Gauhati High Court: The present interlocutory application was preferred by petitioner under Section 439(2) of the Criminal Procedure Code, 1973 (‘CrPC’) for cancellation of bail order dated 29-06-2022 (‘impugned order’), passed by the Sessions Judge, Barpeta (‘the Sessions Judge’), wherein bail was granted to Respondents 2 and 3.
Robin Phukan, J., observed that the Sessions Judge had not passed the impugned order under Section 167(2) of CrPC and had not discussed about existence of a prima facie case, the nature of accusation, the severity of punishment, apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant. The Court stated that the impugned order was passed in contravention to the well-established jurisprudence of bail and thus, the Court cancelled the impugned order of granting bail to Respondents 2 and 3.
Background
On 21-03-2022, the deceased after visiting a doctor, was about to embark on a vehicle, when Respondent 2 and two other men arrived there and Respondent 2 held the deceased by her neck and the other men administered dagger blow over the deceased’s abdomen and thereafter ran away from the place of occurrence on a motorcycle.
On receipt of an FIR from petitioner on 22-03-2022, the Officer-in Charge of Barpeta Police Station registered a case under Sections 341, 302, and 34 of the Penal Code, 1860. During investigation, the Investigating Officer (‘IO’) arrested Respondents 2 and 3 and forwarded them to the Court. Thereafter, on completion of investigation, the IO prepared charge sheet against them under Sections 120-B, 341, 302, and 201 of IPC and submitted final report against one of the two men for want of evidence. Thereafter, the Sessions Judge vide impugned order enlarged Respondents 2 and 3-the accused on bail. Being aggrieved, the petitioner approached this Court for cancellation of the impugned order.
Analysis, Law, and Decision
The Court opined that the power of cancellation of bail should be exercised with care and circumspection and routinely, the courts refuse to cancel bail, as it jeopardizes the personal liberty of a person. The courts cancel bail only when they find on record a very cogent and overwhelming circumstances prevailing against the accused as held in the case of Bhuri Bai v. State of Madhya Pradesh, 2022 SCC OnLine SC 1779 and Bhagirath Judeja v. State of Gujarat, (1984) 1 SCC 284. The Court opined that the High Court or the Sessions Court could cancel the bail even in cases where the order granting bail suffered from serious infirmities resulting in miscarriage of justice and if relevant materials, indicating prima facie involvement of the accused or takes into account irrelevant material, which had no relevance to the question of grant of bail to the accused, were ignored by the court granting bail.
The Court observed that the Sessions Judge had not passed the impugned order under Section 167(2) of CrPC and had not discussed about existence of a prima facie case, the nature of accusation, the severity of punishment, apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant, which should also weigh with the court, as mandated by Supreme Court in Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280 and Chaman Lal v. State of U.P., (2004) 7 SCC 525. The Court opined that the Sessions Judge had taken note of the irrelevant factors while granting bail to respondents as the factors that were taken note of were irrelevant in the context of involvement of accused with the offence alleged.
The Court stated the offences were heinous and observed that the deceased was a Lawyer and was killed in a pre-planned manner, over a period, by hiring professional killers. The enmity of Respondent 2 with the deceased was writ large from the fact of pendency of a Civil Case between them before the Civil Court. Thus, the motive for killing the deceased was well discernible. The Court opined that though there was no direct threat to the family members of petitioner, yet a veil threat was always looming large in the mind of the family of the deceased that similar consequence might happen in their case also in view of the pendency of the Civil Case. The Court also opined that the offence had a serious impact upon society.
Thus, the Court held that the impugned order of granting bail by the Sessions Judge failed to withstand the test of legal scrutiny. The Court also held that the order suffered from serious infirmities resulting in miscarriage of justice and relevant materials, indicating prima facie involvement of the accused and nature and gravity of the offence and the punishment prescribed for the same and the societal interest, were ignored.
The Court opined that the Sessions Court considered irrelevant materials such as non-availability of FSL report with the charge sheet, failing to arrest one of the accused and filing of charge-sheet without completion of investigation, which had no relevance in granting bail to Respondents 2 and 3.
The Court stated that the impugned order was passed in contravention to the well-established jurisprudence of bail, as Respondents 2 and 3, who were involved in heinous crimes, their release would result in weakening of the prosecution case and the same would also have an adverse impact on the society. Therefore, the Court opined that the impugned order required interference of this Court, in view of the proposition of law laid down in Kanwar Singh Meena v. State of Rajasthan, (2012) 12 SCC 180, notwithstanding absence of supervening circumstances, such as the propensity of the accused to tamper with the evidence, to flee from justice, etc.
The Court took note of the scanned copy of the record of the Sessions Judge and observed that an attempt was made to manipulate/tamper the date of arrest of Respondent 2 in the Arrest Memo. The date of arrest i.e., 23-03-2022 was erased and overwritten as 22-03-2022. Thus, the Court allowed the application and cancelled the impugned order of granting bail to Respondents 2 and 3. The Court directed Respondents 2 and 3 to surrender before the Sessions Judge forthwith and in the event of failure, step shall be taken to take them into custody.
[Harun Ali v. State of Assam, 2024 SCC OnLine Gau 584, Order dated 20-05-2024]
Advocates who appeared in this case :
For the Petitioner: P Kataki, Advocate
For the Respondents: PP, Assam
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