Bombay High Court The State Of Maharashtra vs Ramnarayan Lataprasad Namdeo on 13 November, 2003Equivalent citations: (2004) 106 BOMLR 199 Author: B Marlapalle Bench: B Marlapalle

JUDGMENT

B.H. Marlapalle, J.

1. Heard Mrs. Pai, learned A.P.P., for the Applicant-State of Maharashtra: Mr. Shirish Gupte, learned Additional Solicitor General, for the Central Industrial Security Force (C.I.S.F.) and Mr. Memon, for the Respondent.

Rule. Taken up for final hearing forthwith.

2. This is an application preferred by the State of Maharashtra for invoking the inherent powers of this Court under Sections 482 and 483 of the Code of Criminal Procedure, so as to quash and set aside the order dated 6.10.2003 passed by the learned Additional Sessions Judge releasing the accused – Respondent on regular bail; and also under Section 439(2) of the Cr. P.C. for cancellation of the said bail order passed in Bail Application No. 1052 of 2003.

3. The accused was on duty on 24.5.2003 at Security Hold No. 19 of the Sahar International Airport (Chatrapati Shivaji International Airport) as a C.I.S.F. Constable without arm, on the mezzanine floor, while another Constable by name, Ganpat Govind Kagilkar was on similar duty at the apron linger No. 54 of the ground floor and he had a self-loaded rifle (S.L.R.) in his possession with 40 rounds. It is alleged that the accused went to Mr. Ganpat Kagilkar to apron linger No. 54 and told him that he was called upon by the Duty Commandant Officer at Reserve Inspector Office. In keeping with the rules of C.I.S.F., Mr. Kagilkar handed over his S.L.R. with 40 rounds to the accused and made an entry in the Beat Book Register for the same and, after obtaining the signature of the accused, he left for the reserve inspector office. Thereafter, the accused armed with the S.L.R. and 40 rounds went to the mezzanine floor, i.e.. Security Hold No. 19 where he was on duty and while Deputy Commandant A.K. Karanjikar was briefing his subordinates at that place, opened fire. In the first round, Mr. T.J. Verghese, Inspector of C.I.S.F., narrowly escaped. He opened another 7 rounds targeting Mr. Karanjikar and three of them allegedly hit him, as a result of which he died before being admitted to the hospital. Three more bullets were fired by him injuring some other persons and causing damage to the screening machines. The accused thereafter allegedly held in hostage six employees of C.I.S.F., five of them being lady constables on duty, and they were kept in hostage from about 6.15 p.m. to 00.40 hrs., i.e., for about six hours. The hostages were released only after the intervention of the Minister of State for Home and with the assistance of Mr. Bipin Bihari, Deputy Commissioner of Police.

4. Crime No, 19/2003 came to be registered with the Sahar Police station for offences punishable under Sections 302, 307, 342 and 427 of the Indian Penal Code.

5. While the investigation was going on, a regular bail application, which came to be registered as Bail Application No. 1052 of 2003, came to be submitted before the Sessions Court at Mumbai on 4.7.2003, it was heard on 7.7.2003 by the learned Additional Sessions Judge and on 9.7.2003, he was pleased to pass an interlocutory order treating the bail application as part-heard and liberty was granted to move the Court after three weeks. The application was adjourned to 31.7.2003. It appears, the said pending application was heard on 26.8.2003, 10.9.2003, 23.9.2003, 24.9.2003, 30.9.2003; and finally on 6.10.2003, the impugned order came to be passed releasing the accused on regular bail.

In the meanwhile, charge-sheet came to be filed on 22.8.2003 before the learned Metropolitan Magistrate at Andheri and committal order was passed on 5.9.2003. The case papers were received by the Sessions Court on 19.9.2003 and, subsequently, by order dated 23.9.2003, Sessions Case No. 643 of 2003 has been assigned by the learned Principal Judge to Court No. 53.

6. The learned A.P.P., submitted before this Court that the impugned order is perverse and manifestly erroneous. While releasing the accused on bail, the learned Additional Sessions Judge was influenced by the press reports and the alleged “professional stress”, which the accused was purportedly going through. The learned A.P.P., has also criticised the view taken by the Court below holding that granting bail to the accused would not defeat the purpose of fair trial and that alone could not be the reason for an accused involved in a serious offence, which is nothing short of cold-blooded murder, being released on bail. She further submitted that, in addition to the two factors, namely, the possibility of the accused fleeing from trial and his capacity to influence the witnesses, the Court below was required to consider the seriousness of the offence and obtaining circumstances when the same was allegedly committed by the accused. She, therefore, urged that by Invoking the inherent powers of this Court under Section 482 of the Code, the order dated 6.10.2003 is required to be set aside and the bail granted by the Court below deserves to be cancelled under Section 439(2) of the Code, more when the investigation has revealed that the crime committed was premeditated.

