•je` ., r` TllE HIGH COURT OF SIKKIM : GANGTol( CRIMINAL REVISION PETITION NO.2 0F 2005 (2Aor§S±ngDa°suste°dfthhve:TP;ugQnedrorrdLe_rsdaied_.1.Ot_hMarch, 2M%5::tpfaE<:pe,;:no;uy:h7Sf:iris;,-i,:fSfihm;aa,:|f)hliiff:;d#nla!I| Misc. Case NQs.27 and i-8-'o'f i6.d`5:) State of Sikkim versus g;:aTipjouE:eG:;:i:g:, West Sikkim. •..... Petitioner ...... Respondent/Accused AND ' CFUMINAL REVISION PETITION NO.3 0F 2005 State of Sikkim versus Pawan Minda, S/o Late Gopi Melli Bazar, South Sikkjm. For the StEite petitioners For the respondent accuseds + 9 `L*+ ..I .... petitioner I ...... Respondent/Accused Shri J. I 8. Pradhan, Public Prosecutor. Messrs K. T. Bhutia assisted by a. R. Pradhan. PRESENT: THE HON'BLE MR. JuSTICE A. P. SUBBA, JUDGE. Last date of h ing : 6trl Apri,' 2005. ' .S DATE OF ORDER : 15TH APRIL, 2005. ?` A. P. Subba !J. ? since similar and the question QBBEB` - revisi6f petitions are y the petitioner in both .` `` the petitions are also identical they are heard together and being disposed of by this common order. 2. ,In both the Criminal Revision Petitions filed by the State of Sikklm under section 397 read with sect:ions 439/482 ' of the Criprinal Procedure Code, 1973, the impugned orders dated loth March, 2005 passed by Shri a. C. Sharma, District & Sessions Judge, Sout:h & West, Namchi in his capacity as in- Court of the Chief Judicial Magistrate, South & in Criminal Misc. Case no.`2Z of 2005 Utpal vs. State of Sikkim and Criminal whisc. Case no. e BO 8.. charge of tthe in West, Nam,chi Dorjee Yongda 28 of 2005, Pawan Minda vs. State of Si`kkim ari thF subject i mat:ters of chaHenge. 3. A`s per the facts set out jn the above two criminal Revision Pefjtions both the respondent accuseds were arrested I I foHowing the written FIR lodged by the Revenue Officer, ^1_ . - _ a __', . Namchi SUB-Division, South district, Namchi. In the written FIR lodged on 7`'' L, :`.\ Police Stati-on the Revenue Officer alleged that on going throughthe'.'recordsattheOfficeoftheRegistrar,Southdistrict ' he found th..at the `and bearing plot no.122(P) sitj{ated at Melli ' block Was registered in the n]ma ^c rt`_: .,.+ . _ A of Gayzing Supervisor in f` 5HEEi[ // <t±ri-;`-i... March, 2005 with the Officer ln-Charge, Namchl s[erea in the name of Shri Ut+pal Dgrjee Yongda 2ndMarch,2oo5byforgilg+#5ignatureofRevenue 1` t:he spot verification report and the same was later on canc,elled. It was also found by him that the names of Shri Pawan,ininda, Shri Dhurendra Prajapati and Shri Sur].ay Tamang fou,nd mention in the said forged spot verification t -, I ';L' report. It may be noted that Shri`Utpal Dorjee Yongda is the respondent accused in Criminal Revision Petition no.2 of 2005 and Shri Pawan Minda is the respondent accused jn' Criminall Revision Pe}tition no.3 of 2005. 4. On the basis of the above information, Namchi El. Police Scat,ion Case no.24(3)05 dated 7th March, 2005 was registered Lnder sections 420/468/471 read with section 34 of -- the Indian@Penal Code against the respondent accuseds and ' others and the investigation was taken up. 5. +`In course of the investig:.t{ion,, the respondent accused Utpal Dorjee Yongda and Pawan Minda were arrested on 9t'' March, 2005 and were produced before the Chief Judicial 1 Magistrate,` South & West (jn-charge) at Namc,hi on 10t'` March, 2005. On the remand appljcatjon filed by the I.0. the Chief •.:;:.!'`udicial Ma`gistrate, South & West (in-charge) remanded the ccused persons t:iH 14" March, 2005. On the same day, i.e., I on 10" Ma;ch, 2005 after the remand orders were passed the i Chief Judjf,,ia' Magistrate, South & West (in-charge) took up hearingofthebaHapplicationsfiledbytheresponqentaccuseds J on the pervjous day, i.e., the 9" March, 2005 under section 437 1 Fi., i, of the Criminal Procedure Code and released them on ba" 6. The case put forward by the state petitioner before i t:he learned Court during the baH hearing was that the investjgatjo.n having just begun v`'as yet to be completed and cert:ain important documents relating t6 the said transaction \ Were req|lir?ri rn hn c`ni-rirl Tl` I i.,1,.n r„„ „ i„`T,:.` ,,,, `^ I € 80 5.. submissions made-by the parties and also on. consideration of the `entire facts and circumstances of the case' came to the !