Patna High Court
Dinesh Parwat vs State Of Bihar And Anr. on 26 April, 2007
Equivalent citations: 2007CRILJ2890, 2007 CRI. L. J. 2890, 2007 (3) AIR JHAR R 993, (2007) 59 ALLCRIC 50, (2007) 58 ALLINDCAS 460 (PAT), 2007 (4) PATLJR 62, (2007) 4 JLJR 57, (2007) 4 EASTCRIC 332
Author: Dharnidhar Jha
Bench: Dharnidhar Jha
ORDER Dharnidhar Jha, J.
1. The Chief Judicial Magistrate, Gopalganj disposed of the prayer for bail of O.P. No. 2 Rajesh Giri who surrendered before him in connection with Keteya P.S. case No. 92 of 2006 under Sections 307 etc. of the Indian Penal Code by rejecting prayer for bail. The O.P. No. 2 filed B. P. No. 963 of 2006 on the same day of rejection of his prayer by the learned Chief Judicial Magistrate, i.e. on 20-9-2006. The learned Sessions Judge, Gopalganj directed the petition to be put up before him on the same day, i.e. 20-9-2006 and after hearing the learned Counsel for the petitioner and the Public Prosecutor directed the release of O.P. No. 2 on bail. The informant of the case, i.e. the petitioner Dinesh Parwat felt aggrieved by the above order and filed the present criminal miscellaneous petition with a prayer to cancel the order of bail passed by the learned Sessions Judge, Gopalganj.
2. The fact of the case was that in an occurrence dated 31-5-2006 all the accused persons came into the orchard situated in front of the house of the informant-petitioner Dinesh Parwat and started abusing him. The accused persons surrounded the petitioner and accused Rajendra Giri ordered to kill him upon which O.P. No. 2 Rajesh Giri dealt a farsa blow on the head of the petitioner with an intention to kill him whereby bleeding injury was caused to the petitioner. Accused Rajesh Giri and Brijesh Giri dealt lathi blow to the petitioner informant on his left and right hands and both the above noted accused i.e. Rakesh & Brijesh also assaulted Sunil Parwat the full brother of the informant and injured him. When the uncle of the petitioner informant came to rescue. Suresh Parwat was also assaulted with lathi by the accused persons and was injured badly. Accused Rajdeo Parwat assaulted Suresh Parwat on his head causing a wound. One Surendra Singh friend of the informant was also assaulted by Birendra Parwat.
3. The case registered under Sections 323, 324, 325, 307 etc. of the Indian Penal Code on 31-5-2006 and the investigation was taken up. Injury report in respect of injury found on the person of petitioner Dinesh Parat indicated that there were as many as six injuries in the form of an incised wound, two swellings and two contusions. Injury No. 1 which may be the resultant injury of the assault allegedly given by O.P. No. 2 to the petitioner informant was an incised wound measuring 2.1/2" × 1/4" × scalp deep on left frontal and occipital region of head bleeding profusely. The doctor recorded that the bleeding may be dangerous to life. In his final opinion the doctor reported the above noted injury to be simple in nature. The two contusions and two swellings were on different parts of hand of the informant petitioner and were simple in nature. However, the doctor reserved the opinion in respect of injury No. 2 and 4 and subsequently sent his final opinion dated 1-6-2006 according to which injury No. 2 a swelling on right clavicular region measuring 2" × 1" with abrasion measuring 1/2" × 1/2" was found to be grievous on account of the fracture of the right clavicular bone. Injury No. 4 was finally reported to be simple. O.P. No. 2 Rajesh Giri filed an anticipatory bail petition which was heard by the learned Sessions Judge vide anticipatory bail petition No. 281/06 and was rejected by his order dated 22-8-2006. While passing the order the learned Sessions Judge considered the allegation against O.P. No. 2 of dealing farsa blow on the head of the petitioner informant and the resultant injury which was simple in nature and, as such, by the operative final paragraph of his order directed the lower Court (i.e. the Chief Judicial Magistrate, Gopalganj) to "consider the nature of injury and the fact that the petitioner is a practising lawyer of this place while passing order of regular bail". Accordingly, O.P. No. 2 appeared, as indicated at the very outset, before the Chief Judicial Magistrate, Gopalganj on 20-9-2006 and made a prayer for being released on bail and that has rejected ultimately resulting into filing of B.P. No. 963 of 2006 on 20-9-2006 and as per order passed in that bail petition the O.P. No. 2 was released from custody. It may also be of some importance to note that after rejection order of the anticipatory bail petition No. 281 of 2006 O.P. No. 2 approached this Court through criminal miscellaneous petition No. 36949 of 2006 and that was withdrawn on 19-9-2006 whereafter the petitioner surrendered before the Chief Judicial Magistrate.
