Shri Mohan Fal Dessai vs State and Shri Prakash Shankar Velip

A.P. Lavande, J.—Heard Mr. De Sa, learned Counsel for the petitioner, Mr. Nadkarni, learned Senior Counsel for respondent nos.1 and 2 and Mr. Lotlikar, learned Senior Counsel for respondent no.3 in all the applications. By these applications u/s 439(2) of Cr.P.C., the petitioner seeks cancellation of bail granted to accused/ respondent no.3 by order dated 11th August, 2011 passed by the learned Principal Sessions Judge, South Goa, Margao in Bail Application Nos.176/2011, 177/2011 and 178/2011.

On 25th May, 2011, at about 3.45 hours, the officer in-charge of Cuncolim Police Station lodged F.I.R. to the effect that at Balli Junction at Quepem about 2000 agitators had committed offences punishable under Sections 143, 147, 148, 341, 435, 188, 332 and 307 read with Sections 149 and 120B of I.P.C. and Section 3 of Prevention of Damage to Public Property Act. The same was registered vide Crime No.37/2011. It is the case of the prosecution that the mob assaulted the police personnel and caused damage to the property including Government vehicles. The names of the respondent no.3 in all the applications appear in the F.I.R. Some of the accused were arrested during investigation. It is further the case of the prosecution before this Court that on 5th August, 2011 respondent no.3 in all the three applications came near the office of Superintendent of Police, Crime Branch, Dona Paula and demanded arrest of all the UTAA members. Thereafter, respondent no.3 in all the three applications surrendered before the Crime Branch and they were arrested. It appears that all the three of them were taken to Goa Medical College for medical examination and were admitted in the hospital where they remained for some time. Thereafter, they were remanded to judicial custody. In the applications for bail filed by them, replies were filed on behalf of respondent no.2 giving no objection for release on the ground that they were not required in custody for investigation. Pursuant to the no objection given by the prosecution, the learned Principal Sessions Judge granted bail upon terms and conditions mentioned in the three orders dated 11th August, 2011 passed in the three bail applications.

The petitioner, feeling aggrieved by the grant of bail to respondent no.3 in all the three applications, has filed the present applications. It is the case of petitioner that on the day of incident, some of the UTAA activists had trespassed in his house by breaking open the door and had assaulted the police constables who had taken shelter therein.

Mr. De Sa, learned Counsel for the petitioner submitted that the prosecution has given no objection for bail on account of pressure exerted by UTAA leaders and politicians and as such, the orders granting bail to respondent no.3 in all the applications deserve to be set aside. Learned Counsel further submitted that the prosecution did not choose to arrest the three accused for a considerable length of time and it is only after they along with other UTAA members demanded arrest of all the UTAA members, the prosecution chose to arrest the three accused. Learned Counsel further submitted that in spite of sufficient material being available against the three accused, the learned Principal Sessions Judge on the basis of no objection given by the prosecution has granted bail without considering whether their further detention in judicial custody is warranted or not. According to learned Counsel, the learned Sessions Judge ought not to have acted on the no objection given by the prosecution and granted bail to the three accused without considering as to whether they were entitled to be released on bail having regard to the materials against them. According to the learned Counsel, the replies filed on behalf of the prosecution before the Sessions Court itself suggest that the three accused were actively involved in the commission of various offences on 25th May, 2011. Learned Counsel, therefore, submitted that the petitioner has locus to file the applications since he had suffered on account of commission of offences on 25th May, 2011 and as such, entitled to seek cancellation of bail of the three accused. Learned Counsel further submitted that in any case, this Court is entitled to pass order cancelling the bail suo motu u/s 439(2) of Cr. P. Code as held by the Apex Court in the case of R. Rathinam Vs. State by DSP, District Crime Branch Madurai District, Madurai and Another, . Learned Counsel, therefore, submitted that the bail granted to respondent no.3 in all the three applications deserves to be cancelled.

Per contra, Mr. Nadkarni, learned Senior Counsel appearing for respondent nos.1 and 2 submitted that no fault can be found with the impugned orders in as much as the prosecution did not want custody of these three accused and as such, the prosecution gave no objection for their release on bail by imposing stringent conditions. According to learned Counsel there is no material against the three accused and they were arrested on 5th August, 2011 since they surrendered before the Investigating Officer and insisted on their arrest. According to learned Counsel, all the three accused did not tamper with the evidence after 25th May, 2011 nor any one of them has any criminal antecedent and as such, the bail granted to these three accused/ respondent no.3 in all the three applications does not deserve to be set aside.

