State vs Shri Rajesh Faldesai

N.A. Britto, J.—Heard. By the present application the State seeks to cancel bail granted to the respondent by order dated 11/2/2010.

The respondent was arrested on 7/2/21010 along with three others in connection with investigation in Crime no.16/2010 u/s 307 read with 34 I.P.C. The respondent/accused was produced before the Learned JMFC., Panaji on 8/2/2010 and the Learned JMFC was pleased to remand the accused to police custody for a period of 14 days. The respondent approached the Court of Session on 10/2/2010 and the Learned Additional Sessions Judge granted bail to the accused on 11.2.2010 observing, inter alia, that she had considered the newspaper report in the Gomantak Times, where the family members of the victim had stated that the respondent was only made a scapegoat, while the real culprits were scot free and the persons arrested were not suspected persons.

There is no dispute that on 6/2/21010 Shri Jaganath Fatdte had filed a complaint that on 5/2/2010 at 23.40 hours at Bom-Jesus Residency, Old Goa, two unknown accused persons with their common intention had assaulted his son Vinayak J. Fadte with iron rods on his head and body while he was proceeding to his flat thereby attempting to murder him. In the statement recorded on the next day, the said Vinayak Fadte suspected the involvement of the present accused, who is his neighbour, as the person behind the attack on account of mining business rivalry between the two of them.

It appears that the victim was discharged only on 15/2/2010 and even prior to his discharge, the respondent managed to obtain bail on 11/02/2010 from the Learned Additional Sessions Judge. Upon arrest of the accused, it appears that he had disclosed that he had engaged one Zenito Cardozo and Mahavir Nadar to assault the victim on payment of Rs.1Lakh. The medical certificate shows that the victim had five lacerations, one of them, a head injury and the other total amputation of the right hand, and, it has been stated by the Learned Public Prosecutor that the hand of the victim in fact has been amputated.

Shri Ferreira, the Learned Public Prosecutor on behalf of the Applicant submits that the respondent was the brain behind the attack on the victim and yet the respondent has been ordered to be released on bail at a preliminary stage. Learned Public Prosecutor further submits that the Learned Additional Sessions Judge did not even look into the case papers and ordered release of the accused when the investigations were at a preliminary stage and not even the weapons of offence were recovered. Learned Public Prosecutor therefore submits that it appears that the Learned Additional Sessions Judge was hell bent on granting bail to the respondent without even going through the case papers and could not have at all relied on newspapers reports to order release of the accused. Learned Public Prosecutor submits that the other three accused are still in custody. Learned Public Prosecutor submits that the action of the Learned Additional Sessions Judge in ordering the release of the respondent on bail is arbitrary and in wrong exercise of discretion and, as such, requires to be set aside by this Court and in that context, Learned Public Prosecutor has placed reliance on the case of Puran Vs. Rambilas and Another etc. etc., as well as the case of Subodh Kumar V/s State of Bihar (CDJ 2009 SC 1430) wherein the Apex Court has observed as follows :

12.The findings recorded by the learned Session Judge and the High Court make it clear that the learned Magistrate had exercised discretion vested in him u/s 437 with oblique motive. The learned Magistrate was apparently bent upon granting bail to the appellant and, therefore, not only decided to hear the bail application presented by the appellant on the same day, but had also called for record from the superior court and granted bail to the appellant without hearing the learned counsel for the complainant. As 5 the judicial discretion was exercised by the learned Judicial Magistrate First class in an arbitrary manner and with oblique motives, the learned Sessions Court was justified in setting aside the order granting bail to the appellant. To say the least, the order passed by the learned Magistrate was the result of arbitrary exercise of discretion vested in him. Further the learned Magistrate had taken into consideration totally irrelevant documents which were never referred to in the complaint at all. By taking into consideration those documents the learned Magistrate exhibited his anxiety to release the appellant anyhow on bail. On the facts and in the circumstances of the case, this Court is of the opinion that the High Court did not commit any error in confirming the order of the Session Judge canceling the bail which was arbitrarily granted to the appellant by the learned Judicial Magistrate First Class and, therefore, the instant appeal is liable to be dismissed.

On the other hand, Shri Lotlikar the Learned Senior Counsel while conceding that the Learned Additional Sessions Judge could not have based her decision on newspaper reports, has submitted on behalf of the respondent, that although the impugned order was passed on 11/02/2010, the application for cancellation came to be filed on 8/3/2010. Learned Senior Counsel further submits that by the impugned order the respondent was directed to report to the police station for 10 days from 2.p.m. to 5.p.m., which the accused has done, but the respondent was not interrogated at the police station, as required. Learned Senior Counsel therefore submits that the bail order has now worked out and therefore no purpose would be served by canceling the bail granted at this stage. Learned Senior Counsel submits that the impugned order cannot be said to be arbitrary in as much as the name of the respondent was not mentioned in the F.I.R which was lodged against unknown persons. Learned Senior Counsel further submits that it is not the case of the applicant that the impugned order has caused any obstruction to their investigation in as much as no ground was set out before the Learned Additional Session Judge that the presence of the respondent was required for custodial interrogation. Learned Senior Counsel has place reliance on Hazari Lal Das Vs. State of West Bengal and Another, and Savitri Agarwal and Others Vs. State of Maharashtra and Another, . Both cases pertained to cancellation of anticipatory bail.

