Patna High Court - Orders
Ajay Pandey @ Ajay Kumar Pandey vs The State Of Bihar on 4 May, 2023
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.3386 of 2019
Arising Out of PS. Case No.-199 Year-2018 Thana- KARJA District- Muzaffarpur
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Ajay Pandey @ Ajay Kumar Pandey Sita Ram Pandey Resident Of Mohalla-
Rambagh Chouri, P.S.- Mithanpura, P.O.- Ramna, Muzaffarpur, District-
Muzaffarpur.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Rajendra Narayan, Sr. Advocate
: Mr. Manendra Kumar Sinha, Advocate
For the Informant : Mr. Ashhar Mustafa, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar Tiwary,App
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
17 04-05-2023At the outset, it is relevant to mention that present bail petition is taken on board for fresh consideration in furtherance of direction of Hon'ble Supreme Court as given through Cr. APP No. 1679 of 2022 arises out of Special Leave to Appeal (Crl.) No. 5600/2022 dated 26th September, 2022, whereby order dated 05.01.2022 passed by this High Court granting bail to this petitioner through Cr. Misc. No. 3386 of 2019 was set aside.
2. Hence, fresh consideration.
3. Learned counsel appearing on behalf of the Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 2/16 petitioner submitted that the petitioner granted bail by this Court on first occasion through Cr. Misc. No. 3386 of 2019 dated 08.02.2019, taken note of merit as available on records and also the custody period, where petitioner was in custody since 05.11.2018. It would be appropriate to reproduce the relevant part of order passed in Cr. Misc. No. 3386 of 2019 dated 08.02.2019 for better understanding of factual background and same is reproducing here below:-
"It is submitted on behalf of the petitioner that he is innocent and has falsely been implicated at the behest of police as he is a social activist and remains at forefront in exposing high handedness of police. In other cases as referred in para-3 he has been implicated at the instance of police. He has no concern with alleged crime or the mobile no. as same has been found to be of co- accused Pankaj. He has been made accused on the basis of confession of Manish Kumar and his own confession which was obtained by coercion and threat by police. He has been implicated in this case on the basis of information given by spy. Nothing incriminating has been recovered from his possession or has been found during investigation except suspicion. Petitioner is in custody since 05.11.2018."
Considering the facts aforesaid, the petitioner above-named, is directed to be enlarged on bail on furnishing bail bond of Rs. 10,000 (Ten Thousand) with two sureties of the like amount each to the satisfaction of the learned Additional Chief Judicial Magistrate II, Muzaffarpur (West) in connection with Karza P.S. Case No. 199/2018 subject to the conditions:
(i) Bailors should be local having sufficient immovable property within the jurisdiction of the court Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 3/16 concerned.
(ii) Petitioner shall co-operate in the trial and shall be properly represented on each and every date fixed by the court and shall remain physically present as directed by the Court and his absence on two consecutive dates without sufficient reason, his bail bond shall be cancelled by the court below.
(iii) If the petitioner tampers with the evidence or the witnesses of the case, in that case prosecution will be at liberty to move for cancellation of bail of the petitioner.
4. Learned counsel while traveling over the argument submitted that the aforesaid order was set aside by Hon'ble Supreme Court through Cr. APP No. 1755 of 2019 (Special Leave Petition (Crl.) 6793 of 2019) vide order dated 25 th November, 2019 for the reason that criminal antecedents of petitioner were not disclosed correctly, which is not a correct fact for the reason that petitioner, in Mithanpura Thana Case No. 92/10 registered for the offence under Section 399, 402, 307, 353, 332 of the Indian Penal Code read with Section 27 of the Arms Act and the Mithanpura Case No. 93/10 dated 09.09.2010 under Section 25(1-B), 26 and 35 of the Arms Act, petitioner was neither accused nor charge-sheeted, where police had submitted final form. It is pointed out that the said confusion was further strengthened due to wrong mentioning of year in paragraph 195 of the case diary. It is also submitted that Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 4/16 Hon'ble Court while passing order in Cr. Misc. No. 3386 of 2019 specifically observed that except confessional statement of petitioner and other co-accused persons there is no incriminating materials found against petitioner. It is further submitted that calculation of custody period in order dated 05.01.2022 is purely typographical error as no bail was granted by this Court vide order dated 24.09.2021, which is the matter of record. It is submitted that while petitioner was granted bail through Cr. Misc. No. 3386 of 2019 dated 05.01.2022, the consideration was not only the custody period rather factual analysis was also done indicating merit in favour of petitioner. It is also submitted that as for causing delay in framing of charges are concerned petitioner cannot be held responsible as he usually remains present before the court on the date fixed either physically or through his advocate and as such there is no occasion to interfere in the order dated 05.01.2022 as passed in Cr. Misc. 3386 of 2019 granting bail to this petitioner. It is submitted by learned counsel that the cancellation of bail is an exceptional legal exercise and it should not be in mechanical and routine manner, where in support of his submissions, he relied upon the Para-22 of the legal report as reported in the matter of Raghubir Singh and others v. State of Bihar as reported through AIR Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 5/16 1987 SC 149.
