Tripura High Court
The State Of Tripura vs Shri Khokan Das on 23 April, 2019
Equivalent citations: AIRONLINE 2019 TRI 26
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL. PETN. NO.17 OF 2019
The State of Tripura,
Represented by its Secretary,
Home Department,
Government of Tripura,
New Civil Secretariat,
PO+PS: New Capital Complex,
Agartala, Tripura.
----Petitioner
Versus
1. Shri Khokan Das,
S/O Late Subash Das,
R/O Village Uttar Kamalnagar,
P.S. Kalyanpur, P.O. Kalyanpur,
District-Khowai.
2. Shri Suman Das,
S/O Late Subash Das,
R/O Village Uttar Kamalnagar,
P.S. Kalyanpur, P.O. Kalyanpur,
District-Khowai.
3. Shri Arjun Das,
S/O Late Pichan Das,
R/O Sanmura,
P.O. Agartala, P.S. West Agartala,
District-West Tripura.
4. Shri Bikash Das,
S/O Jitendra Das,
R/O Village Uttar Kamalnagar,
P.S. Kalyanpur, P.O. Kalyanpur,
District-Khowai.
5. Shri Pradip Chandra Das,
S/O Shri Promod Chandra Das,
R/O Village Uttar Kamalnagar,
P.S. Kalyanpur, P.O. Kalyanpur,
District-Khowai.
------Accused-respondents
For petitioner(s) : Mr. Arun Kanti Bhowmik,
Advocate General
Mr. B. Deb, Advocate
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For Respondent(s) : Mr. S.K. Deb, Senior Advocate
Mr. Prasanta Kumar Pal, Advocate
Mr. Sankar Lodh, Advocate
Mr. Sougata Datta, Advocate
Date of hearing : 18.04.2019
Date of pronouncement : 23.04.2019
Yes No
Whether fit for reporting : √
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER
The present criminal petition under Section 482 of CrPC is filed for staying the operation of the order dated 11.04.2019, passed by the learned Judicial Magistrate 1st Class, Court No.6, West Tripura, Agartala, granting interim bail to the respondents- accused in connection with West Agartala P.S. Case No.2019 WAG 070 under Sections 364/307/333/427/34 of IPC and Section 3 of the Tripura Medicare Service Persons and Medicare Service Institutions(Prevention of Violence and Damage to Property) Act, 2013, till disposal of the Criminal Misc.Case No.12/2019, pending before the learned Sessions Judge, West Tripura, Agartala.
2. Some relevant facts, leading to the above criminal petition as set out by the State of Tripura, the petitioner herein, and also what transpired till the said criminal petition was taken up for hearing, are as under:
2.1. On the basis of a written complaint made by Dr. Pamala Deb Barma, Medical Officer of IGM Hospital, Agartala stating, inter Page - 3 of 20 alia, that on 11.04.2019 while she was on duty, one patient, namely Mampi Deb(20 Female) was admitted with early labour pain at 1610 hrs. of 10.04.2019. She was taken to labour room at 2251 hrs., for normal vaginal delivery. At 2345 hrs., the patient was expired in spite of all efforts of the doctors on duty. On that news of death, the patient party started threatening to the doctors and staff with severe consequences. The hospital security guards intervened immediately into the matter. But, the mob suddenly attacked the resident surgeon, Dr. Dipankar Debnath and started beating him in front of labour room. The mob, then, dragged him forcefully outside at around 0600 hrs. when he was unconscious.
They also threatened the other doctors and staff on duty and broke several furnitures of IGM hospital.
2.2. On receipt of that complaint, the Officer In-charge, West Agartala Police Station registered an FIR and took up investigation. In course of investigation, the statements of the complainant and other witnesses under Section 161 of CrPC were recorded.
2.3. It is further surfaced that Dr. Dipankar Debnath was admitted to AGMC & GBP Hospital, Agartala with critical condition. 2.4. The investigating agency had arrested some persons, namely Sri Khokan Das, Sri Suman Das, Sri Arjun Das, Sri Bikash Das and Sri Pradip Chandra Das and forwarded them to the court with a prayer to remand the accused to judicial custody.
