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1980 (7) TMI 275

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..... cutta to contain sweet lime .. The 59 cases as also the 263 cases of fruit and the said truck were seized under the Customs Act, 1962. The said Laxman Kumar Mishra and his brother Bijoy Kumar Mishra were arrested. Interrogation of Laxman Kumar Mishra and Bijoy Kumar Mishra revealed that the petitioner Kamal Kishore Chadha had visited Calcutta towards the end of March 1980 or in the beginning of April 1980 and he had contacted them at Calcutta and planned out the operation of smuggling out of snake skins to Bangla Desh and from Bangla Desh to London. It further transpired that the petitioner had again visited Calcutta on 22-1-1980 to finalise the arrangements for smuggling out the snake skins. 4. On 17-7-1980, the Deputy Director of Revenue Intelligence, Zonal Unit, Calcutta, intimated the Deputy Director of Revenue Intelligence, Bombay, on telephone the above matter. On 18-7-1980 follow up action was taken at Bombay and among the place that were searched by the Officers of the D.R.I. were the residential premises of one Mangal Chand Bhandari at Talamkiwadi, Tardeo, Bombay. At the time of search Mangal Chand Bhandari was not at his residence. In the search, 27 snake skins were foun .....

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..... earned Magistrate after considering the submissions made before him on both the sides passed an order directing the petitioner-accused to be released on bail in the sum of ₹ 2,00,000 with one surety or cash deposit of ₹ 1,00,000/- on condition that the accused shall not leave Bombay without the permission of the Court and that he shall attend the D.R.I. Officer every day between 11-00 a.m. and 5.00 p.m. The learned Magistrate also recorded that the passport of the accused was already impounded. 7. As against the said order, the D.R.I. preferred Miscellaneous Criminal Application in the Court of Session for Greater Bombay for cancellation of bail under S. 439(2) of the Cr.P.C. 1973, (hereinafter referred to as "the new Code"). The learned Sessions Judge, however, felt that the learned Metropolitan Magistrate displayed "total lack of application of mind". He, therefore, passed an order as follows : "(i) The respondent No. 1 is ordered to be arrested and committed to judicial custody. (ii) This order shall remain operative for a period of one fortnight. (iii) The respondent No. 1 shall produced before the Chief Metropolitan Magistrate on 24- .....

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..... ns Judge expected the learned Magistrate to pass on 24-7-1980, i.e., the very next day of the order cancelling the bail was passed by him, has not been clarified. So also, what order the learned Magistrate was expected to pass on 31-7-1980 in spite of the order of the learned Sessions Judge being operative till 6th August, 1980, has not been stated by the learned Sessions Judge. What was the reason for passing such a curious order, which required the learned Magistrate to pass orders on these two dates, viz., 24-7-1980 and 31-7-1980, has remained to be clarified. Passing orders of this nature, which is prone to create confusion and complications, should have been avoided. 9. Shri Jethmalani, learned counsel appearing on behalf of the petitioner accused, has contended that the learned Sessions Judge has failed to appreciate that the offence in the present case, though a non-bailable offence, is an offence not punishable with death or life imprisonment and, therefore, in respect of these types of offences bail is a rule. Shri Jethmalani has argued that the learned Sessions Judge has failed to appreciate the dichotomy created in regard to non-bailable offence in S. 437(1) of the new .....

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..... ant supports Shri Jethmalani, and that in the order that has been passed by the learned Sessions Judge not a single authority has been referred to. 11. On merits Shri Jethmalani has argued that the petitioner-accused was arrested on 19-7-1980. He was produced before the learned Additional Chief Metropolitan Magistrate on the same day and he was released on bail on the next day, i.e., 20-7-1980. According to Shri Jethmalani the petitioner-accused has observed all the conditions of bail. Therefore, there was no reason for the learned Sessions Judge to have cancelled the bail order which could have been done on the ground that any condition has been contravened. Shri Jethmalani has further argued that the statements of Bijoy Kumar Mishra and his brother Laxman Kumar Mishra are after all statements of accomplices. Though their statements are evidence under Section 108 of the Customs Act, 1962, nevertheless, the probative value of such evidence is still to be gathered from S. 31 of the Evidence Act and the salient feature of law that this evidence should not be acted upon as a matter of prudence without sufficient corroboration would, in this case also, hold good and except for the sta .....

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..... ailable and was arrested. Can it, therefore, be said that Mangal Chand Bhandari absconded because of the petitioner ? Can it, therefore, be said that the petitioner-accused has the knowledge as to where Bhandari is ? To attribute knowledge to the petitioner and the alleged tampering of witnesses by the petitioner-accused, under the facts and circumstances of this case, is grossly erroneous. The petitioner-accused was released on bail in the watch contraband case, but no allegation has been made that in the Delhi watch contraband case the petitioner has tempered with the evidence. Had the petitioner done so, even to a minutest extent, the D.R.I. authorities would not have hesitated to make an application for cancellation of bail; but no such application has been made. What is the ground, therefore, for the prosecution to say that their investigation would be hampered if the petitioner-accused is directed to be released on bail ? Having posed this question, Shri Jethmalani proceeded to answer the question by stating the prosecution has not alleged any ground and has no such ground. Shri Jethmalani has then argued that if the statement of Bijoy Kumar Mishra as disclosed in the applica .....

