Gauhati High Court
Md. Abdul Kadir Choudhury vs Abdul Basit @ Raju & Ors on 16 July, 2013
Author: T. Vaiphei
Bench: T. Vaiphei
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
CRL. MISC. CASE NO. 226 of 2013 In
BA NO. 654/2013 (D/O)
1. Md. Abdul Kadir Choudhury,
S/o. Late Haji Amir Ali Choudhury,
Village - Zabda, P.O. Manikganj,
P.S. & Dist. - Karimganj, Assam.
...... Applicant
.......... VS .........
1. Abdul Basit @ Raju,
S/o. Late Abdul Manaf,
Village - Zabda, P.O. Manikganj,
P.S. & Dist. - Karimganj, Assam.
2. Kamal Hussain,
S/O. Late Anwar Uddin,
Village - Mirjapur, P.S. Badarpur,
Dist - Karimganj, Assam.
3. Sanjib Suklabaidya,
S/o. Mohitlal Suklabaidya @ Matilal Suklabaidya,
Village - Mirjapur, P.S. Badarpur, Dist - Karimganj, Assam.
......Opp. Parties
CRL. MISC. CASE NO. 227 of 2013 In
BA NO. 664/2013 (D/O)
1. Md. Abdul Kadir Choudhury,
S/o. Late Haji Amir Ali Choudhury,
Village - Zabda, P.O. Manikganj,
P.S. & Dist. - Karimganj, Assam.
...... Applicant
.......... VS .........
1. Samin Uddin @ Samim Uddin,
S/o. Yasin Ali,
2. Mumim Uddin @ Mumin Uddin,
S/O. Yasin Ali,
3. Yasin Ali,
S/o. Late Mayabur Rahman,
All resident of Village - Masly,
P.S. & P.O. - Badarpur, Dist - Karimganj, Assam.
......Opp. Parties
1. Cril. Misc. Case No. 226/13 Page 1 of 9
2. Cril. Misc. Case No. 227/13
3. Cril. Misc. Case No. 228/13
CRL. MISC. CASE NO. 228 of 2013 In
BA NO. 593/2013 (D/O)
1. Md. Abdul Kadir Choudhury,
S/o. Late Haji Amir Ali Choudhury,
Village - Zabda, P.O. Manikganj,
P.S. & Dist. - Karimganj, Assam.
...... Applicant
.......... VS .........
1. Md. Nazrul Islam,
S/o. Abdul Matin,
Village - Masley, P.S. Badarpur,
Dist - Karimganj, Assam.
2. Ainul Haque,
S/o. Abdul Malek,
Village - Sarapur, Dist - Karimganj, Assam.
3. Md. Saduddin Khan,
S/o. Late Salaluddin Khan,
Village - Kankalash, Bhangabazar,
P.S. - Badarpur, Dist - Karimganj, Assam.
......Opp. Parties
BEFORE
THE HON'BLE MR. JUSTICE T. VAIPHEI
Advocate for the Petitioners - Mr. SK Medhi, Advocate.
Mr. A. Ahmed, Advocate.
Advocate for the Respondents - Mr. BS Sinha, Addl. P.P. Assam.
Mr. SC Biswas, Advocate.
Mr. B Choudhury, Advocate.
Mr. M. Biswas, Advocate.
Date of Hearing - 12.06.2013.
