Tripura High Court
Central Bureau Of Investigation vs Sri Tapan Debbarma on 9 September, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 33
HIGH COURT OF TRIPURA
AGARTALA
CRL. PETN NO.31 OF 2022
Central Bureau of Investigation,
Represented by Dy. Superintendent of Police,
Special Crime Branch, CGO Complex, DF Block,
Salt Lake City, Kolkata.
.....Petitioner(s)
Versus
1. Sri Tapan Debbarma,
Son of late Ashiwini Kumar Debbarma,
Resident of Vill-Abhoynagar Bazar,
P.S. East Agartala, Dist-West Tripura.
2. Sri Nand Kumar Reang,
Son of Thampirai Reang of resident of
Bishnurampara, Narayanpur, P.S. Gondachera,
District-Dhalai, Tripura
...... Accused-Respondent(s)
For the Petitioner(s) : Mr. B. Majumder, Asst. S.G. For the Respondent(s) : Mr. P.K. Biswas, Sr. Advocate.
Mr. P. Majumder, Advocate.
Mr. S. Debbarma, Advocate.
Date of hearing : 30.08.2022
Date of delivery of
Judgment & Order : 09.09.2022
Whether fit for reporting : YES.
HON'BLE MR. JUSTICE T. AMARNATH GOUD
JUDGMENT & ORDER
This present criminal revision petition is filed under Section 482 of Cr.P.C. by the Central Bureau of Investigation ('CBI' in short) represented by the Dy. Page 1 of 33 Page 2 of 33 Superintendent of Police Special Crime Branch, CGO Complex, D.F. Block, Salk lake, Kolkata against the accused person (1) Sri Tapan Debbarma, son of Lt. Ashwini Kumar Debbarma, resident of Aboynagar Bazar, P.S. East- Agartala, District- West Tripura and (2) Sri Nand Kumar Reang, Son of Thampirai Reang, resident of Bishnurampara, Narayanpur, P.S. Gondachera, District-Dhalai, Tripura praying for cancellation of bail order dated 10.11.2021 and 16.11.2021 passed by the Addl. Sessions Judge, Court No.2, West Tripura Agartala in connection with Case No.RC 2/S/2018, CBI, SCB, Kolkata under Sections 120(B) read with Section 109, 302 IPC, and 27 of the Arms Act.
2. The fact of the case, in brief, is as under:-
2.1. The allegation as per FIR dated 21.11.2017 is that, at 12.57 hrs., one telephonic information was received from the then Adjutant of 2nd B.N. T.S.R. (Tripura State Rifles), namely, Shri Swarupananda Biswas informing that a personal guard of the Commandant 2nd BN, TSR fired at a civilian inside the Battalion Complex a little while ago. The person was lying on the Parade Ground. The informant had Page 2 of 33 Page 3 of 33 also requested the police presence as early as possible.
Accordingly, the information was entered into the General Diary of the Police Station vide G.D. entry No.12 dated 21.11.2017. Subsequently, the Officer-in-Charge of the Police Station rushed to the place of occurrence along with S.I. Dilip Sarkar and other staff of the said police station. After arriving at the place of occurrence i.e., the 2 nd BN, TSR Head Quarter, at around 13.15 hrs., the police staff were guided by the then Adjutant to the Parade Ground, where they noticed one person lying on the ground with face towards the ground. Two suspected bullet wounds were also noticed on the body of the victim. Also by the time, the identity of the victim was established as one Sudip Datta Bhowmik, reporter of Shyandan Patrika, Agartala. The victim thereafter was shifted to G.B. hospital after taking the photograph of the place of occurrence by the O.C. Bodhjungnagar P.S. It was confirmed from the hospital that the victim, Sudip Datta Bhowmik expired. The deceased had an appointment with Sri Tapan Debbarma, the then Commander of 2nd BN, TSR on 21.11.2017. Accordingly, he visited the premises at around 11.30 hrs on Page 3 of 33 Page 4 of 33 21.11.2017 and was taking interview of the Commandant in his office chamber. On return from the toilet, the Commandant noticed that one envelope containing some valuable was missing from the room, and as such, he enquired from the Rfn. Dharmendra Kumar Singh of 2nd BN, TSR who was present outside the chamber of the Commandant. He learned that no one had entered into the room of the Commandant in the intervening period. Therefore, Commandant Tapan Debbarma asked Dharmendra Kumar Singh to carry out a personal search of Sudip Datta Bhowmik. The victim Sudip Datta Bhowmik also tried to come out of the room by pushing away Dharmendra Kumar Singh, which resulted in a scuffle inside the chamber of the Commandant. However, Mr. Datta Bhowmik managed to come out of the room and tried to escape towards the Parade Ground. Personal guard of the Commandant namely Rfn.