In rejoinder, the Learned Public Prosecutor concedes that there has been some delay in approaching this Court but has submitted that was due to the fact that the Investigation Officer was initially lethargic and subsequently was suspended and even arrested in connection with some other case and, therefore, the Public Prosecutor submits that in the circumstances of the case there has been no delay in approaching this Court. He further submits that he received the case appears on 2/03/2010, after they were submitted by the Learned A.P.P. and on 8/03/2010, he filed the present application for cancellation of bail.

I have perused the reply filed as well. It is well settled, as stated by this Court in the case of Satish Dhond and another Vs. State of Goa (2006 DGLS CRI 685 ) that bail granted can be canceled in three broad situations and one of them, is when the order granting bail is unjust, arbitrary or vitiated by wrong exercise of discretion. The same is the view expressed by the Apex Court in Puran Vs. Rambilas and Another etc. etc., observing that an arbitrary and wrong exercise of discretion needs to be corrected. The name of the Respondent might have not been mentioned in the F.I.R but the injured had suspected his involvement and upon arrest and interrogation the complicity of the respondent was established and not only that the Learned Magistrate had remanded the Respondent to police custody to facilitate further investigation. The respondent was involved in a serious offence punishment for which could also extend to life. The Learned Additional Sessions Judge ought to have atleast called for the case papers and perused the medical certificate and in case this was done, the Learned Additional Sessions would have known the gravity of the offence and that the victim was still in the hospital. On the contrary, the Learned Sessions Judge appears to have been impressed by the newspaper report and the inability of the I.O. to explain the same. It was the duty of the Learned Additional Sessions Judge to call for the case papers and examine them before granting bail at the initial stage of investigation. It was not duty of the I.O to explain the newspaper reports. Courts cannot grant bail or reject bail on the basis of what appears on newspapers. As is often said, in the highly competitive environment, there is more drama and sensation on the newspapers-less news. If the I.O has been suspended and arrested one fails to understand as to how the impugned order was complied with by the respondent by going to the police station. In the facts of the case, there is no delay in approaching this Court for cancellation of bail.

At the stage when the respondent was ordered to be released on bail, the investigations were at the initial stage and not even weapons of offence were recovered. The victim was still in the hospital, being treated for the injuries caused to him including amputation of his right hand. The Learned Additional Sessions Judge ought to have been conscious of the fact that the respondent was arrested for serious offence u/s 307 I.P.C and the injured was still in the hospital and the investigations were at the initial stage.

The reply filed might have not stated in clear terms that the custodial interrogation of the respondent was necessary, but that by itself was not sufficient for the Additional Sessions Judge to have proceeded to grant bail to the respondent in a serious offence at the initial stage of investigation. It was clearly stated in the reply filed that the assailants were engaged by the respondent on payment of Rs.1.00 lakh and that certainly made the offence more serious. It was clearly stated that the respondent had committed a serious offence and the investigations were at a preliminary stage. When the grievous offence of attempt to murder was registered against the respondent, the least which was expected of the Additional Sessions Judge is to peruse the case papers including the medical certificate and found out whether the release of the accused at the initial stage would come in the way of the investigation.

Granting of bail in serious offences at initial stage of investigation in a wrong exercise of discretion. Such a step is bound to abort the investigation and thus affect public administration of justice. No doubt, liberty of citizen must be zealously safeguarded by a Court, but nonetheless, liberty is to be secured through process of law which is administered keeping in mind the interests of the accused, the victim and her dear ones who sometimes feel there is no justice in this country and the collective interest of the community so that the parties do not lose faith in the institution and indulge in private retribution. Considering that the offence was serious, the victim was still in hospital, the Learned Additional Sessions Judge ought to have been very sow in granting bail. The Learned Additional Sessions Judge did not at all realize the seriousness of the incident and proceeded to grant bail in an arbitrary and injudicious manner.

Considering the facts and circumstances of the case, therefore, the bail granted to the respondent deserves to be canceled.

Consequently, the application is allowed, the impugned order is hereby set aside and the accused is directed to surrender to the Officer in Charge of Old Goa Police Station. Learned Senior Counsel prays for suspension of the order for a period of two weeks. Considering the facts of the case prayer is rejected. Accused to surrender within two days.