produce the CD on 27.01.2013 when on perusal of the Case Diary appropriate order would be passed. The date was fixed for Case Diary and order, not for hearing. 3. Accordingly, on 27.01.2013 an elaborate order was passed by the Chief Judicial Magistrate, West Tripura, Agartala which is available as Annexure P-7 to this petition. The Chief Judicial Magistrate cancelled the bail as granted to the accused petitioners, which reads as under: The pre-arrest bail granted to the Court accused persons namely, Surja Kanta Majumder and Kishore Majumder is hereby cancelled accordingly and their adjournment prayer filed today deserves no consideration and it is rejected. Issue W.A. arrest against accused Surja Kanta Majumder and Kishor Majumder. As the accused persons are absent today so, the prayer of the I.O. for 8 days remand of accused persons in police custody cannot be considered at this stage till their production. The I.O. be asked to expedite investigation and to submit report in accordance with law. As the proceeding for cancellation of bail is disposed of by this Court today. Henceforth, further necessary orders of this case will be passed by the concerned Ld. Elaka Magistrate. The record be placed before the Elaka Magistrate accordingly. It is to be noted that on 22.01.2013 an application for granting adjournment was filed by the accused-petitioners seeking time for submitting the written objection. Henceforth, further necessary orders of this case will be passed by the concerned Ld. Elaka Magistrate. The record be placed before the Elaka Magistrate accordingly. It is to be noted that on 22.01.2013 an application for granting adjournment was filed by the accused-petitioners seeking time for submitting the written objection. In the said petition it has been stated at para-2 that: It is stated that till date, no copy of the prayer dated 07.01.2013, made by the Investigating Officer, has been supplied to the accused persons, and hence, they could not submit any objection thereto. The accused persons humbly submit that they want to submit a written objection against the said prayer, and thus copy of the prayer is urgently required. Thus this application is filed. As stated the Chief Judicial Magistrate, West Tripura, Agartala rejected the said prayer by the impugned order dated 27.01.2013 (Annexure P-7 to this petition). On 06.02.2013 this Court passed an order as under: Considering the submission of learned counsel of both side and also considering the prayer of the petitioners on merit, I think, the State respondent should be given a scope to show cause and, in the meantime, the Registry is directed to call for the records of Airport PS Case No. 117 of 2012 from the Court of Chief Judicial Magistrate, West Tripura, Agartala. Since learned Addl. P.P. recorded his appearance and received the copy of the petition, no formal notice need be issued. The State respondent is at liberty to file objection, if any, on the next date. Since it is a matter of cancellation of bail, i think three days time is enough for the State respondent to submit their counter, if any. Registry, in the meantime, may call for the records as directed above. 4. Mr. D.C. Kabir, learned counsel along with Mr. Somik Deb, learned counsel appeared for the petitioners and contended that from 22.12.2012 to 31.12.2012, the petitioners appeared before the Investigating Officer and had requested him to record their appearance but the Investigating Officer had declined the said request. The wife and the minor daughter of the petitioner No. 2 suddenly fell sick at Kolkata and in such mitigating situation the petitioner No. 2 proceeded for Kolkata for attending his ailing wife and minor child. The wife and the minor daughter of the petitioner No. 2 suddenly fell sick at Kolkata and in such mitigating situation the petitioner No. 2 proceeded for Kolkata for attending his ailing wife and minor child. After attending them, the petitioner No. 2 of his own accord and volition came back to Agartala, however without any information/direction from the end of the Investigating Officer. In the meantime, the dead body of the abducted was recovered from the river Gomati at Sonamura Sub-Division and on recovery thereof, the Investigating Officer made a prayer before the Chief Judicial Magistrate to add Section 302 of the IPC and accordingly the Section 302 of the IPC was added. After coming back to Agartala, the petitioner No. 2 learnt that on 07.01.2013 the Investigating Officer submitted a prayer for cancellation of the bail as extended by the order dated 21.12.2012. The petitioners also could learn that their bailors were directed to produce the accused-petitioners on 16.01.2013. 