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2014 DIGILAW 641 (PAT)

Saheb Das v. State of Bihar

2014-06-03

ASHWANI KUMAR SINGH

body2014
ORDER : By filing the present application under Section 482 of the Code of Criminal Procedure, the petitioners assail the order dated 25th February, 2013 passed by the learned Additional District & Sessions Judge-3rd, West Champaran at Bettiah in Criminal Revision No. 291 of 2012 by which he has rejected the revision application filed against the order dated 31st October, 2012 passed by the learned Chief Judicial Magistrate, Bettiah, West Champaran in Sathi P.S. Case No. 47 of 2011 whereby he had recalled his order dated 21st September, 2012 in exercise of powers conferred under Section 437 (5) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’). 2. Initially, Complaint Case No.1030 of 2011 was filed on 27th May, 2011 in the Court of Chief Judicial Magistrate, Bettiah against the petitioners. The said complaint was referred to the police under Section 156(3) of the Code for investigation pursuant to which an FIR being Sathi P.S. Case No.47 of 2011 dated 11th June, 2011 was registered against the petitioners for the offences punishable under Sections 364, 367, 370 and 371 read with 34 of the Indian Penal Code. 3. In short, the case of the informant Raj Kishore Pandey is that on persuasion of the petitioners, he had sent his unemployed son Dilip Pandey aged about 19 years along with petitioner no. 1 Saheb Das to Ludhiana on 8th December, 2010 for earning his livelihood. The petitioner no. 1 Saheb Das had been working at Ludhiana since seven years. Subsequently, Saheb Das returned alone to his village from Ludhiana. On inquiry having been made by the informant, he disclosed that his son would return after a week. When the informant’s son did not return to his village for months together, he approached the petitioners in order to know his whereabouts. Upon this, they got enraged and threatened the informant to leave the place. It has been stated in the FIR that after going to Ludhiana the informant’s son used to speak to him on phone but since few months he had lost contact with him even on telephone. 4. On the basis of the aforesaid allegations made in the written complaint, the informant suspected that the petitioners would have either killed his son or sold him. 5. In course of investigation, the petitioners were apprehended by the police on 20th September, 2012. 4. On the basis of the aforesaid allegations made in the written complaint, the informant suspected that the petitioners would have either killed his son or sold him. 5. In course of investigation, the petitioners were apprehended by the police on 20th September, 2012. An application for bail was made on their behalf before the learned Chief Judicial Magistrate, Bettiah, West Champaran. After hearing the parties, the learned Chief Judicial Magistrate granted bail to the petitioners by a reasoned order passed on 21st September, 2012. The petitioners were released from judicial custody on 22nd September, 2012 on furnishing bail bond and sureties to the satisfaction of the Court. 6. Immediately, after the release of the petitioners on bail, the investigating officer of the case filed an application on 28th September, 2012 in the Court of Judicial Magistrate, Bettiah, seeking a direction for subjecting the petitioners to Narco Analysis Test. The said prayer of the investigating officer was rejected by the learned Chief Judicial Magistrate on the same day i.e., on 28th September, 2012. Immediately, thereafter, the investigating officer filed a petition in the Court of Chief Judicial Magistrate on 16th October, 2012 for cancellation of bail which had already been granted to the petitioners vide order dated 21st September, 2012. 7. It was contended in the aforesaid petition that after being released on bail, the petitioners were intimidating the informant and his wife in order to withdraw the case. It was further contended that notices were sent upon the petitioners on 9th October, 2012 for subjecting them to Narco Analysis Test but they refused to accept the notice. A suspicion was also raised that if the petitioners would be allowed to continue on bail, they may influence the witnesses. 8. On receipt of a copy of petition, the petitioners filed a reply in the Court on 30th October, 2012 in which they clearly stated that they have never ever tampered with the investigation of the case. They have also stated that no notice was ever sent to them by the investigating officer and as such there is no question of evading the notice. They have further stated that the investigating officer has not filed any supporting evidence in the Court in order to establish the allegations made in the petition by which cancellation of bail of the petitioners has been sought for. They have further stated that the investigating officer has not filed any supporting evidence in the Court in order to establish the allegations made in the petition by which cancellation of bail of the petitioners has been sought for. It has further been contended that the petitioner no. 2 Bishundeo Das is an old and infirm person aged about 70 years and the informant has filed an out-and-out false and frivolous case in order to blackmail the petitioners. 9. After hearing the parties and perusing the record, the learned Chief Judicial Magistrate recalled his earlier order dated 21st September, 2012 by which he had granted bail to the petitioners and directed the office to issue non-bailable warrant of arrest against them. 10. The said order dated 31st October, 2012 was challenged in revision before the Sessions Court in Criminal Revision No. 291 of 2012. The learned Additional District & Sessions Judge-3rd, West Champaran, Bettiah dismissed the aforesaid revision application vide order dated 25th February, 2013. 11. Being aggrieved by the aforesaid order dated 31st October, 2012 passed by the learned Chief Judicial Magistrate, West Champaran, Bettiah and the order dated 25th February, 2013 passed in Criminal Revision No. 291 of 2012 by the learned Additional District & Sessions Judge-3rd, West Champaran, Bettiah, the petitioners have filed the present application under Section 482 of the Code. 12. Mr. Braj Kishore Mishra, learned counsel for the petitioners, has contended that the learned Chief Judicial Magistrate as well as the revisional Court of Additional District & Sessions Judge has erroneously passed the orders under challenge. He has submitted that the prayer for bail of the petitioners was allowed on merits by a reasoned order after hearing the parties. Immediately, thereafter, the investigating officer filed a petition before the Chief Judicial Magistrate for a direction from the Court in order to subject the petitioners to Narco Analysis Test. When the prayer of the investigating officer was rejected, he filed another petition in the Court for cancellation of bail of the petitioners making wild allegations. 