Manipur High Court
Mr. Nengkhanpao Guite (Now vs Mr. T.Donglianmang Zou on 14 December, 2022
Author: Sanjay Kumar
Bench: Sanjay Kumar
Digitally signed
LAIRENM by
AYUM
LAIRENMAYUM IN THE HIGH COURT OF MANIPUR
INDRAJEET
INDRAJE SINGH
Date:
AT IMPHAL
ET SINGH 2022.12.14
13:16:27 +05'30'
Cril. Petition No.59 of 2019
Mr. Nengkhanpao Guite (now, dead), aged about 60 years,
s/o (L) Kamzalian Guite, R/o Pearsonmun Village,
Churachandpur, P.O., P.S. & District Churachandpur,
Manipur-795128, represented by his LR, Thangzason Guite,
aged about 31 years, s/o (L) Nengkhanpao Guite, R/o Pearsonmun,
P.O., P.S., & District Churachandpur,
Manipur - 795128 ... Petitioner
-Versus-
1. Mr. T.Donglianmang Zou, aged about 36 years,
s/o T.Thomas Khupkholam, R/o Tuaitengphai Village,
P.O., P.S., & District Churachandpur, Manipur - 795128.
2. Mr. Chinkhup Twmbing, aged about 45 years,
s/o (L) Vung D Tawmbing, R/o Mualkawi Village,
P.O., P.S., & District Churachandpur, Manipur - 795128.
3. Mr. Khailianthang Tonsing, aged about 54 years,
s/o V.K.Tonsing, R/o Pearsonmun Village,
P.O., P.S., & District Churachandpur, Manipur - 795128
4. Mr. Chingoulal Valte, aged about 19 years,
s/o Chin Valte, R/o Pearsonmun Vengsak,
P.O. & District Churachandpur, Manipur - 795128 ...Accused/Respondents
5. The State of Manipur, through the Superintendent of Police (S.P.), Churachandpur District, Manipur, Pin-795128 ..... Proforma Respondent BEFORE HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR For the Petitioner :: Mr. Anjan Prasad Sahu, Advocate For Respondents No. 1 to 4 :: Mr. R.K.Kulajit, Advocate For Respondent No.5 :: Mr. R.K.Umakanta, PP Date of reserving of Judgment :: 21.11.2022 Date of delivery of Judgment :: 14.12.2022 Cril.Petn.No.59 of 2019 Page 1 JUDGMENT & ORDER (CAV) [1] By way of this petition, filed under Section 439(2) Cr.P.C., the original petitioner sought cancellation of the anticipatory bail granted by the learned Sessions Judge, Churachandpur, vide order dated 20.11.2019 passed in Cril. Miscellaneous (A.B.) Case Nos. 8, 9, 10 and 11 of 2019. These anticipatory bail petitions were filed by respondents No. 1 to 4 herein, being four of the accused in FIR No.115 (09) 2019 on the file of Churachandpur Police Station, registered under Sections 332, 353, 186 & 34 IPC. This FIR was registered on the information received by the Officer-in-Charge, Churachandpur Police Station, that, on 01.09.2019 at around 11.30 pm, the Anti-Riot Team deployed at New Lamka, Churachandpur, led by Assistant Inspector of Police, Thangzason Guite of Reserve Line, DHQ/Churachandpur, was attacked and assaulted by a mob of twenty persons with deadly weapons. Those persons were stated to be the volunteers of Young Paite Association, led by one Khailianthang, respondent No.3 herein. Thangzason Guite, Assistant Sub-Inspector of Police (ASI), was stated to have received a serious injury on his head and was treated at the District Hospital, Churachandpur. Respondents No. 1 to 4 herein, being four out of those twenty persons, applied for and secured anticipatory bail under the order dated 20.11.2019. [2] Aggrieved by the grant of bail to these four accused, Nengkhangpao Guite, the father of Thangzason Guite, ASI, filed this petition under Section 439(2) Cr.P.C. seeking cancellation thereof. During the pendency of this case, he expired and his son, Thangzason Guite, ASI, the victim himself, came on record as his LR. [3] Heard Mr. Anjan Prasad Sahu, learned counsel for the petitioner; Mr. R.K.Kulajit, learned counsel appearing for respondents No. 1 to 4, the accused; and Mr. R.K.Umakanta, learned Public Prosecutor, appearing for the State.