5. In this petition, the petitioners averred on oath: It is farther stated that till date, copy of the prayer for cancellation of the bail of the petitioners by the Investigating Officer has not been supplied. It has been also stated that on 16.01.2013 the petitioners appeared before the Chief Judicial Magistrate, West Tripura, Agartala and submitted that in absence of a formal petition seeking cancellation of bail, the prayer of the Investigating Officer (Annexure P-4) was unsustainable. No liberty whatsoever was granted as regards the other conditions save that as and when the Investigating Officer would seek their presence or co-operation for recovery of the abducted they shall extend so. Further it has been asserted that for leaving ordinary place of residence to meet an emergent situation as stated should not warrant cancellation of the bail. It has been stated that unless over whelming circumstances of abusing the conditions of the bail writ large, the prayer for cancellation of bail is hardly sustainable. The bail cannot be cancelled on mechanical consideration. The accused petitioners also stated that a temporary change of place does not amount to 'change of ordinary residence and hence the prayer of the Investigating Officer was bereft of any substance. 6. When the order dated 16.01.2013. The bail cannot be cancelled on mechanical consideration. The accused petitioners also stated that a temporary change of place does not amount to 'change of ordinary residence and hence the prayer of the Investigating Officer was bereft of any substance. 6. When the order dated 16.01.2013. was passed by the Chief Judicial Magistrate on hearing the counsel for the State and the accused- petitioners and fixing the next date for passing the appropriate order the accused petitioners approached this Court by filing a petition under Section 482 of the Cr.P.C. which was however was not pressed by the accused petitioners as would be reflected in the order dated 21.01.2013. The petitioners on 22.01.2013 while seeking adjournment for filing 'the written objection' and for direction on the Investigating Officer to supply the accused-petitioners a copy of the prayer for cancellation of the bail, harped that copy of the prayer was not supplied to them meaning that they were prevented from submitting the objection for non-availability of a copy of the prayer for cancellation. It is admitted that on 27.01.2013 both the accused petitioners did not appear before the Chief Judicial Magistrate. The petitioner asserted further that without considering the contentious issues raised by the petitioners, the Chief Judicial Magistrate rejected the benefit of 'pre arrest bail' granted by this Court and issued the warrant of arrest against the petitioners. 7. Mr. D.C. Kabir, learned counsel appearing for the accused petitioners submitted with sufficient vehemence that the Chief Judicial Magistrate did not provide reasonable opportunity to object the prayer for cancellation. He further submitted that the prayer for remand in the police custody of the accused petitioners as couched with the prayer for cancelling the bail unwaveringly manifests the ulterior motive of the Investigating Officer and thus Mr. Kabir, learned counsel appearing for the petitioners contended that the cancellation is not for the interest of justice but for an extraneous purpose. However, Mr. Kabir, learned counsel appearing for the petitioners contended that the cancellation is not for the interest of justice but for an extraneous purpose. However, Mr. Kabir relinquished the ground as asserted in the petition that: manifestly reveals that power/authority has been vested on to the learned CJM, to invoke the jurisdiction of cancellation, only when it is discerned that the petitioners have deliberately and willfully flouted the conditions of bail, and therefore, as a logical corollary thereof, it clearly emerges that under the umbrella of the orders dated 21.12.2012 (Annexure P-2 supra), the volume of the materials collected during investigation, is absolutely inconsequential, while deciding a prayer of cancellation of bail. 8. To buttress the contention Mr. Kabir, learned counsel appearing for the accused petitioners placed reliance on the decision of the Apex Court in Rizwan Akbar Hussain Syyed Vs. Mehmood Hussain & Anr.; as reported in (2007) 10 SCC 368 where the Apex Court observed: 7. ***Cancellation of bail should not be done in a routine manner, where it appears to the superior Court that the Court granting bail acted on irrelevant materials or there was non-application of mind or where Court does not take note of any statutory bar to grant of bail, order for cancellation of bail can be made. 9. To contend that the bail can be cancelled, if the accused when: (1) misuses his liberty by indulging in similar criminal activity, (2) interferes with the course of investigation, (3) attempts to tamper with evidence of witnesses, (4) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (5) attempts to flee to another country, (6) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (7) attempts to place himself beyond the reach of his surety, etc. Mr. Kabir, learned counsel relied on Rasiklal Vs. Kishore, as reported in (2009) 4 SCC 446 . 10. Mr. Kabir, learned counsel appearing for the accused petitioners placed reliance on another decision of the Apex Court in Raj Kumar Jain & Anr. Vs. Kundan Jain & Anr., as reported in (2004) 10 SCC 612 to contend that mere allegations of breach is not sufficient. It requires more. Relevant part of the said decision reads as under: 10. 