The result of our discussion and the case-law in this: An order for release on bail made under the proviso to S. 167(2) is not defeated by lapse of time, the filing of the chargesheet or by remand to custody under S. 309 (2). The order for release on bail may however be cancelled under S. 437(5) or S. 439(2). Generally 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 course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to S. 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non- bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.
5. Learned counsel appearing on behalf of the petitioner also relied upon, Para-11 of the legal report as reported in the matter of Ashlam Babalal Desai vs. State of Maharashtra as reported through AIR 1993 SC 1.
On a conjoint reading of Sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 6/16 custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in Clause (a) of the proviso to Section 167(2) of the Code. The law expects that the investigation must be completed with despatch and the role of the Magistrate is to over-see the course of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the introduction of the proviso to Section 167(2) the maximum time allowed to the investigating agency was 15 days under Sub- section (2) of Section 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex cases and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that sub- section. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under Sub-section (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instill a sense of urgency in the invest ting agency to complete the investigation promptly and within the statutory time-frame. The deeming fiction of correlating the release on bail under Sub-section (2) of Section 167 with Chapter XXXIII, i.e. Section 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Sections 437(1) or (2) or 439(1) it follows as a natural consequence that the said order can be cancelled under Sub-section (5) of Section 437 or Sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh's case the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 7/16 activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.
6. While concluding the argument learned counsel appearing on behalf of petitioner submitted that the father of petitioner was died due to Covid-19 and he was in severe depression, petitioner also becomes corona +ve for more than a month and due to said compelling circumstances he was not in position to file any modification petition before the Hon'ble Court regarding clerical error in connection with custody period as appearing in Cr. Misc No. 3386 of 2019 dated 05.01.2022.
7. Per Contra, learned APP duly assisted by learned counsel, Mr. Ashhar Mustafa appearing on behalf of informant, while arguing, submitted that the submission of petitioner is incorrect on factual aspects besides concealment of criminal antecedents, where conducts of petitioner are sufficient to gather that he is delaying in trial and his approach not appears Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 8/16 bonafide. It is submitted that petitioner also advanced threat to informant of this case. It is submitted that petitioner mislead this Court while arguing in Cr. Misc. No. 3386 of 2019, the extract of page 7 of order dated 05.01.2022 is reproducing here below for better understanding of this submission:-
"During investigation, it came that SIM No. 7361907855 was issued from the shop of Pankaj Kumar and said SIM was activated on 12.02.2018 and Pankaj Kumar had sold this SIM to Ganour Kumar of Muzaffarpur and Ganour Kumar admitted that he had purchased another SIM from Pankaj Kumar but present Sim was not purchased by him and Pankaj Kumar had taken his LTI and it appears that same was misused by Pankaj Kumar. Pankaj Kumar was arrested from his house on 13.10.2018 and the mobile from which said SIM was initially used on 10.03.2018, was also recovered from his house and it was stated that same was being used by family members, however, accused/Pankaj Kumar did not disclose the name of petitioner."