(GD) No.09120251, Nanda Kumar Reang of 2nd BN TSR opened fire from his service A.K.-47 rifle on him, when he failed to catch hold of him. Receiving the bullet injury, Sudip Datta Bhomwik, probably died. Page 4 of 33 Page 5 of 33 Nand Kumar Reang was detained and disarmed. He also admitted that he fired with his service weapon. 2.2. The case was initially registered and investigated by Bodhjungnagar P.S., Dist. West Tripura vide Case No.2017BJN50 dated 21.11.2017, under Section 302 of IPC & 27 of the Arms Act against Rfn.(GD) No.091310251 Nanda Kumar Reang of 2nd BN, TSR Head Quarter, R.K. Nagar, P.S.-Bodhjungnagar on the basis of the written complaint of Shri Dilip Sarkar, S.I. of police, Bodhjungnagar, P.S. The investigation was taken up by the O.C. of the Police Station S.I. Jahangir Hossen. Subsequently, considering the seriousness and sensitivity of the incident, as per PHQ Memo No.2055-63/R- 265/DGP/LC/2017, dated 22.11.2017, a Special Investigation Team(SIT) headed by Shri Arindam Nath, DIG(Southern Range) and Smt. Lucky Chowhan, Addl.S.P.(Urban), West Tripura, Shri Ranjit Chandra Das, Dy. S.P. CID organization and Inspector Babulal Debnath of CID organization was constituted. The head of SIT entrusted the investigation of the case to Inspector Babulal Page 5 of 33 Page 6 of 33 Debnath. Accordingly, he took up the investigation on 22.11.2017 from the previous I.O. S.I. Jahangir Hossen. 2.3. Based on the evidence collected from the investigation by the SIT, the I.O. of the case of SIT filed the charge sheet dated 14.02.2018 before the learned Chief Judicial Magistrate, West Tripura, Agartala against the accused-respondents herein, Amit Debbarma and Dhamendra Kumar Singh under Section 302, 120(B) of IPC and Section 27 of Arms Act., followed by supplementary charge sheet dated 28.06.2018 in the same Court praying for custody trial of the accused persons.
2.4. After taking over the investigation, CBI filed an application before the Trial Court seeking the original record, charge sheet, and supplementary charge sheet dated 10.08.2018. The learned Addl. Session Judge, 2nd, West Tripura handed over the charge sheet, supplementary charge sheet along with the original documents to the investigating agency.
2.5. Thereafter CBI deposited the charge sheet and supplementary charge sheet of earlier investigation in the Trial Court on 20.08.2019.
Page 6 of 33 Page 7 of 33 2.6. After conducting the investigation, the CBI filed the charge sheet dated 31.12.2019 against the accused persons namely, Tapan Debbarma, Amit Debbarma, Swarupananda Biswas, Nand Kumar Reang, and Dharmandra Kumar Singh. The charge was framed under Section 120(B), read with Section 109, 302 of IPC, and under Section 27 of the Arms Acts. The case is at the stage of prosecution evidence.
2.7. The accused-Tapan Debbarma filed a bail application before this Court vide Bail Application No.120 of 2019 and the same was rejected vide order dated 20.01.2020.
2.8. The accused- Tapan Debbarma and Nanda Kumar Reang again filed a bail application on 18.09.2021 before the learned Trial Court and the bail application was dismissed by the learned Trial Court vide order dated 18.09.2021.
2.9. One of the co-accused Dharmendra Kumar Singh filed an application before this Court vide Bail Application No.141 of 2018 and this Court released him on bail vide order dated 21.12.2018.
Page 7 of 33 Page 8 of 33 2.10. Later the case of the accused-Tapan Debbarma was considered under Section 167(ii) Cr.P.C. by the Court below and an order dated 10.11.2021 has been passed granting bail.
2.11. Further the case of the co-accused, Mr. Nanda Kumar Reang was also considered under Section 167(ii) Cr.P.C. by the Court below, and order dated 16.11.2021 has been passed granting bail. 2.12. Aggrieved by the said bail orders dated 10.11.2021 and 16.11.2021 passed by the Addl. Sessions Judge, Court No.2, West Tripura, Agartala in case No. R.C.2/S/2018, CBI, SCB, Kolkata, the present criminal petition is filed praying to set aside the said order i.e praying for cancellation of bail under Section 482 of Cr. P.C.
