Tripura High Court
Sri Sukhrai Debbarma vs Superintendent Of Central Bureau Of ... on 21 December, 2018
Equivalent citations: AIRONLINE 2019 TRI 193
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
B.A. No.101 of 2018
Sri Sukhrai Debbarma,
son of late Narendra Debbarma,
resident of Khumperpara,
P.S. Lefunga, District : West Tripura
----Applicant(s)
[on behalf of the custody accused
person, Sri Amit Debbarma,
son of Sri Sukhrai Debbarma,
resident of Khumperpara, P.S.
Lefunga, District : West Tripura]
Versus
Superintendent of Central Bureau of Investigation (CBI),
Gurkhabasti, Agartala, West Tripura
----Respondent(s)
For Applicant(s) : Mr. J. Bhattacharjee, Advocate
For Respondent(s) : Mr. Bidyut Majumder, Advocate
Date of hearing : 14/11/2018
Date of judgment & order : 21/12/2018
Whether fit for reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order
By means of this petition filed under Section 439 of the
Cr.P.C. to grant bail in favour of the accused-person, namely Amit
Debbarma in connection with Bodhjungnagar P.S. Case
No.2017/BJN/050 corresponding to Case No. S.T.(T-1)16 of 2018
under Section 302/109 and 120B of the IPC read with Section 27 of
the Arms Act, has been pursuaded.
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2. The accused-person is in the custody since 24.11.2017
and on the day of filing of this petition, he had completed 303 days in
custody.
3. On perusal of the records what appears that a serious
development has taken place in the midst of the trial. The State
Government has provided consent under Section 6 of the Delhi
Special Police Establishment Act, 1946 by the Notification No.21(2)-
PD/12(P)/873 dated 17.03.2018 [issued by the Home Department,
Govt. of Tripura]. Pursuant thereto, the Ministry of Personnel, Public
Grievances and Pensions, DOPT, Govt. of India, has asked the CBI by
their Notification No.228/15/2018-AVD.II dated 06.06.2018 to take
up the investigation of Bodhjungnagar P.S. Case No.2017/BJN/050
dated 21.11.2017 under Section 302 of the IPC and Section 27 of the
Arms Act. The Central Bureau of Investigation (CBI) registered the
regular case bearing No. RC 02/S/2018/Kolkata dated 29.06.2018
under Section 302 of the IPC and Section 27 of the Arms Act by
treating the FIR No.2017/BJN/50 dated 21.11.2017 under Section 302
of the IPC and Section 27 of the Arms Act as the original FIR of their
case No. RC 02/S/2018/Kolkata dated 29.06.2018 under Section 302
of the IPC and Section 27 of the Arms Act.
4. On 29.06.2018, the CBI has commenced reinvestigation of
the case and from the records of the Case No. S.T.(T-1)16 of 2018, it
appears that all the original documents, the chargesheet [filed under
Section 173(2) of the Cr.P.C.], the supplementary chargesheet [filed
under Section 173(8) of the Cr.P.C.], forensic report and the
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prosecution papers were withdrawn from the trial court by the CBI in
terms of the order dated 10.08.2018.
5. It is pertinent to note that the chargesheet filed earlier has
been withdrawn by the CBI probably for purpose of paving the way for
submitting the final report on termination of their investigation. It is
on record that the accused-person was facing trial from the custody
and on numerous time he approached the trial court as well as this
court seeking his release on bail, but those petitions did not succeed.
6. Mr. J. Bhattacharjee, learned counsel appearing for the
petitioner has submitted that from the former chargesheet it was
apparent that there was no evidentiary material which could invite
conviction of the accused-person. Now for re-investigation, to the
extreme prejudice to the accused-person that has been taken up by
the CBI, the accused-person has been forced to suffer the detention
for uncertain period. Mr. Bhattacharjee, learned counsel has
submitted that elongation of detention would cause hardship and
infringement of liberty without any reasonable basis. He has relied on
a decision of the Madhya Pradesh High Court in Kaniram & Ors. Vs.