8. It is submitted that submission as aforesaid appears incorrect factually for the reason that statement of Pankaj Kumar is available in Para-165 of the case diary, where his statement as recorded under Section 164 of the Cr.P.C., is available, disclosing the name of this petitioner, to whom he sold SIM No. 7361907855 which was activated on 12.02.2018, alleged to be used in this occurrence. It is submitted that the principal considerations, while granting bail through Cr. Misc. No. 3386 of 2019 dated 05.01.2022 was the custody period i.e., about 2 years and 10 months. It is submitted that assuming even Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 9/16 the date taken into consideration arises out of typographical error the impression which gathered by this Court out of said mistake is cannot be said a technical error because it create an impression about long custody period of petitioner about i.e., 2 years and 10 months and as such, he was allowed to remain on bail. If correct picture of custody period would be there, the impression of Court would be otherwise with different outcome. It is also pointed out that out of four co-accused persons facing trial, co-accused namely, Priyanka Pandey is the wife of petitioner and co-accused Manish Kumar is the brother-in-law of the petitioner, as it appears from Para-118 and 119 of the case diary, they all are family members but never appeared before the Court together for obvious reason to make Court unable to frame charge and thereby causing delay in trial. It is also pointed out that petitioner despite knowing the directions of this Court that trial be expedite and concluded within one year never appeared before the trial court in such manner that charge could be framed. It is pointed out that petitioner intentionally not brought the clerical error in knowledge of the Court for the reason that it might cause cancellation of his bail. It is also pointed out that petitioner is regularly threatening the informant, who is a helpless senior citizen aged about 70 years who lost his Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 10/16 son in occurrence and for the same a case was also registered in Karza P.S. Case No. 106 of 2019 against petitioner. Learned APP further submitted that plea of covid-19 is appearing a superficial excuse as order dated 05.01.2022 was passed in physical mode and even that time situation of covid was almost set to normal. Learned APP while concluding the argument submitted that the circumstance of this case is of such compelling nature that the petitioner cannot be given concession of bail to secure a fair and speedy trial, which is expected to impart justice to informant and to keep faith alive of public at large in criminal justice delivery system of this country.
9. Learned APP relied upon Para- 25 of the legal report in the matter of Ms. P. vs. State of Madhya Pradesh and Another as reported through 2022 SCC OnLine Sc 552 and submitted that fact of this covers under conditions to cancel bail as discussed thereto. For convenience Para-25 of above judgment is reproducing here below:-
25. As can be discerned from the above decisions, for cancelling bail once granted, the Court must consider whether any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial 24. To put it differently, in ordinary circumstances, this Court would be loath to interfere with an order passed by the Court below Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 11/16 granting bail but if such an order is found to be illegal or perverse or premised on material that is irrelevant, then such an order is susceptible to scrutiny and interference by the Appellate Court. Some of the circumstances where bail granted to the accused under Section 439(1) of the Cr.P.C. can be cancelled are enumerated below: -
a) If he misuses his liberty by indulging in similar/other criminal activity;
b) If he interferes with the course of investigation;
c) If he attempts to tamper with the evidence;
d) If he attempts to influence/threaten the witnesses;
e) If he evades or attempts to evade court proceedings;
f) If he indulges in activities which would hamper smooth investigation;
g) If he is likely to flee from the country;
h) If he attempts to make himself scarce by going underground and/or becoming unavailable to the investigating agency;
i) If he attempts to place himself beyond the reach of his surety.
j) If any facts may emerge after the grant of bail which are considered unconducive to a fair trial.
10. It would be appropriate to reproduce the order of Hon'ble Supreme Court as passed in Cr. APP No. 1679 of 2022 dated 26th September, 2022 for the sake of convenience.
"Leave granted.
The challenge is laid to an Order dated 5-1-2022 passed by the High Court of Judicature at Patna, permitting Respondent No.2, who was on interim bail, not to surrender and thus granting him regular bail in a case under Sections 302, 120B, 363, 364 of the Indian Penal Code and Section 27 of the Arms Act, registered vide F.I.R. Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 12/16 199 of 2018 dated 2-10-2018 with Karja Police Station, Muzaffarpur, Bihar.
Earlier also, Respondent No.2 was released on bail by the High Court but the said Order was set aside by this Court on 25-01-2019 in Criminal Appeal No.1755 of 2019 and the matter was remanded to the High Court for fresh hearing of the bail matter. Pursuant thereto, the High Court has passed the impugned Order, continuing the interim bail/regular bail earlier granted to Respondent No.2.
We find from the impugned Order that two factors have been heavily relied upon by the High Court for granting bail to Respondent No.2, namely (i) that he has been implicated on the basis of a confessional statement and (ii) that he has remained in custody for about 2 years and 10 months.
We find that the second reason assigned by the High Court is totally contrary to the record. It is not in dispute that Respondent No.2 was arrested on 5-11-2018 and he was released on bail on 8- 2-2019.
This Court set aside the said bail Order on 25-11- 2019 but Respondent No.2 never surrendered despite cancellation of his bail.
