Manipur High Court
State Of Manipur vs Laishram Surjit Singh on 26 March, 2021
Page 1 of 36
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Cril. Petn. No.5 of 2021
State of Manipur
.....Petitioner/s
-Versus-
Laishram Surjit Singh, aged about 53 years, S/o Late L. Surchand Singh of
Lilong Chajing Konjeng Leikai, P.O. & P.S. Singjamei, Imphal West District,
Manipur - 795001.
.....Respondent/s
With Cril. Petn. No.6 of 2021
State of Manipur
.....Petitioner/s
-Versus-
Laishram Suresh Singh, aged about 57 years, S/o Late L. Surchand Singh
of Lilong Chajing Konjeng Leikai, P.O. & P.S. Singjamei, Imphal West
District, Manipur - 795001.
.....Respondent/s
BEFORE
HON'BLE MR. JUSTICE MV MURALIDARAN
For the petitioner : Mr. M. Rarry, Addl. AG
For the respondent : Mr. S. Jibon, Advocate
Date of hearing : 09.03.2021
Date of Judgment & Order : 26.03.2021
Cril. Petn. Nos.5 & 6 of 2021
JUDGMENT AND ORDER
(CAV)
[1] The State have filed these petitions under Section 439(2) of Cr.P.C.,
1973 praying for cancellation of bail, quashing and setting aside the Ld.Special
Judge (PC Act), Imphal-West order dated 15.12.2020 passed in Cril.Misc.(B)
Case No.104 of 2020 (Ref: FIR Case No.19(05) 2020 WGI PS U/S
420/468/471/419/168/20-B/34 of I.P.C. & 13 (PC Act 1988).
[2] The brief fact of the case is that complainant Haobam Bobby Singh,
Civil Supply Inspector (CSI) OF CAF & PD along with Shri. L. lbotombi Singh,
Area Officer, Consumer Affairs, Food and Public Distribution, Manipur (CAF &
PD) were assigned to check and inspect illegal practices at the different oil
pumps located at Imphal West and East area so as to regulate distribution of
POL during the lockdown period in connection with the pandemic of COVID -
19. During the course of checking of one oil pump viz. M/S Heibok Filling KSK
located at Naran Konjin, it was found that the pump was run by two
brothers/Accused/Respondents namely (i) Laishram Suresh Singh and (ii)
Laishram Surjit Singh, though the owner was in the name of one woman
namely Smt. Khaidem (O) Shushila Devi W/o. (L) Khaidem Gojendro Singh of
Lilong Chajing Chingkhong Leikal.
[3] A discrete enquiry was conducted and it was established that the said
Laishram Suresh Singh/Respondent is a Government employee, an UDC of -
Cril. Petn. Nos.5 & 6 of 2021
Medical Dept., Govt of Manipur, now posted at CHC, Yairipok and the pump is
fraudulently owned by him and his younger brother namely Laishram Surjit
Singh, who is a retired Rifleman of Manipur Police, now a pensioner, by
corrupt and illegal means.
[4] The Accused Laishram Suresh Singh and Laishram Surjit Singh, the two
brothers cheated a women namely Smt. Khaidem (O) Sushila Devi W/o. (L)
Khaidem Gojendro Singh of Lilong Chajing Chingkhong Leikal. (L) Khaidem
Gojendro Singh was a police constable killed on the line of duty during the
June 18 uprising in the year 2001. The two brothers convicted the wife of the
late constable that some financial benefit could be claimed by Smt. Khaidem
(O) Sushila Devi W/o. (L) Khaidem Gojendro Singh from the Government of
Manipur in relation to untimely death benefits of late husband of Smt. Khaidem
(O) Sushila Devi who died in the line of duty and accordingly made Smt.
Khaidem (O) Sushila Devi signed some documents.
[5] Subsequently, a trade license to run business which deals in petroleum
(MS/HSD) of Indian Oil Corporation Ltd., under the name and style of M/s
Heibok Filling KSK, Naran Konjin, Imphal was procured in the name of Smt.
Khaidem (O) Sushila Devi and has been run by the two brother namely
Laishram Suresh Singh and Laishram Surjith Singh, since 2014 by cheating
and playing fraud on Smt. Khaidem (O) Sushila Devi, Officials of [OCL and
CAF & PD. Laishram Suresh Singh and Laishram Surjith Singh invested huge
amount of money, disproportionate to their known sources of incomes to open
Cril. Petn. Nos.5 & 6 of 2021
and run the said M/s Heibok Filling KSK without disclosing their source of
income as well as the subsequent income generated from the oil pump to the
competent authority as a Public Servant and thus committed the offence of
criminal conspiracy also.
[6] Hence the present FIR Case No.19(05) 2020 WGI PS U/S
420/468/471/419/168/20-B/34 of I.P.C. & 13 (PC Act 1988) was registered by
the Wangoi Police in connection with the case.
[7] In the course of investigation, the complainant detailed statement was
recorded U/s.161 Cr.P.C. The Accused/Respondent namely Shri. Laishram
Suresh Singh (57) S/o. (L) L. Surchand Singh of Chajing Konjing Leikai and
Laishram Surjit Singh were arrested on 09.05.2020 at about 5:00 pm in
connection with the case referred above. On being interrogated, the
Accused/Respondent disclosed that he is a Government employee, of an UDC
of Medical Dept., Government of Manipur and presently posted at CHC.
[8] The Accused/Respondent were arrested on 18/04/2020 in connection
with another FIR No.14(4) 2020 WGI-PS U/s.353/326/307/34-IPC & 25 (1-C)
Arms Act for assaulting a public servant and causing grievous hurt and attempt
to murder with a common intention by holding small arms. Charges under
Sections 325/353/34 IPC were framed by the Ld. Judicial Magistrate First
Class Imphal-West on 04/12/2020 in connection with FIR 14(4) 2020 WGI-PS
U/s 353/326/307/34-IPC & 25 (1-C) Arms Act and it is in the stage of PW
Cril. Petn. Nos.5 & 6 of 2021
examination. The Respondent/Accused is still in judicial custody in connection
with this different FIR No.14(4) 2020 WGI-PS U/s.353/326/307/34-IPC & 25 (1-
C) Arms Act for assaulting a public servant and causing grievous hurt and
attempt to murder with a common intention by holding small arms.
