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1988 Supreme(Sikk) 1
HIGH COURT OF SIKKIM
R. DAYAL
STATE OF SIKKIM - Appellant
Versus
ROLLAND CHRISTOPHER CHETTRI - Respondents
Criminal Revn. 2 Of 1988
Decided On : MARCH 18, 1988
Narayan P.Sharma, T.B.THAPA, V.J.RAO
Headnote:(i) Criminal Procedure Code, 1898 -Sections 497(1) and 498 -Respondent charged u/ss. 364, 302, 201 r/w 34 IPC for taking away a person by deceitful means, murdering him and getting the dead body disappeared-Investigation in initial stages -Accused are police officials-Applying for Bail u/s. 498-Sessions Judge granted bail-Whether in 'an application u/s. 498, Sessions Judge should be guided by consideration u/s. 497(1) i.e., when any person is accused of or suspected of an offence punishable with death sentence or life imprisonment, bail should not he granted ?(Yes). (Para 3)
(ii) Cr .P.C. 1898-Sections 497(i) and 498 -Sessions Judge granting bail to accused police officers without considering whether there were reasonable grounds that they were guilty of an offence punishable with death or life imprisonment-Did not give proper weight to fact that' accused if released on bail could temper witnesses-Result-Bail is liable to be set aside.
Held, for considering at the initial stage of investigation for purpose of bail whether there are reasonable grounds for believing that an offence punishable with death or imprisonment for life had been committed it would be enough if there is some material for the accusation or even for strong suspicion of commission of such an offence. A brief description of the statements recorded under section 161 made above shows that there was sufficient material for leading to such a belief but the learned Judge did not give any weight to this important aspect. He failed to consider that if there were reasonable grounds for believing that the accused were guilty of an offence punishable with death or imprisonment for life there could be no justification for granting bail at this stage, having regard to the provisions of section 397(1). (Para 6)
Held also, while granting bail, the learned Judge also failed to give proper weight to the apprehension of the prosecution that by the order of bail the witnesses would be tampered with. He did not give any weight to the relationship and the status of the victim to the accused who are police officials He observed that this apprehension could be allayed if the movement of the accused was restricted to Gangtok area and so he imposed certain conditions. It is difficult to appreciate how the apprehension regarding the tampering of witnesses could be analysed by any restriction of movements of the accused to Gangtok area or by requiring them to report to the court on every alternative day. The question as to the like-hood of tampering with the prosecution witnesses relates to ensuring a fair trial of the case in a court of justice and is, therefore of paramount consideration to be given due weight while considering a bail matter. On the facts of the Case, the apprehension expressed by the persecution in this regard could not be said to be unjustified and even the learned Judge did not find it to be so. In the result, the impugned order suffers from illegality in as much due weight was not given to relevant aspects of the matter. (Para 8)
( 1 ) THIS revision is against the order dt. 5th Mar. 1988 passed by the learned Sessions Judge Incharge releasing the respondents on bail in a case registered against them under Ss. 364, 302 and 201 read with S. 34 of the Penal Code.
( 2 ) THE respondents are police officials, first respondent being a Sub-Divisional Police Officer and the second, a sub-inspector. On 20th Feb. 1988, the officer-incharge, Naya Bazar Police Station, West Sikkim registered a first information report against them stating that it had been learnt from a reliable source that on 12-2-88 at about 1605 hrs. , one Dharam Dutt Sharma of Timberbong busty was found absconded by the respondents and on way to Nayabazar the said Sharma was murdered at Zoom Busty, West Sikkim and thereafter his dead body was disposed of by them on the other side of the river falling under Bizan Bari Police Station in Darjeeling District, West Bengal. On that very date, the police started investigation and recorded the statement of one Shri Kishor Kumar Pradhan under S. 161 of the Criminal P. C. After recording his statement both the respondents were arrested on 21-2-88. Thereafter statements of two other witnesses were recorded. On 21-2-88 itself, that is, the date on which the respondents were arrested, a bail application was moved before the learned Sessions Judge Incharge and after giving some time on two occasions to the police to complete investigation, the impugned order of bail was passed on 5th Mar. 1988. The petitioner challenges the validity of the bail order on two grounds. One is that the learned presiding officer failed to consider whether there were reasonable grounds to believe that the respondents were guilty of offences punishable with death or imprisonment for life which was the mandatory requirement under the provisions of S. 497 (1 ). The other is that the learned presiding officer did not give proper weight to the contention raised that there was apprehension of tampering with the witnesses by an order for bail
( 3 ) THE Criminal P. C. , 1973 has not yet been extended to Sikkim and the provisions of the Criminal P. C. , 1898 are still applicable subject to the Government of Sikkim, Home Department Notification No. 73/h dt. 30th Aug. , 1963 according to which in all cases where the Code of Criminal Procedure lays down the commitment proceedings, the Chief Magistrate's Court shall have the original jurisdiction and all such cases shall be filed before him directly for disposal. The Chief Magistrate's Court now means the Sessions Judge's Court. Sub-Section (1) of S. 497 provides that when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Proviso to that Sub-Section provides an exception. but that is not material for the instant case. Undoubtedly the mandate of the provision is that the Court does not have the jurisdiction to grant bail, if in the opinion of the Court there appear reasonable grounds for believing that such an offence had been committed. Under S. 498, there is no such absolute bar regarding the jurisdiction of the High Court or the Court of Session, but the learned Advocate General contends that the expression 'a Court' in Sub-Sec. (1) of S. 497 is wide enough to cover the Court of Session with the result that under that provision jurisdiction of the Session's Judge is barred if there were reasonable grounds for believing that the respondents were guilty of an offence punishable with death or imprisonment for life. He also urges that in the first instance an accused is expected to seek bail before a Magistrate and it is only when bail has been refused by the Magistrate and the case has mad