3. Heard Mr. B. Majumder, learned Asst. S.G appearing for the petitioner as well as Mr. P.K. Biswas, learned Sr. counsel assisted by Ms. S. Debbarma, learned counsel appearing for the respondents.
4. Mr. B. Majumder, learned Asst. S.G. appearing for the petitioner-CBI argued that the Court below has granted bail under Section 439 of Cr.P.C. on the Page 8 of 33 Page 9 of 33 ground that the CBI has not filed the charge sheet within 90 days from the date of arrest. Accused persons are not entitled to default bail under Section 167(2) of Cr.P.C. as the charge sheet has been filed on 31.12.2019 and the same was very much in the Court record. The Court below ought not to have considered and could have rejected or declined to grant bail. He further argued that the Court below has misinterpreted the Judgment of Hon‟ble Supreme Court in Fakrey Ali Vs. State of U.P.(Criminal Appeal No.319 of 2021) and wrongly granted bail to the accused herein.
5. Further to substantiate his argument he has relied upon Para-48 and 53(2)b of the Judgment of the Hon‟ble Apex Court passed in Sanjay Dutt Vs. State Through CBI, Bombay(II) reported in (1994) 5 SCC 410 dated 09.09.1994 which is reproduced herein under:-
"48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4) (bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrud to the accused but it remained Page 9 of 33 Page 10 of 33 unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filled because Section 167 Cr. P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in section 20(4) (bb), both of them should be considered together. It is obvious that no bail can be given of the even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provisions on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. The State of Punjab, [1952] SCR 395; Ram Narayan Singh v. The State of Delhi and Others, [1953] SCR 652 and A.K. Gopalan v. The Government of India [1966] 2 SCR 427).
53. (2)(b) The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to-the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing on the challan, notwithstanding the default in filing it within the time allowed, as governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at the stage."
6. He has also referred to para-12 of the Hon‟ble Apex Court Judgment passed in Mohamad Iqbal Madar Sheikh and ors. Vs. State of Maharashtra Page 10 of 33 Page 11 of 33 reported in (1996) 1 SCC 722 dated 08.01.1996 which is reproduced herein-under:-
" 12. During hearing of the appeal, it was pointed out by the counsel appearing on behalf of the appellants that some courts in order to defeat the right of the accused to be released on bail under proviso (a) to Section 167(2) after expiry of the statutory period for completion of the investigation, keep the applications for bail pending for some days so that in the meantime, charge-sheets are submitted. Any such act on the part of any court cannot be approved. If an accused charged with any kind of offence, becomes entitled to be released on bail under proviso (a) to Section 167(2) that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted, so that the right which had accrued is extinguished and defeated. So far the present case is concerned, we are informed by the counsel for the appellants that a petition for grant of bail on merit had been filed which was rejected on 22.3.1993, But admittedly no petition for grant of bail after the expiry of the, statutory period for the submission of the charge-sheet had been filed. There is no statement that any application for grant of bail had been filed on behalf of the appellants under proviso (a) to Section 167(2) after the expiry of the statutory period which application was kept pending till 30th August 1993. Now the appellants have forfeited their right to be released on bail under proviso (a) to section 167(2) as they are in custody on basis of orders for remand passed under other provisions of the Code. In such a situation, we are left with no option, but to dismiss these appeals. However, we directed that the trial of the appellants be expedited."
7. He also relied on Para-54 of the Hon‟ble Apex Court Judgment passed in Pragya Singh Thakur Vs. State of Maharashtra reported in (2011) 10 SCC 445 dated 23.09.2011 which is reproduced as under:-
"54. There is yet another aspect of the matter. The right under Section 167(2) of Cr.P.C. to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said Page 11 of 33 Page 12 of 33 right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from Constitution Bench decision of this Court in Sanjay Dutt vs. State (1994) 5 SCC 410 [Paras 48 and 53(2)(b)]"
8. Submitting thus, learned Asst. S.G. appearing for the petitioner-CBI prayed to cancel the bail orders granted on 10.11.2021 and 16.11.2021.