[9] The Respondent/Accused was produced before the court of Special
Judge (PC Act), Imphal West, from the police custody on 15/05/2020 with a
prayer for further police custody remand till 22/05/2020. The Ld. Special Judge
(PC Act), Imphal-West was pleased to remand the respondent/Accused till
18/05/2020 by observing that further police custody remand for investigation
as prayed for by the investigating officer.
[10] On 23/06/2020 the Respondent/Accused filed an application 437 Cr.P.C
praying for releasing on bail in another FIR Case No.14(4) 2020 WGI-PS
U/s.353/326/307/34-IPC & 25 (1-C) Arms Act, bearing Cril.Misc.(B) Case No.
30 of 2020 in the court of Judicial Magistrate First Class, Imphal-West, 1,
Manipur. Subsequently, the Ld. Judicial Magistrate First Class, Imphal-West,
1, Manipur was pleased to reject the bail application on the ground of
submitting false documents/certificates by forging the signature of prof. Th.
Premchand Singh of Imphal Hospital and Research Centre, RIMS Road,
Imphal. The said doctor has reported that the two certificates dated 07.05.2020
were not signed and issued by him.
[11] That on 09.09.2020, the Respondent/Accused filed an application u/s
Cril. Petn. Nos.5 & 6 of 2021
167 of Cr.P.C praying for releasing on 1st Default Bail Application in
Cril.Misc.(B) Case No.82 of 2020, during the pendency of FIR Case No.19(05)
2020 WGI PS U/S 420/468/471/419/168/20-B/34 of I.P.C. & 13 PC Act, 1988
in the court of Special Judge (PC Act), Imphal-West. Subsequently, it was
dismissed on 16.09.2020 by the court of Special Judge (PC Act), Imphal-West
by observing that the benefit of default bail only comes into play when the
accused is in custody for more than the statutory period described therein.
[12] Again the Respondent/Accused filed a 2nd Default Bail Application
Cril.Misc.(B) Case No.83 of 2020, of (Ref: FIR Case No.19(05) 2020 WGI PS
U/S 420/468/47 1/419/168/20-B/34 of I.P.C. & 13 PC Act, 1988) under section
167 (2) of Cr.P.C on 23.09.2020 praying for releasing on default bail during the
pendency of FIR Case No.19(05) 2020 WGI PS U/S 420/468/471/419/168/20-
B/34 of I.P.C. & 13 PC Act, 1988 in the court of Special Judge (PC Act),
Imphal-West. Subsequently, it was dismissed on 21.10.2020 by the court of
Special Judge (PC Act), Imphal-West as default bail were not ripen for the
indefeasible right of default bail due to interim bail already granted to the
Respondent/Accused.
[13] The Respondent/Accused filed a 3rd Default Bail Application dated
18.11.2020, for the third time bearing Cril.Misc.(B) Case No.104 of 2020, of
(Ref: FIR Case No.19(05) 2020 WGI PS U/S 420/468/471/419/168/20-B/34 of
I.P.C. & 13 PC Act, 1988) under section 167(2) of Cr.P.C in the court of
Special Judge (PC Act), Imphal-West, praying for release them on default bail.
Cril. Petn. Nos.5 & 6 of 2021
[14] A Written objection was filed by the State to the default bail application
contending inter alia, as under:
a) The Default Bail Application enlarging the Accused/Respondent by
the Ld. Special Judge (PC Act), Imphal-West, has been filed during
the pendency of another Bail Application being Cril.Misc.(B) Case
No.99 of 2020 in respect of the same FIR referred above of the
same Accused/Respondent under the provision of Section 437 (1)
1st Proviso of Cr.P.C. It is trite a settled law that an
Accused/Respondent cannot be permitted to file a second Bail
Application in respect of the same FIR case and the same
Accused/Respondent before the same Ld. Special Judge (PC Act),
Imphal-West, when the earlier bail Application being Cril.Misc.(B)
Case No.99 of 2020 was still pending for Consideration. It is
pertinent to mention that the same Accused/Respondent has filed a
bail application bearing Bail Application No.12 of 2020 before the
Hon'ble High Court of Manipur and the same was dismissed as
another regular Bail Application was still pending being filed earlier
on 02.11.2020 before the Ld. Special Judge (PC Act), Imphal-West.
b) An Accused unlike the respondent who is continuing to be in
custody pending investigation simplicitor cannot be equated with an
accused like the present Accused/Respondent who had already
been granted bail and whose bail had been cancelled.
c) A person who has abused the freedom granted to him, like the
Accused/Respondent, must certainly be distinguished from an
Accused who has to continue in custody merely because the
Investigator has not completed the investigation within a period of 90
days, without ever having been granted bail before the expiry of 90
days.
Cril. Petn. Nos.5 & 6 of 2021
d) The present Accused/Respondent being already granted bail and
subsequently cancelled on ground of finding that fraud has been
committed, cannot invoke the provision of Section 167 (2) Cr.P.C.,
as per law already settled in this regard as held by Kerala High
Court in Para 14 in the case reported as "Nishil Vs The Station
House Officer and Anr." (2008 (1) KLJ 39).
"14. I do, in these circumstances, come to the conclusion that
an accused is entitled for default bail only once in respect of a
crime and in a case where the bail granted to him has been
cancelled under Section 439(2) or Section 437(5) of the
Cr.P.C, he cannot thereafter claim the benefit of the proviso
to Section 167(2)."
e) The Accused/Respondent was granted interim bail on medical
ground and is enlarged by the order of the court of Special Judge
(PC Act), Imphal-West for a period of three months from 04.07.2020
till 03.10.2020. Apparently, the Accused/Respondent being already
released on bail, albeit on medical ground, the same is in the
exercise of power under the Chapter and Under section 437 (1) or
(2) of the Code {When bail may be taken in the case of non-bailable
offence}.
f) The Hon'ble Supreme Court has held that an order passed under
section 167(2) would be an order under section 437(1) or (2) or
Section 439 (1) of the Code and would have same consequence.