4. The learned Counsel appearing for the petitioner informant submitted that it was true that there was no recognized ground for cancellation available in the present case but as regards application of discretionary power it has to be available equally to all persons to approach the Court of the Sessions Judge, Gopalganj under similar circumstances. It was contended that there was no practice prevailing in any judgeship specially in the judgeship of Gopalganj that on rejection of the prayer for bail by a Magistrate the Sessions Judge hears the petition on the same day and disposes it of. It was also contended that it appears that the Judgeship of Gopalganj exhibited some special interest in the case of O.P. No. 2 so as to issuing the certified copy of the rejection order which was made over to the accused and that the petition for bail was presented before the learned Sessions Judge while in other cases the matter would have been directed to be placed for hearing the next day, the learned Judge directed the same to be placed on the same day and accordingly released the petitioner. The other circumstance placed before this Court was that the order of bail passed by the learned Sessions Judge on 20-9-2006 was that after rejection of the anticipatory bail petition with some observation by the Sessions Judge. The O.P. No. 2 filed criminal miscellaneous petition No. 36949 of 2006 and withdrew it on 19-9-2006 to surrender in the Court below on the next day. The learned Sessions Judge ought to have waited for some times to ponder over the legal position as to whether under the above circumstances he could have passed the order releasing O.P. No. 2 from custody. Learned Counsel very fairly conceded that besides the above, there was no legally recognised ground available to him for seeking the cancellation of the impugned order dated 20-9-2006, passed in B.P. No. 963 of 2006.
5. Shri Y.V. Giri, Senior Advocate appearing on behalf of O.P. No. 2 drew my attention to annexure-1 to his counter-affidavit which is the order passed in anticipatory bail petition No. 281/2006 in which certain observations were given as a matter of direction to the Chief Judicial Magistrate for his consideration as and when O.P. No. 2 appeared with the prayer for bail. Shri Giri also drew my attention towards the fact that there was a counter-case for the same incident in which the mother of O.P. No. 2 was the informant and the case was registered as Kateya P.S. case No. 93 of 2006 which was under different sections of the Indian Penal Code. It was further contended that the nature of injury was simple and there was a direction by way of observation of the Learned Sessions Judge to the Chief Judicial Magistrate, to consider the allegation in the light of the injuries and pass the order of bail as and when O.P. No. 2 appeared before him. It was further contended that petition for bail of O.P. No. 2 was heard by A.C.J.M. Gopalganj who was not a regular Court for such matters and he hears and disposes criminal matters in the first half of the day so as to take up usual business of hearing civil matters in the later part of the day and accordingly as soon as the order was passed and signed the application for copy was made and the same being supplied, the application was filed on the same day before the learned Sessions Judge. As such, there was no question of the sanctity of the Courts and the order being doubted.
6. The relevant provision of the Cr.P.C. which was applicable in the present case is Section 437. The provision is as under:
437. When bail may be taken in case of non-bailable offence (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but:
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence:
Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason.
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860), or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under Sub-section (1), the Court may impose any condition which the Court considers necessary-
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interest of justice.
(4) An officer or a Court releasing any person on bail under Sub-section (1) or Sub-section (2), shall record in writing his or its (reasons or special reasons) for so doing.
(5) Any Court which has released a person on bail under Sub-section (1) of Sub-section (2), may if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable ground for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
7. The question which has been raised in the present petition does not make it necessary to analyse the entire provision of the afore-noted section. It is sufficient to consider the provisions of Sub-section (1) of the section which provides that if a person accused of committing any non-bailable offence appears before a Court other than High Court or the Court of Sessions, he may be released on bail. Thus the general rule laid down by the above provision is that an accused having committed any non-bailable offence has to be released on bail. If any hindrance or fetter appears created by the provision in acting according to the above general rule of releasing the accused on bail by a Magistrate, it is by virtue of Clause (i) and (ii) of Sub-section (1). According to Clause (i) the accused shall not be released if there "appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life", Clause (ii) of Sub-section (i) forbids the release of the accused on bail if the offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, he had been previously convicted on two or more occasions of a cognizable offence. It may further appear after considering the first three provisos added to Sub-section (1) that the bar created by Clauses (i) and (ii) may not operate to obstruct the order directing the release of an accused under Section 437(1) if the accused is of 16 years of age or is a woman or is sick or infirm or for any special reason the Court found it necessary on being satisfied about the existence of such reasons, so to do. The third circumstance for releasing the accused may be that accused was to be put on T.I.P. for identification by the witnesses during investigation if the accused was otherwise entitled so to be released and was ready to give an undertaking of complying with the direction of the Court given to him.