9. Mr. P.K Biswas, learned Sr. counsel assisted by Ms. S. Debbarma, learned counsel appearing for the accused respondents argued that the accused persons are entitled to default bail under Section 167(ii) Cr.P.C., as the charge sheet has not been filed in 90 days and the order passed by the Court below is in accordance with the law.
10. In support of his argument he relied upon the Judgment of Hon‟ble Supreme Court in Fakhrey Alam Vs. State of U.P.(Criminal Appeal No.319 of 2021) and quoted the following citation of the said judgment:-
"We need only emphasize what is already observed in Bikramjit Singh case (supra) that default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right as it is, a procedure established by law under Article 21 of the Constitution. Thus a fundamental right is granted Page 12 of 33 Page 13 of 33 to an accused person to be released on bail once the conditions of the first proviso to Section 167(2)of the Cr.P.C. are fulfilled."
11. Further he relied upon Para-40, 41, and 42 of the Judgment of the Hon‟ble Apex Court passed in Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40 dated 23.11.2011 which is reproduced here-in-under:-
"40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
41. This Court in Gurcharan Singh and Ors.
Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
42. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case."Page 13 of 33 Page 14 of 33
12. Stating thus, Mr. P.K. Biswas, learned Sr. Counsel appearing for the accused respondents prayed to dismiss the instant criminal petition.
13. Heard both sides and perused the evidence on record.
14. Before delving into the conclusion of this instant criminal petition, the relevant sections of the Code of Criminal Procedure needs to be examined:-
" 57. Person arrested not to be detained more than twenty- four hours. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate' s Court.
154. Information in cognizable cases.-
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.Page 14 of 33 Page 15 of 33
167. Procedure when investigation cannot be completed in twenty four hours:-
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-
founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-
(a) 1 the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 1 Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;]. 2 Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the Page 15 of 33 Page 16 of 33 production of the accused person may be proved by his signature on the order authorising detention.]
173. Report of police officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation, (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. Page 16 of 33 Page 17 of 33
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).
437(5) Any Court which has released a person on bail under sub- Section(1) or sub Section(2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
439. Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;
(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
15. The bail order dated 10.11.2021 passed by the learned Addl. Sessions Judge is as follows:- Page 17 of 33 Page 18 of 33
"Learned Advocate Mr. S.K. Kantiwal representing the CBI is present Learned Senior Advocate Mr.P.K. Biswas being assisted by learned advocate Mr. M. K. Biswas is also present for the accused Tapan Debbarma Heard both sides on the bail application.
Perused the record.
From submission of Learned Senior Advocate as well as from the record, it appears that the accused Tapan Debbarma ,as per prosecution case, is the linch pin to the murder of a reporter of a local newspaper occurred on 21.11.2017.Trial of the case is in progress and listed from 15.11.2021 onwards for examination of certain witnesses .Initially the case was investigated by a Special Investigation Team(SIT)being formed by the Govt.of Tripura and charge sheet was filed. Accordingly, a prima facie case having been found charge was framed against the accused Tapan Debbarma and other co-accused persons. After framing of charge two witnesses were also examined. At this stage, the CBI has commenced further investigation of the case on 29.06.2018 and the charge sheet along with the supplementary charge sheets of filed by SIT was withdrawn by the CBI.Learned Senior Advocate has, therefore, stated that the investigation was not completed within the statutory period interms of Section 167 of CrPC and as such accused was/is entitled to default bail. In this connection learned Senior Advocate has referred the judgment and order of the Hon‟ble High Court dated 21.12.2018 made in BA No.141 of 2018 arising out of this case. Learned Sr. Advocate has given stretch on the findings arrived at by the Hon‟ble High Court at Para-15 of the said judgment wherein the Hon‟ble High Court taking reference to the aforementioned circumstances of taking up the investigation by the CBI has held that " .... Now, the pertinent question that falls for consideration of this court is that for staring a denovo investigation by withdrawing all the charge sheet and supplementary charge sheet from the court whether after expiry of statutory period as provided under Section 167(2) of the CrPC the accused person is entitled to default bail or not. No doubt about it that at t his stage there is no charge sheet before the court as those were withdrawn and the fresh investigation has been launched. In this regard, there is no divergent view. In the considered opinion of this court such investigation is also covered within the meaning of „investigation‟ as provided under section 167 Cr.P.C. Thus, the accused person is entitled to the default bail ."Page 18 of 33 Page 19 of 33
Having observed thus Hon‟ble High Court has ben pleased to grant bail on default to one of the co-accused namely, Dharmandra Kumar Singh.