State of M.P., reported in 1991 JLJ 273, where it has been
observed as under:
20. It was with a view to do away with the practice which
had grown up with the police to file, before a Magistrate, a
preliminary or incomplete report and praying him from
time-to-time for adjournment report and further while the
investigation went on in leisurely manner. The object and
reason in introducing the proviso to sub-section 167
Cr.P.C.:
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"There is persistent complaint that investigations are
not being completed quickly by the police and that in
many cases accused persons are kept in detention on
remand for very long periods causing hardship and
misery to such under-trial prisoners and their
families. Although stringent provisions are already
there in the existing Code requiring investigations to
be completed quickly, they have not had the desired
effect. The Committee feels that a drastic remedy is
called for in this behalf."
21. This object stands defeated by filing incomplete
charge-sheets and delaying the trial, consequently delaying
the committal and trial of serious cases.
22. Shri Desai, however, submitted that expert reports for
which invariably passing of committal order is delayed or
postponed, can be filed even at the time of trial. No doubt
there are provisions but the practice of filing incomplete
charge-sheets, without such reports, cannot certainly be
approved of.
23. To conclude, I am fully conscious that no inflexible
rule can be laid down as regards the length and lapse of
time which would entitle an accused in custody facing
serious charge triable by the Court of Sessions, 'to be
released on bail. However, a general guide line, on the basis
of Supreme Court judgment, can well be given. The
Supreme Court in Hussainara Khatun's case (AIR 1979 SC
1360) indicated that even delay of one year is bad enough.
In Nimeon Sangma's case (supra) a period of six months
has been laid down. Keeping in view the pendency of large
number of cases, a post charge-sheet period of six months,
would be fair to both the accused as well as the State.
24. It is also made clear that in a given case where bail is
claimed on the ground of delay, it is open to the Court to
consider exceptional peculiarities of the case and refuse to
grant but in that event the case should be given priority in
the matter of trial.
[Emphasis supplied]
That apart, Mr. Bhattacharjee, learned counsel has quite
emphatically submitted that from the evidence that has been already
recorded, it has surfaced that the allegation of the accused-person‟s
participation in the commission of crime is in the realm of
conjuncture.
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7. From the other side, Mr. B. Majumder, learned counsel
appearing for the CBI has vehemently opposed that proposition as
advanced by Mr. J. Bhattacharjee, learned counsel for the petitioner.
He has categorically stated that the CBI in their reply has clearly
stated that they have carried out the custodial interrogation of all the
accused persons and the murder for commission of which the
accused-person is implicated, has taken place within the headquarters
of 2nd Bn. TSR. The accused-person is an accomplice and he is very
influential. Against him one FIR vide No.0047 dated 16.06.2018 in the
Kumarghat police station has been registered alleging of threat
against a vital witness (name withheld) in that order. Thus, if his bail
is allowed he would interfere in the fair investigation by coercing or by
threatening the witnesses.
8. This court in the emerged circumstances had directed
production of the Case Diary of that case against the accused-person.
It has been on examination found that threat-call was generated from
the mobile phone being No.8837230163.
9. From the special report submitted before this court by the
Investigating Officer of Kumarghat P.S. Case No.2018KGT047 dated
16.06.2018 under Section 195(A)/506 IPC, it is confirmed that the
said mobile phone is registered in the name of one Brujan Debbarma,
of Barkathal, P.S. Sidhai, West Tripura. However, it has been asserted
that the person whose name has been withheld could recognize the
voice of the accused-person. The accused-person is in the jail
custody. Therefore, unless the evidence of serious breach is accepted
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by this court it has to be assumed that a person from the judicial
custody cannot make a call to any other person unless permitted by
the competent authority. This is not the case here.
10. However, Mr. B. Majumder, learned counsel has referred a
few decisions to contend that mere submission of the chargesheet
would not allow a person to have bail. It is trite law that the societal
interests vis-a-vis personal liberty are to be countenanced while
adhering to the fundamental principle of criminal jurisprudence. It has
to be presumed that the accused is innocent till he is found guilty by
the competent court.
11. In Virupakshappa Gouda & Anr. Vs. The State of
Karnataka & Anr. (judgment dated 28.03.2017), the apex court in
no uncertain terms has observed that deprivation of liberty must be
considered a punishment, unless it can be required to ensure that an
accused person will stand his trial when called upon. The courts owe
more than verbal respect to the principle that punishment begins after
conviction, and that every man is deemed to be innocent until duly
tried and duly found guilty. The necessity of elongation of detention is
the operative test.
