Manipur High Court

The State Of Manipur Represented ... vs Lh Wolring on 25 March, 2021

                                                                   Page |1



                   IN THE HIGH COURT OF MANIPUR
                             AT IMPHAL

                   Crl. Revision Petition No. 6 of 2020

        1. The State of Manipur represented by the Chief
             Secretary       (Home),    Government      of   Manipur,
             Babupara Old Secretariat Building, Imphal West,
             Manipur.
        2. The Officer-in-Charge/Investigating Officer, Chandel
             Police, Chandel Police Station, Chandel District,
             Manipur.

                                                    -- -- -- Petitioners

                                       - VERSUS -



        1.      LH Wolring, aged about 68 years, S/o L.H.
                Khungvol, resident of Lambung Village, Chandel
                District, Manipur.

        2.      Langhu Manahring Anal @ David, aged about 47
                years, S/o (L) L. Ango of Charongching Village
                Chakpikarong Sub-Division.

        3.      Kothingwar, aged about 27 years, S/o (L)
                Rt.Dalhring,     resident    of   Tamphi       Village,
                Chakpikarong.




Crl. Rev.P. No. 6 of 2020 with
MC(Cril.Rev.P.) No. 1 of 2021
                                                                       Page |2



        4.      SP Kolome Anal, aged about 50 years, S/o (L) SP
                Labin        of   Khumbung      Khullen            Village,
                Chakpikarong.

                                                        -- -- --
                                         Respondents

With MC(Crl. Rev. P.) No. 1 of 2021 Ref:- Cril. Revision Petition No. 6 of 2020

1. The State of Manipur represented by the Chief Secretary (Home), Government of Manipur, Babupara Old Secretariat Building, Imphal West, Manipur.

2. The Officer-in-Charge/Investigating Officer, Chandel Police, Chandel Police Station, Chandel District, Manipur.

-- -- -- Petitioners

- VERSUS -

1. LH Wolring, aged about 68 years, S/o L.H.

Khungvol, resident of Lambung Village, Chandel District, Manipur.

2. Langhu Manahring Anal @ David, aged about 47 years, S/o (L) L. Ango of Charongching Village Chakpikarong Sub-Division.

Crl. Rev.P. No. 6 of 2020 with MC(Cril.Rev.P.) No. 1 of 2021 Page |3

3. Kothingwar, aged about 27 years, S/o (L) Rt.Dalhring, resident of Tamphi Village, Chakpikarong.

4. SP Kolome Anal, aged about 50 years, S/o (L) SP Labin of Khumbung Khullen Village, Chakpikarong.

-- -- -- Respondents

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner :: Mr. Lenin Hijam, Addl. AG Ms. N. Tejpriya, Advocate.

For the Respondents :: Ms. H. Bisheshwari, Advocate.

Reserving Judgment
& Order                           ::       08.03.2021

Date of Judgment &Order ::                 25.03.2021


                      JUDGMENT AND ORDER
                            (CAV)

1. The present Criminal Petition has been filed by the

State of Manipur represented by the Chief Secretary, in-charge of

Home challenging the order dated 17/12/2020 vide Ref. No. FIR No.

25(11)2020 CDL- P.S. U/S 153A/504/505/506/500/34 IPC & 4

Explosive Substance Act, thereby releasing the accused person on

bail without availing ample opportunity to the police to investigate

the terrorist activities of the accused persons against whom many

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incriminating things including documents, Laptop, computer hard

drives involved in terrorist activities were recovered by the Police.