Learned Senior Advocate further has contended that a similar findings has been arrived at recently by the Hon‟ble Supreme Court of India in the case of Fakrey Alam Vs. State of U.P.(Criminal Appeal No.319 of 2021) wherein the Hon‟ble Supreme Court has held that .. the investigation should be completed in 24 hours but practically that was never found feasible. It is in these circumstances that Section 167 of the Cr.P.C. provided for time period within which the investigation should be completed, depending upon the nature of offences. Since, liberty is a Constitutional right, time periods were specified in the default of which the accused will have a right to default bail, a valuable right.
Hon‟ble Supreme Court further in the said case has held that "We need only emphasize what is already observed in Bikramjit Singh case (supra) that default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right as it is, a procedure established by law under Article 21 of the Constitution. Thus a fundamental right is granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2)of the Cr.P.C. are fulfilled Having said thus, learned Senior Advocate has further contended that the accused Tapan Debbarma was entitled to be released on default bail when the investigation was undertaken by the CBI. Learned Sr. Advocate, therefore, urged for granting bail on any condition.
Learned advocate for the CBI however, resisted the bail application contending inter alia that successive bail application of the accused was rejected by the court and that the bail application preferred by the accused before the Hon‟ble High Court was also rejected and no new ground assigned qualified bail of the accused. That apart, the case is at the stage of trial and as such section 167 has no application, learned advocate further added. MR. Kantiwal has also referred the judgment of Hon‟ble Supreme Court in Criminal Appeal No.1129 of 2004(Kalyan Ch. Sarkar Vs. Rajesh Ranjan @ Pappu Yadav) and a judgment of MP High Court in MCRC 33415 OF 2021(Raj Kumar Daharia Vs. The Madhay Pradesh State Confederation Limited.
If we consider the submission of earned Senior Advocate taking reference to the judgment of Hon'ble High Court as referred to above, accused Tapan Debbarma was entitled to be released on default bail while investigation was undertaken by Page 19 of 33 Page 20 of 33 the CBI In this view of the matter and also taking into account the principle as laid down by the Hon'ble Supreme Court in the case of Fakhrey Alam (supra) and further of the fact that other co-accused persons are already on bail, the bail application for the accused Tapan Debbarma stands allowed.
He may be released on bail on furnishing bail bond of Rs. 1,00,000/- each with two sureties of like amount on condition that (i) he shall not leave the territorial limits of West Tripura District, (ii) he shall appear before this court on each and every date fixed, (iii) he shall not in any way terrorize/temper the prosecution witnesses/evidence,(iv) he shall also not visit the premises including the surrounding premises of the TSR Head Quarters' at R.K. Nagar/Bodhjungnagar where the alleged incident occurred, (v) he shall not make any attempt to make communication with any one of the prosecution witnesses To be fixed (15.11.2021)"
16. The bail order dated 16.11.2021 passed by the learned Addl. Sessions Judge is as follows:-
" Learned Advocate Mr. S.K. Kantiwal representing the CBI is present with one witness namely, Rifleman Dibesh Sarkar.
Accused Nanda Kr. Reang is produced from JC. He prays for bail through learned Senior Advocate MR. PK Biswas being assisted by learned advocate MR. MK Biswas. Accused Tapan Debbarma Swarupananda Biswas on bail are also present along with their learned engaged advocate.
Accused Amit Debbarma on bail is also present along with his engaged learned advocate Mr. J. Bhattacharjee and Mr. S. Ghosh.
Accused Dharmendra Kr.. Singh is permitted to be represented u/s 317 Cr.P.C. Witness present today is partly examined.
During examination, i.e., immediately after marking Exhibit 7/1 learned advocate for the CBI has urged for displaying the pen drive containing the images.
Witness has said nothing to show that the images were displayed in laptop through any pen drive, as such the request so made stands denied.
The copy of two 32 GB pen drive supplied to the learned advocate for the accused persons.
Heard both sides on the bail application.