Thus, the contention of the Accused/Respondent that "both
applications were rejected as not ripen the indefeasible right for
default bail due to interim bail is wrong and denied and a total
misnomer.
g) In view thereof, admittedly, when the Accused/Respondent are
already been enlarged on bail from 04/07/2020 till 03/10/2020 by the
Cril. Petn. Nos.5 & 6 of 2021
order of court of Special Judge (PC Act), Imphal-West, the question
of again seeking for another order for enlargement on default bail
again does not arise and hence, it is not maintainable in law and that
too, for the third time.
h) The Accused/Respondent having been already enlarged on bail, the
question of applying default bail does not arise, as the question of
default bail could have only arisen when the Accused/Respondent
were never released on bail during the entire period of Judicial
Custody from the time of arrest till the time the said default bail
application is moved.
i) The Accused have admitted that they are still in custody not
because of the present FIR Case No.19(05) 2020 WGI PS U/S
420/468/471/419/168/20B/34 of I.P.C. & 13 PC Act, 1988 but in
respect to another FIR Case No.14(4) 2020 WGI-PS
U/s.353/326/307/34-IPC & 25 (1-C) Arms Act which is in the stage of
PW Examination in the court of Ld. JMFC, I-W, Manipur.
j) The Accused are presuming that once the bail granted has been
cancelled, and thereafter, the bail bonds and release order are
cancelled automatically, section 167 Cr.P.C. will again come into
play. This submission of the Accused is a misnomer and against the
settled provision of law as the cancellation of bail was done vide
order dated 22.09.2020, whereas the release order was issued on
06.07.2020 and hence, as per law the Two Accused persons were
on bail from 06.07.2020 till 22.09.2020 and not in custody as per
law. Hence, the two Accused person having already availed the bail
cannot be now permitted to claim the benefit of section 167 (2)
Cr.P.C.
k) In the case of Nishil Vs. The Station House Officer and Anr. (2008
(1) KLJ 39) the Kerala High Court, after relying upon the case of
Cril. Petn. Nos.5 & 6 of 2021
Ghoorey Singh V. State 1985 (22) All Cri.C.102 of the U.P. High
Court, the Hon'ble Kerala High Court held as under, the relevant
paras are reproduced as under:
"It is also obvious that once such bail granted to an accused
is cancelled, there would be no question of making any
further orders under sub-section directing release of an
accused on bail on the ground that the police has failed to
submit a charge sheet even though the period of ninety days
stipulated in the section has expired. Further, Section 167(2)
does not in any way inhibit the exercise of powers conferred
upon the Court of Sessions and the High Court to direct the
release of an accused on bail either at the stage covered by
Section 167(2) of the Code or at any other stage.
Of course, the question considered in that case was not
exactly identical. But the process of reasoning by the learned
Judge Mr. Justice H.N. Seth appears to be in conformity with
the process of reasoning which I have sought to accept.
14. I do, in these circumstances, come to the conclusion that
an accused is entitled for default bail only once in respect of a
crime and in a case where the bail granted to him has been
cancelled under Section 439(2) or Section 437(5) of the
Cr.P.C, he cannot thereafter claim the benefit of the proviso
to Section 167(2)."
l) The Court of Special Judge (PC Act), Imphal-West, allowed and
enlarged the Respondent/Accused on bail vide order dated
15.12.2020, contrary to the earlier observations made by the same
Court on same sets of facts and in a perverse manner, contrary to
settled law and provisions of Criminal Procedure Code.
Cril. Petn. Nos.5 & 6 of 2021
[15] The State petitioner questioned the order of bail on the following
grounds:
a. The learned Special Judge has failed to correctly consider and
appreciate that the 3rd Default Bail Application enlarging the
Accused/Respondent by learned Special Judge (PC Act), Imphal-
West, has been filed during the pendency of another Bail Application
being Cril.Misc.(B) Case No.99 of 2020 in respect of the same FIR
referred above of the same Accused/Respondent under the
provision of Section 437 (1) 1st proviso of Cr.P.C. It is trite a settled
law that an Accused/Respondent cannot be permitted to file a Third
Bail Application in respect of the same FIR case and the
Accused/Respondent before the same Ld. Special Judge (PC Act),
Imphal-West, when another Bail Application is already pending for
consideration.
b. The learned Special Judge has failed to correctly consider and
appreciate that an Accused unlike the present Respondent who is
continuing in custody pending investigation simplicitor cannot be
equated with an Accused like the present Accused/Respondent who
had already been granted bail and whose bail has been cancelled. A
person who has abused the freedom granted to him, like the
Accused/Respondent, must certainly be distinguished from an
Accused who has to continue in custody merely because the
investigation has not been completed by the Investigator within a
period of 90 days, without ever having been granted bail before the
expiry of 90 days. The present Accused/Respondent being already
granted bail and subsequently cancelled on ground of finding that
fraud has been committed, cannot invoke the provision of Section
167(2) Cr.P.C., as per settled law in this regard as held by Kerala
High Court in para 14 in the case reported as Nishi! VS The Station
Cril. Petn. Nos.5 & 6 of 2021
House Officer and Anr. (2008 (1) KLJ 39).
c. The learned Special Judge has failed to correctly consider and
appreciate that the Accused/Respondent was granted interim bail on
medical ground and were enlarged by the order of the court of
Special Judge (PC Act), Imphal-West for a period of three months
from 04.07.2020 till 03.10.2020. Apparently, the
Accused/Respondent being already released on bail, albeit on
medical ground, the same is in the exercise of power under Chapter
and under section 437 (1) or (2) of the Code.
d. The learned Special Judge has failed to correctly consider and
appreciate that with regard to the application filed by State seeking
cancellation of bail already granted to the Accused under section
439(2) Cr.P.C the said provision and not section 167 empower
cancellation of bail already granted on considerations which are
valid for cancellation of bail granted under section 437(1) or (2) or
section 439(1) of the Code. The exercise of power by this Court for
cancellation of bail already granted, on grounds well established in
law and such exercise of power under section 437(1) or (2) or
Section 439(1) of the Code could never had been made otiose by
filing an application under section 167 of the Code, when the said
bail already granted was still operational or when bail already
granted has been subsequently cancelled, as the said two provision
operate in two different field and are not overlapping of each other.
