State Of Assam vs Dr. Nurul Islam
2021 Latest Caselaw 646 Gua

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GAHC010032822020




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : I.A.(Crl.)/141/2020
                                                 in
                                    A.B. No.2750 of 2019

             STATE OF ASSAM
             REPRESENTED BY THE INVESTIGATING OFFICER OF BARPETA P.S. CASE
             NO. 1619/2019 PRANJIT DAS, INSPECTOR (AGE 45 YRS), S/O RAMESH DAS,
             BARPETA POLICE STATION, R/O PANDU SADILAPUR, P.S. JALUKBARI,
             DIST. KAMRUP (M), ASSAM.


             VERSUS


             DR. NURUL ISLAM
             S/O ABDUR RAHIM, VILL. METUAKUCHI, GANDHI NAGAR, WARD NO. 15,
             P.S. BARPETA, ASSAM, PIN 781301


Advocate for the Petitioner    : MR. N K KALITA

Advocate for the Respondent : MR Z KAMAR

BEFORE HON'BLE MR. JUSTICE HITESH KUMAR SARMA 24-02-2021

Heard Mr. N.K. Kalita, learned Additional Public Prosecutor, Assam appearing on behalf of the applicant State. Also heard Mr. Z. Kamar, learned senior counsel for the respondent.

2. This is an application filed under Section 439(2) of the Code of Criminal Procedure Page No.# 2/8

seeking cancellation of anticipatory bail granted to the petitioner/respondent herein by this Court vide order dated 20.09.2019 in A.B. No.2750 of 2019.

3. I have perused the application filed by the State through the Investigating Police Officer. The petitioner was granted interim protection vide order dated 27.8.2019 and, thereafter, the said interim protection granted to the petitioner/respondent herein was made absolute by the order dated 20.09.2019. The interim protection was granted to the petitioner was on the following conditions:-

"(1) The petitioner shall not leave the territorial jurisdiction of the aforesaid police station, without prior written permission from its officer-incharge,

(2) The petitioner shall not hamper with the investigation, or tamper with the evidence of the case, and

(3) The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.".

The petitioner was also directed to appear before the investigating police officer within 7(seven) days.

4. I have perused the application filed by the State. The grounds seeking cancellation of the anticipatory bail granted to the petitioner/respondent herein are indicated by the applicant in paragraphs 6 and 7, which are reproduced herein below :

"6. That it is respectfully stated that the accused namely Dr. Nurul Islam after obtaining the interim anticipatory bail granted on 27/08/2019 appeared before the Investigating Officer of the case. However, during enquiry he did not give answer properly to any of the question put to him by the I.O. Most of the question he simply answered as don't know.

7. That after obtaining the final anticipatory bail, i.e., after order dated 20/09/2019, the accused person was called to the police station on several occasions, however, he did not turn up. Moreover he is not cooperating with the investigating authority of the case.".

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5. The case diary produced has been examined together with the contents of the application and the annexures furnished therewith. Before a decision is taken on this application seeking cancellation of the anticipatory bail, this Court would like to refer to the settled position of law in respect of cancellation of bail.

6. A Coordinate Bench of this Court, vide order dated 6.1.2021 passed in I.A. (Crl.) No. 322 of 2020 in A.B. No.617/2020, referring to the various authorities, has indicated the law relating to cancellation of bail. For the sake of convenience, the relevant portion of the said order are quoted below :

"7. It is now well settled, that bail can be cancelled when the accused misuses the liberty of bail, or violates the condition of bail or there is any other supervening circumstances rendering the liberty of bail non-conducive to fair trial. The bail can also be cancelled when the order of bail suffers from serious infirmity or illegality causing miscarriage of justice for not considering the material factors or taking into account irrelevant factors. In Kanwar Singh Meena Vs. State of Rajasthan and Anr. (2012) 12 SCC 180, the Apex Court observed that while cancelling the bail u/s 439 (2) CrPC, the primary consideration which weigh with the court is whether the accused is likely to temper with the evidence or attempt to interfere with the due course of justice or evade the due course of justice but that is not all. The High Court or the Sessions court can cancel the bail even in cases, where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes, because they ultimately result in weakening the prosecution Page No.# 4/8

case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail."

8. In Puran Vs. Rambilas and Anr. (supra), the Apex Court distinguished between the rejection of bail at the initial stage and cancellation of bail already granted and also reminded that the concept of setting aside an illegal, unjustified or perverse order of bail is totally different from cancelling an order of bail on the ground that the accused had mis-conducted himself or because of some supervening circumstances warranting such cancellation. The Apex held in paragraph 10,11 and 13 as follows :

"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 relied upon the authority in the case of Dolat Ram & Ors. State of Haryana . 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 the 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 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 a very serious impact on the Page No.# 5/8

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 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 Admn.) reported in AIR 1978 SC 179. In that case the Court observed as under:-

"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 S. 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 existed, 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-a-vis the High Court."