Cril.Petn.No.59 of 2019 Page 2 [4] Mr. Anjan Prasad Sahu, learned counsel, would contend that the impugned
bail order is liable to be set aside on several grounds. He would assert that the impugned order is perverse as the learned Sessions Judge, Churachandpur, failed to take note of various factors. He would point out that prohibitory orders had been issued by the District Magistrate, Churachandpur, on 01.08.2019 under Section 144(2) Cr.P.C. and Thangzason Guite, ASI, was posted there to maintain law and order. He would state that the Anti-Riot Team led by Thangzason Guite, ASI, was at that spot to ensure that there was no breach of peace but the mob of 20 persons, including respondents No.1 to 4 herein, assaulted the police team. Learned counsel would assert that taking a lenient view of such conduct would send out a wrong signal to the general public and would demoralize the police force. He would further argue that the conduct of those involved, after registration of the FIR, also disentitled the accused from seeking pre-arrest bail. According to him, an attempt was made by the Paite Tribe Council leaders to buy off the petitioner by paying the family a sum of `50,000/-. This offer on its part was made to help the accused and amounted to tampering with the process of law. Learned counsel would further state that the initial ad-interim bail order dated 04.09.2019 passed by the learned Sessions Judge, Churachandpur, required respondents No.1 to 4 herein to cooperate with the Investigating Authorities and to desist from making any inducement, threat or promise, directly or indirectly, to any person acquainted with the case. He would contend that these conditions were clearly violated but in spite of the same, the learned Sessions Judge, Churachandpur, made the ad-interim bail order dated 04.09.2019 absolute by way of the impugned order dated 20.11.2019.
[5] On the other hand, Mr. R.K.Kulajit, learned counsel, would argue that once bail has been granted, this Court, generally, would not interfere with the same unless strong grounds exist therefor. He would contend that no such circumstances exist in the Cril.Petn.No.59 of 2019 Page 3 case on hand and that the present petition is devoid of merit. He would point out that, conviction, if any, of respondents No.1 to 4 for the charged offences would not entail imprisonment beyond three years and their incarceration at this stage is not justified in the light of the law laid down by the Supreme Court. Learned counsel would state that the case is already at the stage of trial and, therefore, it is not the right time to consider cancellation of the bail already granted as it may impact the outcome of the case. He would further point out that respondents No.1 to 4 denied their involvement in the incident by filing an affidavit-in-opposition. He would pray for dismissal of the petition. [6] Both the learned counsel pressed into service an abundance of case law in support of their respective stands. It would be apposite to refer to the same now. [7] In Ram Govind Upadhyay vs. Sudarshan Singh and others [(2002) 3 SCC 598], the Supreme Court noted that though grant of bail is discretionary, it calls for exercise of such discretion in a judicious manner and not as a matter of course. It was observed that an order of bail, bereft of any cogent reason, could not be sustained. [8] In State of Gujarat vs. Salimbhai Abdulgaffar Shaikh and others [(2003) 8 SCC 50], the Supreme Court observed that while hearing an application for cancellation of bail under Section 439(2) Cr.P.C., the Court would not generally examine the merits of the order granting bail and what is normally relevant to be examined in such proceedings is whether the accused is trying to tamper with the evidence subsequent to his release on bail or has threatened witnesses or has committed any other offence while on bail or is trying to adopt dilatory tactics resulting in delay of the trial or has absconded or the offence committed by him has created a serious law and order problem. The Supreme Court again reiterated the considerations which normally weigh with the Court while granting bail in a non-bailable offence by referring to its earlier judgments in State vs. Captain Jagjit Singh [AIR 1962 SC 253] and Gurcharan Singh Cril.Petn.No.59 of 2019 Page 4 and others vs. State (Delhi Administration) [(1978) 1 SCC 118]. The considerations are - the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. The Supreme Court further observed that what is normally relevant while dealing with an application for cancellation of bail under Section 439(2) Cr.P.C. is whether the accused is trying to tamper with the evidence subsequent to his release on bail or has threatened the witnesses or has committed any other offence while on bail or is trying to adopt dilatory tactics resulting in delay of the trial or has absconded or the offence committed by him has created a serious law and order problem.