Perused the record While granting bail to the accused Tapan Debbarma on 10.11.2021, we observed as under:Page 20 of 33 Page 21 of 33
If we consider the submission of earned Senior Advocate taking reference to the judgment of Hon'ble High Court as referred to above, accused Tapan Debbarma was entitled to be released on default bail while investigation was undertaken by the CBI In this view of the matter and also taking into account the principle as laid down by the Hon'ble Supreme Court in the case of Fakhrey Alam (supra) and further of the fact that other co-accused persons are already on bail, the bail application for the accused Tapan Debbarma stands allowed' Regard being had to the order as quoted above, accused Nanda Kr. Reang may be released on bail on furnishing bail bond of Rs.1,00,000/- each with two sureties of like amount on condition that (i) he shall not leave the territorial limits of State of Tripura, (ii) he shall appear before this court on each and every date fixed, (iii) he shall not in any way terrorize/temper the prosecution witnesses/evidence,(iv) he shall also not visit the premises including the surrounding premises of the TSR Head Quarters' at R.K. Nagar/Bodhjungnagar where the alleged incident occurred, (v) he shall not make any attempt to make communication with any one of the prosecution witnesses ID to JC till 17.11.2021.
At this stage learned advocate for the CBI has filed an application for issuing direction upon the Adjutant, Office of the Commandant 2nd Battalion TSR, R.K. Nagar to produce the cash book/register maintained for the period from 21.11.2017 till 15.06.2019 containing pages 1 to 221 which was released on bail on executing Zimma Nama by the Adjutant Dharma Sadhan Jamatia.
Application so filed by the advocate for the CBI stands allowed.
Adjutant to produce the cash book/register on 17.11.2021 as prayed for.
A copy of this order be furnished to learned advocate for the CBI.
To date fixed 17.11.2021"
17. Herein, it is pertinent to mention some of the important dates as unfolded in the alleged crime committed:-
i. Accused-respondent here-in, Sri Tapan Debbarma was arrested on 22.11.2017 and until his bail on 10.11.2021, he was in judicial custody.Page 21 of 33 Page 22 of 33
ii. Accused-respondent herein, Sri Nand Kumar Reang was arrested on 21.01.2017 and until his bail on 16.11.2021, he was in judicial custody.
iii) On 14.02.2018, the first charge sheet was filed by the SIT.
iv) On 26.06.2018, a supplementary charge sheet was filed by the SIT.
v) On 31.12.2019, after handing over the case to CBI, a second charge sheet was filed.
18. Here it is pertinent to reproduce the amendment to Tripura State relating to Section 173 of Cr.P.C:-
" STATE AMENDMENTS Tripura- In the Code of Criminal Procedure, 1973 (hereinafter referred to as the Principal Act), Section 167, in its application to the State of Tripura, in paragraph(a) of the proviso to sub-section(2):-
(a) for the words "ninety days" wherever they occur, the words "one hundred eighty days" shall be substituted;
(b) for the words "sixty days" wherever they occur, the words "one hundred twenty days" shall be substituted."
19. In the present case on hand, firstly SIT filed charge-sheet on 14.02.2018 and on 31.12.2019; CBI filed their charge-sheet. Therefore, it cannot be said that charge- sheet has not been filed as required under Section 167(2). As per amendment to Tripura State relating to Section 173 of Cr.P.C., filing of charge-sheet, the limitation of 90 days has been extended upto 180 days. The accused Tapan Debbarma was arrested on 22.11.2017 and until his bail on Page 22 of 33 Page 23 of 33 10.11.2021 he was in judicial custody and accused Nand Kumar Reang was arrested on 21.01.2017 and until his bail on 16.11.2021, he was in judicial custody. The charge- sheet has been filed on 14.02.2018 and 31.12.2019 respectively which is on record. Despite charge-sheet being filed, inadvertently, the Court below has proceeded under the impression that the charge-sheet was not filed and the accused is entitled for default bail under Section 167(2) of Cr.P.C., and granted bail. This is factually and as well as legally incorrect and it appears to be a wrong order.
20. Once a wrongful order in criminal procedure code is passed by a subordinate Judiciary, and if it is brought to the knowledge of the High Court, this Court feels that it is the bounded duty of the High Court under Section 482 of Cr.P.C. to pass appropriate orders in accordance with law.
21. The Hon‟ble Apex Court and High Courts of our Country in its judgments have dealt with the issues involving Section 439 and Section 167(2) of Cr.P.C. Some of the relevant Judgments are referred herein-under for better appreciation of this case.
Page 23 of 33 Page 24 of 33
22. Hon‟ble Punjab and Haryana High Court in Raj Kumar vs The State Of Punjab reported in AIR 1979 P H 80 held that while computing the total period of 60 days referred to the Sub-Clause(ii) of Proviso(a) to Sub Section(2) of Section 167 of Cr.P.C., the period of detention under Section 57 of Cr.P.C. which must not be more than 24 hours has to be excluded.