10. Mr. Kabir, learned counsel appearing for the accused petitioners placed reliance on another decision of the Apex Court in Raj Kumar Jain & Anr. Vs. Kundan Jain & Anr., as reported in (2004) 10 SCC 612 to contend that mere allegations of breach is not sufficient. It requires more. Relevant part of the said decision reads as under: 10. ***Of course, there is an allegation that on 16th evening, an oral complaint was lodged but there is no record substantiating the same, except the ipse dixit of Harish Bhuva. Then again, if we read the affidavit filed by the Inspector of Police, which was 8 months after the alleged threat, it is seen that this Officer makes a complaint for the first time that the second appellant has not complied with the conditions imposed by the High Court while granting bail of appearing before the Police, This is a fact, in our opinion, far from truth. As a matter of fact, as per the order granting anticipatory bail to the appellants and two others, there was a direction only with regard to the first appellant herein to stay in Chennai for a week, others were not even required to be in Chennai but they had to report to the Police as and when required by the Police. If realty the second appellant had disobeyed this direction, we would not have expected the Police Officer to condone this default and wait for nearly 10 months before making an issue of it in an application filed for cancellation of bail by the first respondent. It is further seen from the said affidavit of the Police Inspector that Harish Bhuva lodged the complaint as to the threat administered to him only on 17.2.2003. She has not stated anything about the oral complaint that is allegedly lodged by said Harish Bhuva on 16.2.2003. If we notice the allegation made in the affidavit filed by Harish Bhuva in this regard, it could be seen that he informed the first respondent about the visit of the appellant to his house and the first respondent promised him that his interest would be protected in a manner known to law but he does not state in that affidavit that he tried to lodge an oral complaint on 16.2.2003. As notice above, in the background of the facts of this case, we find it difficult to believe that this witness would have failed to inform the first respondent of the visit of the appellants on 15.2.2003 itself and first respondent or said Harish Bhuva would have failed to lodge a complaint with the concerned Police immediately thereafter either on 15.2.2003 or 16.2.2003. The actual complaint lodged as stated above, was only on 17.2.2003 and that too was only posted at 1956 hours. This delay in lodging a complaint itself creates a doubt in our mind as to the authenticity of this complaint. In this factual background, we are of the opinion that the High Court was not justified in cancelling the bail granted. 11. On questioning the bonafide of the Investigating Officer who prayed for cancellation of bail as granted by this Court to the accused petitioners Mr. Kabir further submitted that due to the change of the Investigating Officer, the said prayer for cancellation of bail was made. He further contended that the Investigating Officer ought to have served notice on the bailor to produce the accused petitioners and if thereafter they were not attending him there would have been some justification to approach the Court so authorized for cancellation. But there is nothing on record that the Investigating Officer had made such attempts or that the accused petitioners despite such notice did not appear before the Investigating Officer. In this regard, he also relied a decision under Gurvev Singh & Anr. Vs. State of Bihar & Anr. as reported in (2005) 13 SCC 286 where the Apex Court held: 2. Mr. Singh, learned Counsel appearing for the State of Bihar, says that no doubt the Process Server has indicated that there has been service of notice inasmuch as the accused-persons refused to accept the same. But, that report cannot be sacrosanct, and the accused is entitled to hearing before the bail is cancelled. 12. While opposing the prayer for cancellation of bail and questioning the impugned order dated 27.01.2013 no hold barred, Mr. Kabir alternatively submitted that this Court may further direct the accused petitioners to observe even harsher conditions as additional conditions of bail in the interest of investigation. To nourish his contention he referred decision in Nittyanand Rai Vs. State of Bihar & Anr. Kabir alternatively submitted that this Court may further direct the accused petitioners to observe even harsher conditions as additional conditions of bail in the interest of investigation. To nourish his contention he referred decision in Nittyanand Rai Vs. State of Bihar & Anr. as reported in (2005)4 SCC 178 where the Apex Court held: 10. Therefore, we are satisfied that the cancellation of bail by the impugned order, by the High Court is unsustainable. However, taking into consideration the apprehension of the complainant that the appellant by using his power as member of the Legislative Assembly might interfere in the trial or try to influence the witnesses in the case, we feel it appropriate to direct the appellant not to enter the territorial jurisdiction of Hajipur Sub Division of District Vaishali except for the purpose of attending the trial. If for any reason it becomes imperative for the appellant to visit Hajipur then he shall do so after informing the investigating agency in the case. This condition shall be in addition to the conditions imposed by the High Court for granting bail as per its order dated 19.9.2003. 