Page - 4 of 20 2.5. While entertaining the bail application filed on behalf of the accused, the learned Judicial Magistrate 1st Class, West Tripura, Agartala had expressed his doubt over the prosecution story due to the reasons that though the incident happened in the midnight of 10.04.2019, but, the attending doctors including the victim and even the private security agency were so negligent that they did not take proper steps. Further, the learned Judicial Magistrate had failed to find out any ingredient of Section 364 of IPC. He further held that though there were private security personnel but what they were doing when the incident occurred. The learned Magistrate also did not find any incriminating substance to come to the conclusion that there was attempt to murder to Dr. Dipankar Debnath, and ultimately, the learned Magistrate allowed the accused persons to go on ad interim bail till 23.04.2019 on furnishing bail bond of `30,000/-(thirty thousand) with one surety of like amount each, i.d. to judicial custody till 23.04.2019.
2.6. Being aggrieved of the said order dated 11.04.2019, the State has preferred a petition under Section 439(2) of CrPC for cancellation of the said ad interim bail dated 11.04.2019 before the court of learned Sessions Judge, West Tripura, Agartala on the next day, i.e. on 12.04.2019 stating that the accused persons were still in detention in Kendriya Sansodhanagar, Bishalgarh as the said accused could not so far submit bail bonds. The said petition was registered as Crl.Misc.Case No.12 of 2019.
Page - 5 of 20 2.7. In course of hearing of the said application for cancellation of bail, learned Public Prosecutor, West Tripura, Agartala submitted that the victim doctor was admitted to hospital in critical condition and there was also a threat to go on strike by the medical officers of the State. The learned Sessions Judge admitted the petition but held that there is no provision in Section 439(2) of CrPC for passing any stay order on the order of learned Magistrate granting bail to the accused persons, and accordingly, the learned Sessions Judge was not inclined to stay the operation of the impugned bail order dated 11.04.2019 passed by the learned Judicial Magistrate, and ultimately, the verbal prayer of stay was rejected at that stage. The learned Sessions Judge considering the urgency of the matter fixed the case on the very next day, i.e. on 13.04.2019 at 3.30 pm. 2.8. Having dissatisfied with the order dated 12.04.2019 passed by the learned Sessions Judge, the State has preferred a criminal petition under Section 482 of CrPC before this Court. This Court, after taking into account the overall attending facts and circumstances prevalent in the capital town of Agartala with regard to the medical services and the larger public interests, invoked its jurisdiction and after hearing the learned Advocate General vide order dated 12.04.2019 had stayed the operation of the impugned order dated 11.04.2019 passed by the learned Judicial Magistrate 1st Class, West Tripura, Agartala. This Court also issued notice to Page - 6 of 20 the accused persons/respondents by way of „dasti‟ service and the returnable date was 23.04.2019.
3. On being mentioned by the learned counsel appearing on behalf of the accused persons/respondents, the matter was placed before this Court on 18.04.2019.
4. Heard Mr. S.K. Deb, learned senior counsel, assisted by Mr. P.K. Pal, learned counsel appearing for the accused persons/respondents herein as well as Mr. A.K. Bhowmik, learned Advocate General appearing for the petitioner-State of Tripura.
5. Mr. Deb, learned senior counsel has strenuously argued that in the facts of the case and considering the nature of the order passed by the learned Judicial Magistrate granting ad interim bail to the respondents-accused, this Court should not exercise its jurisdiction under Section 482 of CrPC.