Meanwhile, the High Court passed an Order dated 26-2- 2020 directing that no coercive steps shall be taken against Respondent No.2. Thereafter, the impugned Order has been passed granting him regular bail. In this manner, there can be no doubt that Respondent No.2 has remained in custody only for a period of 3 months and 3 days and not 2 years and 10 months as observed by the High Court. We are also informed that as a result of bail granted to Respondent No.2 and other co-accused, charges have not yet been framed by the Trial Court for want of their co- operation.
It appears to us that the cumulative effect of these two factors need to be evaluated by the High Court before granting/declining bail to Respondent No.2. Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 13/16 We, thus, without expressing any views on the merits of the case, allow the appeal filed by the complainant; set aside the impugned Order dated 05-01-2022 passed by the High Court and remand the case to the High Court for a fresh consideration of his bail application on the basis of correct facts.
Respondent No. 2 will continue on interim/regular bail till the High Court decides his bail application afresh. We make it clear that grant of interim bail by this Court shall have no bearing on the merits of the case. We request the High Court to consider all the contentions that may be raised on behalf of the State as well as the complainant.
We further request Hon'ble the Chief Justice of High Court of Judicature at Patna that in deference to the observations made by this Court in an Order dated 25-11- 2019 on the previous count,let the bail application of Respondent No.2 be heard by a different Bench. These observations, however, shall not be taken as an aspersion on the fairness, impartiality of the learned Judge who has granted bail to Respondent No.2. The Appeal is disposed of in the above terms."
11. From the perusal of aforesaid order of Hon'ble Apex Court, it appears that two factors need to be evaluated by this Court while granting/declining bail to this petitioner on fresh considerations (i) custody period as observed by the High Court i.e., 2 years and 10 months and (ii) the role of petitioner delaying in framing of charge, besides other correct factual analysis.
12. It appears from the order dated 05.01.2022 passed in Cr. Misc. No. 3386 of 2019 the prime consideration Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 14/16 was the custody period of 2 years and 10 months. It appears from the perusal of record that no bail was granted to petitioner by order dated 24.09.2021. As per record, petitioner was granted bail vide order dated 08.02.2019, and as such petitioner remains in custody only for 3 months and 3 days not for 2 years and 10 months. No doubt an impression was created out of said clerical error that petitioner was remained in jail for long 2 years and 10 months, absence of this impression may be ended with different result and in said apprehensions the said clerical error was not brought by the petitioner to the knowledge of this Court and therefore, it can be safely gathered that conduct of petitioner was not bonafide. It also appears from perusal of record that co- accused Priyanka Pandey and Manish Kumar are wife and brother-in-law of petitioner, respectively. There is all probability that they have common knowledge of proceeding of the case, despite that it appears from the counter affidavit dated 05.05.2023, as filed by prosecution that none of the co-accused persons appeared together on even single day, causing delay in framing of charge and also to frustrate the direction of the Court to conclude the trial within one year. It appears that after releasing on bail to this petitioner, this case was listed for more than 38 occasions before learned trial court, where except on Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 15/16 two-three occasions, appearance of petitioner and other co- accused persons were secured availing provisions of Section - 317 of Criminal Procedure Code (Cr.P.C.).
13. Hence, in view of above mentioned facts and circumstances, it can be safely gathered that petitioner appears purchaser of SIM No. 7361907855, as per statement of Pankaj Kumar, recorded under Section 164 of Cr.P.C., which was used in occurrence suggesting his prima facie involvement in present heinous crime. It can also be gathered safely that charge could not frame till now, in this case due to non-cooperation of this petitioner as he secured his appearance before trial court on more than thirty (30) occasions by availing the benefit of Section - 317 of Cr.P.C., and not appeared physically. He remains in custody for 3 months and 3 days only. Besides these two important aspects it also appears that conduct of petitioner not appears bonafide, as he failed to bring clerical error in knowledge of this Court regarding custody period of order dated 05.01.2022, and is also appearing that he advanced threat to informant of this case during pendency of trial for which Karza P.S. Case No. 106 of 2019 was registered.
14. Accordingly, in view of above discussed facts, petitioner does not deserve concession of bail and as such Patna High Court CR. MISC. No.3386 of 2019(17) dt.04-05-2023 16/16 his prayer of bail is rejected herewith.
15. Consequent upon, both parties are directed to follow necessary implications/steps in terms of direction of Hon'ble Supreme Court as passed in Cr. APP No. 1679 of 2022 (Special Leave to Appeal (Crl.) No. 5600/2022) dated 26th September, 2022.
(Chandra Shekhar Jha, J) Archana/-
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