12. It has been further observed in Virupakshappa Gouda
(supra) that to refuse bail to an unconvicted person for the purpose of
giving him a taste of imprisonment as a lesson is highly improper.
Usually the factors which are considered in granting the bail are :
(i) the nature of accusation and the severity of punishment in case of
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conviction and the nature of supporting evidence, (ii) reasonable
apprehension of tampering with the witness or apprehension of threat
to the complainant and (iii) prima facie satisfaction of the court in
support of the charge.
13. In Neeru Yadav vs. State of Uttar Pradesh & Anr.,
reported in (2014) 16 SCC 508, the apex court has observed that
"the liberty of an individual" is not absolute. The society by its
collective wisdom through process of law can withdraw the liberty that
it has sanctioned to an individual when an individual becomes a
danger to the collective and to the societal order, but that has to be
done within the process as authorized by law.
14. Mr. Majumder, learned counsel has placed reliance on
State of Bihar vs. Rajballav Prasad @ Rajballav Pd. (judgment
dated 24.11.2016 in Criminal Appeal No.1141 of 2016), where the
apex court has observed that, „threat and intimidation‟ has been one
of the major causes of concern in the investigation. Where there is a
possibility there is a fear or danger rather likelihood that the
witnesses may be put on threat. In such circumstances no bail may
be considered without considering the witness protection.
15. Mr. Majumder, learned counsel has also relied on a
decision of the apex court in Shahzad Hasan Khan vs. Ishtiaq
Hasan Khan, reported in (1987) 2 SCC 684, where the apex court
has observed that, liberty is to be secured through process of law,
which is administered keeping in mind the interest of the accused, the
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near and dear of the victim who lost his life and who feel helpless and
believe that there is no justice in the world as also the collective
interest of the community so that parties do not lose faith in the
institution and indulge in private retribution.
16. „Threat and intimidation‟ has been one of the major causes
for the hostility of witnesses as Bentham said "witnesses are the eyes
and ears of justice". When the witnesses are not able to depose
correctly in the court of law, it results in low rate of conviction and
many times even hardened criminals escape the conviction. It shakes
public confidence in the criminal justice delivery system. It is for this
reason there has been a lot of discussion on witness protection and
from various quarters demand is made for the State to play a definite
role in coming out with witness protection programme, at least in
sensitive cases involving those in power, who have political patronage
and could wield muscle and money power, to avert trial getting
tainted and derailed and truth becoming a casualty. A stern and
emphatic message to this effect was given in Zahira Habibullah's
case as well.
17. Mr. Majumder, learned counsel has referred Kalyan
Chandra Sarkar vs. Rajesh Ranjan allias Pappu Yadav & Anr.,
reported in (2004) 7 SCC 528, where the apex court had occasion to
observe that the period of incarceration already undergone by the
accused and the unlikelihood of trial concluding in the near future as
grounds sufficient to enlarge the accused on bail, in spite of the fact
that the accused stands charged of offences punishable with life
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imprisonment or even death penalty. In such cases, in the opinion of
the apex court, the mere fact that the accused has undergone certain
period of incarceration (three years in that case) by itself would not
entitle the accused to being enlarged on bail, nor the fact that the trial
is not likely to be concluded in the near future either by itself or
coupled with the period of incarceration would be sufficient for
enlarging the appellant on bail when the gravity of the offence alleged
is severe and there are allegations of tampering with the witnesses by
the accused during the period he was on bail.
18. Further reliance has been placed on Kanwar Singh
Meena vs. State of Rajasthan & Anr., reported in (2012) 12 SCC
180, where the apex court has observed that the primary
considerations which weigh with the court are whether the accused is
likely to tamper with the evidence or interfere or attempt to interfere
with the due course of justice or evade the due course of justice. But,
that is not all. The High Court or the Sessions Court can cancel bail
even in cases where the order granting bail suffers from serious
infirmities resulting in miscarriage of justice. Therefore, in absence of
supervening circumstances such as the propensity of the accused to
tamper with the evidence, to flee from justice, etc. would not deter
the court from cancelling even the bail. The High Court or the
Sessions Court is bound to cancel such bail orders particularly when
they are passed releasing accused involved in heinous crimes because
they ultimately result in weakening the prosecution case and bring
adverse impact on the society. Needless to say that though the
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powers of this court are much wider, the apex court has observed that
it is equally guided by the above principles in the matter of grant or
cancellation of bail.
