Manipur High Court
Laishram Suresh vs The State Of Manipur on 24 May, 2022
Author: Sanjay Kumar
Bench: Sanjay Kumar
LAIRENM Digitally
by
signed
AYUM LAIRENMAYUM
INDRAJEET IN THE HIGH COURT OF MANIPUR
INDRAJE SINGH AT IMPHAL
Date: 2022.05.24
ET SINGH 13:17:54 +05'30'
Cril. Petition No.44 of 2021
1. Laishram Suresh, age about 58 years,
s/o (L) L.Surchand Singh of Lilong Chajing
Konjeng Leikai, P.O. & P.S. Singjamei,
Imphal West District, Manipur - 795001.
2. Laishram Surjit Singh, age about 54 years,
s/o (L) L.Surchand Singh of Lilong Chajing
Konjeng Leikai, P.O. & P.S. Singjamei,
Imphal West District, Manipur - 795001
... Petitioners
-Versus-
The State of Manipur, represented by the Officer-in-Charge,
Wangoi Police Station, Imphal West District, Manipur - 795001.
...Respondent
BEFORE HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR For the petitioners : Mr. M.Gunedhor, Advocate For the respondent : Mr. M.Rarry, Special PP.
Date of reserving of order : 13.05.2022
Date of delivery of Order : 24.05.2022
JUDGMENT AND ORDER (CAV)
[1] In exercise of power under Section 437(6) Cr.P.C., the learned
Judicial Magistrate First Class, Imphal West-I, Manipur, granted bail to the accused in Cril. (P) Case No.2 of 2020 {Ref: FIR No.14(04) 2020 on the file of Wangoi Police Station}, vide order dated 20.03.2021 in Cril. Misc.(B) Case No.5 of 2021.
Cril.Petn.No.44 of 2021 Page 1 Bail was granted as more than sixty days had elapsed after the commencement of the trial and both the accused had remained in custody during that period. Aggrieved thereby, the State of Manipur filed an application under Section 439(2) Cr.P.C., in Cril. Misc. Case No.100 of 2021, before the learned Sessions Judge, Imphal West, to quash/set aside the bail order dated 20.03.2021. By order dated 20.11.2021, the learned Sessions Judge, Imphal West, held that the accused were not entitled to be released on bail under Section 437(6) Cr.P.C. and set aside the bail order dated 20.03.2021. Assailing the said order, the accused filed this Criminal Petition under Section 482 Cr.P.C. r/w Section 439 Cr.P.C.
[2] By order dated 26.11.2021, this Court suspended paragraph No.22 of the impugned order dated 20.11.2021 till the next date. Thereby, the learned Sessions Judge had directed the accused to surrender before the Trial Court within one week, i.e., by 26.11.2021. The interim order was extended thereafter from time to time. The last such extension was on 15.03.2022, operative till 11.04.2022. However, the accused are admittedly still at large as on date. [3] Heard Mr. M.Gunedhor Singh, learned counsel for the petitioners/ accused; and Mr. M.Rarry, learned Special PP, appearing for the respondent. [4] Earlier, Mr. M.Rarry, learned Special PP, had raised the issue that this Criminal Petition is not maintainable in law. Upon considering the objections raised by him, a learned Judge of this Court passed order dated 29.12.2021, rejecting the objections raised as to maintainability and directing the matter to be listed for hearing on merits. This order has attained finality. The contention of Mr. M.Rarry, learned Special PP, that the issue of maintainability of this petition should again be revisited, therefore, stands rejected.
