Gauhati High Court
The State Of Assam vs Arup Das @ Bikram Assam And Anr on 22 April, 2019
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/8
GAHC010044872019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 60/2019
1:THE STATE OF ASSAM
REPRESENTED BY THE INVESTIGATING OFFICER OF HAJO PS CASE NO.
802/2018 SRI DULAL CHANDRA KALITA
INSPECTOR
AGED ABOUT 58 YEARS
SON OF MAHENDRA NATH KALITA
HAJO POLICE STATION
R/O NAGAON MORA KOLONG
DIST. NAGAON
ASSAM
PIN-782001
VERSUS
1:ARUP DAS @ BIKRAM ASSAM AND ANR.
S/O LATE SANAK DAS
VILL KHALIHAGURI
PS TIHU
DIST. NALBARI
ASSAM
PIN-781371
2:PRADIP KUMAR SARMAH
S/O LATE HARENDRA NATH SARMAH
CHANDMARI COLONY
NIZARAPAR
PS CHANDMARI
PIN-781003
DIST. KAMRUP (M)
ASSAM
Advocate for the Petitioner : MR. N K KALITA
Page No.# 2/8
Advocate for the Respondent : MR. A K BHUYAN (OP2)
Linked Case : Crl.Pet. 58/2019 1:THE STATE OF ASSAM REP. BY THE INVESTIGATING OFFICER OF HAJO P.S. CASE NO. 802/2018 SRI DULAL CHANDRA KALITA AGED ABOUT 58 YEARS INSPECTOR S/O MAHENDRA NATH KALITA HAJO POLICE STATION R/O NAGAON MORA KOLONG DIST. NAGAON ASSAM PIN - 782001.
VERSUS 1:AJANTA KALITA AND ANR.
S/O LATE KESHAB KALITA VILL- NO. 2 MANAHKUCHI P.S. HAJO DIST.KAMRUP ASSAM PIN - 781102 2:SRI PRADIP KUMAR SARMAH S/O LATE HARENDRA NATH SARMA CHANDMARI COLONY NIZARAPAR P.S. CHANDMARI PIN - 781003 DIST. KAMRUP (M) ASSAM Advocate for the Petitioner : ADDL PP ASSAM Advocate for the Respondent : MR. A K BHUYAN (R2) Page No.# 3/8 BEFORE HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN JUDGMENT AND ORDER Date : 22-04-2019 Heard Mr. P.P. Baruah, learned Public Prosecutor, Assam for and on behalf of the petitioners and Mr. S. Borthakur, learned counsel appearing for and on behalf of the respondent No.1 in Crl. Petition No.60/2019 and Mr. B.K. Das, learned counsel appearing for and on behalf of the respondent No.1 in Crl. Petition No.58/2019 as well as Mr. A.K. Bhuyan, learned counsel appearing for and on behalf of respondent No.2 in both the cases.
2. Both the petitions are taken up together for hearing and disposal as it relates to common order and subject.
3. On the basis of the FIR filed by respondent No.2 Pradip Kumar Sarma on 10.10.2018, Hajo P.S. Case No.802/2018, u/s.302 IPC read with Section 25(1)(a)/27 of the Arms Act was registered and is under investigation. So far as the allegation in the FIR, it reveals that on 09.10.2018, while the wife of the respondent No.2, namely Junu Sarma who was the Service Manager at State Bank of India, Dadara Branch, was returning from her duty in her own car, she was shot by some unidentified gunmen riding on a bike at Agiathuri near Dadara at about 7 to 7:15 P.M. She was immediately shifted to Narayana Super Specialty Hospital, wherein she succumbed to her injuries. During the investigation, large number of witnesses were examined by the I.O. and the accused Arup Das @ Bikram and Ajanta Kalita (respondents herein) were arrested along with other accused persons on 23.11.2018, having found sufficient evidence against them. The I.O. submitted charge sheet within the stipulated period of 90 days on 08.01.2019, against four accused persons including the present respondents and further investigation u/s.173(8) CrPC is still going on with a view to submit supplementary charge sheet.