19. Mr. Majumder, learned counsel has placed reliance on
another decision of Central Bureau of Investigation vs. V. Vijay
Sai Reddy, reported in (2013) 7 SCC 452, where the apex court
has observed as under:
34. While granting bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction
will entail, the character of the accused, circumstances
which are peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial,
reasonable apprehension of the witnesses being tampered
with, the larger interests of the public/State and other
similar considerations. It has also to be kept in mind that
for the purpose of granting bail, the legislature has used
the words "reasonable grounds for believing" instead of
"the evidence" which means the court dealing with the
grant of bail can only satisfy it as to whether there is a
genuine case against the accused and that the prosecution
will be able to produce prima facie evidence in support of
the charge. It is not expected, at this stage, to have the
evidence establishing the guilt of the accused beyond
reasonable doubt.
[Emphasis supplied]
According to Mr. Majumder, learned counsel, there are
prima facie materials against the accused-person on referring to the
materials available in the case diary as produced from the
investigating agency (CBI). Therefore, he has urged this court not to
grant bail in favour of the accused-person.
20. When this court queried Mr. B. Majumder, learned counsel
representing the CBI that the re-investigation of the case coupled with
withdrawal of the earlier chargesheet from the court, whether would
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invite the statutory imperative of granting bail as provided under
Section 167(2) of the Cr.P.C., he has not attended the said question.
Section 167(2) of the Cr.P.C. provides that, the Magistrate may
authorize 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 authorize the detention of the accused person in custody under
the said 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 etc.
21. In a recent judgment in Achpal & Ors. Vs. State of
Rajasthan, reported in AIR 2018 SC 4647, it has been observed by
the apex court that the letter of and spirit behind enactment of
Section 167 of the Code as it stands thus mandate that the
investigation ought to be completed within the period prescribed.
Ideally, the investigation, going by the provisions of the Code, ought
to be completed within first 24 hours itself. Further, in terms of sub-
section (1) of Section 167, if it appears that the investigation cannot
be completed within the period of twenty-four hours fixed by Section
57 of the Cr.P.C., the concerned officer ought to transmit the entries
in the diary relating to the case and at the same time forward the
Accused to such Magistrate. Thereafter, it is for the Magistrate to
consider whether the accused be remanded to custody or not. Sub-
section (2) of Section 167 then prescribes certain limitations on the
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exercise of the power of the Magistrate and the proviso stipulates that
the Magistrate cannot authorize detention of the accused in custody
for total period exceeding 90 or 60 days, as the case may be. It is
further stipulated that on the expiry of such period of 90 and 60 days,
as the case may be, the accused person shall be released on bail, if
he is prepared to and does furnish bail. The provision has a definite
purpose in that. The Magistrate ought to be in a position to proceed
with the matter. It is thus clearly indicated that the stage of
investigation ought to be confined to 90 or 60 days, as the case may
be, and thereafter the issue relating to the custody of the accused
ought to be dealt with by the Magistrate on the basis of the
investigation. Matters and issues relating to liberty or whether the
person accused of a charge ought to be confined or not, must be
decided by the Magistrate and not by the Police. The further custody
of such person ought not to be guided by mere suspicion that he may
have committed an offence or for that matter, to facilitate the pending
investigation.
22. The proposition of Rakesh Kumar Paul vs. State of
Assam, reported in (2017) 15 SCC 67 has been approved in Achpal
(supra). In Rajesh Kumar Paul (supra), it has been observed by the
apex court as under:
"11. Unfortunately, all laws tend to be misused whenever
opportunity knocks, and Section 167 of the Code of Criminal
Procedure, 1898 was no exception. Since there was a
practical difficulty in completing investigations within the
15-day time-limit, the prosecution often took recourse to
the provisions of Section 344 of the Code of Criminal
Procedure, 1898 and filed a preliminary or incomplete
report before the Magistrate to keep the Accused in
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custody. The Law Commission of India noted this in its 41st
Report (after carefully studying several earlier Reports) and
proposed to increase the time-limit for completion of
investigations to 60 days, acknowledging that:
14.19. ... such an extension may result in the
maximum period becoming the Rule in every case as a
matter of routine; but we trust that proper
supervision by the superior courts will prevent that."