In support of these contentions, she placed reliance on the decisions in the case of Puran v. Rambilas and Anr. 2001 Cri. L.J. 2566 and Ram Govind Upadhyay v. Sudarshan Singh and Ors. .

7. Mr. Gupte, the learned Additional Solicitor General, while supporting this application pointed out from the investigation papers, so as to counter the alleged mental stress, that the accused was having better working conditions than any other bachelor constable, who is required to stay in barracks and the investigations revealed that there were no circumstances, which would go to show that the accused was under professional stress or denied leave, etc. Mr. Gupte also submitted that the interlocutory order passed by the Court on 9.7.2003 on the bail application was most uncalled for and the Sessions Court could have either decided the application finally or adjourned the same to an appropriate date.

8. Mr. Meraon, the learned Counsel for the respondent-accused, at the threshold, submitted that the powers of this Court in cancelling an order of bail granted by a Subordinate Court are limited and are quite distinct from the powers of granting bail under Section 439 of the Code. He also submitted that the powers under Section 439(2) of the Code are required to be invoked very sparingly and in rare cases when circumstances warrant to do so, specially in a case where the conditions of bail have been flouted and the accused is likely to escape trial. While supporting the order passed by the learned Additional Sessions Judge, Mr. Memon submitted that the two important factors while granting regular bail have been taken into consideration by the learned Additional Sessions Judge and a discretionary power having been exercised on the basis of a possible view, there is no reason for this Court to interfere with the said order. Even otherwise, there is no apprehension, as made out in this application by the State, that the accused is likely to violate the bail conditions or is likely to flee from the trial; and, in fact, he would obey the conditions set out: in the bail order arid is also keen to see that the trial is expedited and completed at the earliest possible, urged Mr. Memon.

In support of these circumstances, he placed reliance on the following decisions :

(1) State (Delhi Administration) v. Sanjay Gandhi .

(2) Bhagirathsingh Judeja v. State of Gujarat .

(3) Aslam Babalal Desai v. State of Maharashtra .

(4) Subhendu Mishra v. Subrat Kumar Mishra and Anr. .

9. It is not disputed as a matter of legal preposition that if the order granting bail by the Subordinate Court is perverse or suffers from illegalities, this Court has powers under Section 439(2) of the Code to interfere with such an order. The learned Additional Sessions Judge in his elaborate order passed on 9.7.2003 did not grant bail, though he had such a power under Section 439 of the Code. In the subsequent order dated 6.10.2003, i.e., after about 3 months, the learned Additional Sessions Judge recorded his opinion in paragraph 20 on perusal of the record and the charge-sheet that the accused was insisting on conference with the media immediately after the alleged incident, there was no harm caused by him to the witnesses, who were inside the security hold, was in a desperate mood to commit suicide, held the rifle touching his neck till he surrendered and on arrival of his parents and Minister of State and the other officials, he released the hostages, all the while he was responding to Mr. Bipin Bihari on telephone and surrendered to the police and handed over S.L.R. in the presence of the Minister of State, who assured him that justice would also be done to him. The learned Judge further went on to state that on appraisal of the record, he found that the objection for granting bail by the State Agencies was mainly because of the parties coming from such a class having state of hostility between the constabulary versus officialdom: and it appears that such a opinion was gathered from the main contentions of the arguments of the Defence Counsel. While setting out his reasons to release the accused on bail, the learned Additional Sessions Judge considered the two parameters, namely, (1) that there was no possibility of the accused running away from facing the trial and (2) there was no scope for his inducing, or, in any way, influencing the witnesses, if released on bail. It was noted that the parents of the accused are presently staying in the R.C.F. Colony and the father of the accused is working in the same department. In the impugned order, the learned Additional Sessions Judge has nowhere referred to the nature of the charges that the accused is to face though he has referred to some press reports regarding the mental instability of the accused.

10. The decisions cited by Mr. Memon are a settled position in law regarding the powers of this Court and while entertaining an application for cancellation of bail under Section 439(2) of the Code, this Court is required to use such power sparingly and by taking into consideration the facts of each case.

