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IN THE HIGH COURT OF GAUHATI (FULL BENCH)
B. Sudershan Reddy, D. Biswas and P.G. Agarwal, JJ.
In Re: State of Assam and Anr.
Decided On : 14.12.2006
BAIL - Grant of bail in a case of serious offence of rape - Section 437 Cr. P.C. - The court discussed the provisions of Section 437 Cr. P.C. and the considerations for granting or refusing bail in cases of non-bailable offences. The court emphasized the limited scope of a magistrate to consider bail in such cases and the need for specific findings that there are no reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. The court also highlighted the duty of the magistrate to consider reasons for granting bail and to record reasons for prima facie concluding why bail was being granted, particularly in cases of serious offences. The court further emphasized the need for judicial discipline and the duty of the magistrate to consider the reasons and grounds on which earlier bail applications were rejected when entertaining subsequent bail applications. The court also addressed the issue of local jurisdiction of judicial magistrates and the need for defined jurisdiction to streamline the handling of cases.
Fact of the Case:
The accused, a school teacher, was arrested for the alleged rape of a teenaged girl. Despite multiple rejections of bail applications, the accused was granted bail on the grounds of illness and the death of his son. The court found that the bail order was arbitrary and wrong, and lacked justification. The court also noted the improper handling of the bail application by the Chief Judicial Magistrate, who granted bail despite the pending status of the bail matter before the High Court. The accused was subsequently charged under Section 376 IPC.
Finding of the Court:
The court found that the grant of bail to the accused was arbitrary and wrong, and lacked justification. The court also criticized the Chief Judicial Magistrate for improperly handling the bail application and granted bail despite the pending status of the bail matter before the High Court. The court set aside the impugned bail order and cancelled the bail, directing the accused to surrender forthwith.
Issues: The issues included the proper considerations for granting or refusing bail in cases of non-bailable offences, the duty of the magistrate to consider reasons for granting bail, the need for judicial discipline in handling subsequent bail applications, and the issue of local jurisdiction of judicial magistrates.
Ratio Decidendi: The court emphasized the limited scope of a magistrate to consider bail in cases of non-bailable offences and the need for specific findings that there are no reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. The court also highlighted the duty of the magistrate to consider reasons for granting bail and to record reasons for prima facie concluding why bail was being granted, particularly in cases of serious offences. The court further emphasized the need for judicial discipline and the duty of the magistrate to consider the reasons and grounds on which earlier bail applications were rejected when entertaining subsequent bail applications. The court also addressed the issue of local jurisdiction of judicial magistrates and the need for defined jurisdiction to streamline the handling of cases.
Final Decision: The court allowed the revision, set aside the impugned bail order, and cancelled the bail, directing the accused to surrender forthwith. The court also provided instructions to the High Court to define the jurisdiction of the magistrates functioning under the Chief Judicial Magistrate, with jurisdiction defined Police Station wise.
P.G. Agarwal, J.
1. The facts in brief leading to the present revision may be noted:
2. The respondent Sri Hari Chandra Hatimuria was arrested by Police in connection with Silapathar P. S. Case No. 133/2006 and produced the Chid Judicial Magistrate, Dheniaji on 26-9-2006. The allegation in the F. I. R. is that the accused who is a school teacher, called Ms. Sumpi Gogol, a teenaged illiterate girl to his house for cleaning rice and after the work was over, the accused threatened her and took her inside the house and, thereafter, forcibly committed rape on her. The accused threatened the teenaged girl with dire consequences if she discloses the incident to others. Subsequently, she informed about the incident to her parents whereupon the F. I. R. was lodged. The statement of the alleged victim was recorded under Section 161, Cr. P.C. and, thereafter, she was sent to the Court where her statement was recorded under Section 164, Cr. P.C.
3. On his production before the Court, the accused filed an application for bail stating inter alia that he is suffering from illness and he is undergoing treatment at Dibrugarh Hospital. On 13-9-2006, the application for bail was filed on behalf of the accused and the learned Chief Judicial Magistrate on perusal of the F. I. R. and the statement of victim girl rejected the same. However, the Court called for the Case Diary fixing 20-9-2006. On that day, the Case diary was not produced before the Chief Judicial Magistrate on the ground that the Case Diary is before the Hon'ble High Court and on that day the learned Magistrate rejected the prayer for bail in spite of submission regarding illness of the accused.
4. Another bail petition was moved on 26-9-2006. The Case Diary could not be produced as it was not received back from the High Court. The accused referred to an advice from the Doctor regarding consultation and further evaluation and treatment under a Cardiologist. A Medical Certificate dated 23-9-2006 was produced before the Magistrate, but the prayer for bail was rejected and the case was fixed on 4-10-2006 for production of the Case Diary. The Chief Judicial Magistrate also directed the Superintendent, District. Jail, Dhemaji to provide proper treatment to the accused.
5. On the next day i.e. 27-9-2006, another bail application was filed taking the same plea of illness of the accused. It was further submitted that the son of the accused died on Monday i.e. 25-9-2006 and the health of the accused may deteriorate. The learned Chief Judicial Magistrate on perusal of the F. I. R. and the statement of victim girl and considering the illness of the accused, allowed him to go on bail of Rs. 5,000/- with one surety of the like amount. On receipt of the report from the learned Sessions Judge, Dhemaji, the present revision was entertained by this Court suo moto and the matter has been placed before this larger Bench.
6. The respondent/accused submitted that the discretion to grant bail was exercised by the learned Chief Judicial Magistrate on the basis of the materials available before him and unless the accused has misused the liberty granted to him or is interfering with the investigation or attempting to evade the due course of justice, no interference by way of cancellation of bail can be made. There are a catena of decisions on the score including the case of Daulatram v. The State of Haryana 1995 (1) SCC 349.
7. The question before us is whether in a case where ignoring the material evidence on record a perverse order granting bail is passed in a serious case and that too, without giving reasons, interference by a Higher Court is called for. In the case of Gurucharan Singh v. State AIR 1978 SC 179 : 1978 Cri LJ 129 it was observed by the Apex Court that the approach in such cases should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice to interfere.
8. In the case of Puran v. Ram Bilas and
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