Date of Judgment - 16.07.2013
JUDGMENT AND ORDER (CAV)
01. This batch of three criminal miscellaneous applications, involving the same question of law and virtually of the same facts, were heard together on 12-6-2013 and are now being disposed of by this common order. In Criminal Miscellaneous Case No. 228 of 2013, the petitioner is questioning the legality of the order dated 12-3-2013 passed by me in Bail Application No. 593 of 2013 1. Cril. Misc. Case No. 226/13 Page 2 of 9 2. Cril. Misc. Case No. 227/13 3. Cril. Misc. Case No. 228/13 granting bail to the three accused-respondents, namely, (i) Md. Nazrul Islam, (ii) Ainul Gaque and (iii) Md. Sadudding, who were detained in custody in connection with Badarpur PS Case No. 126 of 2012 U/s 365/120-B/302/201 IPC and Section 25(1- B)(a)/27(3), Arms Act corresponding to Sessions Case No. 182/2012. It may be noted that on the basis of this order, the co-accused, namely, (i) Abdul Basit @ Raju, (ii) Kamal Hussain and (iii) Sanjib Suklabaidya were released on bail by my order dated 20-3-2013 in Bail Application No. 654 of 2013. Similarly, another set of co-accused, namely, (i) Samin Uddin @ Samim Uddin, (ii) Mumim Uddin @ Mumin Uddin and (iii) Yasin Ali were also released on bail by my order dated 20302013 in Bail Application No. 664 of 2013. The validity of the last two bail orders are also under challenge in the remaining miscellaneous applications.
02. The contention of Mr. S.K. Medhi, the learned counsel for the petitioners herein is that the direction of the learned Sessions Judge, Karimganj in Sessions Case No. 182 of 2012 to the police to conduct further investigation of the case under Section 173(8) CrPC is not tantamount to re-investigation or fresh investigation of the case and did not render the charge-sheet submitted by the police in Badarpur PS Case No. 126 of 2012 infructuous and could not have entitled the respondents to avail of default bail U/s 167(2)(a)(i) CrPC on the ground that charge-sheet was not submitted within 90 days. According to the learned counsel, the further investigation ordered by the learned Sessions Judge, Karimganj is in continuation of the investigation started by the Badarpur Police Station on the basis of Badarpur P.S. Case No. 126/12, for which charge-sheet has been submitted, the same cannot be treated as re-investigation or fresh investigation of the case. Drawing my attention to the decision of the Apex Court in Vipul Shital Prasad Agarwal v. State of Gujarat, (2013) 1 SCC 197, the learned counsel further submits that the direction for further investigation on the first charge-sheet does not amount to quashment, rejection or abandonment of the first charge-sheet, and the accused in such a case cannot, therefore, seek bail on the ground of failure to file charge sheet within 90 days. It is also the contention of the learned counsel that this Court was misled and fraud practiced upon it by 1. Cril. Misc. Case No. 226/13 Page 3 of 9 2. Cril. Misc. Case No. 227/13 3. Cril. Misc. Case No. 228/13 suppression of the true legal position so enunciated by the three-Judge Bench of the Apex Court in the above case in order to obtain bail order by the accused therein, who had succeeded so. As the bail order was obtained by the accused therein by practicing fraud upon this Court by misrepresentation of facts and of law, argues the learned counsel for the petitioners, it is a fit case, on the authority of the Apex Court in Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 and Indian Bank v. Satyam Fibres (India) (P) Ltd, (1996) 5 SCC 550, for cancelling the bail granted to the accused therein. He also relies on the decisions of the Apex Court in Indian Bank v. Satyam Fibres (India) Ltd., (1996) 5 SCC 550 and Prakash Kadam and others v. Ramprasad Vishwanath Gupta and another, (2011) 6 SCC 189 to fortify his submissions. Mr. M. Biswas, the learned counsel for the accused-respondents supports the bail orders and submits that there is no provision under the law for cancelling the bail already granted except on the ground of misuse or likelihood of the bail. According to the learned counsel, if the contention of the learned counsel for the applicants is accepted, the order cancelling the bail will amount to reviewing an order which is barred by Section 362, CrPC. He also submits that when similarly situated co-accused (Abdul Basit, s/o Rashid Ali) was granted bail by this Court in Bail Appln. No. 3478/12, there is absolutely no reason to cancel the bail of the petitioners. He, therefore, submits that no substantial ground has been made out by the applicants for cancellation fof the bail granted to the accused-respondents.