[9] In Gobarbhai Naranbhai Singala vs. State of Gujarat and others [(2008) 3 SCC 775], the Supreme Court referred to its earlier decision in Panchanan Mishra vs. Digambar Mishra and others [(2005) 3 SCC 143], on the issue of cancellation of bail and observed that the object underlying cancellation of bail is to protect the fair trial and to secure justice being done to the society by preventing the accused, who is set at liberty by the bail order, from tampering with the evidence. [10] In Prasanta Kumar Sarkar vs. Ashish Chatterjee and another [(2010) 14 SCC 496], it was observed by the Supreme Court that though the Court would normally not interfere with an order granting or rejecting bail, it would be equally incumbent upon the Court to exercise discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions by the Supreme Court on the point. It was reiterated that the factors to be borne in mind while considering an application for bail are: 1) whether there is any prima facie or reasonable ground to Cril.Petn.No.59 of 2019 Page 5 believe that the accused had committed the offence; 2) nature and gravity of the accusation; 3) severity of the punishment, in the event of conviction; 4) danger of the accused absconding or fleeing, if released on bail; 5) character, behavior, means, position and standing of the accused; 6) likelihood of the offence being repeated;
7) reasonable apprehension of the witnesses being influenced; and 8) danger of justice being thwarted by grant of bail.
[11] In Central Bureau of Investigation vs. V.Vijay Sai Reddy [(2013) 7 SCC 452], the Supreme Court cautioned that the power of cancellation of bail would necessarily involve review of a decision already made and it should always be exercised very sparingly by the Court.
[12] In Arnesh Kumar vs. State of Bihar and another [(2014) 8 SCC 273], the Supreme Court observed that its directions in relation to offences under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, 1961, would also be applicable in all cases where the offence alleged is punishable with imprisonment for a term less than 7 years or which may extend to 7 years. The directions were to the effect that police officers should not automatically arrest the accused without satisfying themselves about the necessity for such arrest under the parameters flowing from Section 41 Cr.P.C. [13] In Myakala Dharmarajam and others vs. State of Telangana and another [(2020) 2 SCC 743], the Supreme Court observed that the factors to be considered for grant of bail are the gravity of the crime; the character of the evidence; position and status of the accused vis-à-vis the victim and witnesses; likelihood of the accused fleeing from justice and repeating the offence; possibility of his tampering with the evidence and witnesses, and obstructing the course of justice, etc. The Supreme Court referred to its earlier decision in Raghubir Singh and others vs. State of Bihar [(1986) 4 SCC 481], wherein it was held that bail can be cancelled where (1) the accused Cril.Petn.No.59 of 2019 Page 6 misuses his liberty by indulging in similar criminal activity, (2) interferes with the course of investigation, (3) attempts to tamper with evidence or witnesses, (4) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (5) there is likelihood of his fleeing to another country, (6) attempts to make himself scarce by going underground by or becoming unavailable to the investigating agency, (7) attempts to place himself beyond the reach of his surety, etc. [Notably, these grounds had been reaffirmed in Abdul Basit @ Raju & others vs. Mohd. Abdul Kadir Chaudhury and another {(2014) 10 SCC 754}]. It was observed that these grounds were illustrative and not exhaustive. It was further observed that rejection of bail stands on one footing but cancellation of bail is harsh because it interferes with the liberty of an individual and, hence, it must not be lightly resorted to. The Supreme Court then observed that cancellation of bail can be done in a case where the order granting bail suffers from serious infirmities resulting in miscarriage of justice and if the Court granting bail ignored relevant material, indicating prima facie involvement of the accused, or took into account material which has no relevance to the grant of bail to the accused. [14] In Deepak Yadav vs. State of U.P. and another [(2022) 8 SCC 559], the Supreme Court observed that 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 trial. It was noted that in case of cancellation of bail, very cogent and overwhelming circumstances are necessary. Reference was made to Dolat Ram and others vs. State of Haryana [(1995) 1 SCC 349], wherein the grounds for cancellation of bail were laid down - 1) interference or attempt to interfere with the due course of administration of justice; 2) evasion or attempt to evade the due course of justice; 3) abuse of the concession granted to the accused in any manner; 4) Cril.Petn.No.59 of 2019 Page 7 possibility of accused absconding; 5) likelihood of/actual misuse of bail; 6) likelihood of the accused tampering with the evidence or threatening witnesses. It was however observed that cancellation of bail cannot be limited to occurrence of supervening circumstances only and the Court would certainly have the inherent power and discretion to cancel the bail even in the absence of supervening circumstances. Illustrative circumstances where bail could be cancelled were adumbrated as follows:- a) where the Court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record, b) where the Court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or witnesses, especially where there is prima facie misuse of position and power over the victim, c) where the past criminal record and conduct of the accused is completely ignored while granting bail, d) where bail is granted on untenable grounds, e) where serious discrepancies are found in the order of bail, thereby causing prejudice to justice,
f) where grant of bail was not appropriate in the first place, given the very serious nature of the charges against the accused which disentitled him for bail, and thus could not be justified, g) when the order of bail is apparently whimsical, capricious and perverse in the facts of the given case.