Mr. Deb has candidly submitted that the Code of Criminal Procedure, 1973 prescribes only three provisions for cancellation of bail, viz. Sections 436(2), 437(5) & 439(2). As per Section 436(2), the court which passed the order of bail under Section 436(1) of CrPC, can cancel the same by invoking power under Section 436(2). The learned senior counsel has further submitted that when an accused was released on bail under Section 437(1) & (2), the court passed the order of bail, can cancel the same by invoking power under Section 437(5) of CrPC. As per Section 439(2) of CrPC, the High Court and the Sessions Court can Page - 7 of 20 cancel the order of bail, granted under any provisions, i.e. 436(1), 437(1), 437(2), 438 & 439(1) of CrPC. It is further submitted that the court can exercise its jurisdiction under the aforesaid provisions of CrPC only when the accused is actually released on bail from custody. It means, if an order of bail is passed, but the accused has not submitted the bail bond, power under Sections 436(2), 437(5) & 439(2) cannot be exercised[reliance is placed on 2000 Cri.L.J. 4168, State of U.P. vs. Sanjai Singh alias Sanju Raja & 1999(1) ALT 798]. Mr. Deb, learned senior counsel has further contended that as per CrPC, no court except High Court can exercise its inherent power. It means, other than High Court, all courts should exercise its jurisdiction as per mandate of CrPC. In Section 439(2), there is no provision for granting any interim relief, and hence, the Sessions Judge did not grant any interim order, and the said view of the learned Sessions Judge is correct.
6. Inviting my attention to the order dated 12.04.2019 passed by the learned Sessions Judge, the pointed submission of Mr. Deb, learned senior counsel is that, to challenge the order of the learned Sessions Judge, the State has to justify the mistake committed by the learned Sessions Judge in terms of legal position, and according to him, the order dated 12.04.2019 passed by this Court, staying the operation of the impugned order of granting ad interim bail dated 11.04.2019 to the accused person, is wrong exercise of jurisdiction of this Court under Section 482 CrPC. More so, according to Mr. Deb, learned senior counsel, the Page - 8 of 20 principle of natural justice was not followed by this Court while the stay order was passed.
7. Per contra, Mr. Bhowmik, learned Advocate General has submitted that no person including the State cannot be remediless, and this Court has correctly exercised its jurisdiction under Section 482 of CrPC. Mr. Bhowmik has further submitted that this Court has not exercised its jurisdiction under Section 439(2) of CrPC. He further submitted that this Court has inherent power to invoke its jurisdiction under Section 482 of CrPC, if the orders passed by any subordinate court appeared to be erroneous and unwarranted. Mr. Bhowmik, learned Advocate General has drawn my attention to the nature of the order passed by the learned Judicial Magistrate, and according to him, the reasoning assigned by the learned Judicial Magistrate is erroneous and unwarranted. The learned Advocate General has also submitted that the condition of the victim doctor was precarious and he was in Intensive Care Unit(ICU) of the AGMC & GBP Hospital, Agartala. The victim was brutally beaten up, dragged to the street at a distance of around 50 meters approximately.
8. At the outset, I have considered the arguments advanced by the learned senior counsel for the respondents- accused pertaining to the issue of maintainability.
9. I will first deal with the submissions advanced on behalf of the respondents-accused that the State-petitioner ought to have Page - 9 of 20 first invoked the provisions of Section 437(5) CrPC and approached the learned Judicial Magistrate 1st Class, who granted ad interim bail. Section 437(5) CrPC reads as follows:
"(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."
10. By the present petition the petitioner-State has sought for cancellation and reversal of the bail order dated 11.04.2019 granted by the learned Judicial Magistrate 1st Class, West Tripura, Agartala, inter alia, on grounds that the order is perverse, illegal, without application of the judicious mind and contrary to the principles of law. It cannot be disputed, more so, in view of the decision in Puran vs. Rambilas, AIR 2001 SC 2023 that the petitioner can seek cancellation of bail granted on such grounds. It also cannot be disputed that the learned Magistrate cannot be approached to decide an application seeking cancellation of the bail granted by the same Magistrate on the grounds that his order is illegal, perverse, without application of judicious mind and contrary to the principles of law. That is to say, that the Magistrate himself cannot be made to sit in judgment over his own order on such grounds. In my view, therefore, the only ground on which the Court granting bail can be approached under Section 437(5) of CrPC would be change in circumstances than those prevalent at Page - 10 of 20 the time of grant of bail, which obviously includes breach of bail conditions by the accused after being released on bail.
