Sagir Ahmad vs The State of Bihar

S.B. Sanyal, J.—While hearing the bail petition of Sagir Ahmad in this application the Court refused to grant bail to said Sagir Ahmad and called for a report from the Sessions Judge as to under what circumstances accused Seth Mian was granted bail in proceeding u/s 366 of the Indian Penal Code punishable to rigorous imprisonment for ten years. On a perusal of the records of the case this Court passed an order on 20.3.85 issuing notice to Seth Mian as to why the order granting bail to him be not cancelled: The prosecution case is that some Hindu ladies of the village went to visit a temple and were participating in puja-path, Seth Mian along with a few others came to the temple premises. Seth Mina focussed torch on the faces of the ladies participating in puja-path and picked up a married lady and a young girl from the temple. When the mother of the victim girl, objected to the kidnapping she was assaulted. Seth Mian and others thereafter released the married lady after having looked to the feature but they became traceless with the young girl. From the prosecution case it appears that the main role has been assigned to Seth Miau.

On 26.2.1977 the bail petition filed on behalf of Sagir Mian and Nanhe Mian, the companions of Seth Mian, was rejected by the Chief Judicial Magistrate as the case appeared to be very serious in nature. On 8.3.1977 Mr. S.M.M. Alam, the then District and Sessions Judge, however, granted bail to Nanhe Mian and Sagir Mian by observing "In my opinion in view of the nature of the allegation made above in the case, the petitioners cannot be legitimately detained in custody". Thereafter an application for grant of bail to Seth Mian was filed in the court of the than Chief Judicial Magistrate Sri Bhagwan Prasad. The Chief Judicial Magistrate by his order dated 28.3.77 granted bail to Seth Mian on the sole reason as observed hereunder :

"Since allegation agaient this accused is similar to the allegation against accused Nanhe Mian and Sagir Main, who have been enlarged on bail by the learned Sessions Judge on 8.3.77, the bail petition of the accused Seth Mian is allowed."

On 16.4.77 the Chief Judicial Magistrate also allowed bail to another accused Bijai Grii stating that he was also similarly situated but adding an additional ground that the victim girl has sworn an affidavit to the effect that the accused persons have not committed any offence as alleged.

Sagir Ahmad jumped bail and he was arrested. He was, however, released on provisional bail by the 5th Additional Sessions Judge and when the matter of the provisional bail came to be affirmed by the District and Sessions Judge, Sri A.B. Prasad, the learned District and Sessions Judge observed as hereunder :

"The subsequent order-sheet till 29.3.84 does not indicate as to on what ground his provisional bail was being extended uncalled for. On 29.3.84 he even misused his privilege of provisional bail and absented himself without any reason. The contention has no basis since on subsequent date also he remained absent at Siwan also. The order sheet dated 6.7.82 indicates that he is a habitual defaulter also.......... A perusal of fard-beyan indicates that he was one of the main accused who kidnapped the victim girl in presence of her mother, assaulted her mother and made the girl traceless who had gone to worship at Thawey. The prayer for bail is rejected. Let the accused be remanded to the jail custody."

Against this order, as stated earlier, Sagir Ahmad came for grant of bail in this application and while refusing bail to him the Court issued notice to Seth Mian to show cause as to why his bail order be not cancelled.

In his report dated 12.3.85 Sri A.B. Prasad, District and Sessions Judge, has stated that Sri Bhgwan Prasad, the then Chief Judicial Magistrate, granted bail to Seth Mian on an assumption that the allegation against him is similar to that of Nanhe Mian and Sagir Ahmad. So he allowed bail to Seth Mian. The learned Sessions Judge has obseved; "But a perusal of the F.I.R. would indicate that accused Seth Mian had played the main role in committing the offence".

In spite of the show cause notice issued, Seth Mian did not file any affidavit but appeared through his lawyer Sri Ramanuj Mishra and Sri Angad Ojha.

Learned counsel for Seth Mian contended that in view of a series of decisions of the Supreme Court the relevant consideration for rejection of bail when bail is applied for is altogether different from proceeding to cancellation of bail already granted. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Learned counsel referred to the decisions of The State through the Delhi Administration v. Sanjay Gandhi (A.I.R. 1978 Supreme Court 961). Gurucharan Singh v. State (Delhi Administration) (A.I.R. 1978 SC 179) as well as to the case of Bashir and Others Vs. State of Haryana, and the case of Bhagirathsinh Judeja Vs. State of Gujarat, . These cases lay down that Court should be circumspect in cancelling bail to a person who has been able to obtain bail and there must be very cogent and overwhelming circumstance necessary for an order seeking cancellation of the bail. One of (he consideration is whether the presence of the accused would be readily available for his trial or that the is likely to abuse the discretion granted in his favour by tempering with evidence. 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 a fair trial to allow the accused to retain his freedom during the trial. In Bashir''s case (supra) while considering the provisions of section 437(5) and section 167(2) of the Code of Criminal Procedure it was observed that while exercising jurisdiction u/s 437(5) directing the arrest of the accused the Court comes to the conclusion after the filing of the challan that there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody, it can pass such an order. "It may also order arrest & committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interest of justice". Under the new Criminal Procedure Code power to cancel bail has been conferred on the High Court u/s 439(2). This provision is little different from its predecessor inasmuch as where bail was granted by the Court of Session it was only the Court of Session that could commit the said person to custody but under the new Code the power has been vested in the High Court to cancel bail to a person who has been released on bail by the Sessions Court. Section 439(2) reads as hereunder :--

"A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody".