23. In Chaganti Satyanarayana Vs. State of Andhra Pradesh reported in AIR 1986 SC 2130 Hon‟ble Supreme Court held that computation runs from the date of remand but not from the date of arrest of the accused.
24. Hon‟ble Orrisa High Court in Pradeep Kumar Deo And Anr. vs State Of Orissa reported in 2003 Cri.L.J 4053 held that merely because while filing charge-sheet, the investigating officer has indicated that still investigation is going on in order to probe whether any other persons are involved in the case, it would not be said that the charge-sheet is incomplete, entitling the accused to bail under default clause.
Page 24 of 33 Page 25 of 33
25. In Prasanjeet Basu Mallick Vs. State of Orrisa reported in 1997 Cri.L.J 902, Single Bench of Hon‟ble Orrisa High Court held that co-accused cannot claim bail on the ground that another co-accused has been enlarged on bail under default clause, when charge-sheet is already filed in the case.
26. Hon‟ble Supreme Court in Rajnikant Jivanlal Patel Vs Intelligence Officer Narcotic Control Bureau reported in AIR 1990 SC 71 held that „an order for release on bail under proviso(a) to Section 167(2) my appropriately be termed as an order-on-default. Indeed. It is a release on bail on default of the prosecution in filing charge-sheet with the prescribed period. The right to bial under Section167(2), proviso(a) thereto is absolute. It is a legislative command and not Court's discreition. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at this stage, merits of the case are not to be examined, not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of Page 25 of 33 Page 26 of 33 bail and communicate the same to the accused to furnish the requisite bail bonds. The accused cannot therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso(a) to Section 167(2) could be cancelled'.
27. Hon‟ble Supreme Court in Gobarbhai Naranbhai Singala vs State Of Gujarat & Ors reported in AIR 2008 SC 1134 and Hon‟ble Bombay High Court in Latifkhan Vs. State of Maharashtra reported in 2008 Cri.L.J. 3246 held that bail rendered in ignorance of basic principles relating to grant of bail may be cancelled.
28. Hon‟ble Supreme Court in Raghubir Singh Vs. State of Bihar reported in AIR 1987 SC 149 held that the order of release on bail under Section 167(2), does not come to an end with the passage of time on the filing of the charge-sheet.
29. Hon‟ble Supreme Court in Rajnikant Jivanlal Patel(supra) held that the accused cannot claim any special right to remain on bail if the investigation Page 26 of 33 Page 27 of 33 reveals that the accused has committed a serious offence and charge sheet is filed, the bail granted under Section 167(2)(a) could be cancelled.
30. Hon‟ble Bombay High Court in Assistant Collector of Customs(P), Bombay Vs. Madam Ayobo Atenda Ciadipo Orisan and anr., reported in 1992 Cri.L.J. 2349(Bom) held that even when the accused has not availed of the bail order and has not been released, even then the application of cancellation of bail is maintainable.
31. Hon‟ble Supreme Court in Daulat Ram Vs. State of Haryana reported in AIR 1995 SC 1998 held that bail can be cancelled if the High Court finds that the lower Court granting bail exercised its judicial power wrongly.
32. In Court on Its Own Motion Vs Vishnu Pandit reported in 1993 CriLJ 2025(Del) and State of Orrisa Vs. Jagannath Patel reported in 1992 CriLJ 1818 the learned Single Bench of Hon‟ble Delhi High Court and Hon‟ble Orrisa High Court respectively held that High Court Page 27 of 33 Page 28 of 33 Under Section 482 of Cr.P.C can cancel wrongful order of Sub-ordinate judiciary.
