Tripura High Court

Hakan Zanburkan And Ors vs The State Of Tripura (To Be ... on 25 June, 2021

                                                   HIGH COURT OF TRIPURA
                                                         AGARTALA

                                                       Crl.Rev.P. No.16 of 2021

                           1.Hakan Zanburkan and ors, S/O- Yalmaz Zanburkan, R/O- Side Mah
                           1503 Sokak No. 08, Manavgat, Antalya, Turkey
                           2.Fatah Aldemir, S/O- Mehmet Aldemir, R/O- Begonya Mah, Samasik
                           Sok No. 2, Manavgat, Antalya, Turkey
                           3.Md. Rafiqul Islam,S/O- Nurul Islam, S/O- Demajani, P.S- Sajahanpur,
                           Bagura, Bangladesh
                           4.Md. Hannan, S/O- Tabibur Rehman, R/O- Dira Aliya Madrassa, P.S.
                           Kolarua, Satkhira, Bangladesh
                                                                               -----Petitioner(s)

                                                           Versus
                           The State of Tripura (To be Represented by the L'd Public Prosecutor,
                           Hon'ble High Court of Tripura, Agartala)
                                                                               -----Respondent(s)

For the Petitioner(s) : Mr. P.Roy Barman,Sr. Adv.

Mr. S.Bhattacharjee,Adv.

Mr. K.Nath, Adv.

For the Respondent(s) : Mr. Ratan Datta, PP.

                           Date of Judgment & order: 25.06.2021
                           Whether fit for reporting     : No.

                                                             BEFORE

                                      HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                                                   Judgment & Order (Oral)
                           [1]          By means of filing this criminal revision petition under

Section 397(1) read with Section 401 of the Code of Criminal Procedure,

1973 (Cr.P.C. hereunder) the aggrieved petitioners have challenged the

impugned order dated 06.07.2020 passed by the Chief Judicial

Magistrate, West Tripura Judicial District, Agartala in PRC (WP) 287 of

2020 whereby the learned CJM cancelled the bail granted to the

petitioners.

[2] The factual background of the case is as under:

One Manesh Debbarma of Takarjala of Sepahijala District

lodged a written FIR with the Officer-in-charge of West Agartala police

station on 15.11.2019 alleging, inter alia, that a sum of Rs.11,500/- was

unauthorizedly withdrawn from his bank. To his query, he was informed

by the bank that the said amount was withdrawn by hackers by way of

hacking an ATM at Shyambazar, Kolkata on 14.11.2019.

[3] Based on his FIR, West Agartala P.S. Case No. 2019

WAG297 under Sections 420 IPC was registered and investigation of the

case was taken up by the Superintendent of Police (Cyber Crime),

Tripura. The investigating agency came to know that the accused

petitioners, all of whom are foreigners, hacked the data of a huge

number of ATM card holders including the first informant and they had

withdrawn huge amount of money by installation of schemer device in

the ATMs at different places across the country. For this purpose the

accused petitioners also visited Agartala in different spell of time.

[4] In the course of investigation, the accused petitioners were

arrested by the investigating agency and they were booked under

different provisions of the Information and Technology Act, Passport

Act and Sections 120B, 420 and 379 IPC.

[5] Since then, several bail applications were moved on behalf

of the accused petitioners. Eventually, for default of the investigating

agency in filing charge sheet within the statutory period, the Judicial

Magistrate, First class(Court No.8)Agartala, West Tripura Judicial

District by his order dated 28.03.2020 granted ad interim bail to the

petitioners under the default clause observing as under:

"On perusal of the case record, it appears that the accused person is under custody from 29.01.2020 and the statutory period of detention has expired today. It further appears that the I.O of this case has not yet submitted report u/s 173 if Cr.P.C against the a/p. He neither submit any prayer for custody trial.

Considering the present circumstances of the case all the a/ps are allowed to go on Ad-interim bail up till next date on furnishing bail bond of Rs.50,000/- each bail bond i.d. to J/C 09.04.2020"

[6] By a subsequent order dated 09.04.2020, the Chief Judicial

Magistrate, West Tripura Judicial District, Agartala confirmed their bail

on the same terms and conditions. It was stipulated in the said bail orders

that the petitioners would be released on bail on their furnishing bail

bond of Rs.50,000/- each with 02 sureties of the like amount and both

the sureties should be government servants serving in the cadre of

Group-C under either the central government or the state government.

None of the petitioners was released since they could not submit bail

bond in terms of the order of the court.