11. I am also fortified in my view by the decision in Gurcharan Singh vs. State(Delhi Admn.), AIR 1978 SC 179, wherein it is held that--"If however, a Court of Sessions had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court(emphasis supplied)".
12. The learned senior advocate for the respondents- accused has argued that there is no question of invoking Section 439(2) of CrPC unless the accused persons have been enlarged on bail as Section 439(2) of CrPC requires that the accused shall be arrested and committed to custody. Therefore, until and unless the accused has availed bail, the question of arresting him and committing him to custody will not apply. In the instant case the Page - 11 of 20 accused was not released on bail and, therefore, Section 439(2) CrPC cannot be invoked by the State. If the argument advanced by the respondents-accused is correct, as regards Section 439(2) of CrPC, the same would also apply to Section 437(5) in view of the identical language used in both the Sections namely: arrest and commit him to custody. In that event Section 437(5) of Cr.P.C. also cannot be invoked by the State.
13. In view of the above discussion, the submission advanced on behalf of the respondents-accused that the State ought to have approached the learned Magistrate under Section 437(5) of CrPC is untenable and cannot be accepted.
14. I, now turn to the arguments advanced for and against the applicability of Sections 439(2) and 482 of CrPC.
Section 439(2) of CrPC reads as follows:-
"(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."
15. As set out earlier, the learned senior counsel appearing for the respondents-accused in support of his contention that the petition before the learned Sessions Judge is not maintainable under Section 439(2) of CrPC since the respondents-accused have not availed of bail, has heavily relied on the decision in the case of B.S. Rawat vs. Leidomann Heinrich, 1991 Cri. L.J. 552, wherein it is held that the language used in sub-section (2) of section 439 of CrPC is very clear and explicit. When it uses the Page - 12 of 20 expression any person who has been released on bail, it would mean that the accused is not only granted bail but has availed of the same and is released from his jail custody. It is only then that the Court can direct a person to be arrested and committed to custody as provided in Section 439(2) of CrPC. In fact, no question of his re-arrest or re-committal to custody can arise unless the accused is actually released on bail granted to him.
16. In my view, this contention advanced on behalf of the respondents-accused is correct and I am in agreement with the aforesaid judgment on this aspect. I am also in agreement with the submission advanced on behalf of the State that in view of the observations made in Puran v. Rambilas, AIR 2001 SC 2023, the scope of cancellation of bail as contemplated under Section 439(2) of CrPC will not only cover a situation where the accused has breached the bail conditions but will also extend to setting aside a bail order vitiated by any serious infirmity for which it is right and proper for the High Court, in the interest of justice, to interfere. However, I do not agree with the submission advanced on behalf of the State that in view of the aforesaid interpretation of the Hon'ble Supreme Court, the scope of cancellation of bail as envisaged under Section 439(2) of CrPC will not only cover a situation where an accused has actually been released from custody but would also apply to an order where the accused remains in custody or has not availed of the bail, in case where the Page - 13 of 20 order granting bail is challenged on the ground of it being illegal, unjustified or perverse.
17. In my view, the Hon'ble Supreme Court in Gurcharan Singh vs. State(Delhi Admn.), AIR 1978 SC 179 as well as in Puran v. Rambilas, AIR 2001 SC 2023 only explained the scope of the Courts as regards the grounds on which it can cancel the bail and has not dealt with the issue of applicability of Section 439(2) of CrPC in case where an order of bail has been granted but not availed of by the accused.
18. Since I have already held earlier that it is not possible for the State to resort to Section 437(5) of the Code of Criminal Procedure and also since I am in agreement with the learned senior counsel for the respondents-accused that Section 439(2) of CrPC cannot be invoked by the petitioner-State, it is clear that there are no other specific provisions under the Code for cancellation of bail available to the State. Under such circumstances, the respondents-accused cannot be heard to say that relief under Section 482 of CrPC would not be available to the State in the present case as the statute(CrPC) specifically provides other efficacious remedies for this purpose. Of the respondents- accused own showing and vehement argument, with which I am in agreement, Section 439(2) of CrPC cannot be made applicable in the present case. Thus, the question arises that, is this Court helpless and in the interest of justice cannot invoke any other provision under the Code to correct an error or to set aside an Page - 14 of 20 order not supported in law? I am of the opinion that the law can never be so helpless or powerless so as not to be able to examine the present application under Section 482 of CrPC as invoked by the State along with Section 439(2) of CrPC.