Cril.Petn.No.44 of 2021 Page 2 [5] Facts, to the extent relevant, may be nutshelled thus: After the onset
of Covid-19 virus in India and the imposition of a nationwide lock down in March, 2020, there was a large scale hoarding and black-marketing of petroleum products. Officials of the Consumer Affairs, Food and Public Distribution Department (CAF&PD), Government of Manipur, were given the responsibility of inspecting petroleum outlets across the State under the Disaster Management Act, Essential Services Maintenance Act, etc. H. Bobby Singh, Civil Supply Inspector, CAF&PD, along with L.Ibotombi Singh, Area Officer, CAF&PD, were assigned the duty of checking oil pumps located in Imphal East and Imphal West areas. On 17.04.2020, at about 9.30 pm, these officials visited Heibok Filling Station KSK located at Naran Konjin in Imphal West and found that it was being run by two brothers, viz., Laishram Suresh Singh and Laishram Surjit, the accused. The officials allegedly met with resistance from them and were physically assaulted. H. Bobby Singh, Civil Supply Inspector, sustained grievous injuries on his nose and leg. In consequence, FIR No.14(04) 2020 was registered under Sections 353, 326, 307 and 34 IPC along with Section 25(1-C) of the Arms Act, 1959. This FIR was registered on 18.04.2020 at 6.30 pm upon the complaint made by L. Ibotombi Singh, Area Officer, CAF & PD. During the course of investigation, it was discovered that the oil pump, Heibok Filling Station KSK, at Naran Konjin, was allotted to Smt. Khaidem (O) Sushila Devi, w/o late Khaidem Gojendro Singh, a police officer who had died in the line of duty. The trade license was also issued in her name but the business was being run by the two brothers, viz., the accused. Thereupon, FIR No.19(05) 2020 WGI PS was registered against them on 09.05.2020 under Sections 420 and 120-B IPC along with Section 13(1)(d) & (e) of the Prevention of Corruption Act, 1988. It appears that Cril.Petn.No.44 of 2021 Page 3 Sections 468, 471, 419, 168 and 34 IPC were added later on and Section 120-B IPC was removed. The accused were arrested on 09.05.2020 by Wangoi Police Station in connection with this FIR. They were formally arrested thereafter in relation to FIR No.14(04) 2020 on 09.05.2020 at 02.45 pm. [6] The accused secured interim bail on medical grounds, in relation to FIR No.19(05) 2020, from the learned Special Judge (PC Act), Imphal West, in Cril. Misc. (LD)(B) Case No. 8 of 2020/Cril. Misc.(B) Case No.44 of 2020. For that purpose, they produced documents purportedly issued by Dr.Th.Premchand Singh. Using the same medical documents, the accused then filed Cril. Misc. (B) No.30 of 2020 in June, 2020, seeking to be released on bail in relation to FIR No.14(04) 2020. However, upon an objection being raised, the genuineness of the medical documents was verified and it came to light that the same were fabricated and forged. The Trial Court rejected Cril. Misc. (B) Case No.30 of 2020 on that ground. [7] The accused then filed their 1st default bail application in relation to FIR No.19(05) 2020 under Section 167(2) Cr.P.C., in Cril. Misc. Case No.82 of 2020, before the learned Special Judge (PC Act), Imphal West. This application was dismissed on 16.09.2020, holding that it was not maintainable as the accused were already granted interim bail. The State of Manipur then filed an application in Cril. Misc. (LD-8) Case No. 01 of 2020/80 of 2020 seeking cancellation of the interim bail granted to the accused in relation to FIR No.19(05) 2020, as they had used fake documents to obtain the same. This application was filed in September, 2020. Thereupon, the learned Special Judge (PC Act), Imphal West, cancelled the interim bail granted to the accused, accepting that they had played fraud upon the Court by using forged documents. The accused then filed their 2nd default bail Cril.Petn.No.44 of 2021 Page 4 application under Section 167(2) Cr.P.C. in relation to FIR No.19(05) 2020, before the learned Special Judge (PC Act), Imphal West. This 2nd application was dismissed on 21.10.2020, holding that the period of custody of the accused was not sufficient and in view of the observations made in the earlier dismissal order. [8] The accused then filed Bail Application No.12 of 2020 before this Court under Section 439 Cr.P.C. read with Section 