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GAUHATI HIGH COURT
V.Dutta Gyani, J.
Jaynal Abedin and Ors. -Appellant
Versus
State of Assam -Respondent
Bail Application No. 1251 of 1997
Decided On : 18-02-1998
CRIMINAL PROCEDURE CODE - SECTION 438 - ANTICIPATORY BAIL - INTERIM ORDER - CANCELLATION - JURISDICTION - LOCUS STANDI - PRODUCTION OF CASE DIARY - LEGISLATIVE INTENT - CONDITIONS FOR GRANT - PUBLIC PROSECUTOR'S NOTICE - INTERPRETATION - LIBERTY OF CITIZEN - SERIOUS OFFENCES - PROCEDURE - COURT'S CAUTION - ARTICLE 21 OF THE CONSTITUTION.
Fact of the Case:
The accused-applicants sought anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) in a case involving serious offenses like loot, arson, abduction, and murder. The court had granted an interim bail order on the condition that the case diary be produced within a week. However, the case diary was not produced even after six months, and the accused-applicants continued to enjoy the interim bail.
Finding of the Court:
The court held that the interim bail order was not a cancellation of bail but a refusal to grant bail. It emphasized that the production of the case diary cannot be insisted upon by the accused as a self-serving end to prolong the interim bail order. The court also clarified that Section 438 CrPC was not intended to confer wider jurisdiction on courts to grant bail in cases where it cannot be granted under Section 437 CrPC.
Issues: 1. Whether the interim bail order can be canceled? 2. Whether the accused-applicants have locus standi to seek cancellation of the interim bail order? 3. Whether the production of the case diary is necessary before considering the anticipatory bail application? 4. What are the legislative intent and conditions for granting anticipatory bail under Section 438 CrPC? 5. Whether the Public Prosecutor's notice is mandatory before granting anticipatory bail? 6. How should courts interpret the provisions relating to bail in the CrPC? 7. How should courts balance the liberty of a citizen with the interests of the community in cases involving serious offenses?
Ratio Decidendi: 1. An interim bail order is not a cancellation of bail but a refusal to grant bail. 2. The accused-applicants have no locus standi to seek cancellation of the interim bail order. 3. The production of the case diary is not necessary before considering the anticipatory bail application. 4. The legislative intent behind Section 438 CrPC is to make it more difficult for persons accused of grave offenses to get released on bail. The conditions for granting anticipatory bail include the gravity of the offense, the likelihood of the accused absconding or hampering the investigation, and the interests of justice. 5. The Public Prosecutor's notice is mandatory before granting anticipatory bail. 6. Courts should interpret the provisions relating to bail in the CrPC in a manner that balances the liberty of a citizen with the interests of the community. 7. In cases involving serious offenses, courts should be cautious and circumspect in exercising their power to grant anticipatory bail.
Final Decision: The court dismissed the application for anticipatory bail and held that the interim bail order was liable to be dismissed.
“Heard Mr. N. Dutta, learned counsel for the petitioners and Mr. N. Mahammad, learned PP, Assam. Mr. N. Mahammad, PP, Assam prays for a week's time to produce case diary. List this matter after a week.
In the meanwhile, in the event of the arrest of the petitioners in connection with Kalaigaon PS Case No.60/97 under sections 147/148/149/447/427/436/379/ 326/302 IPC shall be released on interim bail on the execution of a bond of Rs. 2000/- by each of them with two sureties of the like amount to the satisfaction of the arresting authority subject to the usual conditions as enumerated in section 438 CrPC.”
2. As is evident from the above order itself, the case diary was not available, the gravity of offence is self evident from the penal provisions as noted in the order.
3. Having sought a week's time even after six months (just short of two days) the case diary is not produced for reasons best known to the police, and the accused applicants charged with such serious offences like loot arson, abduction and murder continue to enjoy the interim bail order dated 12.8.97.
4. Let us have a look at the FIR, a copy of which has been filed by the accused petitioners as Annexure 1 to their bail petition which reads as follows :
“Sir,
I have to state that today on 13.7.97 at 4.30 AM about 100/150 persons from neighbouring villages namely Chanibari, Bholabari and Begar Kakh villages along with also sticks etc entered in my house breaking walls and looted 2 bags of wheat, 25 kgs of rice, 4 ploughing cows, CI sheets etc and caught fire on paddy stores. They also kidnapped my sons Joynal Abedin, Banaj Ali and Rajab Ali, took them to begu weapons killing Jaynal Abedin and Banja Ali also injured critically Rajab Ali by dao. Among them, I could identify only (i) Sarimddin Ali S/o Jaynal Munshi, vill Begarjhar, and (2) Md Sadek Ali S/o Naser Ali, vill Chanibari, others names are not known, but could be identified, if seen.
So, I request you to inquire the case, early and take necessary action, please.
Yours faithfully
Sd/ Abdul Hussain,
Village Pachim Padyaghat”
5. The informant, father of the two sons killed has moved an application under section 439 (2) and 39, under section 397 read with section 482 CrPC for cancellation of bail granted on 12.8.97.
6. Learned counsel appearing for the petitioners, taking advantage of non-production of case diary and the application filed by the informant contended that the basic order dated 12.8.97 cannot be cancelled, the applicant has no locus standi and the case diary must be got produced before making any alteration in the order.
7. On merits he submitted that the accused applicants have been implicated on politically motivated grounds. Their names donot figure in the FIR. The applicants, except one, do not belong to the villages as referred to in the FIR.
8. It needs to be made clear that it is not a case of cancellation of bail granted to accused. In fact no bail as such has been granted merely an interim order was passed on 12.8.97,. when an interim order granting anticipatory bail is varied or reversed, on hearing the parties on merits, the subsequent order reversing the interim bail order, is not an order of cancellation of bail, but refusal to grant bail. This refusal cannot allowed to be construed as cancellation of earlier bail order, as such an interpretation is not only self-serving but distorting as well.
9. The insistence for production of case diary at this stage sounds rather strange, more so after having obtained an interim order of anticipatory bail, without waiting for the case diary being produced. It does not lie in the mouth of the accused to insist for production of case diary. The Supreme Court in Habeed Mohammad vs. State, AIR 1954 SC 51 has held that
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