8. On a careful consideration of the language of Clause (i) what appears is that for releasing an accused on bail there could not be many considerations except the reasonable grounds for believing that the accused was guilty of an offence punishable with death or imprisonment for life. What appears to me is that the offence of the case in which release of the accused on bail is sought for should be punishable with death or imprisonment for life. That by itself may not be sufficient for refusing the prayer for bail. There must be reasonable grounds appearing from material placed before the Magistrate so as to forming an opinion of the level of belief that the accused has indeed committed an offence punishable as indicated above. Mere commission of the offence, thus, may not be sufficient. The nature of the material creating 'belief' in the mind of the Court must be of such quality as to creating definite impression about the accused being guilty of committing such an offence. Mere allegation of dealing assault may not be sufficient in the light of the above discussion unless the grounds reasonably raise an inference regarding the ultimate guilt into the mind of the Court.
9. When the provision talks about the existence of 'reasonable grounds for believing' in the mind of the Court it definitely rules out 'suspicion' about the guilt of accused. This has always to be borne in mind that there is vast difference between the 'belief and 'suspicion'. Belief to me is an opinion concrete and definite regarding the existence of a fact or a situation arising out of set of facts ruling out any other inference. Whereas 'suspicion' is simply a state of fearful apprehension not concretizing itself into an acceptable reasonable inference about the existence/non-existence of any reasonable grounds as to be treated in the realm of belief.
10. The other part of the Section 437(i) is not of that much importance as regards creating a bar of jurisdiction in releasing an accused as appears in Clause (1) of the provision. It may be noted that there is no mention that the case should be triable exclusively by the Court of Sessions. It is true that the offence punishable with death or imprisonment for life may be triable by the Court of sessions. But, if one considers the schedule I to the Cr.P.C. one could find out that there are as many as 51 sections in the Indian Penal Cede which provide for sentence of life imprisonment and majority of them are triable by the Courts of magistrate.
11. If one considers provision of Section 472 of the Indian Penal Code one could find that the punishment provided under that section is also imprisonment for life but the offence has been made bailable. This could be the case with many other provisions contained in the IPC. Could it then be proper for a Magistrate merely because the offence under Section 472 of the Indian Penal Code is punishable by imprisonment for life that he should refuse to release the accused from custody for such an offence? It could simply be misusing the provision of Section 437(i)(ii) Cr.P.C. Likewise, refusing to release the accused in an offence which may not be punishable with life imprisonment or with death or where there could be a doubt or there could be room clearly available for making further inquiry about the complicity of the accused in commission of such an offence would not then it be justified for the Magistrate to refer to the trial forum prescribed by the Cr.P.C. and release the accused on bail. In my considered view the section of an offence or the imprisonment prescribed or the special nature of enactment could never be the considerations if there is no reasonable ground appearing before the Magistrate to compel him to believe that the accused had committed such an offence punishable by sentences as stated by Section 437(i)(ii) Cr.P.C.
12. Under the above premise I could very well note that while considering the question of releasing accused on bail the Magistrate has to consider the allegation which might be appearing against a particular accused besides other materials, like, the injury report in a case of assault to assess the allegation. I ic should also consider the commission of offence in the light of the allegation enforced by other materials which might have been collected by the investigating agency during the course of investigation. Those materials could be the statement of witnesses or the victim of the offence. If the Court conies to a conclusion that there was doubt or there was still some room left for holding further inquiry by him about the reasonableness of the material and that is insufficient, then in my view the case could be covered by Section 437(ii) Cr.P.C. and in that case also the Court should release the accused tut bail.