167 Cr.P.C.. This application was filed in October, 2020, seeking release on medical grounds. It was dismissed as withdrawn on 04.11.2020. The accused then filed their 3 rd default bail application under Section 167(2) Cr.P.C. in relation to FIR No.19(05) 2020. This application was filed on 18.11.2020. On 15.12.2020, the learned Special Judge (PC Act), Imphal West, granted default bail to the accused in relation to FIR No.19(05) 2020. [9] Investigation having been completed in relation to FIR No.14(04) 2020, a final report was filed by the police before the Trial Court, leading to framing of charges on 04.12.2020. Charges were framed against the accused under Sections 325, 353 and 34 IPC. The case was taken on record as Cril. (P) Case No.2 of 2020. The accused then filed Cril. Misc.(B) Case No.5 of 2021 therein under Section 437(6) Cr.P.C. on 01.02.2021 seeking to be released on bail. [10] While so, the State of Manipur filed Cril. Petitions Nos.5 and 6 of 2021 before this Court aggrieved by the grant of default bail to the accused by the learned Special Judge (PC Act), Imphal West, vide order dated 15.12.2020, in relation to FIR No.19(05) 2020. During their pendency, the Trial Court passed order dated 20.03.2021 in Cril. Misc.(B) Case No.5 of 2021, accepting the plea of the accused that they were entitled to bail under Section 437(6) Cr.P.C. Shortly thereafter, this Court allowed Cril. Petition Nos.5 and 6 of 2021, vide order dated Cril.Petn.No.44 of 2021 Page 5 26.03.2021, and directed the State to re-arrest the accused. As the accused were not traceable then, this event did not come to pass immediately. [11] Aggrieved by the order dated 26.03.2021 passed in Cril. Petition Nos.5 and 6 of 2021, the accused approached the Supreme Court in Special Leave to Appeal (Crl.) Nos.3637-3638 of 2021. By order dated 13.05.2021 passed therein, the Supreme Court directed the accused to surrender before the concerned police station within two weeks. They did so on 26.05.2021 at around 4 pm. Ultimately, Special Leave to Appeal (Cril.) Nos.3637-3638 of 2021 filed by the accused were dismissed by the Supreme Court on 27.07.2021, giving liberty to them to file applications for release on bail on merits.
[12] The accused then filed Cril. Misc.(B) Case Nos.71 and 72 of 2021 before the learned Special Judge (PC Act), Imphal West, under Section 439 Cr.P.C., seeking to be released on bail in relation to FIR No.19(05) 2020. These bail applications were filed on 06.8.2021. Parallelly, the State filed an application on 07.09.2021 under Section 439(2) Cr.P.C. before the learned Sessions Judge, Imphal West, to quash and set aside the order dated 20.03.2021 passed by the Trial Court in Cril. Misc. (B) Case No.5 of 2021. On 01.10.2021, the learned Special Judge (PC Act), Imphal West, granted bail to the accused in relation to FIR No.19(05) 2020 in Cril. Misc.(B) Case Nos.71 and 72 of 2021. Just over a month later, the very same Special Judge, being the learned Sessions Judge, Imphal West, passed the impugned order dated 20.11.2021, quashing and setting aside the bail order dated 20.03.2021 passed by the Trial Court.
[13] The sequence of events that transpired in relation to both the FIRs gains importance owing to the intricate link between the two and in the light of the Cril.Petn.No.44 of 2021 Page 6 fact that the learned Sessions Judge, Imphal West, took into account this chain of events while passing the impugned order.
[14] This being the preceding checkered history, it would be apposite to now examine Section 437(6) Cr.P.C as the case turns upon the scope and ambit of this provision. Section 437(6) Cr.P.C. reads as under: -
'437. When bail may be taken in case of non-bailable offence -
*** *** ***
(6) If, in any case triable by a Magistrate, the trial of a person
accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.' The question that arises is whether an accused is entitled to statutory bail under this provision as a matter of right or, alternatively, whether the provision does not stand on par with the default bail provision under Section 167(2) Cr.P.C. and, therefore, no such right would inure to an accused. [15] There are no binding precedents on the issue but there is an abundance of case law emanating from different High Courts. The same may be taken note of at this stage.
