Tripura High Court

Sri Ramu Saha @ Ramdas Saha & Ors vs The State Of Tripura on 12 January, 2022

                              HIGH COURT OF TRIPURA
                                    AGARTALA

                                   A.B. No. 90 of 2021

Sri Ramu Saha @ Ramdas Saha & Ors.
                                                              ........Petitioner(s)
                                        Versus

The State of Tripura
                                                            ........Respondent(s)

Along with A.B. No. 91 of 2021

Sri Nipu Ghosh ........Petitioner(s) Versus

The State of Tripura ........Respondent(s)

For Petitioner(s) : Mr. S. Lodh, Adv.

For Respondent(s) : Mr. S.S. Dey, Advocate General.

Mr. R. Datta, P.P.

HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY Order

12/01/2022

Since these applications arise out of the same occurrence,

they are taken up together for hearing and disposal by a common

order.

[2] Petitioners are accused in East Agartala PS case

No.2021EAG160 registered under sections 341,325,384,307 read with

section 34 IPC and section 25(1)(d) of the Arms Act, 1959.

[3] Apprehending arrest in the case, they have filed these

applications seeking pre arrest bail under section 438 Cr.P.C.

[4] Heard Mr. S. Lodh, learned counsel appearing for the

petitioners. Heard Mr. S.S. Dey, learned Advocate General as well as

Mr. R. Datta, learned P.P representing the State.

[5] The Factual context of the case is as under:

One Subrata Kar, son of Late Swapan Kumar Kar of

Dhaleswar, Agartala lodged a written FIR with the officer in charge of

East Agartala police station alleging, inter alia, that on 21.11.2021 at

about 8 O' clock in the night when he was crossing the road adjacent to

Gedu Miah Masjid at Shibnagar on his motor bike, accused petitioner

Nipu Ghosh detained him at the point of his pistol and snatched away a

gold chain weighing about 15gm from his neck. The other three

petitioners namely Debu Ghosh, Ramu Saha and Sajal Bardhan who

were then accompanying accused Nipu Ghosh started assaulting the

informant. Having received injuries from such assault, the informant

collapsed on the ground. The accused petitioners then robbed him of a

sum of Rs.10,000/- in cash. Following his cry, the neighbouring people

rescued him and brought him to AGMC and GBP hospital for treatment.

He was then having bleeding injuries in his skull and other parts of his

face. He was also having severe pain across his body. The informant

alleged that the accused petitioners intended to kill him.

[6] Based on such FIR, East Agartala PS case No.2021EAG160

under sections 341,325,384,307 read with section 34 IPC and section

25(1)(d) of the Arms Act, 1959 was registered by police and

investigation of the case was taken up.

[7] Apprehending arrest, the accused petitioners have

approached this court for pre arrest bail by means of filing these

applications under section 438 Cr.P.C.

[8] Appearing for the petitioners, Mr. Lodh, learned advocate

contends that petitioners are innocent who have been implicated in a

false case for detention and harassment. Counsel submits that on the

same day the Secretary of Deshbandhu Chittaranjan Club lodged a

complaint with the officer in charge of East Agartala police station

alleging that a huge number of people in mask and helmet came in a

procession to the Masjid road near Chittaranjan Club on their motor

bikes and assaulted 4/5 persons of the locality. They terrorized the

people of the entire area particularly the women who fled in fear.

Counsel submits that the first informant was one of the members of the

group of bikers who subsequently lodged a false FIR against the

accused petitioners, all of whom are members of Deshbandhu

Chittaranjan Club. Counsel contends that no action has been taken by

the investigating agency on the said complaint lodged by the Secretary,

Deshbandhu Chittaranjan Club, even though the complaint was received

at the police station on the same day. It is also contended by Mr. Lodh,

learned counsel that the investigating agency who should have acted

impartially without any malice towards the accused petitioners,

promptly registered a case on the FIR lodged by Subrata Kar who

actually created terror at the place of occurrence whereas no action has

yet been taken on the complaint lodged by the Secretary of

Deshbandhu Chittaranjan Club. It is also contended by Mr. Lodh,

learned counsel that a plain reading of the FIR lodged by Subratra Kar

would demonstrate that he lodged a completely false and fabricated FIR

because he came from a far away place and he was not supposed to be

aware about the identity of the accused petitioners. Therefore, it is not

understandable as to how he filed a FIR with the full particulars

including the fathers' names of all the accused petitioners. Counsel

submits that all the accused petitioners are absolutely innocent. They

do not have any criminal antecedent. The present case has been lodged

by the informant out of political rivalry. Counsel, therefore, urges the

court to protect the liberty of the accused petitioners by granting pre

arrest bail to them.