2. Brief facts of the Case:

a) The State of Manipur has been trying to its best to

develop each and every District of Manipur

particularly in the Hill Districts including the

Chandel District. The respondent/accused

persons are the resident of Chandel District who

are actively indulging in various terrorist activities

as indicated in the police investigation with

incriminating evidences and there are a serious

attempts and threats by the accused that will carry

out the violent terrorist activities by use illegal

weapons which are believed to be in their

possession.

b) The incriminating articles like laptops, computer

hard drives, pen drives, documents were seized

from the respondents/accused and they were

produced before the Ld. CJM, Chandel. The

respondent/accused namely LH Wolring, who

turned out to be one of the main accused was

apprehended only on 15/12/2020 with the various

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incriminating articles like laptops, computer hard

drives, pen-drives, documents etc. And, he along

with the other accused SP Kolomi was remanded

in police custody. And, without affording ample

opportunity to the police to investigate serious

terrorist activities against the respondent/accused

the Ld. CJM, Chandel by the impugned order

released the accused on bail in the afternoon of

17/12/2020.

3. Challenging the impugned Order, this Revision is filed

by the State amongst the following other GROUNDS;

a. The Ld. CJM, Chandel ought to have considered

that accused namely LH Wolring, who turned out

to be one of the main accused was apprehended

only on 15/12/2020 with the various incriminating

articles like laptops, computer hard drives, pen-

drives, documents etc. And, he alongwith the

other accused SP Kolomi was remanded in police

custody by the CJM only in the evening of

15/12/2020 and therefore the Ld. CJM failed to

consider that the police had only 1 (one) effective

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working day i.e. only on 16/12/2020 for

investigation. And, without affording ample

opportunity to the police to investigate serious

terrorist activities against the accused the Ld.

CJM, Chandel by the impugned order released

the accused on bail in the afternoon of

17/12/2020. Therefore, the impugned order

dated 17/12/2020 is liable to be quashed and set-

aside.

b. The Ld. Trial Court failed to consider the gravity

of the case, wherein various incriminating articles

used for terrorist activities were seized by police.

Therefore, the Ld. CJM, Chandel ought not to

have released the accused on bail even before

the police could investigate the terrorist activities.

c. The Ld. Trail Court failed to consider that the

accused have spreaded hatred amongst the

various communities living in Chandel District

and they have loudly propagated that

government officials and also different

communities living in the District will bombed and

there are a serious attempts and threats by the

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accused that will carry out the violent terrorist

activities by use illegal weapons which are

believed to be in their possession. Therefore, the

respondents/accused are required to be

investigated for the sake of national/State

security as the offence relates to the terrorist

activities in the District bordering Myanmar, which

is a terrorist hot-bed in the region.

d. The Ld. Trial Court has not given enough time to

properly investigate the case involving section 4

of Expl. Sub. Act.

4. Therefore, this revision petition is filed to set aside

impugned order dated 17/12/2020 of the Chief Judicial Magistrate,

Chandel passed in Chief Judicial Magistrate, Chandel in F.I.R. No

25(11) 2020 CDL-P.S. U/S 153A/504/505 /506/ 500/34 IPC & 4

Expl. Sub. Act and to re-arrest and detain the respondents/accused

in the judicial custody till the investigation of the case.

5. The fulcrum of this petition is the FIR registered

against the respondents/accused which is now at the stage of

investigation and the grant of bail by the learned CJM therefore,

with the consent of learned counsel for the parties, these petitions

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have been heard together and are being disposed of by this

common judgment.

6. It is necessary to look in to the impugned order passed

by the CJM. The operative portion of the impugned order is as

follows;

"Sifting through the materials placed before me, it is

discernible that the pamphlets which allegedly

contain incriminatory and inflammatory messages

were seized from accused, viz., Kothingwar and

L.Monahring. From their instance and disclosure, two

other accused viz., L.H Wolring and SP Kolome Anal

were arrested. These arrests were not random, but

each arrest is connected to the inflammatory

pamphlets. The contents of the pamphlets are likely

to incite a class or community to commit any offence

against another class or community. The pamphlets

also contain threat of dire consequences. Therefore,

Sections 153A, 505 and 506 are prima facie

attracted. Similarly, the said pamphlet names certain

individuals and speak of them in an unsavory manner

and thus appears to be scandalous and defamatory.