This aspect has been clearly observed in the law settled by the
Hon'ble Kerala High Court and U.P. High court. The Two accused
has already been released on bail by a Judicial Order, the Accused
person is not in custody and the benefit of section 167(2) of Cr.P.C.
cannot be claimed. The Accused who presumes that once the bail
granted has been cancelled, and thereafter, the bail bonds and
release order are cancelled, automatically, section 167 Cr.P.C. will
Cril. Petn. Nos.5 & 6 of 2021
again come into play. This submission of the Accused being a
misnomer and against the settled provision of law, where the
cancellation of bail was done vide order dated 22.09.2020, whereas
the release order was issued on 06.07.2020 and hence, as per law,
the two accused person was on bail from 06.07.2020 till 22.09.2020
and not in custody as per law. Hence, the two accused person
having already availed the bail cannot be now permitted to claim the
benefit of section 167(2) of C.P.C.
e. The learned Special Judge has failed to correctly consider and
appreciate that the State petitioner had legally contended that the
Third Default Bail Application filed by the Accused/Respondent is an
abuse of the process of the Court, as repeated application under
Section 167(2) of Cr.P.C. has been filed on the same ground,
despite being already dismissed on its merits by the same court of
Special Judge (PC Act), Imphal-West.
f. The learned Special Judge (PC Act), Imphal-West has failed to
rightly consider that the accused who has already been granted bail
cannot be equated with an accused who has never been released
on bail for 90 days pending investigation and filling of charge sheet.
g. The learned Special Judge (PC Act), Imphal-West has committed an
error of law in allowing the application filed by the Accused under
section 167(2) Cr.P.C. when similar application filed earlier being
Cril.Mis.Case No.82 of 2020, have already been rejected by the
same court vide under dated 16.09.2020 with the following
observation:
"From the above provisions, the benefit of default bail only
comes into play when the accused is custody for more than
the statutory period described therein. However, in this case,
record shows that this court granted interim bail to both the
Cril. Petn. Nos.5 & 6 of 2021
accused person vide order dated 04.07.2020 passed in
Cril.Misc.(B) Case No.44 of 2020 and accordingly, on
furnishing on their PR bond and surety bonds, this court
issued release order on 06.07.2020. Further, an application
has been filed praying for cancelling the Interim bail granted
to the accused which has been registered as Cril.Misc.Case
No.80 of 2020.
As the accused people have already been released on
interim bail, they are not in custody in connection with the
present case and the section 167 of Cr.P.C. is not applicable
to them. Detention of the accused persons in other cases
cannot be brought within the ambit of this case. It is worth
mentioning here that this court has no power to extend/modify
the statutory period provided U/s 167(2) Cr.P.C. In the
premises, the prayer of the accused persons to avail the
benefit of section 167(2) Cr.P.C. cannot be entertained and is
thus turned down. The application is thus rejected and
disposed of."
h) The Ld. Special Judge (PC Act), Imphal-West having already
rejected the earlier application filed under section 167(2) Cr.P.C.,
the filing of the same application with no fresh ground is totally
contrary to settled law, as Hon'ble Court below had already clearly
held that:
"When the accused are already enlarged on bail, the question
of applying default bail does not arise".
[16] Therefore the State petitioner being aggrieved by the said illegal and
perverse order dated 15.12.2020 has humbly sought to seek for cancellation of
the order of bail before this Hon'ble Court.
Cril. Petn. Nos.5 & 6 of 2021
[17] Having perused the law laid down by the Hon'ble Apex Court on the
scope of the power to be exercised in the matter of cancellation of bails, it is
necessary to examine whether the order passed by the Lower Court granting
bail is perverse and suffers from infirmities which has resulted in the
miscarriage of justice. The learned Advocate appearing for the respondent
orally supported the findings of the learned trial court and sought dismissal of
the Petition.
[18] I have bestowed my anxious considerations to the submissions made by
Mr. M. Rarry, the Ld. Addl. Advocate General for the petitioner and Mr. S.
Jibon, the Ld. Counsel for the respondent and perused the available records.
[19] The interesting question is raised in this application, that the Accused
are presuming that once the bail granted has been cancelled, and thereafter,
the bail bonds and release order are cancelled automatically, whether section
167(2) Cr.P.C will again come into play.
[20] I shall first consider the legal question whether the accused in the given
circumstances is entitled for default bail under the proviso to Section 167(2)
Cr.P.C after grant of bail under section 439 of Cr.P.C. The scheme of the
Criminal Procedure Code 1973 in so far as it relates to detention pending
investigation has got to be considered.
[21] There is divergence of judicial opinion on this aspect, which I will be
referring to shortly. I have the Judgments of Full Benches of different High
Cril. Petn. Nos.5 & 6 of 2021
Courts, offering diametrically opposite views, on the applicability of the
provisions of Section 167(2) of the Code of Criminal Procedure, to a person
concerned in an offence punishable under the provisions of the PC Act 1988
and NDPS Act.
[22] For proper appreciation of the controversy, it would be proper to refer to
the provisions of Sections 167(2) and 439(2) of Cr.P.C.
(2) The Magistrate to whom an accused person is forwarded under this
section may, whether he has or has not jurisdiction to try the case, from
time to time, authorise the detention of the accused in such custody as
such Magistrate thinks fit, for a term not exceeding fifteen days in the
whole; and if he has no jurisdiction to try the case or commit it for trial,
and considers further detention unnecessary, he may order the accused
to be forwarded to a Magistrate having such jurisdiction:
Provided that,-
[(a) the Magistrate may authorise the detention of the accused person,
otherwise than in custody of the police, beyond the period of
fifteen days, if he is satisfied that adequate grounds exist for doing
so, but no Magistrate shall authorise the detention of the accused
person in custody under this paragraph for a total period
exceeding,-
(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment
for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence,
and, on the expiry of the said period of ninety days, or sixty
days, as the case may be, the accused person shall be
released on bail if he is prepared to and does furnish bail, and
Cril. Petn. Nos.5 & 6 of 2021
every person released on bail under this sub-section shall be
deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;]
[(b) no Magistrate shall authorise detention of the accused in custody
of the police under this section unless the accused is produced
before him in person for the first time and subsequently every
time till the accused remains in the custody of the police, but the
Magistrate may extend further detention in judicial custody on
production of the accused either in person or through the medium
of electronic video linkage;]
(c) no Magistrate of the second class, not specially empowered in
this behalf by the High Court, shall authorise detention in the
custody of the police.