19. At this stage, it would be very material to refer to the decision of the Hon'ble Madras High Court in the case of the Central Bureau of Investigation vs. Louis Jalu alias Muthu- krishna Varadharajulu, reported in MANU/TN/8505/2006:
(2006 Cri LJ(NOC) 387) wherein it is held that it is a well settled proposition of law that the order granting or refusing bail to an accused is an interlocutory order. As against this, with regard to an Order under Section 439 of CrPC, both the High Court as well as the Court of Session may order re-arrest of the accused and commit him to custody after he has been released on bail by the trial Court. The Court further observed that, in as much as the order of bail granted by the trial Court was stayed by this Court and on account of which the accused in this case was not released on bail, as rightly pointed out by the learned senior counsel for the respondents-accused, the petitioner herein cannot invoke the provision under Section 439(2) of the Code of Criminal Procedure, seeking for re-arrest of the accused and committing them to custody. But, as the order passed under Section 439 of the Code of Criminal Procedure is an interlocutory order and not a final one, the petitioner herein has every right to approach this Court under Section 482 of the Code of Criminal Procedure.
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20. This view of the Madras High Court gathers strength from the decision of the Hon'ble Supreme Court in Puran v. Rambilas(supra), wherein the Hon'ble Supreme Court has held as follows:
"Even if it is an interlocutory order, the High Court‟s inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified."
21. In the backdrop of the above discussions, in my considered view, in a similar circumstance, the petitioner-State can invoke the provision under Section 482(2) of the Code of Criminal Procedure for ends of justice, but not under Section 439(2) of the Code of Criminal Procedure. From the above discussions, it is also abundantly clear that Section 439(2) of CrPC provides remedy for cancellation of bail granted by the court concerned. As already held by this Court, Section 439(2) cannot be effectively invoked as the accused had not been actually released from custody in the aftermath of the order of bail obtained by them in their favour. Therefore, the petitioner-State cannot invoke Section 439(2) of CrPC before the learned Sessions Judge. I reiterate that under such circumstances, this Court will have to Page - 16 of 20 invoke its inherent jurisdiction under Section 482 of CrPC to set right the wrong, if any wrong is committed by the trial Judge in granting the bail.
22. The ultimate outcome of the above analysis is that the power under sub-section (2) of Section 439 of CrPC can be exercised only after the person is released on bail. The language used in sub-section (2) is very clear and explicit. When it uses the expression "any person who has been released on bail", it would mean that the accused is not only granted bail but has availed of the same and is released from his jail custody. It is only then that court can direct a person to be arrested and committed to custody as provided in this section. In fact no question of his re-arrest or re-committal to custody can arise unless the accused is actually released on bail granted to him continues to be in custody and no question of his arrest and committal to custody can therefore arise. The application for cancellation of bail of the accused before his release on bail would thus be premature.
23. However, in the present case, the respondents-accused were in jail custody and, therefore, no order could have been passed under sub-section (2) of Section 439 of CrPC. Consequently, in view of the order passed today by this Court, the proceeding pending before the learned Sessions Judge vide case No.Crl.Misc.12 of 2019 has become infructuous and the matter of Page - 17 of 20 consideration of bail is to be considered by the learned Judicial Magistrate 1st Class, West Tripura, Agartala.
24. Accordingly, it is held by this Court that the present petition under Section 482 of CrPC filed by the State of Tripura, the petitioner herein, is well maintainable to examine the legality and propriety of the order passed by the learned Judicial Magistrate 1st Class, West Tripura, Agartala. Even under Section 482 of CrPC, this Court has the power to pass orders to prevent abuse of the process of the court or in the interest of justice. Having held so, the submission of Mr. S. Deb, learned senior counsel that this Court cannot pass any direction against the order passed by the Judicial Magistrate 1st Class in exercise of its jurisdiction under Section 482 of CrPC in view of Sections 439(2) and 437(5) of CrPC is misconceived and not tenable in law.