13. Mr. R.C. Debnath, learned Additional Public Prosecutor at the outset stated that the State has filed the affidavit-in-objection against the petition filed under Section 482 of the Cr.P.C. by the accused petitioners unfolding the relevant fact and the background for making the prayer for cancellation. In para-3 of the said objection the violation of the conditions as indulged by the accused petitioners has briefly been catalogued thus: 3.(i)They did not appear before the I.O. on 24.12.2012 as directed by this Hon'ble Court. (ii) For the interest of smooth investigation I.O. directed the accused persons to appear before him on 28.12.2012. But they did not appear. It is also a condition was in the order of the Hon'ble High Court. But they violated deliberately. (iii) One of the accused person namely, Surjya Kanta Majumder alias Mani left for Kolkata on 4.1.2013 without prior intimation to the I.O. It is also a condition was in the order of the Hon'ble High Court. But he violated. Mr. Debnath further contended that on recovery of the corpus delict of the missing person at the instance of the police, Section 302 IPC has been added as the missing person namely, Bapi Datta was murdered by some miscreants. But he violated. Mr. Debnath further contended that on recovery of the corpus delict of the missing person at the instance of the police, Section 302 IPC has been added as the missing person namely, Bapi Datta was murdered by some miscreants. In the changed circumstances and for flagrant breach as stated it was required for the investigation that the bail as extended to the accused petitioner be cancelled. It has been asserted in the said objection that: 9. That, the accused petitioners filed some documents for their non appearance before the learned Chief Judicial Magistrate, West Tripura are not genuine. Only to avoid the process of the investigation by non co-operating with the Investigating Agencies and violating the order of the Court of law deliberately taking this or that plea which are not tenable by this Hon'ble Court. 10. That, in the criminal petition of the accused petitioners they have raised one point that only Surjya Kanta Majumder has left his present place of residence without prior intimation the I.O. But why the pre-arrest bail of another accused namely, Kishore Majumder has been cancelled by the learned Chief Judicial Magistrate, West Tripura, Agartala. In this respect it is submitted by the State Respondent that both the accused persons are full blooded brother and living in the same mess and they have committed the crime jointly so far investigation goes. In this situation it is to be presumed at this stage that without collusion with one another he has not left the place of his residence. Their petition for pre-arrest bail is also a joint petition. Order passed by this Hon'ble Court on 21.12.2012 with conditions some of which they broke jointly and simultaneously and for this reason no severance can be allowed. 11. That, the accused persons at present with effect from 27.01.2013 are not found in their place of residence even within the District of West Tripura. Till today they are absconded. The Hon'ble Court may direct the accused persons to appear before this Hon'ble Court at the time of hearing. 14. Mr. Debnath seriously refuted the allegation as levelled by the accused petitioners that they had been attending the police station but the Investigating Officer refused to give them any acknowledgement of their appearance. Mr. Debnath quite emphatically submitted that barring this criminal petition such allegation has nowhere been made against the Investigating Officer. 14. Mr. Debnath seriously refuted the allegation as levelled by the accused petitioners that they had been attending the police station but the Investigating Officer refused to give them any acknowledgement of their appearance. Mr. Debnath quite emphatically submitted that barring this criminal petition such allegation has nowhere been made against the Investigating Officer. Whenever any accused petitioner is directed by any Court to appear before the Investigating Officer such appearance is always acknowledged by the Investigating Officer in writing. No such allegation has even made to the superior officer of the Investigating Officer on the alleged conduct of the Investigating Officer. As such those allegations are absolutely fictitious and only for purpose of misleading this Court. He further submitted that all the conditions basing on which the anticipatory bail was extended to the accused petitioners have been grossly breached by them by impeding the fair investigation. He submitted the case diary to support his contention and to show that how the Investigating Officer had tried to compel the appearance of the petitioners. 