In Anwar Hussain vs. State of Rajasthan [(2007) 1 RLW 12 (Raj)], a learned Judge of the Rajasthan High Court observed that, from a plain reading of Section 437(6) Cr.P.C., it is clear that, ordinarily, if the trial is not completed within sixty days from the first date fixed for taking evidence, the accused would be entitled to be released on bail but in the same provision, it is further stated that while considering a bail application on this count, the Trial Court can refuse bail by Cril.Petn.No.44 of 2021 Page 7 assigning reasons. The learned Judge therefore held that it cannot be said that the provision was mandatory in nature, similar to Section 167(2) Cr.P.C., which states that if the investigation is not completed within the stipulated period, then the accused is entitled to be released on bail mandatorily, irrespective of the merits of the case. The learned Judge accordingly held that an accused would not get an absolute right to be released on bail under Section 437(6) Cr.P.C. as the Trial Court can refuse bail after assigning good reasons.
In Raman Lodhi vs. The State of Madhya Pradesh (ILR 2019 MP 1930), a learned Judge of the Madhya Pradesh High Court took note of the fact that, in Devraj Maratha @ Dillu vs. State of Madhya Pradesh, {2018 (2) MPLJ (Cri)386 = 2018 SCC OnLIne MP 151}, a learned Judge had referred this very issue to a Division Bench, owing to cleavage of opinion as to the interpretation of Section 437(6) Cr.P.C., and the Division Bench held that Section 437(6) Cr.P.C. is mandatory in the sense that the Magistrate is required to exercise the power to grant bail after the statutory period if the trial is not concluded. However, passing of the order under Section 437(6) Cr.P.C. is mandatory but not grant of bail, as the Magistrate is vested with full power to take into consideration - 1) nature of the allegations; 2) whether the delay is attributable to the accused or to the prosecution;
and 3) criminal antecedents of the accused or any other justifiable reason, while refusing to grant bail. In consequence, the learned Judge held that the law stood settled that the accused became entitled to apply for bail if the trial of a non-bailable offence was not concluded by the Magistrate within sixty days but the right was not absolute and the Magistrate, for reasons to be recorded in writing, could reject the plea for bail even under Section 437(6) Cr.P.C.
Cril.Petn.No.44 of 2021 Page 8 In Robert Lendi vs. The Collector of Customs and another [1987 Crl.L.J. 55 = ILR (1986) 1 Del 147], a Division Bench of the Delhi High Court observed that the object of Section 437(6) Cr.P.C. is that, if the trial of a non- bailable offence before a Magistrate is not concluded within sixty days from the first date fixed for taking evidence, such accused shall, if he is in custody during the whole of the said period, be released on bail unless, for reasons to be recorded, the Magistrate otherwise directs. The Division Bench then considered the question as to whether, while refusing bail under Section 437(6) Cr.P.C., the Magistrate can only refuse bail on limited reasoning germane to the cause of delay or whether bail can be refused on general grounds recognized as good for refusal of bail. Noting that the object of the provision is undoubtedly to eradicate delay in the trial, the Bench opined that it would be equally important that the ends of justice do not suffer. According to the Bench, the twin objects, viz., to eradicate delay in the trial and to achieve the ends of justice would have to be harmonized. The Bench accordingly concluded that the legislature had put no fetters on the power of the Magistrate and that the bail can be refused for reasons other than those germane to the delay.