03. Section 439(2), CrPC says that a High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody. Though no parameters for cancellation of bail already granted are adumberated in Section 439(2), this power should be exercised with caution and circumspection as cancellation of bail jeopardize the personal liberty of the person. In other words, cancellation of bail should not be done in a routine manner. It is well-settled that the consideration applicable to the grant of bail and considerations for cancellation such an order are independent and do not overlap each other. Normally, while considering an application for cancellation of bail, the Court ordinarily looks for some supervening circumstances which would reflect that the 1. Cril. Misc. Case No. 226/13 Page 4 of 9 2. Cril. Misc. Case No. 227/13 3. Cril. Misc. Case No. 228/13 liberty granted to the accused has been misused. In other words, cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances, it would not longer be conducive to a fair trial to allow the accused to retain his freedom during the trial. However, such circumstances are merely illustrative and not exhaustive. The issue came up again for consideration before the Apex Court in Puran v. Rambilas, (2001) 6 SCC
338. After reviewing the case-laws, the Apex Court observed in the following manner:
"10. Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram v. State of Haryana 2. In this case it has been held that rejection of bail in a non- bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of administration of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected.
11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Administration)3. In that case, the Court observed as under: (SCC p. 124, para 16) 'If, however, a Court of Session 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-à-vis the High Court.' 2 (1995) 1 SCC 349 : 1995 SCC (Cri) 237 3 (1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179 1. Cril. Misc. Case No. 226/13 Page 5 of 9 2. Cril. Misc. Case No. 227/13 3. Cril. Misc. Case No. 228/13 * * *
13. Our view is supported by the principles laid down in the case of Gurcharan Singh v. State (Delhi Admin.)3. In this case it has been held by this Court that under Section 439(2), the approach should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere."
04. From the paragraphs extracted above, it can now be taken to be the law that cancellation of on the ground other than misuse of liberty or interference in the course of administration of justice cannot necessarily amount to review of an order/judgment barred by Section 362, CrPC. No exhaustive instances can be enumerated which regulate the discretionary power of the High Court or the Sessions Court fore cancellation of the bail already granted. For example, there can be no difficulty in holding that granting of bail contrary to law or contrary to law laid down by the Apex Court can constitute a valid ground for cancellation of brail already granted: this will no fall foul of Section 362, CrPC. The question which requires to be considered now is, whether my bail orders, the legality where of is called into question in these miscellaneous applications, are contrary to law and, if so, whether they be cancelled by invoking Section 439(2), CrPC. This necessarily warrants recapitulation of the circumstances prompting me to grant bail to the respondents, which is best described by reproducing the relevant part of my bail order dated 12-3-2013, which is typical of the other orders, as follows:
"Following the direction of the learned Sessions Judge, Karimganj directing further investigation of the case, the charge-sheet submitted by the police has become infructuous and as such the petitioners are deemed to been in custody for more than 90 days without submission of the charge-sheet by the police. In that view of the matter, I am of the considered view that the petitioners are entitled to invoke proviso (a)(i) to Section 167(2), CrPC. As they are entitled to statutory bail, they shall be released on bail on executing a bail-bond of `50,000/- each with one surety each of the like amount to the satisfaction of the learned Sessions Judge, Karimganj."