15. Mr. Debnath, learned counsel relied on a decision of the Apex Court in P.K. Shaji Vs. State of Kerala as reported in AIR 2006 SC 100 to show the superior Court within its authority to empower the subordinate Court of the competent jurisdiction to take up any proceeding for breach of the conditions of the bail. In P.K. Shaji (supra) the Apex Court held that: 8. The order of the Sessions Court shows that the learned Magistrate has been empowered to consider the question of violation of any of the conditions imposed by the Sessions Court and was given powers to pass appropriate orders. The plea raised by the appellant's learned Counsel is that when the learned Magistrate had no such power, the Sessions Court was not empowered to invest that power in the Magistrate. We do not find any force in this contention. The superior Court can always give directions of this nature and authorise the subordinate Court to pass appropriate orders and the trial Magistrate would be the competent authority to decide whether any condition had been violated by the person who had been released on bail. When there is a specific direction to pass appropriate orders as if the conditions for granting bail had been imposed by the learned Magistrate himself, the impugned Order is legal and valid. [Emphasis supplied] 16. When there is a specific direction to pass appropriate orders as if the conditions for granting bail had been imposed by the learned Magistrate himself, the impugned Order is legal and valid. [Emphasis supplied] 16. To rejoin the allegations that the Chief Judicial Magistrate has considered the irrelevant materials of the case diary beyond the province of the consideration for cancellation of bail, Mr. Debnath, learned Additional P.P. referred a decision of the Apex Court in State through the Delhi Administration Vs. Sanjay Gandhi, as reported in AIR 1978 SC 961 where the Apex Court held amongst other things that: We are not disposed to allow the State to rely on any new material which was not available to the High Court. True, that the additional data came into existence after the High Court gave its judgment but it would be unfair to the respondent to make use of that material without giving him an adequate opportunity to meet it. That will entail a fairly long adjournment which may frustrate the very object of the proceedings initiated by the State. Besides, though in appropriate cases the Court has the power to take additional evidence, that power has to be exercised sparingly, particularly in appeals brought under Article 136 of the Constitution, The High Court, while dismissing the State's application for cancellation of bail, has reserved to it the liberty to approach it "if, at any time in future, the respondent abuses his liberty". The new developments could, if the prosecution is so advised, be brought to the High Court's attention for obtaining suitable relief. We cannot spend our time in scanning affidavits and sifting material for the first time for ourselves, for determining whether the new material can justify cancellation of bail. We propose, therefore, to limit ourselves to the facts and incidents which were before the High Court and on which it has pronounced. 17. Mr. Debnath submitted that the new materials those were placed in the case diary were described with their contents in the prayer for cancellation of bail. Therefore, the accused petitioners got the sufficient opportunity to have their say on those materials. Apart that in Sanjay Gandhi (supra) the Apex Court stated that those can be considered by the Court of the competent jurisdiction for consideration of cancellation of bail. However, Mr. Therefore, the accused petitioners got the sufficient opportunity to have their say on those materials. Apart that in Sanjay Gandhi (supra) the Apex Court stated that those can be considered by the Court of the competent jurisdiction for consideration of cancellation of bail. However, Mr. Debnath, learned Additional P.P. did not disagree to the proposition that for cancellation of bail, the jurisdiction has to be exercised with care and circumspection in as much as in Sanjay Gandhi (supra) the Apex Court has observed succinctly thus: 24. Section 439(2) of the Cr.P.C. confers jurisdiction on the High Court or Court of Sessions to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases. few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process. We might as well wind up the Courts and bolt their doors against all than permit a few to ensure that justice shall not be done. [Emphasis supplied] 18. Mr. Debnath, learned Additional P.P. for the State relied another decision of the Apex Court in State through C.B.I. Vs. Amarmani Tripathi as reported in AIR 2005 SC 3490 . In Amarmani Tripathi (supra) the Apex Court approving the decision in Dolat Ram Vs. State of Haryana as reported in (1995) 1 SCC 349 held that: In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under Section 439 read with Section 437, continue to be relevant. We, however, agree that while considering and deciding appeals against grant of bail, where the accused has been at large for a considerable time, the post bail conduct and supervening circumstances will also have to be taken note of. We, however, agree that while considering and deciding appeals against grant of bail, where the accused has been at large for a considerable time, the post bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail. Further, it has been observed approving the decision in Panchanan Mishra Vs. Digambar Mishra as reported in 2005 (3) SCC 143 : The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime. It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation. 