In Arjun Sahu vs. State of Madhya Pradesh, (2008 Crl.L.J. 2771), a learned Judge of the Madhya Pradesh High Court followed the ratio laid down in Robert Lendi (supra) and held that it is manifestly clear that a Magistrate, after recording reasons in writing, has a right to refuse bail even if the evidence was not completed within sixty days of the commencement of the trial. [16] The preponderance of judicial thought therefore weighs in favour of holding that this provision does not envisage grant of bail to an accused as a matter Cril.Petn.No.44 of 2021 Page 9 of right. It may be noted that default bail under Section 167(2) Cr.P.C. stands on a different footing. This provision postulates that the detention of an accused, otherwise than in the custody of the police, can be maintained for a total period not exceeding ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and sixty days, where the investigation relates to any other offences. If the investigation is not completed within the stipulated period, the provision states that the accused person 'shall be released on bail' if he is prepared to do and does furnish bail. Significantly, Section 437(6) Cr.P.C. is also worded on the same lines, in as much as it states that if the trial of the person accused of a non-bailable offence is not concluded by the Magistrate within sixty days from the first date fixed for taking evidence, such person 'shall be released on bail' if he has been in custody during the whole of the said period. However, the provision does not end there and goes on to add the rider that the Magistrate may otherwise direct by recording reasons in writing. Therefore, no indefeasible right is conferred upon an accused to seek release on bail under this provision, on par with Section 167(2) Cr.P.C., and it would be open to the Magistrate to refuse bail to an accused under Section 437(6) Cr.P.C., by recording reasons as to why bail is being refused. [17] Viewed thus, in the case on hand, it may be noted that the Trial Court was very much conscious of the proper interpretation and application of Section 437(6) Cr.P.C. Though it was contended on behalf of the accused that bail under Section 437(6) Cr.P.C. would stand on par with default bail under section 167(2) Cr.P.C., the Trial Court observed that it is settled that Section 437(6) Cr.P.C. is Cril.Petn.No.44 of 2021 Page 10 mandatory in nature but the Magistrate could refuse to grant bail after assigning good reasons in writing.
[18] Having noted the legal position correctly, the Trial Court then went on to note that the case against the accused involved offences under Sections 353 and 326 IPC read with Section 34 IPC. The Trial Court noted that the trial in Cril. (P) Case No.2 of 2020 commenced on 19.12.2020 and the prosecution had sought adjournments twice but valid reasons were offered therefor. Examination of PW-1 commenced only on 22.01.2021. By the date of the passing of the order, viz., 20.03.2021, the examination of PW-1 had not even concluded and 10(ten) more prosecution witnesses were still to be examined. Admittedly, the accused remained in custody from 04.12.2020 till that date.
[19] The Trial Court also took note of the fact that the accused had produced false medical documents leading to dismissal of their earlier bail application in Cril. Misc. (B) Case No.30 of 2020 and that the other bail application filed by them had met with the same fate. The sequence of events in the trial were then noted and it was observed that there was no intention to cause delay, in so far as the State was concerned. The Trial Court then noted that there was no material produced to infer that the accused would tamper with the prosecution evidence and influence witnesses after enlargement on bail or to suspect that they would flee from justice. As Section 325 IPC is a bailable offence and the offence under Section 353 IPC, though non-bailable, entailed imprisonment which may extend up to 2 years, the Trial Court opined that the accused would be entitled to be released on bail subject to conditions. Bail was accordingly granted to the accused upon Cril.Petn.No.44 of 2021 Page 11 furnishing bail bonds for a sum of `80,000/- each with one surety in the like amount, apart from imposing other conditions: -
"(i) The sureties shall be near relatives or (from, sic) localities of the accused persons;
(ii) The accused persons shall appear before this Court on every date fixed by this Court;
(iii) The accused shall not make any attempt to contact any prosecution witnesses directly or indirectly;
(iv) the accused shall not try to tamper with the evidence and influence any witnesses.
(v) The accused persons shall not commit offences similar to the offences which they are accused of;
(vi) The accused persons shall not leave the State of Manipur without prior permission of this Court."
