Wednesday, October 2, 2013

State tries bail cancel. Court refuses EVEN if accused termed murderer, criminal, goon etc. For husbands to read & understand. court also blasts investigation agencies for slow action / callousness


State tries bail cancel. Court refuses EVEN if accused termed murderer, criminal, goon etc. For husbands to read & understand

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Excerpts
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".............If scrutiny is strict at the time of grant of bail, looking at the allegations, the materials available, the like hood of conviction, the societal interest concerned, the scrutiny has to be far more strict at the stage of cancellation. The circumstances and materials relevant at the stage for grant of bail are undoubtedly different from that at the stage of cancellation. When bail is granted curtailed liberty is given to a citizen. When bail is cancelled the curtailed liberty is also sought to be annulled which has far more serious implication. The Court is therefore satisfied that it shall apply a stricter standard of scrutiny in this application.........."



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CASE FROM JUDIS / INDIAN KANOON WEB SITE 
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Patna High Court - Orders

The State Of Bihar vs Mantun Yadav on 3 July, 2013

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.27243 of 2012

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The State Of Bihar .... .... Petitioner/s

Versus

Mantun Yadav .... .... Opposite Party/s

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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA

ORAL ORDER

03-07-2013 

Heard learned counsel for the petitioner. The present application has been filed for cancellation of bail granted to the sole opposite party in Cr. Misc. No. 22124 of 2007 on 15.5.2007.

One Punam Devi wife of Late Dafadar Chandra Bhushan Singh filed an F.I.R. registered as Lakhisarai Barahiya P.S. Case No. 72 of 2006 on 23.7.2006 under Sections 302, 353, 34 of the Indian Penal Code and Section 27 of the Arms Act. She alleged that on the night of 23.7.2006 alike everyday after returning home, he left at 6.45 for duty near the National Highway. 5-7 minutes later she heard the fire of gun shot. After sometime on hearing the commotion she also ran. When she reached near the house of Suresh Yadav, she saw that her husband was lying on the road with blood oozing out. People assembled. From the pulse, it was found that he was dead. When she enquired about the incident she learnt about Chokidar Shiv Paswan possessing a land for which there was a dispute and her husband had intervened in the same. The opposite party had an altercation with her husband sometime earlier and had threatened with dire consequences. She fairly believed that the opposite party with his friends has killed her husband. Bail was granted on 15.5.2007, noticing the contention that there was no eye witness. The dead body was found abandoned and the petitioner has been named on suspicion. The case diary did not reflect any material to justify incarceration. Learned counsel for the petitioner submits that charge sheet has been submitted against the opposite party on 27.2.2007. The Court queried the status of the trial as it appears that it is still pending commitment before the Magistrate, no further information was made available to the Court.   http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 
 
Learned counsel for the State submits that after release on bail, the opposite party has abused the privilege of bail by committing further offence registered as Lakhisarai Barhiya P.S. Case No. 152 of 2010 on 12.10.2010 under Sections 25(1-b)a/26 of the Arms Act. Punam Devi had also filed an application that the opposite party had threatened her not to depose. A station diary entry No. 42 dated 2.8.2012 had been made and a report after enquiry submitted on 8.8.2012. The Chief Judicial Magistrate, Lakhisarai has taken cognizance under Section 504/506 pursuant thereto. Learned counsel for the petitioner therefore submits that it was a fit case where notice should be issued to the opposite party and the bail be cancelled. Section 439(2) of the Code of Criminal Procedure provides that a High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. Effectively it provides for cancellation of bail. Alike the provisions of Section 437 and 439 of the Code with regard to grant of bail, there are and can be no strict guidelines or parameter when bail should be granted or when it should be cancelled. There are only broad indications by precedents with regard to grant of bail and therefore much lies in the discretion of the Court to be exercised judicially. If scrutiny is strict at the time of grant of bail, looking at the allegations, the materials available, the like hood of conviction, the societal interest concerned, the scrutiny has to be far more strict at the stage of cancellation. The circumstances and materials relevant at the stage for grant of bail are undoubtedly different from that at the stage of cancellation. When bail is granted curtailed liberty is given to a citizen. When bail is cancelled the curtailed liberty is also sought to be annulled which has far more serious implication. The Court is therefore satisfied that it shall apply a stricter standard of scrutiny in this application.  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

The allegation in Lakhisarai Barhiya P.S. Case No. 152 of 2010 under the Arms Act is that the opposite party on 12.10.2010 under the influence of liquor at about 9.15 was roaming around creating a nuisance in the village. He was generally mouthing in appropriate things and when confronted attempted to ran away. He was caught and during inspection .303 bore country made loaded pistol recovered and one live .303 cartridge was found in his shirt pocket. The Court fails to understand by any stretch of legal reasoning how an occurrence old as 12.10.2010, more particularly of the nature alleged with no overt Act attributed can become a ground for cancellation of bail in this application filed years later on 13.7.2012. Surely being in a drunken condition, mouthing appropriate words cannot constitute a ground for cancellation. There is no averment that the opposite party even threatened anybody with the weapon available with him when he was confronted. No statement has been made in the bail application that charge sheet has been submitted against the opposite party in Lakhisarai Barhiya P.S. Case No. 152 of 2010.

Lakhisarai Barhiya P.S. Case No. 72 of 2006 was lodged on 23.7.2006. Charge sheet has been submitted on 27.2.2007. The Court is not being informed why commitment of the case has not been done till today and who is answerable. The Court has gone through the complaint filed by the informant with regard to the threat held out to her. It does not mention a single date or the nature of threat held out. Undoubtedly, a station diary entry has been made and enquiry done. The enquiry states that the opposite party was a veteran criminal and had committed offence earlier, people in the vicinity were scared of him and felt insecure making life difficult for them. No details with regard to any other cases against the opposite party before declaring him as a veteran criminal being threat public order is mentioned in the enquiry report. Not the name of a single person who may have felt insecure because of the opposite party has been mentioned. In so far as the informant is concerned, the enquiry does not contain even a single date and time including the nature of the threat that was made by the opposite party hindering deposition and on which date in Court. Cognizance has been taken under Sections 504 and 506 of the Indian Penal Code based on the enquiry under the station diary entry. Section 504 of the Indian Penal Code provides for intentional insult with intent to provoke breach of peace and Section 506 provides for punishment.   http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

The essential ingredients to constitute an office under Section 504 before punishment can be imposed stands well settled by judicial precedents and the Court purposefully refrains from discussion on that aspect, in the present order as it is not the appropriate stage to do so.

The Court records its extreme disapproval for the manner in which this application for cancellation has been filed with casualness on part of the prosecuting agency. It was understandable if because of the bail the opposite party was seeking to even delay the trial and the prosecution had placed materials to that effect before the Court. No explanation is forthcoming if such circumstances were available why it has not been placed before the Court.  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

Let a copy of this order be sent to the Director General of Police, Patna so that in future, bona fide applications for cancellation of bail are not defeated due to the laches of the officers of the department in instructing their counsel properly.

The application is dismissed as frivolous.

P. Kumar/- (Navin Sinha, J)




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