19. In compliance to the order dated 06.02.2013, the judicial records as well as the case diary have been placed before this Court for examination. It appears from the case diary that after 21.12.2012 the accused persons never appeared in the police station or before the Investigating Officer. On the contrary, it appears from the G.D. Entry No. 958 dated 28.12.2012. that the accused petitioners were informed to appear before the Investigating Officer who is also the Officer-in-charge of the police station, but they preferred not to appear rather the accused petitioner No. 2 left for Kolkata by Spice Jet Flight No. 874 and e-ticket of such journey has also been collected by the Investigating Officer. From the G.D. Entry No. 1053 dated 31.12.2012 it appears that no information was tendered by the accused petitioner No. 2 for his journey leaving the ordinary place of residence. Apart that it is not in dispute that the accused petitioners do not have any record of their appearance before the police station after 21.12.2012. What Mr. Kabir, and Mr. From the G.D. Entry No. 1053 dated 31.12.2012 it appears that no information was tendered by the accused petitioner No. 2 for his journey leaving the ordinary place of residence. Apart that it is not in dispute that the accused petitioners do not have any record of their appearance before the police station after 21.12.2012. What Mr. Kabir, and Mr. Deb, learned counsel for the accused petitioners contended that despite the accused petitioners appeared in the police station, the Investigating Officer or any authority in the police station did not give them any acknowledgment in writing for such appearance can hardly be believed. Apart that another contention as has been raised with emphasis before the Chief Judicial Magistrate as well as before this Court that no copy of the prayer for cancellation of bail was ever supplied to the accused petitioners and thus the accused petitioners were denied their right to the effective hearing is required a serious consideration. For that purpose, this Court has brought the record of the Crl. Pet. No. 3 of 2013 as preferred by the accused petitioners. 20. Astonishingly, it appears from the criminal petition being Crl. Pet. No. 3 of 2013 as filed by the accused petitioners that they had annexed a copy of the prayer for cancellation in question at page 23. The said Crl. Pet. No. 3 of 2013 was filed in this Court on 18.01.2013 and disposed of as not pressed on 21.01.2013. But the said prayer for granting adjournment was made on 22.01.2013. The accused petitioners by filing such application made false statement before the Chief Judicial Magistrate, West Tripura, Agartala as well as before this Court on oath and thus they practised mischief on the proceeding of the Court deliberately. It is even more surprising that the learned counsel appearing for the accused petitioners did not come with clean hands while making submissions on that aspect of the matter. It further appears from the judicial records as placed before this Court that extracts of the G.D. Entry No. 958 dated 28.12.2012, No. 959 dated 28.12.2012 and No. 965 dated 28.12.2012 were placed for consideration to the Chief Judicial Magistrate and extracts of those are also available in the case diary. 21. The Apex Court in Raj Kumar Jain (supra) was attended with the fact situation, asymmetrical to the fact of this case. 21. The Apex Court in Raj Kumar Jain (supra) was attended with the fact situation, asymmetrical to the fact of this case. Apart that, the reasons for which the Apex Court was not inclined to hold the order of the High Court good are curved out. One of those being consideration of the irrelevant factors while cancelling the bail as extended to the accused persons. In this case, the Investigating Officer unlike the case of Raj Kumar Jain (supra) acted with adequate promptitude and placed on record how the accused persons defied the conditions of bail impeding and affecting the investigation adversely. The catalogue of the conducts which can be considered for cancellation of the bail as provided in Rasiklal (supra) is fundamentally for cancellation of the bail granted to the accused with reference to a bailable offence. The principle as stated in Rasiklal (supra) however flavours universality as the guiding hawk for consideration of a prayer for cancellation of bail. 22. In Para-14 of Rasiklal (supra) the Apex Court held that: 14. However, a bail granted to a person accused of bailable offence cannot be cancelled on the ground that the complainant was not heard. As mandated by Section 436 of the Code what is to be ascertained by the officer or the Court is whether the offence alleged to have been committed is a bailable offence and whether he is ready to give bail as may be directed by the officer or the Court. When a police officer releases a person accused of a bailable offence, he is not required to hear the complainant at all. Similarly, a Court while exercising powers under Section 436 of the Code is not bound to issue notice to the complainant and hear him. The principles of Rasiklal (supra) cannot salvage the accused- petitioners in the context as their attempt to make themselves scarce to the investigation deserves no lenient response as juxtaposed with protection of the fair trial and securing justice being done to the society. 