05. As the learned counsel for the applicant is relying on the decision of the three- Judge Bench of the Apex Court in Vipul Shital Prasad Agarwal v. State of Gujarat, (2013) 1 SCC 197 to persuade me to hold that impugned bail orders are illegal, I will refer to the contentions urged on behalf of the appellant-accused therein in detail which, I think, are likely to throw light on the controversy at hand. The contention is that the accused was 3 (1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179 1. Cril. Misc. Case No. 226/13 Page 6 of 9 2. Cril. Misc. Case No. 227/13 3. Cril. Misc. Case No. 228/13 entitled to the benefit of statutory bail in terms of sub-section (2) of Section 167 CrPC. It was urged that since after registering a fresh FIR and commencing of fresh investigation, as directed by the Apex court, CBI had failed to file charge-sheet pursuant to such FIR within the stipulated period of 90 days, the petitioner was entitled to bail on account of such default in view of the provisions of sub-section (2) of Section 167 CrPC. The learned counsel also emphasised that the accused was in custody since his arrest on 3-5-2010 and on the other hand, the trial was being delayed. The learned counsel for the accused further argued that since the earlier investigation by the State Police had not been accepted by the Apex Court and the CBI was directed to conduct fresh investigation, it would necessarily entail that the charge-sheet filed on the basis of the initial inquiry was also rejected by the Apex Court, though not in explicit terms. According to the learned counsel, there could not be two charge-sheets arising out of the two FIRs in respect of a single incident and charge would have to be framed on the basis of one of the said two charge-sheets filed and, since the first investigation has not been accepted, the logical consequence would be that the first charge-sheet also stood quashed which would give the second charge-sheet due legitimacy. Accordingly, since the charge sheet has not been filed in respect of the second FIR within the period of 90 days, as stipulated under Section 167(2) CrPC, the accused was entitled to be released on default bail, as a matter of right.
Repelling the contentions, the Apex Court held in the following manner:
"15. We have carefully considered the submissions made on behalf of the respective parties and we have little hesitation in rejecting Mr Sushil Kumar's submissions. One of the most significant features of this case is that the prayer for default bail was made on behalf of the petitioner in FIR No. 115 of 2006, lodged by the local police with Ambaji Police Station, though the submissions in respect thereof have been made in connection with the subsequent FIR lodged by CBI. In the event the second investigation is treated to be a fresh investigation and the petitioner had been arrested in connection therewith, the submissions made by Mr Sushil Kumar would have been relevant. However, since the prayer for default bail was made in connection with FIR 115 of 2006, in which charge-sheet had been filed within the stipulated period of 90 days, the argument with regard to default bail was not available to the petitioner and such argument has, therefore, to be rejected. The other submission of Mr Sushil Kumar that since a fresh investigation was directed to be conducted by this Court, the earlier charge-sheet must be deemed to have been quashed, has to be rejected also on the same ground."1. Cril. Misc. Case No. 226/13 Page 7 of 9 2. Cril. Misc. Case No. 227/13 3. Cril. Misc. Case No. 228/13
06. I may as well refer to paras 20,21,22 and 23 of the concurring judgment of Hon'ble J. Chelameshwar, which, with due respect, succinctly explain, the correct legal position. This is what he said: [SCC, pp. 203-4, paras 20,21,22 and 23] "20. Section 173 of the Code of Criminal Procedure, 1973 (for short "CrPC") obligates the police investigating a case to make a report to the Magistrate to take cognizance of the offence which is subject-matter of the investigation. Sub-section (2) indicates the various pieces of information which are required to be contained in the said report. Section 173(2)(i)(d) stipulates that the said report should state whether any offence appears to have been committed and, if so, by whom. If the investigating officer opines in the said report that an offence appears to have been committed by the person named therein, he is also obliged to forward to the Magistrate all documents on which the prosecution proposes to rely along with the statements recorded under Section 161 CrPC of all persons whom the prosecution proposes to examine as witnesses. Sub-section (8) recognises the authority of the investigating officer/agency to make any further investigation in respect of any offence notwithstanding the fact that the report contemplated under sub-section (2) of Section 173 had already been submitted. It may be worthwhile noticing that under sub-section (3), even a superior police officer appointed under Section 158 CrPC could direct the investigating officer to make a further investigation pending any orders by the Magistrate concerned on the report submitted. It is settled law that a Magistrate to whom report is submitted under Section 173(2) can direct the investigating officer to make a further investigation into the matter.