13. Learned counsel for the petitioners has further contended that the investigating officer had not filed any supporting document in the Court along with the petition filed for cancellation of bail of the petitioners. When the prayer of the investigating officer was rejected, he filed another petition in the Court for cancellation of bail of the petitioners making wild allegations. 13. Learned counsel for the petitioners has further contended that the investigating officer had not filed any supporting document in the Court along with the petition filed for cancellation of bail of the petitioners. According to him, the learned Chief Judicial Magistrate misdirected himself in recalling his earlier order granting bail to the petitioners even without there being any cogent material against the petitioners. He has further contended that the revisional Court has also dismissed the revision petition in a mechanical manner. 14. On the other hand, learned counsel for the State has opposed the application and supported the impugned orders passed by the Courts below. He has contended that the learned Chief Judicial Magistrate has cancelled the bail granted to the petitioners in exercise of powers conferred upon him under Section 437(5) of the Code. He has submitted that the Chief Judicial Magistrate has taken note of the fact that while on bail the petitioners deliberately avoided to receive notice issued to them for the purposes of conducting Narco Analysis Test upon them by the investigating officer of the case in course of investigation. He has also submitted that the investigating officer had complained to the Court regarding threats being given by the petitioners to the informant of the case. According to him, the impugned order passed by the Chief Judicial Magistrate does not suffer from any illegality. 15. He has further contended that in absence of any material illegality or irregularity in the order impugned, the revisional court was also correct in dismissing the revision petition. 16. I have heard the parties at length. 17. In order to appreciate the rival contentions, I have also perused the record in detail. 18. I find from the FIR that the informant’s son Dilip Pandey went to Ludhiana on 8th December, 2010 with his consent along with petitioner no.1 Saheb Das. It further appears that said Dilip Pandey was frequently speaking to the informant by means of telephone. It is strange to note that in the FIR no date has been mentioned as to when the petitioner no.1 Saheb Das returned to his village. It further appears that said Dilip Pandey was frequently speaking to the informant by means of telephone. It is strange to note that in the FIR no date has been mentioned as to when the petitioner no.1 Saheb Das returned to his village. It is equally strange to note that in the FIR it has also not been pointed out that since when the informant lost contact with his son. There is no dispute in respect of the fact that the petitioners are co-villagers of the informant and that the petitioner no. 2 happens to be father of petitioner no.1. 19. Be that as it may, at this stage this Court would not like to make any comment on the merits of the case. 20. Admittedly, the petitioners were apprehended by the police in course of investigation on 20th September, 2012 and they were granted bail on merits by a reasoned order dated 21st September, 2012. The investigating officer of the case had filed an application in the Court of the Chief Judicial Magistrate on 28th September, 2012 for permitting him to present the petitioners before expert for conducting Narco Analysis Test upon them but the said petition was rejected by the Chief Judicial Magistrate on the date of its filing. Thereafter, the investigating officer alleges that he sent notice to the petitioners on 9th October, 2012 for conducting Narco Analysis Test upon them but the petitioners were deliberately evading the notice. I further find that a written petition dated 15th October, 2012 was filed by the investigating officer of the case in the Court on 16th October, 2012 for cancellation of bail granted to the petitioners on the grounds discussed hereinabove. 21. It appears that the investigating officer of the case has made an all out effort to get the bail granted to the petitioners cancelled on one ground or another within 25 days of their release on bail. Firstly, the investigating officer tried to obtain an order from the Court for subjecting the petitioners to Narco Analysis Test and when he failed to obtain such order from the Court, he made another application for cancellation of bail on the ground that the petitioners were evading the notice in this regard. 22. Firstly, the investigating officer tried to obtain an order from the Court for subjecting the petitioners to Narco Analysis Test and when he failed to obtain such order from the Court, he made another application for cancellation of bail on the ground that the petitioners were evading the notice in this regard. 22. I further find that though an allegation of intimidation being caused to the informant of the case by the petitioners, has been made by the investigating officer of the case in the petition dated 15th October, 2012 but no supporting document in that regard was ever filed in the Court. 23. It is well settled that rejection of bail at the initial stage and cancellation of bail so granted have to be considered on different basis. In Dolat Ram and Others v. State of Haryana reported in (1995) 1 SCC 349 , the Hon’ble Supreme Court held in Para 4 as under:- “4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) 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. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted”. 24. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted”. 