[20] The learned Sessions Judge, Imphal West, reversed this order upon the application filed by the State under Section 439(2) Cr.P.C., vide order dated 20.11.2021. Therein, after setting out the arguments advanced by the counsel for both sides at length, the learned Sessions Judge opined that failure to complete the trial of a non-bailable offence before a Magistrate within sixty days from the date of the first recording of evidence would entitle the accused to seek to be released on bail under Section 437(6) Cr.P.C. but the Magistrate can refuse bail for reasons to be recorded in writing. Reasons such as 1) gravity of the offence; 2) whether the delay in the trial is attributable to the accused or to the prosecution; and 3) the criminal antecedents of the accused. The learned Sessions Judge then analyzed the record of the connected case in FIR No.19(05) 2020 with regard to the allegation that the accused had forged cheques and their admitted failure to surrender after revocation of their default bail by this Court in Cril. Petition Nos. 5 and 6 of 2021, and held that the accused lacked good antecedents. He then observed that the period of punishment cannot be the sole criteria for deciding the Cril.Petn.No.44 of 2021 Page 12 gravity of the offence when the allegation against the accused was that they had assaulted government servants on duty during the peak of the pandemic. The learned Sessions Judge held that the case of the accused did not fall within the purview of the beneficial provisions of Section 437(6) Cr.P.C. and they were not entitled to be released on bail thereunder. The learned Sessions Judge accordingly set aside the order dated 20.03.2021 passed in Cril. Misc. (B) Case No.5 of 2021 and directed the accused to surrender within a time frame. In this regard, the learned Sessions Judge placed reliance on Vipan Kumar Dhir vs. State of Punjab [Cril. Appeal No.1161-62 of 2021 dated 04.10.2021], wherein the Supreme Court examined the law on cancellation of bail and observed that bail can be revoked if the Court concerned considered irrelevant factors or ignored relevant material available on record, rendering the bail order legally untenable. Elaborating further, the Supreme Court observed that the gravity of the offence, conduct of the accused and societal impact of undue indulgence by the Court are amongst the situations where the superior Court can interfere with a bail order so as to bolster administration of criminal justice. The Supreme Court further pointed out that while granting bail, the possibility of the accused influencing prosecution witnesses, threatening family members of the victim, fleeing from justice or creating other impediments in the fair investigation ought not to be overlooked. [21] As already noted supra, the very same Sessions Judge, sitting as the Special Judge (PC Act), thought it fit to grant bail to the accused in relation to FIR No.19(05) 2020 just over a month earlier, vide common order dated 01.10.2021 passed in Cril. Misc. (B) Cases No.71 and 72 of 2021. Perusal of the said order reflects that the learned Judge was very much aware, even then, of the fact that the Cril.Petn.No.44 of 2021 Page 13 accused had not surrendered after the order dated 26.03.2021 was passed by this Court in Cril. Petition Nos.5 and 6 of 2021 and that they did so only after the Supreme Court directed them to surrender within a time frame. The learned Judge then set out the arguments at length and opined that the consistent legal position was that when the trial was yet to be initiated and where the charge-sheet was yet to be filed and the trial of the case is likely to take a long period, injustice and irreparable injury would be caused to the accused by keeping them in custody. Therefore, in spite of being well aware of the past conduct of the accused, including the alleged fabrication of false medical documents, the learned Judge observed that, as most of the documents had been seized, statements had been recorded but the trial was yet to commence, further custody of the accused was not warranted as investigation could be continued even with the accused on bail. The learned Judge accordingly allowed the application and granted bail to the accused upon their furnishing PR bonds of `1,00,000/- each with a surety of a like amount, and imposed the following conditions: -
"i) the accused shall co-operate with the investigation;
ii) the accused shall appear before the IO or the Court as and when directed;
iii) the accused shall not influence any of the prosecution witness;
iv) the accused shall not leave the State of Manipur without prior permission from the Court;
v) the accused shall deposit a sum of `50,000/- by cash each;
vi) the accused shall not indulge in propaganda in print, electronic and social media regarding this case."
Cril.Petn.No.44 of 2021 Page 14 [22] Mr. M.Rarry, learned Special PP, would contend that irrespective of
the grant of bail in relation to FIR No.19(05) 2020, this Court would have to be mindful of the seriousness of the offences alleged against the accused in Cril. (P) Case No.2 of 2020. He would point out that the government officials were undertaking duties during the pandemic lockdown and their assault by the accused at such a time must be viewed seriously. He would rely on case law in support of his contention that they are not entitled to be released on bail even though the trial is stretching way beyond sixty days.