13. Our view is supported by the principles laid down in the case of Gurcharan Singh & Others, etc. vs. State (Delhi Administration) . 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."

9. In Abdul Basid Alias Raju & Ors.Vs. Abdul Kader Choudhury reported in (2014) 10 SCC 754, the Apex Court observed that even, though, the cancellation of bail u/s 439(2) CrPC rides on the satisfaction and discretion of the court, it does not vest the power of review in the court, which granted bail. The Apex Court held as under -

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"19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court."

10. In Vikramjit Singh -Vs.- State of Madhya Pradesh (1992) 3 SCC 62 the Apex Court observed that a co-ordinate Bench has no authority to upset the earlier order of bail of the High Court on the basis of the same materials and under the same facts and circumstances. Judgment of the earlier Bench became final so far the High Court is concerned. However, if the accused misuse the liberty of bail or new materials come to light then only it would be open for a co- ordinate Bench or the same Bench to cancel or review the earlier order of bail.

11. What therefore emerges from the above authorities is, that though, Section 439 (2) CrPC empowers the High Court and the court of Sessions to cancel bail, it does not vest the court with the power of review. The bail can be cancelled by same court or by a co-ordinate Bench only when the accused violates the condition of bail or when the accused misuse the liberty of bail or there is some other supervening circumstances including discovery of new facts rendering the liberty of bail non-conducive to fair trial. When the cancellation of bail is sought on merit on the basis of same facts and circumstances or on the ground, that the order of granting bail was illegal, perverse or suffers from infirmity, the same court which granted the bail or a co-ordinate Bench cannot cancel or set aside the order of bail. Only a court superior to the court which granted bail can cancel or set aside an order of bail on the ground of illegality or infirmity. Therefore, the only point for consideration in the instant application is whether there is any supervening circumstances warranting cancellation of the bail.".

7. Mr. Kalita, learned Additional Public Prosecutor, Assam appearing on behalf of the State Page No.# 7/8

applicant, has pressed this application on two grounds to support the prayer for cancellation of bail :

(i) That the accused petitioner/respondent herein, after getting interim protection, appeared before the investigating police officer once and, thereafter, he did not appear before the investigating police officer, as required and, even he was not found available in his residence when the investigating police officer visited his house; and

(ii) While the accused petitioner appeared before the investigating police officer, he did not properly answered to the questions put to him by the investigating police officer, rather he was found evasive in his reply to the questions so put to him.

8. According to Mr. Kalita, learned Additional Public Prosecutor, such conduct of the petitioner/respondent amounts to non-cooperation with the investigation of the case. Otherwise, all the three conditions mentioned in Serial Nos.1 to 3 and the other condition directing him to appear before the investigating police officer are not alleged to have been violated/misused.

9. Now to a pointed query, Mr. Kalita, learned Additional Public Prosecutor, referring to the materials in the case diary, has submitted that the investigating police officer has recorded that he had visited the house of the accused petitioner/respondent, but could not find him there and his family members also did not produce the petitioner/respondent before the investigating police officer, as directed.

10. On examination of the case diary and, as also admitted, there was no notice issued to the accused petitioner to appear before the investigating police officer on a particular date. In the absence of any specific direction by this Court in the order granting the interim anticipatory bail/or absolute anticipatory bail, to appear before the investigating police officer as and when called for, appearance of the petitioner/respondent herein once in accordance with the order so passed, prima facie, appears to be sufficient. However, if the investigating police officer requires his presence, the accused petitioner ought to have been notified to that effect and, there is no instance of such notice available in the case diary.

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11. So far the other allegation of non-cooperation by the accused petitioner with the investigation of the case by giving evasive reply to the question put to him is concerned, the case diary has not sufficiently enlightened this Court as to what were the questions put to him and what were the evasive answers given by the petitioner/respondent to the investigating police officer. That apart, it is the right of the accused to remain silent. The law is settled and it is a question of personal liberty also that the accused is not bound to give answer to incriminate himself.

12. In view of the above, it does not appear that there is any supervening circumstance for cancellation of anticipatory bail granted to the petitioner. Such being the position, in the considered view of this Court, the State applicant has not been able to substantiate the grounds taken for cancellation of the bail. Otherwise also, there is no allegation of violation of any terms and conditions of bail. In view of the above, in the considered view of this Court, the State has failed to make out a case for cancellation of the bail of the petitioner/respondent herein.

13. The interlocutory application, accordingly, stands rejected.

JUDGE

Comparing Assistant