[Explanation I. - For the avoidance of doubts, it is hereby declared that,
notwithstanding the expiry of the period specified in paragraph (a),
the accused shall be detained in custody so long as he does not
furnish bail.]
[Explanation II.--If any question arises whether an accused person was
produced before the Magistrate as required under clause (b), the
production of the accused person may be proved by his signature
on the order authorising detention or by the order certified by the
Magistrate as to production of the accused person through the
medium of electronic video linkage, as the case may be.]
[23] From a perusal of the above, it would be crystal clear that no Magistrate
shall authorise the detention of the accused person in custody for a total period
exceeding ninety days where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term of not less than ten
years. The law further provides that if the challan is not filed then on the expiry
Cril. Petn. Nos.5 & 6 of 2021
of the said period the accused person shall be released on bail if he is
prepared to and does furnish bail, and every person released on bail under this
sub-section shall be deemed to be so released under the provisions of Chapter
XXXIlI for the purposes of that Chapter. Chapter XXXIIl contains the provisions
as to bails and bail bonds.
[24] Section 439 falls within Chapter XXXIll. Section 439(1) refers to the
special powers of the High Court or the Court of Session regarding bail. Sub-
section 2 of Section 439 Cr.P.C. says that a High Court or Court of Session
may direct that any person who has been released on bail under this Chapter
be arrested and commit him to custody. A Fair reading of Section 167(2) and
Section 439(2) would clearly bring out the intention of the legislature. A person
released under Section 167 (2) would be deemed to have been released under
Section 439 and High Court or Court of Session may direct that any person
who has been released on bail be arrested and commit him to custody.
Section 439(2) from its very language would come into operation after the bail
is granted and not at the time when grant of bail is an issue under
consideration before the Court. Section 167(2) and Section 439(2) have been
subject matter of judicial scrutiny numbers of times. Though the issue is not
res-integra but I feel it is my duty to tell to the Lower Courts that judicial
obsession or the fear should not weigh in their way while deciding the bail
applications.
[25] In the matter of Hussainara Khatoon v. State of Bihar, (AIR 1979 SC
Cril. Petn. Nos.5 & 6 of 2021
1377), the Hon'ble Supreme Court observed that when an undertrial prisoner
is produced before a Magistrate and he has been in detention for 90 days or
60 days, as the case may be, the Magistrate must, before making an order of
further remand to judicial custody, point out to the undertrial prisoner that he is
entitled to be released on bail. The Hon'ble Supreme Court went on saying
that the State Government must also provide at its own cost a lawyer to the
undertrial prisoner with a view to enable him to apply for bail in exercise of his
right under proviso (a) to Sub-section (2) of Section 167 and the Magistrate
must take care to see that the right of the undertrial prisoner to the assistance
of a lawyer provided at State costs is secured to him.
[26] It cannot be denied after more than 50 years of the independence that it
is the constitutional right of every accused person who is unable to engage a
lawyer and secure legal services on account of reasons such as poverty,
indigence or in communicado situation, to have free legal services provided to
him by the State. The Hon'ble Supreme Court in the matter of Hussainara
Khatoon (Supra) was of considered opinion that not only the accused is
required to be informed of his right but it is the duty of the Magistrate to inform
him and to see that proper legal assistance is provided to the accused.
[27] A Judge cannot be a silent spectator nor can have a platonic approach.
A Judge is under an oath to decide without fear and favour. Once he is afraid
of the public criticism then he is not discharging his duties judicially.
Cril. Petn. Nos.5 & 6 of 2021
[28] In the matter of State of U.P. v. Laxhmi Brahman, (AIR 1983 SC 439),
the Hon'ble Supreme Court observed that on the expiry of the period from the
date of the arrest of the accused, his further detention does not become ipso
facto illegal or void, but if the charge-sheet is not submitted within the
prescribed period, then notwithstanding anything to the contrary in Section
437(1), the accused would be entitled to an order for being released on bail if
he is prepared to and does furnish bail.
[29] In the matter of Chaganti Satyanarayana v. State of Andhra Pradesh,
(AIR 1986 SC 2130), while considering the provisions of Section 167(2)
proviso (a) Section 57 and Section 309, the Hon'ble Supreme Court observed
that the period of 90 days envisaged by proviso (a) begins to run from date of
order or remand and not from earlier date when accused was arrested.
[30] A similar view was taken by the Hon'ble Supreme Court in the matter of
C.B.I. Special Investigation Cell-l v. Anupam J. Kulkarni, (AIR 1992 SC 1768).
The Hon'ble Supreme Court observed that remand of accused to police
custody can be for 15 days only and thereafter further remand during the total
period of 90 days or 60 days can only be judicial remand. The Court further
observed that if the investigation is not completed within the period of 90 days
or 60 days then the accused has to be released on bail as provided under the
proviso to Section 167(2) of Cr.P.C. The Hon'ble Supreme Court observed that
the period of 90 days or 60 days has to be computed from the date of
detention as per the orders of the Magistrate and not from the date of arrest by
Cril. Petn. Nos.5 & 6 of 2021
police. The Hon'ble Supreme Court observed that order for release on bail
may however be cancelled under Section 437(5) or Section 439(2). Referring
to the grounds for cancellation of bail, the Hon'ble Supreme Court observed as
under :
"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 Section 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 charge-sheet, 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."
[31] This judgment is not an authority to say that the Court while considering
an application under Section 167(2) of the Cr.P.C is entitled to see whether on
a Subsequent application the bail granted under Section 167(2) is likely to be
cancelled or not. If that course is adopted it would create a legal problem. The
grant of bail under Section 167(2) on default of the prosecution is mandatory
Cril. Petn. Nos.5 & 6 of 2021
but cancellation of the bail under Section 437(5) or 439(2) depends upon the
exercise of the discretion. In no case under Section 439(2) could be read with
Section 167(2). Section 439(2) would come into operation only after the bail is
granted to an accused either under Section 167(2) or Section 439(1). It would
be fallacy of law to say that on the bail application of the prosecution as the
bail can be cancelled, bail should not be granted. The Hon'ble Supreme Court
has clearly observed that grounds for cancellation of bail are different such as
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 bail granted under Section 167(2) is liable to be
cancelled if the Court comes to the conclusion that it was necessary to again
arrest the accused and commit him to custody but for such a procedure one
would accept strong grounds.