24. In Raghubir Singh v. State of Bihar reported in AIR 1987 SC 149 , the grounds for cancellation of bail under Sections 437 (5) and 439(2) of the Code have been held to be identical, namely, bail granted under Section 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. 25. In State (Delhi Admn.) v. Sanjay Gandhi reported in (1978) 2 SCC 411 , the Hon’ble Supreme Court observed that “rejection of bail when bail is applied for is one thing; cancellation of a bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail once granted. That is because cancellation of bail interferes with the liberty already secured by the accused either on the exercise of discretion by the court or by the thrust of law. This Court, therefore, observed that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. That does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand.” 26. In Bhagirathsinh Judeja v. State of Gujarat reported in (1984) 1 SCC 284 , the Hon’ble Supreme Court observed that “Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. That does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand.” 26. In Bhagirathsinh Judeja v. State of Gujarat reported in (1984) 1 SCC 284 , the Hon’ble Supreme Court observed that “Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. Even where a prima facie case is established the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.” 27. From the aforesaid judgments of the Hon’ble Supreme Court, it is apparent that in an application for cancellation of bail, conduct subsequent to release on bail and the supervening circumstances alone are relevant. The general rule is that the Court would not ordinarily interfere in matters relating to bail. However, there are special circumstances and certain exceptions to the general rule. 28. In the present case, it is to be seen as to whether the prosecution was able to establish the fact that the petitioners had misused the privilege of bail granted to them. Apparently, the prosecution failed to file any affidavit in the Court in respect of tampering with the evidence. The informant of the case had also not filed any application in the Court in this regard. It would also appear that apart from one page petition of the investigating officer, there was no other supporting material before the Court on the basis of which the Chief Judicial Magistrate concerned could have come to a conclusion that the petitioners were interfering with the investigation. 29. It is well settled that cancellation of bail necessarily involves the review of the decision already made and can be permitted only if by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the investigation or trial. The fact that the investigating officer filed a petition regarding intimidation being caused to the informant of the case by the petitioners itself would not justify the allegation. The fact that the investigating officer filed a petition regarding intimidation being caused to the informant of the case by the petitioners itself would not justify the allegation. The objective fact that the witnesses were threatened or intimidated must have been supported by some affidavit or by recording the statements of the witnesses. Without such proof, a bail once granted could not have been cancelled. 30. The legal question relating to scientific tests, namely, Narco Analysis Test, Polygraph Test (lie-detector test) and Brain Electrical Activation Profile (BEAP) Test for the purpose of improving investigation efforts in criminal cases has been dealt with elaborately by a three Judge Bench of the Hon’ble Supreme Court in case of Selvi and Others v. State of Karnataka reported in (2010) 7 SCC 263 . In the said case, the Hon’ble Supreme Court held all three tests to be impermissible. It has held that in Narco Analysis, intravenous injection of sodium pentothal is given to test subject due to which the test subject enters into hypnotic trance, and answers questions put to him without having conscious control over the replies which may be incriminating to him. He may reveal information which he may otherwise conceal in a state of full consciousness. 31. In the aforesaid judgment in para 263 and 264, the Hon’ble Supreme Court has held as under:- “263. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of “substantive due process” which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of “ejusdem generis” and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. Such an expansive interpretation is not feasible in light of the rule of “ejusdem generis” and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to “cruel, inhuman or degrading treatment” with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the “right to fair trial”. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the “right against self-incrimination. 264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872”. 32. In view of the law laid down by the Hon’ble Supreme Court, I am of the considered opinion that the investigating officer could not have subjected the petitioners for Narco Analysis Test without their consent. If that be so, the bail granted to the petitioners on merits could not have been cancelled on the ground of non-receipt of notice by the petitioners in respect of offering themselves for Narco Analysis Test. 33. For the reasons discussed above, I am of the opinion that the learned Chief Judicial Magistrate has recalled the order granting bail to the petitioners in a mechanical manner. The revisional Court has also erred in law in upholding the order passed by the learned Chief Judicial Magistrate. 34. 33. For the reasons discussed above, I am of the opinion that the learned Chief Judicial Magistrate has recalled the order granting bail to the petitioners in a mechanical manner. The revisional Court has also erred in law in upholding the order passed by the learned Chief Judicial Magistrate. 34. In that view of the matter, the order dated 25th February, 2013 passed by the learned Additional District and Sessions Judge-3rd, West Champaran in Criminal Revision No. 291 of 2012 and the order dated 31st October, 2012 passed by the learned Chief Judicial Magistrate, Bettiah, West Champaran in Sathi P.S. Case No. 47 of 2011, are set aside. As a consequence thereof, the petitioners would be deemed to be on bail in the light of the order dated 21st September, 2012 passed by the learned Chief Judicial Magistrate, Bettiah, West Champaran pursuant to which the petitioners have already furnished bail bond and sureties to the satisfaction of the Court. 35. The application stands allowed.