The Trial Court cannot ignore the criteria laid down by the Supreme Court while granting bail: Manipur High Court
The Court must keep all these considerations in account when determining the bail application and the conditions set down by the Supreme Court cannot be ignored during the award of the bail. Merely because the presence of the accused can be secured at the trial, that is not the only factor that is required to be considered while granting bail. This auspicious judgment was passed by The High Court Manipur in the case of The State of Manipur &amp; ors vs LH Wolring &amp; ors [MC (Crl. Rev. P.) No. 1 of 2021] by Honourable Justice M.V. Muralidaran. The facts of the case are the respondents are actively indulging in various terrorist activities attempts and threats by the accused that will carry out the violent terrorist activities by use of illegal weapons which are believed to be in their possession. Some article we seize from their possession and they were produced before the CJM. The learned counsel for the petitioner argued that the learned CJM who decided the Bail Application at the initial stage, all the papers pertaining to the investigation were produced but the relevant papers were not considered by the CJM. In spite of this, without considering the stage of investigation or serious circumstances pointed against the respondents, it seems the learned Judge has entertained the applications and released the accused who are involved in a serious offence on bail. The learned counsel for the respondent vehemently argued that this Court should not interfere at this stage because the accused are already released on bail and bail should not be cancelled unless there is evidence on record that the accused are likely to tamper with the evidence or are likely to abscond.
P a g e | 1 IN THE HIGH COURT OF MANIPUR AT IMPHAL Crl. Revision Petition No. 20 1. The State of Manipur represented by the Chief Home) Government of Manipur Babupara Old Secretariat Building Imphal West 2. The Officer in Charge Investigating Officer Chandel Police Chandel Police Station Chandel District Manipur. Manipur. Petitioners VERSUS 1. LH Wolring aged about 68 years S o L.H. Khungvol resident of Lambung Village Chandel District Manipur. Langhu Manahring Anal @ David aged about 47 years S o L. Ango of Charongching Village Chakpikarong Sub Division. Kothingwar aged about 27 years S o Rt.Dalhring resident of Tamphi Village Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 2 SP Kolome Anal aged about 50 years S oSP Village Chakpikarong. With MC(Crl. Rev. P.) No. 21 Ref: Cril. Revision Petition No. 20 1. The State of Manipur represented by the Chief Home) Government of Manipur Babupara Old Secretariat Building Imphal West 2. The Officer in Charge Investigating Officer Chandel Police Chandel Police Station Chandel District Manipur. Manipur. Petitioners VERSUS 1. LH Wolring aged about 68 years S o L.H. Khungvol resident of Lambung Village Chandel District Manipur. Langhu Manahring Anal @ David aged about 47 years S o L. Ango of Charongching Village Chakpikarong Sub Division. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 3 Kothingwar aged about 27 years S o Rt.Dalhring resident of Tamphi Village SP Kolome Anal aged about 50 years S oSP Village Chakpikarong. Respondents HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner Mr. Lenin Hijam Addl. AG Ms. N. Tejpriya Advocate. Ms. H. Bisheshwari Advocate. For the Respondents Reserving Judgment Order Date of Judgment &Order :: JUDGMENT AND ORDER 1. The present Criminal Petition has been filed by the State of Manipur represented by the Chief Secretary in charge of Home challenging the order dated 17 12 2020 vide Ref. No. FIR No. 25(11)2020 CDL P.S. U S 153A 504 505 506 500 34 IPC & 4 Explosive Substance Act thereby releasing the accused person on bail without availing ample opportunity to the police to investigate the terrorist activities of the accused persons against whom many Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 4 incriminating things including documents Laptop computer hard drives involved in terrorist activities were recovered by the Police. Brief facts of the Case: a) The State of Manipur has been trying to its best to develop each and every District of Manipur particularly in the Hill Districts including the Chandel District. The persons are the resident of Chandel District who are actively indulging in various terrorist activities as indicated in the police investigation with incriminating evidences and there are a serious attempts and threats by the accused that will carry out the violent terrorist activities by use illegal weapons which are believed to be in their possession. b) The incriminating articles like laptops computer hard drives pen drives documents were seized from the respondents accused and they were produced before the Ld. CJM Chandel. The respondent accused namely LH Wolring who turned out to be one of the main accused was apprehended only on 15 12 2020 with the various Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 5 incriminating articles like laptops computer hard drives pen drives documents etc. And he along with the other accused SP Kolomi was remanded in police custody. And without affording ample opportunity to the police to investigate serious terrorist activities against the respondent accused the Ld. CJM Chandel by the impugned order released the accused on bail in the afternoon of 17 12 2020. 