Mr. Lotlikar, learned Senior Counsel appearing for respondent no.3 in all the three applications submitted that the petitioner has no locus to file the present applications since he cannot be said to be aggrieved by the grant of bail to respondent no.3 in all the three applications. Learned Counsel further submitted that the applications filed seeking cancellation of bail are actuated by mala fides in as much as the petitioner has not challenged the grant of bail to the other accused involved in the commission of very same offences. According to learned Counsel, mere fact that the other accused were in custody for longer time would not be a ground by itself not to challenge the grant of bail to them and to challenge grant of bail to the three accused. According to learned Counsel no specific role is attributed to all the three accused by the prosecution in the commission of various offences on 25th May, 2011. Learned Counsel further submitted that the three accused were entitled to hold peaceful demonstrations before Crime Branch at Dona Paula on 5th August, 2011 for release of accused who were in custody. According to the learned Counsel, the investigation is almost complete and as such, the grant of bail to the three accused on 11th August, 2011 after a period of two and half months of the incident cannot be faulted and the prosecution was justified in giving no objection for bail. According to the learned Counsel, the learned Principal Sessions Judge has passed the order granting bail in her discretion and the same cannot be said to be shockingly perverse or illegal. Mr. Lotlikar lastly submitted that considering the fact that the prosecution had not chosen to arrest the accused till 5th August, 2011, the orders dated 11th August, 2011 granting bail cannot be faulted and no case has been made out by the petitioner for setting aside the same.

I have considered the rival submissions, perused the record and the judgment relied upon.

In so far as the locus of the petitioner is concerned, the same has been challenged on behalf of respondent no.3 in all the three applications on the ground that he cannot be said to aggrieved by the grant of bail. In my opinion, the reliance placed by Mr. De Sa on the judgment in case of R. Rathinam (supra) is appropriate. In the said case, the Apex Court has held that any member of the public who is concerned in the matter can move the High Court to remind it of the need to invoke the power to cancel bail u/s 439 and there is no barrier either u/s 439 of the Code or any other law which inhibits the person from moving the High Court to have such powers exercised suo motu. Moreover, in the present case, the petitioner claims that on the date of the incident, some of the UTAA activists trespassed into his house by breaking open the door and assaulted police constables who had taken shelter therein. In my considered opinion, the petitioner has locus to file the present applications and in any case this is a fit case in which all the applications deserve to be considered on merits by this Court. Therefore, the objection taken on behalf of the three accused is rejected.

In so far as the allegations made by the petitioner that all the three accused are released on account of political pressure is concerned, the same has been denied by respondent nos.1 and 2 and as such, in the absence of cogent material on record to justify the stand of the petitioner, it would not be appropriate for me to record a finding that no objection has been given on account of political pressure exerted on the investigating agency. In so far as the grant of bail to the three accused by the Sessions Judge is concerned, perusal of the orders discloses that the learned Sessions Judge acting upon no objection given by the prosecution, granted bail to the three accused. The Apex Court in a catena of decisions, has laid down the factors to be considered by the Court/ Magistrate while considering the application for bail. I do not deem it necessary to refer to them in detail since the principles are well settled. If an application for bail is filed by an accused in a serious offence, bail cannot be granted solely on the basis of no objection given by the prosecution and the Court has to consider several factors required to be considered while disposing of the bail application. No doubt, in a given case, if the prosecution gives no objection for grant of bail, the same has to be considered by the Judge/ Magistrate while passing the order granting bail and if the Judge is satisfied that no objection given is bona fide and the case of the prosecution that further custody, police or judicial, of the accused, is not warranted has to be accepted, the concerned Magistrate/ Judge is entitled to grant bail to the accused.