[7] Eventually, the investigating agency submitted charge sheet

against the petitioners which was received by the CJM, Agartala on

01.07.2020. On the following day, the investigating agency submitted an

application before the CJM for cancellation of bail of the petitioners on

various grounds which was moved before the court on 06.07.2020.

[8] It was contended by the investigating agency that if released

on bail, petitioners would be indulging in similar activities and since

they were foreigners, it was very likely that they would leave the country

to avoid the trial of the case. It was further contended on behalf of the

investigating agency that apart from this case the petitioners were also

booked for similar offence in several other cases across the country.

[9] The Chief Judicial Magistrate after a virtual hearing of the

case, cancelled the bail granted to the petitioners vide impugned order

dated 06.07.2020 observing as under:

".....In the present case, as already stated, the afore- named accused persons have been granted 'default bail'(interim) which bail was made regular by order dated 09.04.2020 and it was on 01.07.2020 charge-sheet was filed against the accused persons but, admittedly, no bail bond has been furnished by any of the accused persons till date.

The afore-named accused persons are stated to be habitual offenders being wanted in connection with many ATM fraud cases registered in different police stations of many States across the country and, admittedly, the accused persons are involved in many criminal cases registered at different police stations under the West Tripura District, as aforementioned, which cases are lying pending investigation. Further, the accused persons are also wanted in c/w Belghoria P.S case No.799 of 2019 u/ss 413/414 of IPC in which charge-sheet against the accused persons is stated to have already been filed.

Further, the accused Hakan Aanburkan is alleged to have previously been arrested in Sri Lanka in relation to ATM fraud cases in July 2014 along with another Turkish national and one Romanian national and from their possession foreign currency notes, 30 cards with magnetic strips and a data storage device were stated to have been recovered. Photocopy of the Paper Publication dated 15.04.2014, so submitted, also substantiates the alleged fact.

Further, theaccused Fetah Aldemir is stated to be wanted in c/w Paltanbazar P.S case No.0961/2019 dated 28.08.2019 and 'Look Out Circular' notice is stated to have already been issued by Assam police against him. Photocopy of the Look Out Circular, so submitted, also substantiates the alleged fact.

Admittedly, the accused persons are foreign nationals having no roots or property in India and, as such, in the circumstances portrayed hereinbefore, the likelihood of their fleeing away from India cannot be ruled out in which case, I concur with contention of Ld.APP-in-Charge, that their presence in the Court during trial cannot be secured in upshot whereof not only the course of proceedings in such cases will get obviated but also there will be travesty of justice.

From the foregoing discussions I am of the opinion that it is expedient to cancel bail of the afore-named accused persons so granted vide order dated 09.04.2020. The aforesaid prayer of the IO is, thus, allowed. Bail granted to the accused persons namely

Hakan Zanburkan, Fetah Aldemir, Md.Rafiqul Islam and Md.Hannan vide order dated 09.04.2020, thus stands cancelled...."

[10] Thereafter, the aggrieved petitioners moved an application

in the Sessions Court under Sections 439, Cr.P.C. which was registered

as BA No.15 of 2021. The Addl. Sessions Judge, West Tripura Judicial

District, Agartala vide order dated 28.01.2021 declined to revise the

impugned order dated 06.07.2020. He observed that it would be

appropriate for the petitioners to move the court of the CJM for

reviewing its order dated 06.07.2020. It was, however, observed by the

learned Addl. Sessions Judge that the CJM should have given notice of

the application for cancellation of bail to the petitioners before the order

cancelling their bail was passed.

[11] In the above background, the petitioners have approached

this court for setting aside the impugned order dated 06.07.2020 of the

CJM, West Tripura on the sole ground that no notice was given to the

petitioners before cancellation of their bail.

[12] Heard Mr.P.Roy Barman, learned Sr. advocate appearing

along with Mr.S.Bhattacharjee, Mr.K.Nath and Mr.J.Hossain appearing

for the petitioners. Also heard Mr.Ratan Datta, learned PP appearing for

the state respondent.

[13] It is robustly argued by Mr.Roy Barman, learned Sr.

Advocate, appearing on behalf of the petitioners that it is a settled

proposition of law that before cancellation of bail granted to an accused,

court must give notice of the application seeking cancellation of bail to

the accused to provide him an opportunity of hearing. In the present

context, according to Mr.Roy Barman, learned Sr.counsel, no such

notice was issued to the accused petitioners before the liberty granted to

them under bail was taken away by the court by cancelling their bail. It

is argued by Mr.Roy Barman, learned Sr. Advocate, that the impugned

order has been passed in gross violation of principles of natural justice

which should not be allowed to survive. Mr.Roy Barman, learned Sr.