Sections 500 and 504 are thus also made out. The

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Pamphlets speak of a threat of bomb blast. It never

was die case of the prosecution that the accused

conspired to cause explosion which would

endangered lives. Section 4 of Expl.Sub.Act, 1908 is

therefore not made out.

It is not the case of the prosecution that the custody

of the accused is necessary for discovery. It is also

not the case of the prosecution that custodial

interrogation or confrontation of the accused persons

is necessary. Merely because the other associates

needs to be identified and arrested is not a viable

ground to curtail the personal liberty of the accused,

particularly when adequate time has been granted

qua the offences. Any electronic evidences, that the

prosecution says are required, can be secured

without the accused being in custody. The Cr.P.C

gives the outer limit of 15(fifteen) days for P.C, but

extension of remand after initial remand period

should be granted only on justifiable grounds. The

prosecution has failed to show such ground(s). Bald

statement that the accused are not cooperating does

not suffice.

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To recapitulate, prima facie case against die accused

persons, other titan Section 4 of Expl.Sub.Act, exist.

Be that as it may, given the nature of offences alleged

and the punishment that could entail, it is the

considered view of this Court that further

incarceration of the accused is not necessary. Taken

into account in deciding the applications is also the

fact that there are no reasons to believe that the

accused are flight risk, or will hamper investigation or

that they would influence witnesses. Under the

aforesaid facts and circumstances, the principle of

bail not jail must take priority. All things considered,

the prayer of the IO is rejected. Corollary, the bail

applications stands allowed."

7. It should be noted that before the learned CJM who

decided the Bail Application at the initial stage, all the papers

pertaining to investigation were produced but the relevant papers

were not considered by the CJM while allowing the application. To

this Court also some papers were shown and this Court considered

the same. In spite of this, without considering the stage of

investigation or serious of circumstances pointed against the

respondents/accused, it seems the learned Judge has entertained

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the applications and released the accused who are involved in a

serious offence on bail. This can hardly be said to be new ground

for revising the order passed by the Court of co-ordinate jurisdiction

or to ignore the order passed by this Court.

8. The learned Advocate appearing on behalf of the

respondents/accused in the aforesaid revision applications

submitted that even though the offence is serious, yet this Court

should not interfere at this stage because the accused are already

released on bail and bail should not be cancelled unless there is

evidence on record that the accused are likely to tamper with the

evidence or are likely to abscond.

9. In all, the learned Advocates who are appearing on

behalf of the respondents/accused vehemently relied upon the

decision of the Kerala High Court in the case of Shanu v. State of

kerala, and submitted that unless the Court arrives at the conclusion

that the accused would not be readily available for their trial and

they were likely to abuse the discretion in their favour by tampering

with the evidence, the Court should not cancel their bail which is

granted by the CJM by exercising its discretion. They further

submitted that the approach of the Court in the matter of bail is to

see that the accused should not be detained by way of punishment

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and if the presence of the accused could be readily secured at the

time of trial, then the order of bail should not be cancelled.

10. It is necessary to quote the judgment of the Kerala

High Court under below;

Though the offences punishable under the provisions

of the S.C. & S.T. (Prevention of Atrocities) Act are

made triable by the Special Court presided over by a

Sessions Judge, considering the peculiar nature and

circumstances under which those cases are registered

and tried with regard to atrocities perpetrated against

the downtrodden and weaker sections of the society,

the offences punishable under the 15 subsections

under sub-s. (1) of S. 3 of the Act are punishable with

imprisonment for a term which shall not be less than

six months but which may extend to five years and with

fine. The offences punishable under sub-s. (2) of S. 3

of the Act relate to graver offences. In this case as

already noted the offence alleged against the

petitioners is only punishable under S. 3(1)(x) of the

S.C. & S.T. (Prevention of Atrocities) Act, for which the

maximum sentence prescribed is imprisonment for

five years and with fine.