23. The principle as laid down in Rizwan Akbar Hussain Syyed (supra) has been accepted by the Courts in this country while considering any prayer for cancellation of bail. 23. The principle as laid down in Rizwan Akbar Hussain Syyed (supra) has been accepted by the Courts in this country while considering any prayer for cancellation of bail. It is not as a routine but with adequate circumspection, the jurisdiction of cancellation of bail has to be exercised but that does not preclude any Court of the competent jurisdiction to cancel the bail in appropriate cases else as observed the provision would be rendered to be dead letter and against the substantive justice. This Court has carefully scrutinized the judicial records and found that sufficient notice was given and adequate opportunity of hearing was afforded to the petitioners. More than once, the counsel appearing for the petitioners made lengthy submission before the Chief Judicial Magistrate, West Tripura, Agartala Bench. Thus it cannot be stated that the accused petitioners were denied of the reasonable opportunity of hearing. 24. The allegation that has been made against the Investigating Officer that without issuing notice either to the accused petitioners or to the sureties whether the prayer for cancellation of bail is sustainable or not is apparently very charming. 25. The law is brazenly poised that the Investigating Officer may only make endeavour to secure their attendance for purpose of examination or for any other purpose related to the investigation but he has no right to cancel or abrogate the privilege of bail. When the Investigating Officer is of the opinion that the cancellation is required to protect the interest of the investigation and to secure the justice to the society, he has no other option left but to approach the appropriate Court for cancellation of bail and then it would be duty of the said Court of the competent jurisdiction to afford the accused persons the reasonable opportunity of hearing before taking any adverse decision. Therefore, there is no substance in the submission that unless the sureties are asked by dint of a notice by the Investigating Officer, the prayer for cancellation of the bail cannot be made. The right that has been acknowledged in law is that before such cancellation the accused petitioner shall be heard. Ultimately, it is interest of substantive justice that has to be protected over the individual right. The right that has been acknowledged in law is that before such cancellation the accused petitioner shall be heard. Ultimately, it is interest of substantive justice that has to be protected over the individual right. This Court has extended the privilege of the pre-arrest bail to the accused petitioners but they showing defiance have not observed the following conditions: (1) None of the accused petitioners appeared on 24.12.2012 as directed by this Court specifically. (2) Despite intimation by the Investigating Officer; they preferred not to appear before him, and (3) The accused petitioner No. 2 left the ordinary place of residence as recorded in the anticipatory bail application without intimating the Investigating Officer. He was directed to inform the Investigating Officer whenever he would intend to leave his ordinary place of residence. These are not the very insignificant breach of the conditions. Those breaches have gravely affected the process of investigation. The accused petitioners are so desperate that they have also tried to practise mischief on the proceeding of the Courts by making a statement that the copy of the prayer for cancellation of bail was not made available to them till the date of filing this petition whereas from the record of the Crl. Pet. No. 3 of 2013 it appears that the accused petitioners were possessed of the said prayer and they had annexed the same to their Crl. Pet. No. 3 of 2013. As such, this Court has not found required assurance to allow them to be on bail any further even by imposing some harsher conditions as indicated and accordingly, this petition stands dismissed and the impugned order dated 27.01.2013 (Annexure P-7 to this petition) stands affirmed by this Court. No further interference from this Court warrants in the circumstances of this Case. 26. The accused petitioners would surrender forthwith to the Investigating Officer. In their failure, the Investigating Officer shall take all required steps for their arrest by way of execution of the warrant of arrest as issued with alert and promptitude. The judicial records be sent down and the case diary as produced by Mr. R.C. Debnath, learned Additional P.P. be returned forthwith. Petition dismissed