[9] Learned P.P appearing for the State respondent vehemently

opposes the bail application. It is contended by Mr. R. Datta, learned

P.P that after the FIR was lodged, the petitioners were served notice

under section 41A Cr.P.C. But none of them complied with the terms of

the said notice. Learned P.P submits that a fair investigation would not

be possible in the case if protection from arrest under section 438

Cr.P.C is granted to the petitioners. Relying on the decision of the

Hon'ble Apex Court in Arnesh Kumar Vs. State of Bihar & Anr.

reported in (2014) 8 SCC 273 counsel submits that in terms of the

provision laid down under section 41A Cr.P.C as well as observations

made by the Hon'ble Apex Court in the said judgment, notice under

section 41A Cr.P.C was issued to the petitioners. The petitioners

disregarded the said notice. Their arrest has become necessary since

they did not cooperate with the investigating agency and the materials

available on record against them support the charges brought against

them. Learned P.P submits that chance of success in interrogation of an

accused is remote when the accused knows that he is well protected

and insulated by a pre arrest bail order. In support of his contention

learned P.P has relied on the decision of the Apex Court in State Rep.

by the C.B.I. Vs. Anil Sharma reported in (1997) 7 SCC 187

wherein the Apex Court in paragraph 6 of the judgment has held as

under:

"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconded with a favorable order under Section 438 if the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Succession such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail during the time he interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in task of disinterring offences would not conduct themselves as offenders."

[10] Mr. R. Datta, learned P.P argues that curtailment of freedom

of the accused in order to enable the investigating agency to proceed

without hindrance and protect the witnesses including the victim of the

crime may be necessary in certain circumstances. Learned P.P submits

that in the given case there are adequate incriminating materials

against the petitioners which justify their arrest and interrogation in

detention for protecting the witnesses of the case including the victim

and to collect evidence with regard to motive, preparation, commission

and aftermath of the crime. Counsel has relied on the decision of the

Apex Court in Adri Dharan Das Vs. State of W.B. reported in (2005)

4 SCC 303 wherein the Apex Court in paragraph 19 of the judgment

has held as under:

"19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code."

[11] Appearing for the State, Mr. S.S. Dey, learned Advocate

General contends that bail stands at the cross road of individual liberty

and social security and a delicate balance is required to be maintained

between the two. Counsel submits that the case diary maintained by

the investigating agency would demonstrate that there are sufficient

prima facie incriminating materials against each of the petitioners and

as such they are debarred from claiming the benefit of custodial

immunity under section 438 Cr.P.C. Learned Advocate General submits

that in the greater interest of society, the safeguard provided under

section 438 Cr.P.C should be denied to the petitioners in the present

case to enable the investigating agency to carry out a free and fair

investigation of the case. Counsel has relied on the decision of the Apex

Court in P. Chidambaram Vs. Directorate of Enforcement reported

in (2019) 9 SCC 24 wherein the Apex Court in paragraph 72 of the

judgment has held as under:

"72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India."

[12] Considered the submissions made at the Bar. Perused the

entire case diary and the prosecution papers placed before this court.

[13] In the case in hand, serious charges have been brought

against the petitioners. The first informant has lodged his written FIR

bringing specific allegations against them. Each of them have been

named in the FIR as the assailants of the first informant. The injury

report which has been pointed out by the Public Prosecutor in the case

diary indicates that X-Ray conducted at the hospital has shown grievous

injury in the body of the informant. This apart, the accused has

categorically stated in his FIR that while crossing the road he was

detained at the point of pistol by the accused petitioners near their club

house at Masjid road. Police statements recorded under section 161

Cr.P.C during investigation also support the charges. There are

sufficient prima facie materials against the petitioners to constitute the

offence alleged against them. In these circumstances, the investigating

agency should be given a free hand to conduct a fair investigation of the

case. This apart, admittedly the petitioner were served with a notice

under section 41A Cr.P.C to appear at the police station to face

interrogation. They did not comply with the terms of the said notice.

Argument of learned counsel of the petitioner that they did not report to

the police station in fear of arrest is not acceptable.

[14] Anticipatory bail under section 438 Cr.P.C. is an extra

ordinary relief. The Apex Court in the case of Siddharam Satlingappa

Mhetre vs State of Maharashtra & Ors. reported in (2011) 1 SCC

694 has laid down the parameters for granting or refusing the

anticipatory bail which are as under:

"112.......... The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or the other offences.

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

[15] Further in Jai Prakash Singh vs. State of Bihar reported in

(2012) 4 SCC 379 the Apex Court further elucidated the principles for

consideration of anticipatory bail which are as under:

"19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran & Ors., (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, (2008) 1 SCC 213, and Union of India v. Padam Narain Aggarwal, (2008) 13 SCC