Tripura High Court
The Union Of India vs Indrajit Das on 13 July, 2018
Equivalent citations: AIRONLINE 2018 TRI 146
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HIGH COURT OF TRIPURA
AGARTALA
Crl. Petn 14 of 2018
The Union of India
Represented by Sri Anil Kr. Pathak, Investigating Officer,
Intelligence Officer, Directorate of Revenue Intelligence,
Sub-Regional Unit, Agartala under Ministry of Finance,
Department of Revenue.
----Petitioner(s)
Versus
1. Indrajit Das, age-19 years
S/o Suresh Das, Village-ONGC Colony,
PO & PS - Panisagar, District: North Tripura.
.........Accused Respondent
2. Mohd. Naseem, Age-25 years, S/o Muheej Uddin, Village-Narsingharh, P.O. -Muar Adharganj, Banvarpur, Pratapgarh (UP)-230304.
----Proforma Accused Respondent(s)
3. Ajmat Ali @ Ruksad (Juvenile), S/o Riyasat Ali, Village-Narsinghar, P.O. - Muar Adharganj, Banvarpur, Pratapgarh, (UP)-230304.
----Proforma Accused Respondent(s) For Petitioner(s) : Mr. Paramartha Datta, Adv.
Mr. K Datta, Adv.
For Respondent(s) : Mr. B Deb, Adv.
Whether fit for reporting : YES
HON‟BLE MR. JUSTICE ARINDAM LODH
Order
13/07/2018
This is a petition for cancellation of bail by setting aside the order dated 27.03.2018 passed in Spl.(NDPS) 01 of 2018 by the learned Special Judge, Kailashahar, Unokoti, Tripura by invoking the inherent powers of this Court under Section 482 CrPC.
2. Mr. P Datta, learned counsel appearing for the petitioner, at the very outset, inviting my attention to the order dated 01.03.2018 passed by the learned Special Judge, Page 2 of 6 Kailashahar has contended that the learned Special Judge, without considering the materials on record, has released the accused respondent on bail only on the ground that accused was in custody from 30.12.2017 and was under detention for 61 days and the investigating agency could not file the charge sheet by this period.
3. According to the learned counsel for the petitioner, the learned Special Judge while granting bail to the accused- respondent has only considered some irrelevant materials which ought not to have been considered by him and that led the petitioner to approach this Court for setting aside the order dated 01.03.2018 passed in Spl.(NDPS) 01 of 2018.
4. In support of his contention, Mr. Dutta has placed reliance on a decision of the Apex Court in Manjit Prakash & Others vs. Shobha Devi & Anr., reported in (2009) 13 SCC 785, particularly, para 10 (SCC P.789) which reads as follows:
"10. Even though the re-appreciation of the evidence as done by the Court granting bail is to be avoided, the Court dealing with an application for cancellation of bail under Section 439 (2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail."
5. Per contra, Mr. B Deb, learned counsel appearing for the accused-respondent submits that the accused-respondent after being enlarged on bail did not misuse the benefit of grant of bail. He further submits that the petitioner while approaching this Court for cancellation of bail by way of setting aside order dated 01.03.2018, has failed to show that the accused-respondent after being released on bail has abused the process of the Court or has Page 3 of 6 made any attempt to tamper the evidence or to influence the witnesses in the case.
6. I have considered the rival submission of the learned counsel for the parties.
7. In the decision of Manjit Prakash (supra) the Apex Court in para 6 & 7 has made the following observations:
6. "7. It is trite law that the considerations for grant of bail and cancellation of bail stand on different footings. By a majority judgment in Aslam Babalal Desai v. State of Maharashtra the circumstances when bail granted can be cancelled were highlighted in the following words: (SCC pp.
289-90, para 11):
„11. On a conjoint reading of Sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in clause (a) of the proviso to Section 167(2) of the Code. The law expects that the investigation must be completed with dispatch and the role of the Magistrate is to oversee the course of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the introduction of the proviso to Section 167(2) the maximum time allowed to the investigating agency was 15 days under sub- section (2) of Section 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex case and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that sub-section. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under sub-section (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instil a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time frame. The deeming fiction of correlating the release on bail under sub- section (2) of Section 167 with Chapter XXXIII i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Section 437(1) or (2) or Section 439(1) it follows as a natural consequence that the said order can be cancelled under sub-section (5) of Section 437 or sub- section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As Page 4 of 6 stated in Raghubir Singh v. State of Bihar the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses,
(iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.‟
8. It is, therefore, clear that when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled. Rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to."
7. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7) SCC 528) in para 11 it was noted as follows:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter or course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.
(See Ram Govind Upadhyay v. Sudarshan Singh (2002 (3) SC 598) and Puran v. Rambilas (2001 (6) SCC 338).""
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8. According to me, after perusal of the observations made above and the principles laid down by the Apex Court, the same principles can be applied in this case also. In the instant case, the petitioner could not show that the accused-respondent after being enlarged on bail -
i. Has misused his liberty by indulging in similar criminal activity;
ii. Interfered with the course of investigation; iii. Attempted to tamper with the evidence or witnesses;
iv. Threatened the witnesses or indulged in similar activities which would hamper smooth investigation;
v. There is likelihood of his fleeing to another country;
vi. Attempted to make himself scarce by going underground or becoming unavailable to the investigating agency;
vii. Attempted to place himself beyond the reach of his surety, etc.
9. I do not find any of the grounds as stated above, in the case in hand, and according to me, cancellation of bail would be harsh because it will take away the liberty of the accused-
respondent, which is not lightly to be resorted to. The petitioner in this petition even has not taken any plea that the respondent-
accused has misused the benefit of bail after being so released.
10. However, before parting with the matter, I am constrained to observe that the way in which the learned Special Judge has granted bail to the accused by passing a non-speaking order, is not at all encouraging. While granting or rejecting a bail Page 6 of 6 application, the courts should consider the materials on record.
The period of detention should not be the sole criteria for granting bail, particularly, in an offence of serious nature like NDPS, etc.
11. It is submitted that in the instant case, the investigating agency has already filed the charge sheet. The learned Special Judge is directed to complete the trial within 6 (six) months from the date of receipt of this order.
12. Considering the aforesaid facts and circumstances, I am not inclined to interfere with the order dated 01.03.2018 passed in Spl.(NDPS) 01 of 2018 by the learned Special Judge, Kailashahar, Unokoti, Tripura at this stage when trial is about to commence, and further, in absence of any plea or evidence that the accused has misused the privilege of bail.
13. With these observations, this petition is rejected and accordingly disposed of. No costs.
JUDGE lodh