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6. In the decision in Satyan v. State of Kerala (1981

K.L.T. 606) this Court considered the question

whether the refusal to grant bail by the J.F.C.M. in an

offence punishable under S. 326 of I.P.C., on the

ground that the offence is punishable with

imprisonment for life, is justified or not and held that so

long as the offence punishable under S. 326 is triable

by a Magistrate of the First Class, there is no reason

why it should be viewed differently in the matter of

granting bail from an offence punishable under S. 420

of I.P.C. for which the punishment extends to

imprisonment for 7 years or any other non-bailable

offence for which the punishment is a term of

imprisonment.

7. In a subsequent decision reported in Chellappan v.

State of Kerala (1987 (1) K.L.T. 435) this Court relying

upon the above decision reportedin 1981 K.L.T. 606

held that the Magistrate has jurisdiction to grant bail if

the offence is not punishable with death or

imprisonment for life in the alternative under S. 437(1)

of the Cr. P.C.

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8. In that case the question that arose for

consideration was whether the Second Class

Magistrate had jurisdiction to grant bail to the accused

in Crime No. 16/87 registered by the Aranrnula

Policealieging offerices punishable under Ss. 143,

147, 148, 332, 225, 307 and 427 r/w 149 I.P.C. and S.

3(2)(c) of the Prevention of Damage to Public Property

Act with certain conditions. The State filed Crl. M.P.

32/87 before the Sessions Court seeking to cancel the

bail granted by the learned Magistrate and the

Sessions Court allowed the application and cancelled

the bail granted to the accused. That order was

challenged by the accused before this Court in that Crl.

M.C. In para 3 of the order a single Judge of this Court

has observed as follows:

"In passing the order the learned Sessions Judge held

that the Magistrate has overstepped his jurisdiction

and has violated the mandatory provisions contained

in S. 437(1) of the Cr. P.C. The view taken by the

learned Sessions Judge is wrong in the light of the

decision of this Court in Satyan v. State of Kerala

(1981 KLT 606) and also an unreported decision in Crl.

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M.C. No. 442 of 1984. In both these decisions, it was

held that the Magistrate has jurisdiction to grant bail if

the offence is not punishable with death or

imprisonment for life in the alternative. In Crl. M.C. No.

442 of 1984 the offence against the accused was one

under S. 436 I.P.C., which was exclusively triable by

the Court of Sessions. Therefore the view taken by the

learned Magistrate that he has powers to grant bail in

the instant case is correct."

9. In the above decision this Court has held that even

though offence punishable under S. 307 of I.P.C.,

exclusively triable by the Sessions Court was also

alleged, the Magistrate's Court has got jurisdiction to

grant bail under S. 437(1) of the Cr. P.C. since the

offence is not punishable with death or imprisonment

for life in the alternative.

10. As already noted, the 15 offences enumerated

under sub-s. (1) of S. 3 of the S.C. and S.T.

(Prevention of Atrocities) Act are punishable with

maximum imprisonment of five years and with fine,

though the offences are triable by the Special Court,

which is the Sessions Court. Therefore, applying the

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principles enunciated in the decisions of this Court

referred to above, it is clear that the J.F.C.M.'s Court

has got jurisdiction to grant bail to the persons

accused of the offence punishable under any of the

sub-cls. (i) to (xv) of sub-s. (1) of S. 3 of the Act. In this

case, the offence alleged against the petitioners is

punishable under S. 324 of I.P.C. and S. 3(1)(x) of the

S.C. and S.T. (Prevention of Atrocities) Act. Therefore,

it follows that the J.F.C.M.'s Court has got jurisdiction

to grant bail to the accused under S. 437(1) of the Cr.

P.C. irrespective of the fact that the case is triable by

the Special Court, which is the Court of Session.

Hence the learned Magistrate is directed to enlarge

the petitioners on bail on appropriate conditions he

deems necessary, in case the petitioners surrendered

or arrested and produced before the court and moved

for bail.

The Crl. M.C. is allowed as above.