[15] In Malang Mohiddin Qureshi vs. The State of Maharashtra [LD/VC/Anticipatory Bail Application No.355 of 2020, decided on 21.10.2020 = 2020 SCC OnLine Bom 8040], a learned Judge of the Bombay High Court was dealing with an application for anticipatory bail in relation to offences alleged under Sections 353, 332, 188, 269, 270, 504, 506 IPC read with Section 34 IPC. Having considered the affidavit filed by the Investigating Officer, the learned Judge found that there were independent eye-witnesses to the incident and they had identified both the accused as the assailants. As the offence was serious, in as much as a public servant carrying out Cril.Petn.No.59 of 2019 Page 8 his duty in the interest of society was assaulted, the learned Judge opined that it could not be tolerated and accordingly denied bail to one of the accused. The other accused was granted bail only on the ground that he was of advanced age and as a much lesser role was attributed to him.
[16] The case on hand may now be examined in the light of the aforestated settled legal position. No doubt, the case may have progressed to the stage of trial but that, by itself, may not be reason enough for this Court to stay its hand. Other factors may still prevail. Perusal of the record reflects that Bail Objection Report dated 04.10.2019 was filed by the prosecution opposing grant of pre-arrest bail to respondents No. 1 to 4. Surprisingly, having referred to the arguments advanced by the learned Additional Public Prosecutor on the strength thereof, the learned Sessions Judge, Churachandpur, did not even deal with the issue as to whether the accused were complying with the bail conditions, as per the ad-interim bail order dated 04.09.2019. In this regard, it may be noted that the Investigating Officer specifically stated in the Bail Objection Report that respondent No.3 herein had stated before the police that he had consulted Paite Tribe Council leaders regarding his case and that it was clear that the said leaders were advising him in connection therewith. The Investigating Officer also noted that the very same leaders showed sudden sympathy to the victim, Thangzason Guite, ASI, by trying to pay his family `50,000/-. He pointed out that they had not bothered to pay a visit to the victim till respondent Nos.2 and 3 were in trouble with the law and that their monetary inducement to influence the family of Thangzason Guite, ASI, was, therefore, patent and demonstrable.
[17] In para No.4 of the Bail Objection Report, the Investigating Officer detailed facts that evidenced that respondent No.2 was lying about his whereabouts on the fateful night. The Investigating Officer noted that his call data records showed that he received Cril.Petn.No.59 of 2019 Page 9 a call at 2358 hours on 01.09.2019 and his location at that time was nowhere close to Mualkawi and, therefore, his claim that he was in Mualkawi at that time was untrue. His next two calls, made between 0019 to 0020 hours of 02.09.2019, also showed that he was not at home as he claimed. His final outgoing call at 0305 hours of 02.09.2019 showed that he was still moving around at that early hour. The Investigating Officer therefore concluded that respondent No.2 was lying to the investigators. He further stated that the call data records of the other accused were still awaited and analysis of the same would bring more clarity as to their roles and co-ordination and to what extent they had tried to hide the facts.
[18] These two crucial aspects, brought out in the aforestated Bail Objection Report, manifested that so far as respondent No.2 was concerned, he was not forthcoming with the Investigating Officer as he was clearly lying about his whereabouts at the relevant time, as disclosed by his call data records. As an accused, he has a protected right against self-incrimination but actively lying to the police would indicate dilatory and delaying tactics on his part. As to whether the other accused were also co-operating with the investigation by telling the truth still remained to be seen as their call data records were awaited at that time.