25. I am, therefore, of the firm view that since Sections 437(5) and 439(2) of CrPC cannot be invoked by the petitioner- State for reasons set out hereinabove, and since there is no other efficacious remedy available to the petitioner under the Code, this Court can decide the petition for cancellation of bail order or staying the order of granting bail by invoking the inherent jurisdiction under Section 482 of CrPC.
26. Now coming to the merit of the case and while examining the legality and correctness of the impugned order passed by the learned Judicial Magistrate 1st Class, West Tripura, Page - 18 of 20 Agartala, it is found that the learned Magistrate had not taken into account some relevant facts that the victim Dr. Dipankar Debnath was severely beaten up and was admitted to hospital in critical condition. Further, prima facie, it is found that the accused persons had assaulted and used criminal force to a public servant in the execution of his duty.
27. From the preliminary investigation, it has come to light that the accused persons and other members of the mob threatened the hospital staff with dire consequences and criminally intimidated. The respondents-accused had caused obstruction and hindrance to the hospital services and other hospital staff. They also damaged and ransacked the hospital properties. Preliminary investigation further reveals that the victim doctor was abducted from the hospital and dragged to the street, thus, prima facie, attracts Section 364 of IPC. The admission of the victim doctor in the hospital in critical condition also reveals that the respondents- accused caused grievous hurt to his person, being he is a public servant in the discharge of his duty, which, prima facie, attracts the provision of Section 333 of IPC, which is non-bailable. In furtherance thereof, Section 3 of the Tripura Medicare Service Persons and Medicare Service Institutions(Prevention of Violence and Damage to Property) Act, 2013(for short, the Medicare Act, 2013) provides that, "Whoever--
(a) commits an act of violence against a medicare service person; or Page - 19 of 20
(b) causes any damage to the property of any medicare service institution, shall be punished with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees."
Section 4 of the Act, 2013 speaks about the penalties and it provides that the offence committed under Section 3, though, cognizable but non-bailable.
The said Medicare Act also defines the word, "violence" in Section 2(i) which is reproduced here-in-below:
"(i) "violence" means activities of causing any harm, injury or endangering the life or intimidation, obstruction or hindrance to any medicare service person while discharging his duty in the medicare service institution, or damage to property in medicare Service institution."
28. Since I already held that the High Court can exercise its inherent jurisdiction vested upon it under Section 482 of CrPC with regard to cancellation of bail, thus, it can certainly reverse the order of ad interim bail, or bail, as the case may be, if the impropriety is manifested on record in the order of granting such bail. Further, according to me, the bail granted to the accused can be cancelled, if it was granted improperly by wrong and arbitrary exercise of judicial discretion.
29. In my considered view, in the context of the present case, the learned Judicial Magistrate has committed a serious lapse in applying his judicial discretion by landing himself in an apparent Page - 20 of 20 error of fact and law and the bail order ex facie reveals that he passed the order of granting ad interim bail taking into account some irrelevant facts as stated supra.
30. Having viewed so, the order dated 11.04.2019 granting ad interim bail to the respondents-accused is hereby set aside and quashed. Since the matter is fixed for hearing today before the learned Judicial Magistrate 1st Class(Sri Sanjan Lal Tripura), it is hereby directed that the learned Magistrate shall finally decide the bail application on the basis of the materials on record and taking into consideration the statements of the witnesses already recorded by the investigating officer and the legal position in the context of the present case.
31. Copy of this order be sent to the learned Sessions Judge, West Tripura, Agartala as well as to the learned Judicial Magistrate 1st Class, Court No.6, West Tripura, Agartala forthwith to proceed accordingly. Copy of this order be also supplied to the learned counsel for the parties.
32. With the above observations and direction, this criminal petition stands disposed.
JUDGE