11. In the case of Aslam Babalal Desai (supra), the Apex Court set out some illustrations where bail granted could be cancelled, i.e., (a) when the accused misuses his liberty by indulging in similar criminal activity (b) interferes with the course of investigation (c) attempt to tamper with evidence or witnesses, (d) threatens witnesses or indulges in similar activities, which would hamper smooth investigation (e) where there is likelihood of his fleeing to another country (f) attempt lo make himself scarce by going underground or becoming unavailable to the investigating agencies and (g) attempts to put himself beyond the reach of his surety, etc.

12. It is noted in the instant case that pending investigations, an application under Section 437 of the Code was not moved before the learned Metropolitan Magistrate and such an application was moved under Section 439 of the Code before the Sessions Court on 4.7.2003. When the interlocutory order was passed on 9.7.2003, the charge-sheet was yet to be filed. On 22.8.2003, the charge-sheet came to be filed and the case was committed to the Sessions Court, the case was assigned to Court No, 53 by the learned Principal Judge on 23.9.2003. The learned Sessions Judge appears to have perused the charge-sheet, as is evident from paragraphs 19 and 20 of the impugned order. However, while deciding to release the accused on bail, there is no whisper regarding the seriousness of the offence registered against the accused and for which he is due to face the trial. The parameters considered by the learned Additional Sessions Judge in releasing the accused on bail are not the only parameters and it was incumbent upon the Court below to consider the seriousness of the offence and the obtaining circumstances, while deciding the application for regular bail.

13. In the case of Puran (supra), the offences registered were punishable under Sections 498A and 304(B) of the Indian Penal Code against the petitioner and other three ladies. Bail was granted by the Sessions Court on 13th November 2000. This order came to be challenged before this Court and by order dated 24th January, 2001, the bail orders were cancelled. While upholding the decision of this Court, in paragraphs 9 and 10 of the said decision, the Apex Court observed thus :

9. …One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without, giving any reasons. Such an order would be against principles of law. Interest: of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the Trial Court has to be corrected.

10. Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation….

In the case of Gurucharan Singh v. State (Delhi Admn.) it was held that under Section 439(2) of the Code, the approach should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere.

14. In the case of Ram Govind Upadhyay (supra), the Apex Court stated thus :

Grant of bail, though being a discretionary order – but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case.

While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime, the greater is the chance of rejection of the bail, though however, dependent on the factual matrix of the matter.

Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however, the same are only illustrative and nor exhaustive neither there can be any. The considerations being :

(a) while granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence In support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but: there ought always to be a prima facie satisfaction of the Court in support of the charge.

(d) 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. If the reasoning given by the learned Additional Sessions Judge in support of his order to release the accused on bail in the instant case is accepted, this would mean nothing short of granting premium to open their guns on innocent victims and their superiors by the privileged gunmen at their sweet will. Such a view will also pose a serious threat to the orderly behaviour of the uniformed force in addition to the entire social fabric. If a person opens fire in the circumstances that have been set out in the instant case, the seriousness of the crime must have utmost consideration while the accused is being released on bail. The influence of such incidents on the social order is also a factor, which must be kept in mind and, that, if convicted, the accused would undergo the sentence at an appropriate time cannot be a reason to release such accused person on bail while the trial is pending. 1 have no doubt in my mind that the learned Additional Sessions Judge fell in manifest error firstly by passing the interlocutory order dated 9.7.2003 and secondly, releasing the accused on bail by the impugned order dated 6.10.2003. This was not a fit case for the accused being released on bail. Time has come when the criminal justice system must also keep in mind the right under Article 21 of the Constitution of those, who have become the victims of such incidents, namely, the innocent family members of the deceased, while considering the rights of the accused.

16. For the reasons set out hereinabove, this application filed under Section 482 of the Code invoking the powers of this Court deserves to be allowed and the bail granted by the learned Additional Sessions Judge by the impugned order is required to be cancelled under Section 439(2).

This application is, therefore, allowed and rule is made absolute in terms of prayer Clause (a). It is further directed that the trial in Sessions Case No. 643 of 2003 shall be expedited and it should be completed as early as possible and preferably within a period of one year from receipt of the writ.

17. Mr. Memon, at this stage, has submitted an oral application praying for two weeks’ time to surrender. This has been opposed by the learned A.P.P., and the Additional Solicitor General. The request is considered and time of one week from today is granted to surrender.

18. Certified copy, if applied for, be supplied on priority.