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..... the High Court for cancellation of bail and that this giving of independent jurisdiction itself shows that in a given case, the Sessions Court will cancel bail. According to Shri Samant, the giving of independent jurisdiction to the Sessions Court itself shows that although the Sessions Court is not sitting in revision over the orders passed by the Magistrate it could apply its mind independently and could come to its own conclusion whether the accused person should any longer remain free or whether his bail should be cancelled. Shri Samant has then argued that if the Sessions Court comes to a conclusion that the bail ought not to have been granted, the Sessions Court would be justified in cancelling the bail, as the principle that once bail is always a bail unless supervening circumstances intervene, is principle which is not applicable to the facts and circumstances of the present case. In the present case, according to the prosecution, a co-accused is yet to be traced and if the petitioner-accused is released on bail, there is every likelihood that the petitioner-accused would sound the co-accused and thereby hamper investigation. Shri Samant has relied upon the decision of the .....

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..... be released on bail. 13. On merits Shri Samant has argued that the petitioner-accused's brother by name Shashikumar Chandha was traced at the residence of Mangal Chand Bhandari in or about June 1979 and this shows that Mangal Chand Bhandari is a close associate of the petitioner and his brother Shashikumar Chandha. He has also referred to the finding of 27 snake skins in the house of Mangal Chand Bhandari and he has argued that this also shows that the petitioner-accused and Mangal Chand Bhandari are close associates and the complicity of Mangal Chand Bhandari in the commission of the offence of smuggling snake skins cannot be ruled out. He has then referred to Mangal Chand's presence at Calcutta in the company of the petitioner-accused in or about March and April 1980 and this also shows the petitioner's close association with Mangal Chand Bhandari and for all these reasons the order cancelling bail should (not) be set aside. 14. Shri Jethmalani has rejoined and he has argued that S. 437 of the new Code applies even at the investigation stage and, therefore, the offence, though non-bailable, being one of the lesser kind, bail is the Rule and refusal to grant bail wo .....

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..... the three decisions cited by Shri Samant, viz., of Gujarat High Court in Hirasingh Kesarisingh Solanki's case (1976) GLR 844, of the Punjab and Haryana High Court in Onkar's case 1973 CriLJ 44 and Jagjit Singh's case, and has contended that all those cases were decided prior to the decision of the Supreme Court rendered in Sanjay Gandhi's case 1978 CriLJ 952 (supra) and that, therefore, the ratio of those decision is no longer good law. Shri Jethmalani had finally contended that if the order of the learned Sessions Judge is looked into, it will be noticed that the argument advanced before the learned Sessions Judge that because Bhandari is absconding and is not traceable, the bail of the petitioner-accused should be cancelled has not found favour with the learned Sessions Judge. Had it been so, the learned Sessions Judge would surely have stated so in his judgment. The fact that no mention of this argument has been made in the judgment shows that it has not found favour with the learned Sessions Judge. 15. Section 437 of the new Code empowers the Magistrate to release a person accused of a non-bailable offence and produced before the Magistrate to release him on b .....

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..... n bail and after the charge-sheet was filed, the State moved the High Court under Section 439(2) of the new Code for cancellation of bail and the bail bonds furnished by the appellants were cancelled. The appellants moved the Supreme Court against that order. After considering the provisions of S. 437 of the new Code and the provisions in regard to the non-bailable offence punishable with death or imprisonment for life, the Supreme Court proceeded to consider the non-bailable offences in other cases and it was observed at page 135 (of Cri LJ) : (at p. 185 of AIR) :- "In other non-bailable cases the court will exercise its judicial discretion in favour of granting bail subject to sub-section (3) of S. 437, Cr.P.C., if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the court which may defeat proper investigation and a fair trial, the court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life." In regard to the power of the High Court and the Court of Session as provided in S. 439(1), the Supreme Court observed at page 135 (of Cri LJ) : (at p. 186 of AI .....

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..... of this basic error into which the High Court fell that this Court interfered with the order of bail granted by the High Court." 17. In Sanjay Gandhi's case, 1978 CriLJ 952, the Supreme Court has stated :- "Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the interference that the accused has won them over ........................ the objective fact that witnesses have turned hostile must be shown to bear a casual connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused ......... It is theref .....

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..... ntry, or goes underground, or beyond the control of his sureties. (5) If he commits acts of violence, in revenge, against the police and the prosecution witnesses and those who have booked him or are trying to book him. In the present case, the order of bail has been challenged by the prosecution on a twofold ground : (1) Conduct prior to the alleged commission of the offence in the present case; and (2) tracing of an accomplice. There is no third ground made out. The various grounds which are stated in the remand application and in reply to the application for bail are only stated to disclose the material before the prosecution showing the complicity of the petitioner-accused in the commission of the offence. For example, the search at Rohit Enterprises Office in which the telephone bills were recovered, and the statements of the two accomplices Bijoy Kumar Mishra and his brother Laxman Kumar Mishra. These statements, the search, the finding of incriminating materials, all these relate to the complicity of the accused in the commission of the offence. They do not relate to the conduct of the accused in the course of investigation of the offence and in considering bail one cannot .....

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..... prosecution by the petitioner-accused. In fact, Mangal Chand Bhandari absconded even before the petitioner-accused was arrested. The petitioner-accused was already released by the learned Magistrate on bail and was out for one day. If at all anything the petitioner-accused would do, as the prosecution apprehends the same in all probability must have already been done. The learned Sessions Judge should have approached the matter with a greater circumspection. The learned Sessions Judge has observed that in granting bail, the learned Magistrate has acted in great haste and it appears to be premature. This observation of the learned Sessions Judge seems to have been made in all probability because a similar argument was advanced before me on behalf of the prosecution that the learned Magistrate granted bail on Sunday, a day which was a holiday. The learned Magistrate was in Court sitting as a holiday Magistrate. Sunday or holiday sitting is not an idle formality and if the learned Magistrate felt that a citizen's liberty should not be curtailed even for one day, it will be improper to allege that the Magistrate acted in haste. In fact, the petitioner-accused was produced before th .....

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