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4. The bail petition was moved before the Court of Sessions for and on behalf of both the accused persons named above and the learned Sessions Judge, Kamrup at Amingaon granted the bail to both of them in terms of the order dated 11.01.2019, in B.A. No.525/2018 and B.A. No.526/2018 respectively, which reads as follows:
"Heard ......................................
Today is fixed for C/D, but the I/O has submitted a report that the case is ended with C/S vide C.S. No.01/19 dated 08.01.2019 against the accused and as such nothing is left for investigation.
Heard Ld. P.P. for the State. Detention of the accused is no longer necessary for investigation, as C/S has already been submitted by the I/O. Accordingly, accused is allowed to release on bail of Rs.50,000/- with two sureties of like amount to the satisfaction of the Ld. Chief Judicial Magistrate, Kamrup, Amingaon".
5. Now raising the grievances that the learned Sessions Judge has mechanically granted the bail to the accused persons without applying judicial mind in such serious offence of murder, the present two petitions have been filed u/s.482 read with Section 439(2) CrPC, challenging the aforesaid order of granting bail to the accused. It has been contended that the learned Secessions Judge whimsically passed the aforesaid order without considering the gravity and seriousness of the offence and failed to consider relevant materials while granting bail and the aforesaid orders are devoid of justified reasons and failed to appreciate that further investigation is still going on and release of the accused persons may hamper the investigation of the case. Further it is also contended that the I.O. of the case never gave any instruction to the P.P. that nothing have been left for investigation as charge sheet has been filed and the observation of the learned Sessions Judge that the accused is no longer necessary for investigation as charge sheet has already been submitted by the I.O. is totally unfounded and misconceived. As such the bail order is liable to be set aside and cancelled.
6. The learned P.P., Assam has drawn the attention of the Court to submit that the learned Sessions Judge has not gone through the case diary in such a heinous crime of brutal murder of a woman by professional killers against payment, which reflects from the case diary. It is submitted that Page No.# 5/8 because of official rivalry, the deceased officer was killed in a pre-planned manner by the present accused persons in connivance with others. In such backdrop granting of bail by the learned Court without considering all entirety of the matter is perverse and liable to be interfered into.
7. In support of the contention, the learned P.P. has placed reliance upon the decisions of (2005) 2 SCC 42 (Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and another); (2005) 8 SCC 21 (State of U.P. vs. Amarmani Tripathi); (2008) 3 SCC 775 (Gobarbhai Naranbhai Singala vs. State of Gujarat and others); (2014) 16 SCC 508 (Neeru Yadav vs. State of Uttar Pradesh and another) and (2017) 5 SCC 406 (Virupakshappa Gouda and another vs. State of Karnataka and another).
8. Referring to the observation made by the Hon'ble Apex Court from time to time, it has been submitted that where the basic requirement for grant of bail are completely ignored, cancellation of bail would be justified. In the aforesaid decisions, parameters have been laid down which is to be taken into account while granting bail in a murder case and in other grievous offences. Reference from the Neeru Yadav (Supra) is quoted below:
"16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, 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. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an Page No.# 6/8 individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law".
9. In Amarmani Tripathi (Supra), the Hon'ble Supreme Court held that while considering the application for bail, what is required to be looked is, (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail.
10. The learned counsel for the respondent No.2, Mr. A.K. Bhuyan has also vehemently attacked the impugned order of granting bail and relying on decisions of the Hon'ble Apex Court in (2005) 3 SCC 143 Panchanan Mishra vs. Digambar Mishra and others; (2008) 3 SCC 775 Gobarbhai Naranbhai Singala vs. State of Gujarat and others and (2005) 12 SCC 304 V.D. Chaudhary vs. State of U.P. and others, has submitted that without considering the gravity of the crime and the allegation of the prosecution and other evidence on record, passing of bail order in a mechanical manner without proper application of mind and without going through the merit of the case, is liable to be interfered into. Accordingly it has been urged before the Court that considering the gravity of the offence, the charge sheet as well as other materials on record, the Court should have discussed all material aspects at the time of consideration of bail but the same was not at all adhered to, in the case in hand.