This sub-section is not hedged by any conditions. Section 437(5) which relates to the power of cancellation of bail to the Court which has granted bail reads as hereunder :-

"Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that, such a person be arrested and commit him to custody."

In the case of Pokar Ram v. State of Rajasthan (A.I.R. 1985 Supreme Court 969) while cancelling the grant of anticipatory bail in a murder case, the Supreme Court observed :-

If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken. There fore, we have no option but to cancel the order granting anticipatory bail."

Bearing in view the law laid down in the aforesaid cases, this Court is required to move in the matter cautiously. It is needless to point out that when Court is conferred with the discretion to grant bail in serious cases it has also to exercise its discretion on relevant consideration and not matters not germane to the determination of the question for the exercise of powers conferred u/s 437 and/or section 439 of the Code of Criminal Procedure. The High Court when it comes across a case of miscarriage of justice it has been conferred with the power to arrest an accused and commit him to custody even though the power u/s 439(2) is very wide. Justice has to be administered in a manner equal to the offender as well as to the faith of public in administration of justice. If this Court as a superior Court comes across an order of a lower court exercising discretion conferred u/s 437 and founded its order on irrelevant considerations and consideration not germane, in my opinion, the power conferred upon this Court u/s 439(2) can be exercised in the interest of justice or else, in my opinion, section 439(2) of the Code of Criminal Procedure will be a dead letter.

Mr. Alam, the then District and Session Judge, who allowed bail to Sagir and Nanhe, came to view the case as a simple case of kidnapping even though the persons belonging to another community trespassed into a temple where females of another community were worshipping and by looking to the feature of the ladies participating in puja-path picked up the one who in their opinion appeared to be the prized girl by assaulting her mother and the other helpless ladies objecting to the highhanded lawlessness. The succeeding District and Sessions Judge Sri A.B. Prasad viewed the case with extreme gravity and refused to grant bail to Sagir Ahmad, one of the accused, who had undergone cancellation for jumping bail.

Two reasons have been assigned by the Chief Judicial Magistrate for granting bail to Seth Mian, the person as against whom the cancellation proceeding has been initiated. They are-(a) the role played by Seth Mian is same and similar to'' the other accused persons and (b) since the other accused persons have been granted bail, therefore he should be admitted to bail. I will presently show the non-existence of the grounds whereupon the bail order of Seth Mian was founded. A perusal of the F.I.R. would show that it was Seth Mian Who focussed torchlight on the face of Lalmatia, the victim girl and dragged her away from the temple. The other accused persons came later. It was at his instance that the mother of the girl was assaulted and those who raised hulla were not spared. It was an error of record on the part of the Chief Judicial Magistrate to state that Seth Mian''s role was same and similar to other accused persons who were released on bail by the learned District and Sessions Judge. The other ground is that because Sagir Ahmad had been granted bail Seth Mian also deserved to be granted bail. But the bail of Sagir Ahmad was rejected by the Sessions Judge because of the gravity of the crime committed by him and his bail was similarly dismissed by the High Court. It will, therefore, be seen that both the grounds which formed the basis for grant of bail to Seth Mian are irrelevant. I further do not approve of the reason given by Sri Alain that it is a simple case of kidnapping. On the contrary, the offence alleged has a serious communal overtone and might have led to disturbance of public order. The observation of Sri Alam that it was a simple case of kidnapping and, therefore, they should be released on bail clearly, in my opinion, is not a sound exercise of discretion. Sri Alam''s successor also did not feel it to be a simple case but a case of grave public concern while refusing bail to Sagir Ahmad. I may state here that after some of the accused persons were released on bail an affidavit of the victim girl was produced for consideration of bail of one of the absconding accused Bijai Giri and the learned Chief Judicial Magistrate has referred to an additional reason, namely, the affidavit of the victim girl while granting bail to Bijai Giri lastly. It is, therefore, manifest that one of the accused while at large has been able to procure affidavit from the victim girl who is a witness in the case. It cannot be said that the girl has volunteered the affidavit and handed it over to the accused persons.

The power of High Court u/s 439(2) qua an order passed by the court below granting bail, in my opinion is little wider than the power exercisable by the court which has granted bail since section 437(5) is hedged by the words "if it considers it necessary so to do". The High Court''s power even in relation to cancellation of bail to a person admitted to bail by the lower court is supervisory in nature and the High Court in exercise of this power car correct an illegality committed by the court below. If the High Court comes across a case where there has been misuse of discretion by the court below or the order is founded on irrelevant considerations or by committing error of record and by ignoring relevant considerations, the High Court may set aside that order and commit the per-son concerned to custody. This power, however, should be exercised cautiously and only in the larger interest of the public or the State and to maintain the faith of the public in the administration of justice. I have indicated above that the reasons given by the Chief Judicial Magistrate are non-existent and irrelevant. I have further shown that Sri Alam, the then District and Sessions Judge, treating the case to be a simple case of kidnapping had not approached the matter objectively while exercising power u/s 437. I have also indicated that the victim girl has been tampered. For tie said reasons and to maintain fairness in the trial and larger public interest, 1 am of the opinion that Seth Mian should be committed to custody and the bail granted to him deserves to be cancelled. I, however, direct that the sessions trial should be completed within six months from the date of the receipt of the records from this Court. The office if directed to remit the records forthwith. Any observation made in this order must not affect the merit of the case and the court below should proceed with the trial wholly uninfluenced by this order.