[32] The judgment of the Hon'ble Supreme Court in the matter of Rajnikant
v. Intelligence Officer, Narcotic Control Bureau, New Delhi, (AIR 1990 SC 71)
held that if the investigation reveals that the accused has committed a serious
offence and charge-sheet is filed, the bail granted to the accused under
proviso (a) to Section 167(2) could be cancelled. The Hon'ble Supreme Court
observed that once an accused is released on bail under Section 167(2) he
cannot be taken back in custody merely on the filing of a charge-sheet but
there must exist special reasons for so doing besides the fact that the charge-
sheet reveals the commission of a non-bailable crime. The Hon'ble Supreme
Cril. Petn. Nos.5 & 6 of 2021
Court considering the liberty of an individual observed as under :-
"Even where two views are possible, this being a matter belonging to
the field of criminal justice involving the liberty of an individual, the
provision must be construed strictly in favour of individual liberty since
even the law expects early completion of the investigation. The delay in
completion of the investigation can be on pain of the accused being
released on bail. The prosecution cannot be allowed to trifle with
individual liberty if it does not take its task seriously and does not
complete it within the time allowed by law. It would also result in
avoidable difficulty to the accused if the latter is asked to secure a
surety and a few days later be placed behind the bars at the sweet will
of the prosecution on production of a charge-sheet. We are, therefore,
of the view that unless there are strong grounds for cancellation of the
bail, the bail once granted cannot be cancelled on mere production of
the charge-sheet. The view we are taking is consistent with this Court's
view in the case of Bashir and Raghubir (AIR 1978 SC 55) and (AIR
1987 SC 149) (supra) but if any ambiguity has arisen on account of
certain observations in Rajnikant's case (AIR 1990 SC 71) our
endeavour is to clear the same and set the controversy at rest."
[33] A fair reading of the judgment of the Hon'ble Supreme Court would
make it clear that the "indefeasible right" of the accused to be released on bail
in default of completion of the investigation and filing of the challan within the
time allowed, is a right which ensures to, and is enforceable by the accused
only from the time of default till the filing of the challan and it does not survive
or remain enforceable on the challan being filed. From the judgment of the
Hon'ble Supreme Court, it would clearly appear that from the time of default till
Cril. Petn. Nos.5 & 6 of 2021
the filing of the challan, the right of the accused is indefeasible. None has an
authority either under the law or because of the obsession that the accused
cannot be released on bail. Once the Hon'ble Supreme Court had said that the
right of the accused is indefeasible then none observance of the order of the
Supreme Court and non-following the ratio of the judgment of the Supreme
Court would perilously border contempt of the lawful authority of the Supreme
Court.
[34] From the above judgments of the Hon'ble Supreme Court, it would
clearly appear that irrespective of the nature of the offence or the provisions of
law for violation of which the accused has been arrested if the challan/charge-
sheet is not filed within the period prescribed i.e. 60 days or 90 days, the
accused would have a right to be released on bail. Once the bail is granted to
an accused under Section 167(2) of the Cr.P.C on simply filing of the challan
the accused cannot be taken back in custody. The law mandates that once an
accused is released under Section 167(2) he would be deemed to have been
released under provisions of Chapter XXXIII of the Cr.P.C. Such an accused
can be taken back in custody if an application under Section 437(5) or 439(2)
is filed, For cancellation of the bail, the Court is required to see not only the
allegations but will have to keep in mind the observations made by the Hon'ble
Supreme Court. None has an authority to say that because accused has
committed a ghastly crime and as the bail granted to him is likely to be
cancelled under Section 437(5) or 439(2), bail under Section 167(2) should not
Cril. Petn. Nos.5 & 6 of 2021
be granted. For following the provisions of law if the accused is required to go
to the jail then violation of Section 167(2) would open the lock of the jail and
lapses on the part of the prosecution/investigation agency would pave his path
for his coming out.
[35] A judicial order cannot put lock on the jail gates if the accused is entitled
to be released because of the lapses or default of the prosecution. The
following principles appear to be very evident and are not disputed.
(1) Efforts must be made by the Investigating Officer to complete the
investigation within 24 hours as fixed by Section 57.
(2) If such completion is not possible and there are grounds for believing
that the accusation/information is well founded the officer must forthwith
forward the accused to the nearest judicial Magistrate with a copy of the
relevant entries.
(3) The Magistrate, who receives such information, may authorise the
detention of the accused for a maximum period of 15 days whether or
not he has jurisdiction to try the case.
(4) Such detention during the initial period of 15 days may be either in
judicial custody or in police custody in the discretion of the learned
Magistrate. Magistrate having no jurisdiction must forward the accused
to the Magistrate having jurisdiction on completion of 15 days of remand
if there be reasonable grounds.
(5) Beyond the period of 15 days, there cannot be any remand to police
custody.
(6) Thereafter, if the Magistrate having jurisdiction is satisfied that
Cril. Petn. Nos.5 & 6 of 2021
adequate grounds exist for doing so, the Magistrate may authorise the
detention of the accused otherwise than in police custody for a period of
15 days at a time.
(7) Such detention cannot exceed the total period of 90 days or 60 days
as the case may be.
(8) If within the said period of 90 days or 60 days the final report is not
filed, the accused has an indefeasible right to be released from custody.
(9) Thereafter he can be remanded to custody by the Magistrate only if
he is not in a position to offer bail.
(10) When the accused is so released under the proviso to Section
167(2) of the Cr.P.C it shall be deemed that such release is under
Chapter 33 of the Code.
(11) Such bail is also liable to be cancelled under Section 437(5) or
Section 439(2) of the Cr.P.C as the case may be.
(12) If the final report was filed after 60 or 90 days as the case may be
and the accused has not availed such indefeasible right to be released
on bail before the final report is filed, he cannot claim such right to be
released on bail.
[36] Now the question before me is that, an accused already released on bail
and subsequently his bail was cancelled can be let off for bail under section
167 (2) of Cr.P.C ?