[19] Further, all the accused were liable to be hauled up for violating the other condition imposed by the learned Sessions Judge, Churachandpur, in the ad-interim bail order dated 04.09.2019 to the effect that accused should not, directly or indirectly, offer any inducement to any person acquainted with the case. The Paite Tribe Council leaders, who had close association with the accused, tried to induce the family of the victim by offering them money. The very fact that they chose to do so only after implication of respondents No. 2 and 3 clearly demonstrates their motive. Therefore, violation of these bail conditions was sufficient in itself for the learned Sessions Judge, Churachandpur, to Cril.Petn.No.59 of 2019 Page 10 deny them continuance of their anticipatory bail at the time of further consideration. However, these aspects were not dealt with by the learned Sessions Judge, Churachandpur, despite referring to the same in the order dated 20.11.2019. [20] It is no doubt true that the charges leveled against respondents No. 1 to 4, under Sections 332, 353 and 186 IPC, even if proved, would not entail their imprisonment for more than three years and, ordinarily, they would be entitled to grant of bail. However, that may not be a conclusive factor, in itself, for granting them relief straightaway. It may be noted that in Malang Mohiddin Qureshi (supra) also, the charges framed against the accused did not entail imprisonment of over three years if they were convicted, but the Bombay High Court still denied pre-arrest bail to the accused therein. [21] Two factors need to be considered in this petition filed for cancellation of the bail granted to respondents No.1 to 4. To begin with, the impugned order dated 20.11.2019 does not disclose cogent application of mind or reasoning by the learned Sessions Judge, Churachandpur. The contentions advanced by the learned Additional Public Prosecutor and the learned counsel for the accused were set out at length from Paras.2 to 5. Thereafter, the learned Sessions Judge baldly stated in Para.6 as follows:
"6. I have heard both the Ld. Counsel for the Prosecution and also for the accused persons, and also gone through the case diary. On perusal of case diary, some Eye witnesses were recorded under Sec.161 Cr.P.C. and states that the present Petitioners were not involved in the present case of assaulting one ASI, Thangzason Guite. It is also revealed that the present Petitioners were released on P.R. bond on 06.09.2019 by the I.O. of the Case.
In view of the submissions made, the contents of the case diary, the position of law as made and observed as above, I am inclined to grant the prayer of the applicants at this stage. Therefore, the instant Anticipatory bail petitions of the applicants are all hereby granted by this common order. The ad-interim bail granted to the applicants vide order dated 04.09.2019 stands absolute. Send a copy of this order to the O.C. Churachandpur P.S. for information and compliance.
Announced in open Court."
Cril.Petn.No.59 of 2019 Page 11 Recorded statements of so-called eye-witnesses under Section 161 Cr.P.C. were not to be treated as conclusive before the trial. All the more so, as the victim, Thangzason Guite, ASI, is stated to have identified respondents No.1 to 4 as being amongst the assailants who attacked him.
[22] Secondly, though the learned Sessions Judge thought it fit to make absolute the ad-interim bail order dated 04.09.2019, perusal of that order reflects that the learned Judge had not gone into the merits of the case even at that stage. In effect, no cogent reasoning was offered by the learned Sessions Judge, Churachandpur, at any time for grant of anticipatory bail to the four accused. More to the point, the learned Judge failed to consider the issues raised in the Bail Objection Report dated 04.10.2019, which clearly demonstrated violation of the bail conditions by the accused, as already noted supra. The fact that respondent No.3 was not forthcoming about his whereabouts on the fateful night and lied to the Investigating Officer clearly demonstrated that he was adopting dilatory tactics. The learned Judge therefore ought to have allowed the Investigating Officer to obtain call data records of the other accused to ascertain whether they were actually co-operating with the investigation. That apart, the money offered by the Paite Tribe Council to the family of Thangzason Guite, ASI, clearly showed adoption of indirect means of inducement to settle the case. These crucial aspects ought to have weighed with the learned Judge at the time of passing the final order dated 20.11.2019. [23] As rightly pointed out by Mr. Anjan Prasad Sahu, learned counsel, mere passage of time since the passing of the bail order would not be sufficient in itself to protect the accused from cancellation of their bail. Significantly, in Imran vs. Mohammed Bhava and another [2022 SCC OnLine SC 496], the Supreme Court set aside an anticipatory bail order dated 19.10.2020 a year and a half later, on 22.04.2022.
Cril.Petn.No.59 of 2019 Page 12 [24] Viewed thus, this Court holds that the order dated 20.11.2019 passed by
the learned Sessions Judge, Churachandpur, is liable to be set aside on grounds more than one. The anticipatory bail granted to respondents No.1 to 4 is therefore cancelled in exercise of power under Section 439(2) Cr.P.C. They shall surrender forthwith before the Trial Court and be remanded to custody, pending disposal of the main case, failing which necessary police action may be taken to apprehend them.
The Criminal Petition is accordingly allowed. Needless to state, observations on merits, if any, made in the body of this order are only for the limited purpose of dealing with this petition and shall not influence or be binding upon the Trial Court while adjudicating the main case.
CHIEF JUSTICE
FR/NFR
Opendro
Cril.Petn.No.59 of 2019 Page 13