3. Challenging the impugned Order this Revision is filed by the State amongst the following other GROUNDS a. The Ld. CJM Chandel ought to have considered that accused namely LH Wolring who turned out to be one of the main accused was apprehended only on 15 12 2020 with the various incriminating articles like laptops computer hard drives pen drives documents etc. And he alongwith the other accused SP Kolomi was remanded in police custody by the CJM only in the evening of 15 12 2020 and therefore the Ld. CJM failed to consider that the police had only 1effective Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 6 working day i.e. only on 16 12 2020 investigation. And without affording ample opportunity to the police to investigate serious terrorist activities against the accused the Ld. CJM Chandel by the impugned order released the accused on bail the afternoon of 17 12 2020. Therefore impugned order dated 17 12 2020 is liable to be quashed and set aside. b. The Ld. Trial Court failed to consider the gravity of the case wherein various incriminating articles used for terrorist activities were seized by police. Therefore the Ld. CJM Chandel ought not to have released the accused on bail even before the police could investigate the terrorist activities. c. The Ld. Trail Court failed to consider that the accused have spreaded hatred amongst the various communities living in Chandel District they have loudly propagated communities living in the District will bombed and there are a serious attempts and threats by the Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 7 accused that will carry out the violent terrorist activities by use illegal weapons which are believed to be in their possession. Therefore the respondents accused are to be the sake of national State security as the offence relates to the terrorist activities in the District bordering Myanmar which is a terrorist hot bed in the region. d. The Ld. Trial Court has not given enough time to properly investigate the case involving section 4 of Expl. Sub. Act. 4. Therefore this revision petition is filed to set aside impugned order dated 17 12 2020 of the Chief Judicial Magistrate Chandel passed in Chief Judicial Magistrate Chandel in F.I.R. No 25(11) 2020 CDL P.S. U S 153A 504 505 506 500 34 IPC & 4 Expl. Sub. Act and to re arrest and detain the respondents accused in the judicial custody till the investigation of the case. 5. The fulcrum of this petition is the FIR registered against the respondents accused which is now at the stage of investigation and the grant of bail by the learned CJM therefore with the consent of learned counsel for the parties these petitions Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 common judgment. have been heard together and are being disposed of by this P a g e | 8 6. It is necessary to look in to the impugned order passed by the CJM. The operative portion of the impugned order is as follows “Sifting through the materials placed before me it is the pamphlets which allegedly contain incriminatory and inflammatory messages were seized from accused viz. Kothingwar and L.Monahring. From their instance and disclosure two other accused viz. L.H Wolring and SP Kolome Anal were arrested. These arrests were not random but each arrest is connected pamphlets. The contents of the pamphlets are likely to incite a class or community to commit any offence against another class or community. The pamphlets also contain threat of dire consequences. Therefore Sections 153A 505 and 506 are prima facie attracted. Similarly the said pamphlet names certain individuals and speak of them in an unsavory manner and thus appears to be scandalous and defamatory. Sections 500 and 504 are thus also made out. The Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 9 Pamphlets speak of a threat of bomb blast. It never was die case of the prosecution that the accused to cause explosion which would endangered lives. Section 4 of Expl.Sub.Act 1908 is therefore not made out. It is not the case of the prosecution that the custody of the accused is necessary for discovery. It is also not the case of the prosecution that custodial interrogation or confrontation of the accused persons is necessary. Merely because the other associates needs to be identified and arrested is not a viable ground to curtail the personal liberty of the accused particularly when adequate time has been granted qua the offences. Any electronic evidences that the prosecution says are required can be secured without the accused being in custody. The Cr.P.C gives the outer limit of 15(fifteen) days for P.C but extension of remand after initial remand period should be granted only on justifiable grounds. The prosecution has failed to show such ground(s). Bald statement that the accused are not cooperating does not suffice. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 10 To recapitulate prima facie case against die accused persons other titan Section 4 of Expl.Sub.Act exist. Be that as it may given the nature of offences alleged and the punishment that could entail it is the considered view of this Court incarceration of the accused is not necessary. Taken into account in deciding the applications is also the fact that there are no reasons to believe that the accused are flight risk or will hamper investigation or that they would influence witnesses. Under the aforesaid facts and circumstances the principle of bail not jail must take priority. All things considered the prayer of the IO is rejected. Corollary the bail applications stands allowed.” 