[37] Now, the State filed these applications under Section 437(5) of the Code
of Criminal Procedure for cancellation of the bail on various grounds. Section
437(5) reads that "Any Court which has released a person on bail under Sub-
Cril. Petn. Nos.5 & 6 of 2021
section (1) or Sub-section (2), may, if it considers it necessary so to do, direct
that such person be arrested and commit him to custody".
[38] There is no force in the contention of the learned counsel for the
respondent that when a person is ordered to be released on bail under Section
167(2) of the Code of Criminal Procedure, the petitioner is not competent to file
an application for cancellation. When once it is specifically mentioned that any
order passed under Section 167(2) of the Criminal Procedure Code, is deemed
to be an order passed under Chapter XXXIIl, then naturally the Investigating
Agency is entitled to invoke the provisions under Section 437(5) of the Code of
Criminal Procedure.
[39] In State (Delhi Admn.) v. Sanjay Gandhi, 1978 SCC (Cri) 223 : 1978 Cri
LJ 952, wherein the Hon'ble Supreme Court observed that "the power to take
back in custody an accused who has been enlarged to bail has to be exercised
with care and circumspection. But the power, though of an extraordinary
nature, is meant to be exercised in appropriate cases when, by a
preponderance of probabilities, it is clear that the accused in interfering with
the course of justice by tampering with witnesses. Refusal to exercise that
wholesome power in such cases, few though they may be, will reduce it to a
dead letter and will suffer the Courts to be silent spectators to the subversion
of the judicial process".
[40] In Dolat Ram v. State of Haryana, 1995 SCC (Cri) 237 the Hon'ble
Cril. Petn. Nos.5 & 6 of 2021
Supreme Court observed that bail once granted should not be cancelled in a
mechanical manner without considering whether any supervening
circumstances have rendered it no longer conducive to a fair trial to allow the
accused to retain his freedom by enjoying the concession of bail during the
trial. A Full Bench decision of the Orissa High Court in Bijayaketan Mohanty v.
State of Orissa, 1982 Cri LJ 1954, wherein it is observed that re-committal can
be ordered also if the Court finds that the accused is involved in tampering of
evidence or that the accused being at large would not be in the interests of
justice. The order of release on bail made under the proviso to Section 167(2)
should have been permitted to be worked out and then only the question of
cancellation of the bail should have come for consideration. Reliance was also
placed upon Raghubir Singh v. State of Bihar, 1986 SCC (Cri) 511 : 1987 Cri
LJ 157, wherein it is observed that "An order for release on bail made under
the proviso to Section 167(2) is not defeated by lapse of time, the filing of the
charge sheet or by remand to custody under Section 309(2). There is no limit
of time within which the bond may be executed after the order for release on
bail is made. Sections 441 and 442 are in the nature of provisions for the
execution of orders for the release on bail of accused persons. The accused
persons are not to be deprived of the benefit of the order for release on bail in
their favour because of their inability to furnish bail straightaway. Therefore, an
order for release under the proviso to Section 167(2) is also subject to the
provisions of Sections 437(5) and 439(2) and may be extinguished by an order
under either of these provisions. When an accused person is granted bail,
Cril. Petn. Nos.5 & 6 of 2021
whether under the proviso to Section 167(2) or under the provisions of Chapter
XXXIII the only way the bail may be cancelled is to proceed under Section
437(5) or Section 439(2). Where bail has been granted under the proviso to
Section 167(2) for the default of the prosecution in not completing the
investigation in 60 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".
[41] In B.S. Rawat v. Leidomann Heinrich, 1991 Cri LJ 552 (Bombay),
wherein it is observed that "Moreover, the language used in Sub-section (2) of
Section 439 of the Cr.P.C. as very clear and explicit. When it uses the
expression "any person who has been released on bail", it would mean that
the accused is not only granted bail but has availed of the same and is
released from his jail custody. It is only then that this Court can direct a person
to be arrested and committed to custody as provided in Section 439(2) of the
Cr.P.C. In fact, no question of his re-arrest or re-committal to custody can arise
unless the Accused is actually released on bail granted to him continues to be
in custody and no question of his arrest and committed to custody can
therefore arise.The application for cancellation of bail of the accused before his
release on bail would thus be premature".
[42] The order for release on bail may however be cancelled under Section
Cril. Petn. Nos.5 & 6 of 2021
437(5) or Section 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. There cannot be inexorable formula in the matter of
granting bail. The facts and circumstances of each case will govern the
exercise of judicial discretion in granting or cancelling bail.
[43] In the State v. Sanjay Gandhi the Hon'ble Supreme Court was hearing
an appeal by Special Leave against the High Court's order dismissing an
application for cancellation of bail during the committal proceedings of case in
which charge sheet was submitted under Sections 409, 435 and 201 read with
120B of IPC. The Hon'ble Supreme Court allowed the appeal partly cancelling
the bail of certain period. It observed at page 957 (of Cri LJ):
"The rejection of bail when bail is applied for is one thing, cancellation of
bail already granted is quite another. It is easier to reject a ball
application in non bailable case than to cancel a bail granted in such a
case. Cancellation of bail necessarily involves the review of a decision
already made and can by and large be permitted only if by reason of
Cril. Petn. Nos.5 & 6 of 2021
supervening circumstances it would be no longer conducive to a fair trial
to allow the accused to retain his freedom during the trial".
[44] In the judgment reported in Cal LT 1 997 (1) HC 302; The State of W.B.
v. Nebulal Shaw a Division Bench of Calcutta High Court held that the
following facts amongst others are relevant for deciding the question of
cancellation of bail:
(i) The person on bail commits similar offence or any other heinous
offence during the period of bail.
(ii) The accused has misused the privilege of bail.
(iii) The Lower Court granting bail has exercised its judicial power
wrongly.
[45] The Hon'ble Supreme Court in Bhagirath Singh Judeja v. State of
Gujarat, AIR 1984 SC 372 (1984 Cri LJ 160), had the occasion to consider the
question as to what are all the relevant considerations for purposes of
cancellation of bail. In this case the Ld. Sessions Judge had granted bail and
this order was set aside by the High Court. Dealing with the facts and
circumstances of the case, it was held that it was not a case for interference
with the discretionary order of Sessions Court granting bail and while
discussing the principles, it was observed as under:
"Very cogent and overwhelming circumstances are necessary for an
order seeking cancellation of the bail. It is now well settled by a catena
of decisions of the Supreme Court that the power to grant bail is not be
Cril. Petn. Nos.5 & 6 of 2021
exercised as if the punishment before trial is being imposed. The only
material consideration in such a situation are whether the accused
would be readily available for his trial and whether he is likely to abuse
the discretion granted in his favour by tampering with evidence. If there
is no prima facie case there is no question of considering other
circumstances. But even where a prima facie case is established, the
approach of the court in the matter of bail is not that the accused should
be detained by way of punishment but whether the presence by the
accused would be readily available for trial or that he is likely to abuse
the discretion granted in his favour by tampering with evidence."