11. Learned counsel for the respondent No.1 in both the petitions namely Mr. S. Borthakur and Mr. B.K. Das have however contended that the impugned order itself reveals that the same was passed in presence of both the parties and after due hearing and as such there remains nothing on the part of the prosecution to raise such contention for cancellation of bail. The learned Court being satisfied with Page No.# 7/8 the submission of the I.O. that the investigation is completed, the bail was granted by the Court.
12. The learned counsels for the respondent No.1 in both the petitions have also placed reliance upon the decision of the Hon'ble Apex Court in Bhagirathsinh vs. State of Gujarat reported in (1984) 1 SCC 284, Dolat Ram and others vs. State of Haryana, reported in (1995) 1 SCC 349 and a decision of our High Court in State of Manipur vs. Pheiroijam Joy Singh reported in 2001 (1) GLT 592 and submitted that cancellation of bail should not be made by way of punishment and an interference into the order of Sessions Court is not warranted. Very cogent and overwhelming circumstances are necessary for an order of seeking cancellation of bail.
13. Due consideration is given to the rival contentions. Law is well settled that the grant of bail though involves exercise of discretionary power of the Court, yet said exercise is to be made in judicious manner and not a matter of course.
14. In Chaman Lal vs. State of U.P. reported in (2004) 7 SCC 525, the Hon'ble Apex Court while dealing with an application for bail, had stated that certain factors are to be borne in mind and they are: ".............. (i) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with witness or apprehension of threat to the complainant, (iii) prima facie satisfaction of the Court in support of the charge and (iv) larger interest of public/State and other similar considerations".
15. The said principle have been reiterated in Ash Mahammad vs. Shiv Raj Singh reported in (2012) 9 SCC 446 and CBI vs. V. Vijay Sai Reddy reported in (2013) 7 SCALE 15.
16. In Gobarbhai (Supra), it has been held that the object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused from tempering with evidence in heinous crimes. It is also held that when basic requirement for granting bail is completely ignored, then cancellation of bail is justified.
17. Bearing in mind the above principles of law, when we turn to the impugned order passed by the Page No.# 8/8 Sessions Court, it is discernable that the learned Court has not taken into consideration about the gravity of the offence and the supporting evidence on record and other relevant facts and circumstances.
18. A lady bank officer was shot to death while returning from her duty who was known to her honest endeavors to redress the grievances of lot numbers of beneficiaries who were not getting their dues under various Govt. schemes. Several persons with vested interest including Bank Officials were involved in such illegal activities and the deceased lady officer actively associated herself to eliminate such evil practice for which she falls prey to a conspiracy in the hands of miscreants and lost her life. There are sufficient evidence in the case diary to be gone into to assess the complicity of the accused/petitioners. The present order was passed against well recognized principles underlying the power to grant bail which is legally infirm and perverse. The matter in hand reflects that it is a pre- planned murder by engaging professional killer for which gravity of the offence is apparent. Only because of filing of charge sheet cannot be the ground to grant bail as filing of charge sheet indicates that sufficient materials have been found against the accused.
19. For the reasons stated above, the impugned order dated 11.01.2019 passed in B.A. No.525/2018 and B.A. No.526/2018, are hereby quashed and set aside. The accused persons are at liberty to prefer bail application afresh and the learned Court will decide the same in accordance with law, by taking into account the principles of granting bail, as laid down by the Hon'ble Apex Court discussed above.
20. With these observations, both the petitions stands disposed of.
21. Return the case diary forthwith.
JUDGE Comparing Assistant