7. It should be noted that before the learned CJM who decided the Bail Application at the initial stage all the papers pertaining to investigation were produced but the relevant papers were not considered by the CJM while allowing the application. To this Court also some papers were shown and this Court considered the same. In spite of this without considering the stage of investigation or serious of circumstances pointed against the respondents accused it seems the learned Judge has entertained Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 11 the applications and released the accused who are involved in a serious offence on bail. This can hardly be said to be new ground for revising the order passed by the Court of co ordinate jurisdiction or to ignore the order passed by this Court. 8. The learned Advocate appearing on behalf of the the aforesaid revision applications submitted that even though the offence is serious yet this Court should not interfere at this stage because the accused are already released on bail and bail should not be cancelled unless there is evidence on record that the accused are likely to tamper with the evidence or are likely to abscond. 9. In all the learned Advocates who are appearing on behalf of the respondents accused vehemently relied upon the decision of the Kerala High Court in the case of Shanu v. State of kerala and submitted that unless the Court arrives at the conclusion that the accused would not be readily available for their trial and they were likely to abuse the discretion in their favour by tampering with the evidence the Court should not cancel their bail which is granted by the CJM by exercising its discretion. They further submitted that the approach of the Court in the matter of bail is to see that the accused should not be detained by way of punishment Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 12 and if the presence of the accused could be readily secured at the time of trial then the order of bail should not be cancelled. 10. It is necessary to quote the judgment of the Kerala High Court under below Though the offences punishable under the provisions of the S.C. & S.T. Act are made triable by the Special Court presided over by a Sessions Judge considering the peculiar nature and circumstances under which those cases are registered and tried with regard to atrocities perpetrated against the downtrodden and weaker sections of the society the offences punishable under the 15 subsections under sub s.of S. 3 of the Act are punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. The offences punishable under sub s.of S. 3 of the Act relate to graver offences. In this case as already noted the offence alleged against petitioners is only punishable under S. 3(1)(x) of the S.C. & S.T.Act for which the maximum sentence prescribed is imprisonment for five years and with fine. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 13 6. In the decision in Satyan v. State of Keralathis Court considered the question whether the refusal to grant bail by the J.F.C.M. in an offence punishable under S. 326 of I.P.C. on the the offence is punishable with imprisonment for life is justified or not and held that so long as the offence punishable under S. 326 is triable by a Magistrate of the First Class there is no reason why it should be viewed differently in the matter of granting bail from an offence punishable under S. 420 of I.P.C. for which the punishment extends to imprisonment for 7 years or any other non bailable offence for which the punishment is a term of imprisonment. 7. In a subsequent decision reported in Chellappan v. State of KeralaK.L.T. 435) this Court relying upon the above decision reportedin 1981 K.L.T. 606 held that the Magistrate has jurisdiction to grant bail if the offence is not punishable with death or imprisonment for life in the alternative under S. 437(1) of the Cr. P.C. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 14 that case the question that arose consideration was whether the Second Class Magistrate had jurisdiction to grant bail to the accused in Crime No. 16 87 registered by the Aranrnula Policealieging offerices punishable under Ss. 143 147 148 332 225 307 and 427 r w 149 I.P.C. and S. 3(2)(c) of the Prevention of Damage to Public Property Act with certain conditions. The State filed Crl. M.P. 32 87 before the Sessions Court seeking to cancel the bail granted by the learned Magistrate and the Sessions Court allowed the application and cancelled the bail granted to the accused. That order was challenged by the accused before this Court in that Crl. M.C. In para 3 of the order a single Judge of this Court has observed as follows: “In passing the order the learned Sessions Judge held that the Magistrate has overstepped his jurisdiction and has violated the mandatory provisions contained in S. 437(1) of the Cr. P.C. The view taken by the learned Sessions Judge is wrong in the light of the decision of this Court in Satyan v. State of Kerala 1981 KLT 606) and also an unreported decision in Crl. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 15 M.C. No. 4484. In both these decisions it was held that the Magistrate has jurisdiction to grant bail if the offence is not punishable with death or imprisonment for life in the alternative. In Crl. M.C. No. 4484 the offence against the accused was one under S. 436 I.P.C. which was exclusively triable by the Court of Sessions. Therefore the view taken by the learned Magistrate that he has powers to grant bail in the instant case is correct.” 