21. In my opinion, the mere undertaking of a further investigation either by the investigating officer on his own or upon the directions of the superior police officer or pursuant to a direction by the Magistrate concerned to whom the report is forwarded does not mean that the report submitted under Section 173(2) is abandoned or rejected. It is only that either the investigating agency or the court concerned is not completely satisfied with the material collected by the investigating agency and is of the opinion that possibly some more material is required to be collected in order to sustain the allegations of the commission of the offence indicated in the report.
22. Therefore, the submission of Mr. Sushil Kumar, the learned Senior Advocate appearing for the petitioner, that the directions given by this Court earlier in Narmada Bai v. State of Gujarat would necessarily mean that the charge-sheet submitted by the police stood implicitly rejected is without any basis of law and misconceived. Even the fact that CBI purported to have registered a "fresh FIR", in my opinion, does not lead to a conclusion in law that the earlier report or the material collected by Gujarat Police (CID) on the basis of which they filed the charge-sheet ceased to exist. It only demonstrates the administrative practice of CBI.
23. In my view, notwithstanding the practice of CBI to register a "fresh FIR", the investigation undertaken by the CBI is in the nature of further investigation under Section 178(8) CrPC pursuant to the direction of this Court."
07. In the instant case, I had held that following the direction by the learned Sessions Judge, Karimganj upon the police to carry out further investigation of Badarpur P.S. Case No. 81/2011 U/s 302/120-B, IPC and Sections 25(1-B)(a)/27 Arms Act corresponding to Sessions Case No. 182/2012, which, in turn, was based upon the direction of this Court, the charge-sheet submitted in connection therewith earlier had become infructuous and 1. Cril. Misc. Case No. 226/13 Page 8 of 9 2. Cril. Misc. Case No. 227/13 3. Cril. Misc. Case No. 228/13 that the respondents were deemed to have been detained in custody for more than 90 days without submission of the charge-sheet by the police. On reading and re-reading the decision of the Apex Court in Vipul Sheetal case (supra), which was not brought to my notice in the course of hearing the bail applications, the impugned bail orders passed by me are contrary to the law laid down by the Apex Court therein. Conducting further investigation cannot be tantamount to re-investigation or fresh investigation of the case. It must not be overlooked that the charge-sheet already filed is very alive and kicking, and mere conducting of further investigation of the case by the police on the direction of Court or otherwise does not have the effect of setting at naught the charge-sheet already filed against the respondents. It may be noted that the bail applications of the respondents had been considered by me on the touchstone of sub-section (2) of Section 167, CrPC and not on merits. Though the cancellation of bail necessarily involves the review of the decision already, which cannot normally be done in view of the embargo imposed by Section 362, CrPC, the power of the same Court to cancel the bail which was granted contrary to law or of the law laid down by the Apex Court cannot be negated, more so, when a superior court can always cancel the bail illegally granted by the subordinate courts. Since charge-sheet had already been filed against the respondents before the trial court before the expiry of 90 days, the mere undertaking of further investigation of the same FIR by the police cannot mean that the charge-sheet already submitted U/s 173(2), CrPC stood abandoned or rejected. Inevitably, the respondents could not be held to be entitled to statutory bail at all when this Court passed the impugned bail orders, which is liable to be cancelled.
08. For what has been stated in the foregoing, these criminal miscellaneous applications are allowed. Consequently, the three bail orders dated 12-3-2013 and dated 20-3-2013 passed by me in Bail Application No. 593of 2013, Bail Application No. 654/2013 and Bail Application No. 664 of 2013 are hereby set aside. The bail-bonds of the respondents, therefore, stand cancelled. The Officer-in-Charge of Badarpur Police Station shall arrest the respondents forthwith and commit them custody without delay.
Judge BIPLAB 1. Cril. Misc. Case No. 226/13 Page 9 of 9 2. Cril. Misc. Case No. 227/13 3. Cril. Misc. Case No. 228/13