[23] In Chandraswami and another vs. Central Bureau of Investigation {64 (1996) DLT 193}, a learned Judge of the Delhi High Court observed that the accused in that case were not entitled to be released on bail under Section 437(6) Cr.P.C. as they had made attempts to falsify medical reports and, therefore, the possibility of their tampering with the evidence could not be ruled out. This decision is relied upon in the light of the fact that the accused in the case on hand also produced false medical documents. However, it may be noted that no separate legal action has been initiated against them in that regard and only the bail granted to them earlier was cancelled. Trite to state, unless a criminal charge is held proved, it cannot be taken to constitute a criminal antecedent.
In Imamuddin vs. Ayub Khan and others, (1984 Cri.L.J. 117), a learned Judge of the Rajasthan High Court dealt with the scope of Section 439(2) Cr.P.C. Though the evidence collected in that case was circumstantial, it was held to be crucial on the question as to whether the death was suicidal or homicidal. Further, the conduct of the accused was alleged to be highly incriminatory. The inquiry held by the committing Magistrate tended to show the alleged criminal Cril.Petn.No.44 of 2021 Page 15 conduct of the accused. On this ground, the learned Judge cancelled the bail granted to the accused and directed their re-arrest. Notably, this was a case arising under Section 302 IPC.
In State vs. Captain Jagjit Singh (AIR 1962 SC 253), the Supreme Court observed that the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, the reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public or the State would arise when the Court is considering grant of bail in a non-bailable offence.
In Juber Khan vs. State of Madhya Pradesh, (MCrC-29418/2020 dated 01.03.2021), a learned Judge of the Madhya Pradesh High Court noted that other offences had also been registered against the accused and that the delay in the trial was caused due to the ongoing Covid-19 pandemic and, accordingly, upheld the order of the Magistrate rejecting the bail application of the accused under Section 437(6) Cr.P.C.
In Centrum Financial Services Limited vs. State of NCT of Delhi and another (Criminal Appeal No.94 of 2022 dated 28.01.2022), the Supreme Court was dealing with a case involving offences under Sections 409, 420, 467, 468 and 120 B IPC. The Supreme Court found that the High Court had not at all adverted to or considered the nature of the accusations and the material collected during the course of the investigation and the serious allegation of siphoning of huge amounts through shell companies while granting bail to the accused. Reference was made to Prasanta Kumar Sarkar vs. Ashis Chatterjee and Cril.Petn.No.44 of 2021 Page 16 another, {(2010) 14 SCC 496}, wherein it was observed that the factors to be borne in mind, amongst others, while considering an application for bail are
i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; ii) nature and gravity of the accusation; iii) severity of the punishment in the event of conviction; iv) danger of the accused absconding or fleeing, if released on bail; v) character, behaviour, means, position and standing of the accused; vi) likelihood of the offence being repeated; viii) reasonable apprehension of the witnesses being influenced; and viii) danger, of course, of justice, being thwarted by grant of bail. As the High Court had not at all considered the modus operandi adopted by the accused in the commission of the serious offence of siphoning and/or transferring of huge sums through shell companies, the Supreme Court cancelled the bail granted to the accused.
In Ms.Y vs. State of Rajasthan and another (Criminal Appeal No.649 of 2022 dated 19.04.2022), the Supreme Court referred to earlier case law on the issue of grant of bail and its cancellation and observed that it is essential for the Court dealing with such applications to furnish reasons specifically which would indicate as to what precipitated the passing of that particular order. On that ground, the bail granted to the accused by the High Court was cancelled.