[46] The Hon'ble Supreme Court also held that in an application for
cancellation of bail it is not necessary for the prosecution to prove every
incidental matter by a mathematical certainty or even beyond a reasonable
doubt. If the prosecution wants to prove that the accused has abused his
liberty and that there is a reasonable apprehension that he will interfere with
the course of justice, all that is necessary for the prosecution to do so in order
to succeed for cancellation of bail is to prove that fact by the test of
preponderance of probabilities. It has also held that the power to cancel bail
has to be exercised with care and circumspection and that such, power,
though of an extraordinary nature, is meant to be exercised in appropriate
cases.
[47] The next question which arises is in what circumstances, the High Court
can cancel the bail granted by the Sessions Judge to an accused person. In
other words it is to be seen whether the bail granted can be cancelled on any
Cril. Petn. Nos.5 & 6 of 2021
of the grounds on which the bail can be cancelled, or the bail granted can also
be cancelled where it is found that the Sessions Judge has not acted in a
proper manner in granting bail to the accused.
[48] The power of the High Court to grant bail is not very much different from
that of Sessions Judge as the same provision, namely Section 439, Cr.P.C.
confers power on them to grant bail. However inherent powers have been
vested in the High Court under Section 482, Cr.P.C to pass such orders as
may be necessary to give effect to any order under the Code or to prevent the
abuse of process of the court or otherwise to secure the ends of justice. Hence
if Section 439(2), Cr.P.C cannot be said to be available in a given case powers
can be exercised by this Court under Section 482 Cr.P.C.
[49] In this case all the relevant decisions have been taken into
consideration and the principles on which bail can be granted have also been
considered in the earlier order of dismissal. Thereafter the bail was again
considered for the third time u/s.167(2) of Cr.P.C. if the Sessions Judge grants
bail erroneously or illegally or arbitrarily without considering the relevant
factors then the High Court cannot feel helpless in setting aside the order of
the Sessions Court. The High Court under Section 439(2), Cr.P.C or under
Section 482, Cr.P.C has jurisdiction to quash and set aside any arbitrary or
illegal orders passed by the subordinate courts. A number of circumstances
were considered which had not been properly considered by the Sessions
Court while granting bail and the order granting bail was cancelled.
Cril. Petn. Nos.5 & 6 of 2021
[50] Now it is to be seen whether in the facts and circumstances of the
present case the Sessions Judge has rightly granted bail to the accused and
whether bail granted should be cancelled.
[51] First of all, I shall refer to the order of the Sessions Judge. The factors
considered by the Learned Sessions Judge are that other co-accused in this
case had been released on bail either by the Sessions Court or by the High
Court under Section 439, Cr.P.C.
[52] The Default Bail Application enlarging the Accused/Respondent by the
Ld. Special Judge has been filed during the pendency of another Bail
Application being Cril.Misc.(B) Case No.99 of 2020 in respect of the same FIR
referred above of the same Accused/Respondent under the provision of
Section 437 (1) 1st Proviso of Cr.P.C. It is settled law that an
Accused/Respondent cannot be permitted to file a second Bail Application in
respect of the same FIR case and the same Accused/Respondent before the
same Court of the Ld. Special Judge (PC Act), Imphal-West, when the earlier
bail Application being Cril.Misc.(B) Case No.99 of 2020 was still pending for
Consideration. It is pertinent to mention that the same Accused/Respondent
has filed a bail application bearing Bail Application No.12 of 2020 before the
this Court and the same was dismissed as another regular Bail Application
was still pending being filed earlier on 02.11.2020 before the Ld. Special Judge
(PC Act), Imphal-West. An Accused who is continuing to be in custody pending
investigation simplicitor cannot be equated with an accused like the present
Cril. Petn. Nos.5 & 6 of 2021
Accused/Respondent who had already been granted bail and whose bail had
been cancelled.
[53] The Accused/Respondent was granted interim bail on medical ground
and enlarged by the order of the Lower Court for a period of three months from
04.07.2020 till 03.10.2020. Apparently, the Accused/Respondent being already
released on bail, albeit on medical ground, the same is in the exercise of
power under section 437 (1) or (2) of the Code.
[54] The Third Default Bail Application filed by the Accused/Respondent is
an abuse of the process of the Court, as repeated application under Section
167(2) of Cr.P.C has been filed on the same ground, despite being already
dismissed on its merits by the Lower Court. The learned Special Judge (PC
Act), Imphal-West has committed an error of law in allowing the application
filed by the Accused under section 167(2) Cr.P.C when similar application filed
earlier being Cril.Mis.Case No.82 of 2020, have already been rejected by the
same court vide order dated 16.09.2020.
[55] Therefore, the petition filed by the State for cancellation of bail is liable
to be allowed both on the grounds of illegality of the order passed by the
Sessions Court and the conduct of the Accused subsequent to their release
after bail was granted.
[56] Therefore, I am of the opinion that the Court below was no right in
releasing the accused on default bail U/S 167(2) of Cr.P.C. The orders passed
Cril. Petn. Nos.5 & 6 of 2021
by the Learned Sessions Judge granting bail can be termed as perverse.
[57] In the result,
a) both the Cril. P. Nos.5 and 6 of 2021 are allowed;
b) the petitioner/State is directed to re-arrest the
respondents/accused in both the cases and to remand into
the Judicial custody;
c) the Respondent/Accused in both the cases are given
liberty to approach the Court below for regular bail on
merits if so they advised.
JUDGE
FR/NFR
- Larson
Yumk Digitally signed
by Yumkham
Rother
ham Date:
2021.03.26
Rother 16:16:44
+05'30'
Cril. Petn. Nos.5 & 6 of 2021