9. In the above decision this Court has held that even though offence punishable under S. 307 of I.P.C. exclusively triable by the Sessions Court was also alleged the Magistrate s Court has got jurisdiction to grant bail under S. 437(1) of the Cr. P.C. since the offence is not punishable with death or imprisonment for life in the alternative. 10. As already noted the 15 offences enumerated under sub s. of S. 3 of the S.C. and S.T. Prevention of Atrocities) Act are punishable with maximum imprisonment of five years and with fine though the offences are triable by the Special Court which is the Sessions Court. Therefore applying the Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 16 principles enunciated in the decisions of this Court referred to above it is clear that the J.F.C.M. s Court has got jurisdiction to grant bail to the persons accused of the offence punishable under any of the sub cls.toof sub s.of S. 3 of the Act. In this case the offence alleged against the petitioners is punishable under S. 324 of I.P.C. and S. 3(1)(x) of the S.C. and S.T.Act. Therefore it follows that the J.F.C.M. s Court has got jurisdiction to grant bail to the accused under S. 437(1) of the Cr. P.C. irrespective of the fact that the case is triable by the Special Court which is the Court of Session. Hence the learned Magistrate is directed to enlarge the petitioners on bail on appropriate conditions he deems necessary in case the petitioners surrendered or arrested and produced before the court and moved for bail. The Crl. M.C. is allowed as above. 11. It is true that normally this Court would be slow in interfering with the discretionary order granting bail to the accused. It is equally true that one of the paramount considerations for the Court at the time of cancelling bail in this revision would be whether Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 17 the accused would be readily available for their trial and whether they are likely to abuse the discretion granted in their favour by tampering with the evidence. But at the same time the Court has also to consider the other relevant aspects in the matter before granting bail. The Court is required to exercise the discretion of granting bail judicially after following the well laid down principles. If the CJM has ignored the said criteria of deciding bail application either intentionally or arbitrarily then this Court has jurisdiction to set aside the said order. It is not the law that once the accused is released on bail on erroneous ground till he tampers with the evidence or till he absconds the High Court has no authority to interfere with the said order. In each case the Court is required to consider the reasonable apprehension of the prosecuting agency depending upon the facts of each case. The CJM is subordinate to the High Court and it is always open to the State Government to point out to the High Court that the order passed by the CJM is arbitrary or illegal one or it suffers from any serious infirmity and the High Court would have jurisdiction to set aside the said order. 12. The criteria for deciding bail application and the jurisdiction of the High Court would be clear from the catena of Hon’ble Supreme Court decisions and of this Court which are referred to hereinafter. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 18 13. In the case of T.H. Hussain v. M.P. Mondkar the Hon’ble Supreme Court has held that the High Court has inherent power to cancel the bail granted to a person accused of a bailable offence and in a proper case such power can be exercised in the interest of justice. The Court has further observed that if a fair trial is the main objective of the Criminal Procedure any threat to the continuance of a fair trial must be immediately arrested and the smooth progress of a fair trial must be ensured and this can be done if necessary by the exercise of inherent power. The Court has further held that if the accused person by his conduct puts the fair trial into jeopardy it would be the primary and paramount duty of the Criminal Courts to ensure that the risk to the fair trial is removed and Criminal Courts are allowed to proceed with the trial smoothly and without any interruption or obstruction and this would be equally true in cases of both bailable as well as non bailable offences. The Court has further held that by exercising inherent power the Court can cancel the bail. 14. In the case of State v. Captain Jagjit Singh the Court has laid down certain guidelines while considering the bail application and set aside the bail granted by the High Court by holding that the High Court has not taken into consideration the relevant factors and the fact that the matter was relating to non Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 19 bailable offence under Section 3 of the Indian Official Secrets Act 1923. The Court has observed that when prima facie case has been found against the accused that he is involved in a non bailable offence while granting bail the Court should take into consideration i) the nature of the offence if the offence is of a kind in which bail should not be granted considering its seriousness the Court should refuse bail even though it has very wide power under Section 498 of the Criminal Procedure Codethe nature and seriousness of the offence the character of the evidence circumstances which are peculiar to the accused iv) a reasonable possibility of the presence of the accused not being secured at the trial reasonable apprehension about the witnesses being tampered with the larger interests of the public or the State andsimilar other consideration which arise when a Court is asked for bail in a non bailable offence. The aforesaid decision of the Hon’ble Supreme