11. It is true that normally this Court would be slow in

interfering with the discretionary order granting bail to the accused.

It is equally true that one of the paramount considerations for the

Court at the time of cancelling bail in this revision would be whether

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the accused would be readily available for their trial and whether

they are likely to abuse the discretion granted in their favour by

tampering with the evidence. But at the same time the Court has

also to consider the other relevant aspects in the matter before

granting bail. The Court is required to exercise the discretion of

granting bail judicially after following the well laid down principles. If

the CJM has ignored the said criteria of deciding bail application

either intentionally or arbitrarily, then this Court has jurisdiction to

set aside the said order. It is not the law that once the accused is

released on bail on erroneous ground, till he tampers with the

evidence or till he absconds, the High Court has no authority to

interfere with the said order. In each case the Court is required to

consider the reasonable apprehension of the prosecuting agency

depending upon the facts of each case. The CJM is subordinate to

the High Court and it is always open to the State Government to

point out to the High Court that the order passed by the CJM is

arbitrary or illegal one or it suffers from any serious infirmity and the

High Court would have jurisdiction to set aside the said order.

12. The criteria for deciding bail application and the

jurisdiction of the High Court would be clear from the catena of

Hon'ble Supreme Court decisions and of this Court which are

referred to hereinafter.

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13. In the case of T.H. Hussain v. M.P. Mondkar, the

Hon'ble Supreme Court has held that the High Court has inherent

power to cancel the bail granted to a person accused of a bailable

offence and in a proper case such power can be exercised in the

interest of justice. The Court has further observed that if a fair trial

is the main objective of the Criminal Procedure, any threat to the

continuance of a fair trial must be immediately arrested and the

smooth progress of a fair trial must be ensured and this can be

done, if necessary, by the exercise of inherent power. The Court

has further held that if the accused person, by his conduct, puts the

fair trial into jeopardy, it would be the primary and paramount duty

of the Criminal Courts to ensure that the risk to the fair trial is

removed and Criminal Courts are allowed to proceed with the trial

smoothly and without any interruption or obstruction; and this would

be equally true in cases of both bailable as well as non-bailable

offences. The Court has further held that by exercising inherent

power the Court can cancel the bail.

14. In the case of State v. Captain Jagjit Singh, the Court

has laid down certain guidelines while considering the bail

application and set aside the bail granted by the High Court by

holding that the High Court has not taken into consideration the

relevant factors and the fact that the matter was relating to non-

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bailable offence under Section 3 of the Indian Official Secrets Act,

1923. The Court has observed that when prima facie case has been

found against the accused that he is involved in a non-bailable

offence, while granting bail the Court should take into consideration

(i) the nature of the offence, (ii) if the offence is of a kind in which

bail should not be granted considering its seriousness, the Court

should refuse bail even though it has very wide power under Section

498 of the Criminal Procedure Code (at-present Section 439 of the

new Criminal Procedure Code).

15. The Court has further observed that while granting bail

the Court should take into account the various considerations such

as (i) the nature and seriousness of the offence, (ii) the character of

the evidence, (iii) circumstances which are peculiar to the accused,

(iv) a reasonable possibility of the presence of the accused not

being secured at the trial, (v) reasonable apprehension about the

witnesses being tampered with, (vi) the larger interests of the public

or the State and (vii) similar other consideration which arise when a

Court is asked for bail in a non-bailable offence. The aforesaid

decision of the Hon'ble Supreme Court is all throughout followed

until now and, therefore, while granting bail the Court should take

into consideration all the aforesaid criteria laid down by the Hon'ble

Supreme Court. The trial Court or this Court cannot ignore the

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criteria laid down by the Supreme Court while granting bail and all

these factors should jointly be taken into consideration while

deciding the bail application. Therefore, merely because the

presence of the accused can be secured at the trial, that is not the

only factor which is required to be considered while granting bail.