23. In Achpal (supra) it has been further observed as under:
10. The law on the point as to the rights of an Accused
who is in custody pending investigation and where the
investigation is not completed within the period prescribed
Under Section 167(2) of the Code, is crystallized in the
judgment of this Court in Uday Mohanlal Acharya v. State of
Maharashtra : (2001) 5 SCC 453. This case took into
account the decision of this Court in Hitendra Vishnu Thakur
and Ors. v. State of Maharashtra and Ors.: (1994) 4 SCC
602, Sanjay Dutt v. State through C.B.I., Bombay (II) :
(1994) 5 SCC 410 and Bipin Shantilal Panchal v. State of
Gujarat: (1996) 1 SCC 718. Justice Pattanaik (as the
learned Chief Justice then was) speaking for the majority
recorded conclusions in para 13 of his judgment. For the
present purposes, we may extract conclusions 3 and 4 as
under:
...
3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the Accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the Accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.
4. When an application for bail is filed by an Accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the Accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an Accused being released on bail on account of the default on the part of the investigating Page 14 of 16 agency in completing the investigation within the period stipulated.
....
11. The principles laid down in Uday Mohanlal Acharya (supra) have been consistently followed by this Court namely in State of W.B. v. Dinesh Dalmia: (2007) 5 SCC 773; Sanjay Kumar Kedia v. Intelligence Officer, Narcotics Control Bureau and Anr. : (2009) 17 SCC 631; Union of India v. Nirala Yadav : (2014) 9 SCC 457 and in Ranbeer Shokeen v. State (NCT of Delhi): (2018) 4 SCC 405. It must therefore be taken to be well settled that in terms of 3rd conclusion as recorded in Uday Mohanlal Acharya (supra), on the expiry of the period stipulated, an indefeasible right accrues in favour of the Accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period stipulated and the Accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.
[Emphasis added]
24. In Rajesh Kumar Paul (supra), the apex court has further observed that "default bail" would be granted on such terms and conditions as may be reasonable. If someone is granted the default bail it does not prohibit or otherwise prevent the arrest or re- arrest of the person who has been granted bail on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner may also be granted regular bail considering the materials as might be placed by the prosecution.
25. This court has examined the Case Diary as produced by the CBI. It appears that the investigation is being carried out leisurely and that is the reason that even if the FIR was registered on 29.06.2018 the Investigating Officer who was present in person in the court has failed to indicate to a possible time frame when the investigation might be completed, though the said query did not have Page 15 of 16 material relevance on the aspect, as covered by Section 167(2) of the Cr.P.C. Now, the pertinent question that falls for consideration of this court is that for starting a de novo investigation by withdrawing all the chargesheet and supplementary chargesheet from the court whether after expiry of the statutory period as provided by Section 167(2) of the Cr.P.C. the accused-person is entitled to the default bail or not. No doubt about it that at this stage there is no chargesheet 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 of the Cr.P.C. Thus, the accused-person is entitled to the default bail.
Accordingly, it is directed that the accused-person shall be released on bail on furnishing a bail bond of `1,00,000 (rupees one lakh) supported by 2(two) sureties of the like amount, one of whom shall be a Government employee having permanent residence within the territory of Agartala Municipal Corporation, to the satisfaction of the Addl. Sessions Judge, West Tripura, Agartala. That apart, the accused-person shall report to the Investigating Agency or the Investigating Officer at their office at Agartala on every Monday, Wednesday and Friday. If any of those days is found to be a Government holiday, the accused-person shall report on the next following day without fail. Further, the accused-person shall not in any manner try to threaten, coerce or intimidate any witness or any person seized of the material information or object of the Page 16 of 16 investigation. Further, the accused-person shall not leave the territorial limit of Agartala Municipal Corporation without prior permission of the Addl. Sessions Judge, West Tripura, Agartala. If any breach is reported, the bail will be liable to be cancelled and for that purpose the investigating agency or any of its designated officers may approach the court of the Addl. Sessions Judge for appropriate order.
In terms of the above, this bail application stands allowed and disposed of.
Send down the LCRs forthwith.
JUDGE ROY