33. The Hon‟ble Supreme Court in the judgment of Venkatesan Balasubramaniyan Vs. Intelligence Officer, D.R.I. Bangalore reported in 2020 SCC Online SC 945 dated 20.11.2020 in para-10 expressed as under:-
"10. It is true that the bail granted under Section 167(2) Cr.P.c. could have been cancelled under Section 439(2) Cr.P.C.. This Court in Pandit Dnyanu Khot Vs. State of Maharashtra and Ors., (2008) 17 SCC 745 while considering the case where bail granted under Section 167(2) Cr.P.C. was cancelled under Section 439(2) Cr.P.C. by learned Sessions Judge after noticing the facts upheld the order under Section 439 Cr.P.C. cancelling the bail. Paragraphs 7, 8 and 9 of the judgment are as follows:-
"7. In the present case, against the accused, FIR for the offences punishable under Sections 302, 307, 147, 148, 149, 324 and 323 IPC and Section 27 of the Arms Act was registered. The accused were arrested on 28-10-2000 and were produced before the Judicial Magistrate. They filed an application under Section 167(2) CrPC on 25-1-2001 for releasing them on bail on the ground that charge-sheet was not submitted within the stipulated time and the court released them on bail on the same date by exercising jurisdiction under Section 167(2) CrPC. The State filed an application on 31-1-2001 under Section 437(5) and Section 439(2) CrPC before the Sessions Judge, Kolhapur for cancellation of bail. Before the said application could be finally disposed of, the accused preferred an application Ext. 8 submitting that an application under Sections 437(5) and 439(2) was not maintainable before the Sessions Court and the State ought to have approached the learned Magistrate for cancellation of the bail. That application was rejected by Page 28 of 33 Page 29 of 33 the learned Additional Sessions Judge by order dated 3-3- 2001.
Thereafter, the learned Additional Sessions Judge by judgment and order dated 2-5-2001 allowed the said application and set aside the order passed by the Judicial Magistrate on the ground that the accused were released on the 89th day, that is, before expiry of 90 days.
8. In our view, it appears that the High Court has committed basic error in not referring to the provisions of Section 439(2) CrPC which specifically empower the High Court or the Court of Session to cancel such bail. Section 439(2) reads as under:
"439. Special powers of High Court or Court of Session regarding bail.--(1)*** (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
9. The proviso to Section 167 itself clarifies that every person released on bail under Section 167(2) shall be deemed to be so released under Chapter XXXIII. Therefore, if a person is illegally or erroneously released on bail under Section 167(2), his bail can be cancelled by passing appropriate order under Section 439(2) CrPC. This Court in Puran v. Rambilas [(2001) 6 SCC 338] has also clarified that the concept of setting aside an unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation."
[emphasis added]
34. The power of cancellation of bail should be exercised with care, caution and circumspection as cancellation of bail jeopardise the personal liberty of the person. Cancellation of bail should not be done in routine manner. Thus it is settled principle of law in criminal Page 29 of 33 Page 30 of 33 jurisprudence to consider the grounds of cancellation of bail.
35. Ground of cancellation of bail are:-
1. When the accused is found tampering with the evidence either during the investigation or during the trial.
2. When the person on bail commits similar offence or any heinous offence during the period of bail.
3. When the accused has absconded and trial of the case gets delayed on that account.
4. When the offence so committed by the accused had created serious law and order problem in the society and accused had become a hazard on the peaceful living of the people.
5. If the High Court feels that the lower Court granting bail has exercised its judicial power wrongly.
6. If the High Court or Sessions Courts find that the accused has misused the privilege of bail.
7. If the life of the accused itself be in danger.
36. As stated supra, the grounds for cancellation of bail broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice Page 30 of 33 Page 31 of 33 may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody.
37. The judgments relied by the learned counsel appearing for the respondents-accused are not relevant to the facts of the case. Further the judgment of Fakhrey Alam(supra) as relied by the lower Court is also not applicable to the facts of the case.
Page 31 of 33 Page 32 of 33
38. Admittedly as on the date of granting bail by orders dated 10.11.2021 and 16.11.2021, the charge-sheet has already been filed on 31.12.2019 and the same is in Court record. But, it appears that inadvertently everyone has over looked and as a result, the lower Court under the impression that charge-sheet has not been filed, the impugned bail orders were wrongly passed. The said bail default orders were passed on the arguments made under Section 167(2) of Cr.P.C. That as on the date of granting bail orders since the charge-sheet is already on record, thus the right to default bail gets forfeited.
39. This Court has no hesitation to hold that the default bail orders dated 10.11.2021 and 16.11.2021 are wrongful and thus both orders of the lower Court are liable to be set aside under Section 482 of the Cr.P.C. and are accordingly set aside.
40. Accordingly, this instant petition seeking to set aside the bail orders dated 10.11.2021 and 16.11.2021 passed in connection with case No.RC2/S/2018 CBI, SCB, Kolkata stands allowed and thus disposed of. Page 32 of 33 Page 33 of 33
41. Consequently pending application(s), if any, also stand closed.
JUDGE suhanjit Page 33 of 33