16. Hence taking into consideration the aforesaid

observations of the Hon'ble Supreme Court in the decisions

mentioned above, it can be said that following factors are the

relevant factors which are required to be taken into consideration

for deciding bail application:

(1) The nature of the case is the vital factor and the nature

of the stage of investigation is also pertinent.

(2) The collection of incriminating materials to which the

accused is linked may be liable if convicted.

(3) While considering the question of granting bail under

Section 439(1) of the Criminal Procedure Code, the

Court should take into consideration the provisions of

Section 437(1) in spite of the fact that under Section

439(1) the High Court and Sessions Court have wide

jurisdiction to grant bail.

(4) The nature and gravity of the circumstances in which

the offence is committed-say terrorist offences, highway

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robbery or dacoity, gang rape, murder or murders

because of group rivalry, attack by one community on

other community or such other cases.

(5) The position and the status of the accused with

reference to the victim and the witnesses say in case of

burning of house-wife, witnesses may be neighbours,

their evidence might be tampered with by any means.

(6) The reasonable possibility of the presence of the

accused not being secured at the trial.

17. Apart from this, it is the main argument advanced by

the learned Addl.AG Mr. Lenin Hijam that though the petitioners

were arrested and remanded into judicial custody only on

15.12.2020 in the evening by the learned Chief Judicial Magistrate

and without issuing any notice to the I.O. or the respondent police

seeking the objection has simply granted the bail to all the accused

on the very next day i.e. 17.12.2020 which is totally against the

natural justice.

[18] It is made clear that on fair reading of the order passed

by the learned Judge that the learned Chief Judicial Magistrate has

exceeded his limits without following the natural justice and without

giving fair opportunity to the Prosecution to put forth their objection,

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had simply granted the bail with explanation and dealing each

provision in his order. The learned CJM is bear in mind that he is

not passing the final order after conducting the trial for discussing

the maintenance of each offences registered by the State Police but

it is only for bail.

[19] The learned Chief Judicial Magistrate also without

giving proper opportunity to the petitioners/State has mentioned in

the order that the Prosecution has failed to show that the custodial

interrogation or confrontation of the accused person is necessary.

[20] The learned Chief Judicial Magistrate also mentioned

in the order that the pamphlet speaks of a threat of bomb blast and

further mentioned that it was never the case of the Prosecution that

the accused confined to cause explosion which would endanger

lives and hence, Section 4 of Explosive Substance Act, 1908 is

therefore, not made out. This statement of the learned Chief Judicial

Magistrate is not proper and without getting any reply from the

Prosecution he cannot simply stated in the order by mentioning with

that the provisions under Section 500 and 504 IPC and under

Section 4 of the Explosive Substance Act, 1908 is not made out.

[21] Therefore, the very order of the learned Chief Judicial

Magistrate dated 17.12.2020 granting bail to the accused that too

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within one day from the remand of their custody and without getting

the objection from the Prosecution that too also without filing any

proper bail application by the accused is totally wrong.

[22] In my view, the Special Acts and its provisions to be

followed in dealing with the arrest, remand, committal and trial of

the accused who were charged with the offences under the said

special act. Therefore, the judgment of the Kerala High Court is on

different perspective and facts of the case is quite different.

Moreover, only the concerned special court alone has the

jurisdiction in granting bail and the CJM exceeded its jurisdiction.

[23]             In the result,

                 a)    this Crl.Rev.P.No.6 of 2020 is allowed by

                       setting aside the order passed by the

Learned Chief Judicial Magistrate, Chandel in

FIR No.25(11) 2020 CDL-P.S. U/s.153-

A/504/505/506/500/34 of IPC and 4 Expl.

Sub.Act dated 17.12.2020.

b) the petitioner, the officer-in-

charge/Investigating Officer, Chandel Police

Station, Chandel District, Manipur is directed

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to re-arrest the Respondents/Accused and to

remand into Judicial Custody.

c) the petitioner in M.C.(Crl.Rev.P.) No.1 of

2021 is closed.