In the present case, admittedly, the prosecution did not choose to arrest the three accused although their names appeared in the F.I.R. till 5th August, 2011 almost for a period of more than two months. The statements of the accused have been also recorded. Moreover, it is not the case of the petitioner that respondent no.3 in all the three applications tampered with any evidence or that they were not co-operating with the investigating agency. No doubt, it is the case of the petitioner that the three accused gathered along with the others about 500 UTAA activists before the Crime Branch, Dona Paula and insisted on release of the other accused involved in the commission of offences. It is the stand of respondent nos. 1 and 2 before this Court that the three accused were arrested since they insisted on their arrest on 5th August, 2011 if other accused who were arrested in the same crime were not released. I fail to understand as to how the prosecution could have effected arrest of the accused on this ground. It is axiomatic that the arrest of the accused in cognizable and non-bailable offence is not automatic. The Investigating Officer has to come to the conclusion that it is necessary to arrest the accused for an effective investigation and having regard to the gravity of the offence and the complicity of the accused, there is a need to arrest the accused. (see Joginder Kumar Vs. State of U.P. and others, .)

The prosecution was not justified in arresting the accused on the ground that the accused insisted on their arrest. The Investigating Officer is bound to follow the principles upon which the accused involved in a cognizable and non-bailable offence has to be arrested. I expect that the police officers in the State of Goa would hereinafter effect arrest of an accused involved in cognizable and non-bailable offence by following the principles laid down by the Apex Court. I should not be understood that I am holding that in no case the accused involved in cognizable and non-bailable offence should not be arrested by the Investigating Officer.

Be that as it may, in the present case, the investigating agency chose to arrest the accused only on 5th August, 2011 after a period of almost 70 days. Admittedly, the bail applications were filed and all the three accused were in judicial custody at the relevant time and as such, at this stage, if their bail is cancelled, they would have to be remanded to judicial custody. In my considered opinion, having regard to the facts and circumstances referred to above, this is not a fit case in which bail granted to the three accused deserves to be cancelled.

Before concluding, I would like to deal with one submission made on behalf of the prosecution. It was submitted that the accused were arrested since they surrendered before the Investigating Officer and insisted on their arrest and there was no material against any one of them. This submission made is contrary to the record and more particularly the first information report in which the informant Shri Gautam Salunke, A.S.I. attached to Cuncolim Police Station has implicated the three accused in the commission of offences on 25th May, 2011. Moreover, in the reply filed before the Sessions Judge, it has been stated that the three accused were the leaders of UTAA and active members of the agitation at Balli, Quepem on 25th May, 2011 and the statements of several witnesses implicate the three accused in the commission of various offences mentioned in FIR. Therefore, I am unable to accept the submission made on behalf of the prosecution that no objection was given since there was no material against any one of them. However, this by itself would not be sufficient to cancel the bail granted to them after a period of six days in view of the settled principle of law that the bail can be cancelled only if the order granting bail is totally perverse or illegal or on the ground that the accused has misused the liberty granted to him either by tampering with the evidence or by not cooperating with investigating agency in the investigation of the crime. In the present case, the learned Sessions Judge had to take into consideration the no objection given by the prosecution but was bound to consider whether the three accused were entitled to bail, on the basis of the materials collected by the investigating agency before granting bail to the three accused. Perusal of the orders discloses that the learned Sessions Judge has granted bail solely on the ground that the prosecution has given no objection for granting bail subject to imposing certain conditions. In my considered view, the learned Sessions Judge ought to have considered the materials on record and whether their further detention in the judicial custody was warranted. This exercise has not been undertaken by the learned Sessions Judge and to that extent the learned Sessions Judge has not exercised the jurisdiction in accordance with law. But this fact by itself would not be sufficient to cancel the bail granted to the three accused for the reasons stated hereinabove.

The arrest of an accused involved in the cognizable offence without justifiable cause violates his fundamental right to liberty and similarly if the accused who has to be arrested having regard to the gravity of the offence, nature of the evidence etc. is not arrested, the same causes serious prejudice to the society at large and, therefore, the Investigating Officer has to take a decision whether to arrest the accused or not on the well settled principles governing the arrest of an accused involved in a cognizable and non-bailable offence.

In view of the above, I find that the bail granted to the three accused does not deserve to be cancelled. Accordingly, the applications are dismissed.

I deem it appropriate to send a copy of this order to Director General of Police, State of Goa so that appropriate steps are taken to ensure that henceforth no arrest is effected by any Investigating Officer solely on the ground that the accused surrenders before him! her and insists that he! she must be arrested and the arrest of an accused is effected following the settled principles laid down by the Apex Court, more particularly in the case of Jogindar Kumar (supra). Needless to mention that in the investigation of an offence, more particularly a serious offence, the society has a stake and is entitled to expect that the investigation of an offence takes place on the well settled principles. All the three applications stand disposed of accordingly.