In Mahipal vs. Rajesh Kumar @ Polia and another (Criminal Appeal No.1843 of 2019 dated 05.12.2019), the Supreme Court observed that the fitness of a case for grant of bail would involve balancing of numerous factors amongst which, the nature of the offence, the severity of the punishment and prima facie view of involvement of the accused, would be important. Noting that no straightjacket formula exists for Courts to assess an application for bail, the Cril.Petn.No.44 of 2021 Page 17 Supreme Court held that a Court would not be required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime as that would be a matter for trial but the Court would be required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, whether the continued custody of the accused would sub-serve the purpose of the criminal justice system. It was further observed that when bail has been granted by a lower Court, the Appellate Court must be slow to interfere and ought to be guided by the principles set out for exercise of such power. Reference in this regard was made to Prasanta Kumar Sarkar (supra). The Supreme Court went on to state that an Appellate Court would be required to consider whether the order granting bail suffers from non-application of mind or is not borne out from a prima facie view of the evidence on record and, therefore, it would be necessary for the Court to assess whether, on the basis of evidentiary record, there exists a prima facie or reasonable ground to believe that the accused had committed the crime while taking into account, seriousness of the crime and severity of the punishment. [24] As already noted supra, the accused were granted bail in relation to FIR No.19(05) 2020 even though the learned Special Judge was well aware of their past conduct in the context of producing false medical documents and also avoiding arrest until they surrendered upon the direction of the Supreme Court. Having granted them such relief, the very same learned Judge, acting as the learned Sessions Judge, Imphal West, relied upon that very past conduct to deny them the benefit of bail in relation to Cril. (P) Case No.2 of 2020. When the said conduct did not carry enough weight in relation to FIR No.19(05) 2020, to which it actually Cril.Petn.No.44 of 2021 Page 18 related, such conduct could not have been imported into the case relating to FIR No.14(04) 2020 and be held against the accused. That apart, it may be noted that the offences alleged against the accused in Cril. (P) Case No.2 of 2020 are under Sections 325 and 353 IPC. The offence under Section 325 IPC relates to voluntarily causing grievous hurt and is a bailable offence, entailing imprisonment which may extend up to 7 years apart from fine. Section 353 IPC is a non-bailable offence pertaining to assault or criminal force to deter a public servant from discharging duties but the punishment therefor is imprisonment for a term which may extend to 2 years or with fine or both. Though the nature of the offence is rather grave, as it involves the assault or use of force against an official on duty, the fact remains that the law makers did not think that it was serious enough to deserve a more severe punishment. It may be noted that the State of Maharashtra amended the law in this regard and enhanced the punishment under this provision to a maximum of 5 years imprisonment but the general law, as applicable in the State of Manipur, remains unaltered. Therefore, the seriousness of the offences alleged and the punishment prescribed therefor are not sufficiently weighty enough to warrant the continued incarceration of the accused pending the trial and there is no possibility of the same concluding any time soon as 10(ten) more witnesses are still to be examined. In Union of India vs. K.A.Najeeb [(2021) 3 SCC 713], the Supreme Court held that the Constitutional right to speedy trial would prevail over the stringent statutory provisions of even the Unlawful Activities Prevention Act, 1967. That apart, it may be noted that the accused have been at large for some time now but it is not the State's case that they have tried to tamper with the evidence or witnesses or breached any of the conditions imposed by the Trial Court while granting them bail Cril.Petn.No.44 of 2021 Page 19 under Section 437(6) Cr.P.C. Therefore, their subsequent conduct also did not warrant any interference with the bail order.
[25] On the above analysis, this Court holds that the learned Sessions Judge, Imphal West, Manipur, erred in setting aside the bail order dated 20.03.2021 passed in Cril. Misc.(B) Case No.5 of 2021.
The Criminal Petition is accordingly allowed, setting aside the order dated 20.11.2021 passed by the learned Sessions Judge, Imphal West, in Cril. Misc. Case No.100 of 2021 and restoring the bail order dated 20.03.2021 passed by the learned Judicial Magistrate First Class, Imphal West-I, under Section 437(6) Cr.P.C, in Cril. Misc.(B) Case No.5 of 2021.
CHIEF JUSTICE
FR/NFR
Opendro
Cril.Petn.No.44 of 2021 Page 20