13. It is not that I am all alone in holding the above view that the merit of the allegations could be considered. The High Court of Andhra Pradesh has done it in the case of K. Narayanaswamy v. The State of Andhra Pradesh in 1980 Cri LJ 588. In the above context I may add that it may not always be improper for the Court to consider the constitution of an offence on facts alleged. It could take a contrary view on that aspect too.
14. When a Court comes to a conclusion that there could be a case made out, after hearing the accused and the Public Prosecutor requiring a direction for the release of the accused, it may not be sufficient in itself for issuing such a direction. The Court has to assure itself from sufficient materials about the manner and circumstances of committing the offence, the position and the status of the accused with reference to those of the witnesses, the likelihood of the accused fleeing from justice or of repeating the same offence or of jeopardising his own life being faced with a grim prospect of conviction in the case or of tamperirig with the witnesses the history of the case as well as of its investigation. If there is prospect of the accused repeating the commission of the same or more serious nature of the offence then it could also be considered for not releasing the accused on bail. I, hasten to add that these considerations could not be on conjectures and surmises. If the prosecution wants a Court to consider all or any of the above circumstances for not releasing the accused from custody, there must be acceptable materials produced before the Court and the Court could consider it to its full satisfaction, then only the circumstances could be said to be existing, else not.
15. The above was not necessary for me to be dealt with. But considering the controversy which has been raised through the present petition regarding the jurisdiction of various Courts in issuing bail orders I thought it proper to properly place as to what could be the construction upon the provision of Section 437, Cr.P.C.
16. Cancellation of an order of bail could be a matter to be dealt with by the Court Under Section 437(5) Cr.P.C. which has released the accused on bail or by the Court of Sessions or the High Court by virtue of their powers under Section 439, Cr.P.C. but that could not be done as and when the Courts are approached with such a prayer. As was noted by the Apex Court in , Mehboob Dawood Sheikh v. State of Maharashtra and in many other decisions that 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 lightly to be resorted to. For cancelling the bail of an accused there must be grounds shown to the Court and not only shown, the Court has to be satisfied about them that they existed on the basis of materials acceptable to it. These grounds are well recognised as may appear from the above noted decision of the Apex Court as also from the earlier decision of the Apex Court rendered in Gurucharan Singh v. State (Delhi Administration) reported in AIR 1978 SC 179 : 1978 Cri LJ 129. While dealing with the provision and the law of grant/cancellation of bail it was noted that if there was a chance of (i) jumping of bail, (ii) of interfering or influencing the witnesses, (iii) of interfering with the investigation or prosecution, or (iv) of obstructing the judicial process or (v) of misusing or abusing the bail, the order of bail could be cancelled and the accused could be committed to custody. To the above criteria I could add, if I am permitted to do so, that if the accused after being released on bail has committed graver offence or if he appears a threat to peace and tranquillity of the society or if there is danger to his own life, then under these circumstances as well the accused could be committed to custody after cancelling bail. The other category of case requiring interference by the Court of sessions or by the High Court could be the utterly wrong application of the discretionary jurisdiction and directing release of accused on bail. Such category of cases could not be exhaustive but, to illustrate, if the accused, who is an assailant of the deceased in a case and about whose complicity there is sufficient acceptable material is released on bail by the Magistrate or the Sessions Court, the High Court or the Supreme Court may interfere in such case of improper application of the discretionary power of granting bail and by directing the committal of the accused to custody.
17. Coming to the facts of the present case, it is true that on the very date on which the prayer for bail of O.P. No. 2 was rejected by the learned C.J.M. Gopalganj petition for bail was filed before the learned Sessions Judge, Gopalganj and the order for release of O.P. No. 2 on bail was passed. This may not be a normal phenomenon obtained in all judgeships of the State and specially in the judgeship of Gopalganj that copies of rejection orders on petitions for bail are made available within a few hours and on the same day the orders are passed. But, that could hardly disentitle the sessions Judge to entertain the petition and hear the same on the same day. There is no rule forbidding any Court to receive petitions on the very day on which a subordinate Court has passed an order. The practice might be otherwise only with a view not to causing discomfiture to the general litigants in presenting their petitions. The normal judicial behaviour do require uniformity and it was expected that the same uniformity would have been observed in the present case as well by the office of the Sessions Judge, but for that the Sessions Judge could not be faulted. There are many considerations which out weigh judicial practice. One such consideration is avoiding unseemly situation like the members of the Bar going up in arms and rising in revolt against the judicial officers as soon as one of their colleagues is either remanded to custody or is refused the prayer for bail. We have many instances in our State being reported from different judgeships. Admittedly O.P. No. 2 was an advocate practising in Civil Court Gopalganj and might be that the learned Sessions Judge acted in the manner as is presently complained of, only to avoid such a situation. It is not that the judges are fearful of advocates, rather the judges avoid causing discomfort and harassment to the general litigant in whose interest the system of judiciary works. I believe that it could have been one of the reasons for directing the release of the O.P. No. 2 on the same day on which his prayer was rejected by the Chief Judicial Magistrate.