Court is all throughout followed until now and therefore while granting bail the Court should take into consideration all the aforesaid criteria laid down by the Hon’ble Supreme Court. The trial Court or this Court cannot ignore the Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 20 criteria laid down by the Supreme Court while granting bail and all these factors should jointly be taken into consideration while deciding the bail application. Therefore merely because the presence of the accused can be secured at the trial that is not the only factor which is required to be considered while granting bail. 16. into consideration the aforesaid observations of the Hon’ble Supreme Court in the decisions mentioned above it can be said that following factors are the relevant factors which are required to be taken into consideration for deciding bail application: 1) The nature of the case is the vital factor and the nature of the stage of investigation is also pertinent. 2) The collection of incriminating materials to which the accused is linked may be liable if convicted. 3) While considering the question of granting bail under Section 439(1) of the Criminal Procedure Code the Court should take into consideration the provisions of Section 437(1) in spite of the fact that under Section 439(1) the High Court and Sessions Court have wide jurisdiction to grant bail. 4) The nature and gravity of the circumstances in which the offence is committed say terrorist offences highway Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 21 robbery or dacoity gang rape murder or murders because of group rivalry attack by one community on other community or such other cases. 5) The position and the status of the accused with reference to the victim and the witnesses say in case of burning of house wife witnesses may be neighbours their evidence might be tampered with by any means. 6) The reasonable possibility of the presence of the accused not being secured at the trial. Apart from this it is the main argument advanced by the learned Addl.AG Mr. Lenin Hijam that though the petitioners were arrested and remanded into judicial custody only on 15.12.2020 in the evening by the learned Chief Judicial Magistrate and without issuing any notice to the I.O. or the respondent police seeking the objection has simply granted the bail to all the accused on the very next day i.e. 17.12.2020 which is totally against the natural justice. It is made clear that on fair reading of the order passed by the learned Judge that the learned Chief Judicial Magistrate has exceeded his limits without following the natural justice and without giving fair opportunity to the Prosecution to put forth their objection Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 22 had simply granted the bail with explanation and dealing each provision in his order. The learned CJM is bear in mind that he is not passing the final order after conducting the trial for discussing the maintenance of each offences registered by the State Police but it is only for bail. The learned Chief Judicial Magistrate also without giving proper opportunity to the petitioners State has mentioned in the order that the Prosecution has failed to show that the custodial interrogation or confrontation of the accused person is necessary. The learned Chief Judicial Magistrate also mentioned in the order that the pamphlet speaks of a threat of bomb blast and further mentioned that it was never the case of the Prosecution that the accused confined to cause explosion which would endanger lives and hence Section 4 of Explosive Substance Act 1908 is therefore not made out. This statement of the learned Chief Judicial Magistrate is not proper and without getting any reply from the Prosecution he cannot simply stated in the order by mentioning with that the provisions under Section 500 and 504 IPC and under Section 4 of the Explosive Substance Act 1908 is not made out. Therefore the very order of the learned Chief Judicial Magistrate dated 17.12.2020 granting bail to the accused that too Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 23 within one day from the remand of their custody and without getting the objection from the Prosecution that too also without filing any proper bail application by the accused is totally wrong. 22] In my view the Special Acts and its provisions to be followed in dealing with the arrest remand committal and trial of the accused who were charged with the offences under the said special act. Therefore the judgment of the Kerala High Court is on different perspective and facts of the case is quite different. Moreover only the concerned special court alone has the jurisdiction in granting bail and the CJM exceeded its jurisdiction. 23] In the result a) this Crl.Rev.P.No.6 of 2020 is allowed by setting aside the order passed by Learned Chief Judicial Magistrate Chandel in FIR No.25(11) 2020 CDL P.S. U s.153 A 504 505 506 500 34 of IPC and 4 Expl. Sub.Act dated 17.12.2020. b) petitioner officer in charge Investigating Officer Chandel Police Station Chandel District Manipur is directed Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 24 to re arrest the Respondents Accused and to remand into Judicial Custody. c) the petitioner in M.C.(Crl.Rev.P.) No.1 of 2021 is closed. d) the petitioners State are permitted to move before the Learned Chief Judicial Magistrate Chandel for police custody and for further proceedings. 24] Registry is directed to issue copy of this order to both JUDGE the parties. FR NFR Sushil Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 