Advocate, therefore, urges the court for setting aside the impugned order

dated 06.07.2020.

[14] Opposing the contention of learned counsel of the

petitioners, Mr.Ratan Datta, learned PP has vehemently argued that no

illegality was committed by the court in cancelling the bail granted to the

accused petitioners. According to Mr.Datta, learned PP, bail was granted

to the petitioners under default clause on the ground of failure of the

investigating agency in submitting the charge sheet against the

petitioners within time prescribed under the law. Therefore, soon after

the charge sheet was filed in court on 01.07.2020 and the defect was

cured, the investigating agency moved the court seeking cancellation of

bail on various grounds and the court after hearing learned counsel of the

parties as well as the petitioners on merit, cancelled their bail by a

detailed and reasoned order.

[15] According to Mr.Datta, learned PP, the allegations against

the petitioners are very serious. They are alleged to have defrauded a

huge amount of money of several customers of many banks at various

places across the country by installation of schemer device in various

ATM counters. It is submitted by Mr.Datta, learned PP, if released on

bail, they would indulge in similar activities having devastating

consequences. According to learned PP, the court considered all these

aspects of the case and cancelled their bail exercising the jurisdiction

conferred under law and committed no illegality.

[16] It is contended by Mr.Datta, learned PP that where bail has

been granted for the default of the prosecution in not completing the

investigation within the statutory period and the defect is cured by filing

of charge sheet, prosecution may seek cancellation of bail on this

ground. In support of his contention, Mr.Datta, learned PP, has relied on

the decision in ASLAM BABALAL DESAI Versus STATE OF

MAHARASHTRA reported in (1992) 4 SCC 272 wherein the Apex Court

observed as under:

"40.... The purpose of the proviso to Section 167(2) read with Chapter XXXIII of the Code is to impress upon the need for expeditious completion of the investigation by the police officer within the prescribed limitation and to prevent laxity in that behalf. On its default the Magistrate shall release the accused on bail if the accused is ready and does furnish the bail. At the same time during investigation or trial the power of the court to have the bail cancelled and have the accused taken into custody are preserved........."

[17] Admittedly, no notice was issued to the accused petitioners

by the court below before the bail granted to them was cancelled by the

impugned order. Therefore, the question which arises for determination

is whether the said order amounts to curtailment of the right of the

petitioners and whether the impugned order was passed in violation of

the principles of natural justice.

[18] In the case of ASLAM BABALAL DESAI (supra), which

has been relied upon by Mr.Ratan Datta, learned PP, the context was

different. Moreover, whether notice was issued to the appellants before

cancellation of their bail was not in issue before the Apex Court in the

said case. In these circumstances, prosecution cannot derive any benefit

from the said judgment of the Apex Court.

[19] In P.K.SHAJI ALIAS THAMMANAM SHAJI VERSUS STATE OF

KERALA reported in (2005)13 SCC 283, the Apex Court has succinctly

held that the accused who is on bail must be given notice and

opportunity of hearing before the bail granted to him is cancelled.

Reiterating the ratio decided by the Apex Court in its earlier decision in

GURDEV SINGH AND ANOTHER VERSUS STATE OF BIHAR AND

ANOTHER reported in (2005) 13 SCC 286 :AIR 2000 SC 3556, the Apex

Court in the said case of P.K.SHAJI ALIAS THAMMANAM SHAJI (supra)

held as under:

"6.The plea of the appellant's learned Counsel is that if the Sessions Court had granted bail, the order of cancellation of such bail should also have been passed by the Sessions Court or by any superior Court and not by the learned Magistrate who is not empowered to cancel it. As a general proposition, the plea raised by the appellant is correct. It is equally true that the accused who is on bail, should be heard before an order of cancellation of bail is passed by the Court. This Court in Gurdev Singh v. State of Bihar held that the accused must be given notice and opportunity of hearing before the bail granted to him is cancelled."

[20] Since it is clear from the record that the court below

cancelled the bail granted to the petitioners on merit after consideration

of various grounds raised by the investigating agency and no notice of

the application filed on behalf of the investigating agency was given to

the petitioners before the bail granted to them was cancelled, it would

not be appropriate to uphold the said order of the leaned Chief Judicial

Magistrate. Resultantly, the impugned order dated 06.07.2020 stands

set aside.

[21] In view of the above, learned CJM, West Tripura, Agartala

is directed to consider the matter afresh and pass appropriate order in the

case without being influenced by any observation of this court in the said

matter after serving notice of application of the investigating agency