18. Copies on urgent applications have to be supplied within 24 hours. An Additional Chief Judicial Magistrate handles the criminal matter only when the Chief Judicial Magistrate is either absent or is on leave or is not in a position to discharge his judicial functions. The primary functions of the Court of A.C.J.M. is that of the permanent subordinate Judge and it is a very heavy file on all stations on the civil side of original jurisdiction. This is a common phenomenon which could be observed in every Civil Court that Additional Chief Judicial Magistrates hear and dispose of criminal matters during the first few hours of their sitting so as to free themselves to devote the remaining time to their original side of jurisdiction. In view of the above prevailing practice in the Civil Court it could safely be assumed that the order refusing prayer for bail of O.P. No. 2 might have been passed before 12 a.m. in all possibilities making it not difficult for O.P. No. 2 to obtain the copies and file a petition.
19. As regards the use of discretionary powers by the learned Sessions Judge, it was not contended that it was wrongly applied in directing the release of O.P. No. 2. Even the injury which was corresponding to the allegation against O.P. No. 2 by dealing a farsa blow on the head of the petitioner Dinesh Parwat was simple, only scalp deep and was neither grievous nor dangerous to life. There was no opinion either coming from the doctor that the injury could have endangered the life of petitioner. This observation was made by the learned sessions judge earlier also while hearing and disposing of anticipatory bail petition No. 281 of 2006 in which the C.J.M. was directed to consider the nature of the allegation in the light of the injury. Unfortunately the A.C.J.M. did not pay proper heed to the observations of the learned Sessions Judge and went on to reject the prayer. Considering the nature of the injury, I feel that it would not have been the case in which the magistrate should have rejected the prayer for bail.
20. As regards the submission that O.P. No. 2 had withdrawn the criminal miscellaneous petition bearing No. 36949 of 2006 from this Court which was dismissed on that account and, as such, divested the Courts of powers to pass an order in the matter. I have some reservations about the submission. It is true that a petition being dismissed as withdrawn is also a dismissal, but if no merit has been touched by the Court in passing such dismissal order on account of withdrawal of the petition then in that case it could never be creating a situation under which the lower Courts could be said to have acted against the rejection order passed by the superior Court so as to allowing or re-fusing it. Even if this is my most humble consideration the superior Courts touched upon the merits of the case while dismissing a petition under Section 438, Cr.P.C., it could not create a bar for any of the lower Courts to proceed to hear a petition for bail and direct the release of the accused from custody after consideration of all the facts and circumstances. The considerations for granting or refusing bail under Sections 437 and 438 could not be said always to be similar and the same. The specific and detailed provisions of Section 437 could itself be sufficient to support my view as to what could be the considerations while dealing with the prayer for regular bail on surrender of the accused before the Court or the accused being in custody. In that view of the matter the learned Sessions Judges' hands were not fettered by the order passed on 19-9-2006 by this Court in the above noted criminal miscellaneous petition on account of the same being dismissed as withdrawn.
21. It was fairly conceded by the learned Counsel appearing for the petitioner that the present petition had not been filed on any of the grounds which could be pressed into service for seeking cancellation of an order of bail. Those grounds have been enumerated by me in the earlier part of the present order and which were indicated firstly in Gurucharan Singh v. State (Delhi Administration) (supra) and thereafter in many other decisions including . There is no allegation that after being released O.P. No. 2 had threatened the witness or subverted the investigation or any judicial proceeding in respect of the case or that he was reported to have committed graver offences or that he was a threat to the society. If these conditions are not available then the present petition could be said to be meritless as regards the prayer for cancellation of bail. Granting of bail is a rule as appears flowing from Section 437, Cr.P.C. The exceptional order of rejecting or cancelling the same could not be resorted to merely for the asking. Having said the above, I find that the present petition is meritless and the same is hereby dismissed as such.