` conclusion that it was a fit case for grant of ban an.d accordingly i released the respondent accuseds on bail under certain terms I and conditions, namely, that they shan report to the I.0. oF the case as andrwhen required, that they shaH not enter wi'thin the i .r il,. I I territorial I.urisdiction of the South district and that they shaH not temper'with the prosecution witnesses in any manner ' whatsoever. It is contended that the learned Court failed to appreciate I the fact that the investigation had then just begun, important documents relating to the transaction were yet t:o be seized and also the fact that the respondent accusedsi were likely to temper withi prosecution evidence if released on bail. It was I)' ' rther contended that the learned Court had passed the I, mand order before taking up hearing of the baH application •\' ' ter proper,application of mind and as such it, vyas not proper " on the partLof the learned Court to pass the im``}pugned ba" orders releasing t:he respondent accusedsL on baH on the same •' ql" 3 day without there being any material change in the 'L circumstances oF the case. 7. Tr.`e respondent accuseds in both cases filed show icause and mainly contended that the impugned bail orders i being interlocutory orders fan outside the ambit of `section 397 I Cr.P.C. and. as such the revision petitions were not [( maintainable,. I : I 11 S' It was st:at:ed that the impugned.Orders were ., i 2io ~,+ -i;` passed by t:he learned trial Court after proper application of I mind and as such the same were neither perverse nor arbitrary ., or wrong on any account. It was also contended that there was 1 nothing sQ grossly wrong or unjust or shocking to the I I ' Le`' i conscience so as to caH for interference by this Court in exercise of the discretionary powers and jn the interest of Y`' ].ustice. Accordingly, it was contended that the impugned baH J orders passed by the learned trial Court in the exercise of t:he discretionary power vest:ed in the learned Court were perfectly I.ustifiable and tenable bot:h in facts and in law and as such no interferencF was called for. 8. Shri J. B. Pradhan, learned p-ublic prosecutor for the I:1 State petitioner and Shri K. T. Bhutia assisted by Shri a. R. r ,?(. h Pradhan, learned counsel for the respondent a€cuseds were heard. i, I izI 9. Shri J. B. Pradhan, learnea ;rJ'`b"c prosacutor at the + very outset7submitted, in all fairness, that even though t:he present app'lications were filed seeking cancellation of the ba„ he was nat pressing the applications for setting aside the impugned bail orders keeping in view the efflux of time and the progress made in the ongoing investigation;. It was stated by rt him that thf.:e investigations in the case were at the final stage. I Filing of final reports was being delayed only for awaiting the reports from { Government Questioned Doc.unent Examiner = I.I (GQDE), Kolkata. Once the reports are received :from the said .I GQDE, t:he learned public prosecutorftared that, the charge- fa.6 a.J` sheets will be filed. In view of this, it was his further submissioh that no useful purpose would be served by seeking canceHatjo.n of the impugned baH orders, {a.ntd taking t:he respondent accuseds into custody at this stage.: His further submjssio|{t was, however, to the eff.e€t that ev.en though he i I .,I, was not pressing the appljcation for cancellation of the impugned`t)aH ,orders he was making a prayer for an observation/declaration that the impugned orders were passed by t:he learned t:rial Court in improper exercise of discretion vested in jt by law and as such the same were bad in law. The learned counsel appearing on behalf of the respondent accuseds 'gubmitted that the prayer of the petitioner t:o the 1 Court to rTake a note or to observe in the shape of declaration thattheinipugnedorderswereiHegalforthereasonsasst:ated \ by the lea+.ned counsel for the State petitioner wa`: iin-r]ll^J C-- `.._ .`uLc Hciiiiuner wa`s un-caHed for ndunwa++antedlnthecircumstancesofthecase. '1.:I 10. Onaconsiderationofthesubmisslonsmadebythe ¥ parties and on perusal of the materials on record, I am satisfied that the main relief sought having become vjrtually infractuous ' in the face of the factual position with regard to the ongoing ' i, investigation as highlighted by the State petitioner and already indicated ebove, it was appropriate on the Part of the petitioner not 'to press for setting aside of the impugned orders. 1`' However, twith regard to the other prayer 'regarding t:he I }`r .s observation to be made to the effect that t:he imf)ugned orders ri, ( are illegal,?.the question that arlses is`whether il would not be a .,€ F/ present case. The ' futjle exercise to go into the legality or otherwise of the impugned o+ders only for an academic purpose. The learned I publicprosefutorinhissubmissionhas,of course,.madeitclear * t:ha[th`eobs.Frvationsordeclarationssoughtfor,:nqtobemade by t:his Court are only for future guidance in s.imila+ cases as it J 11 might not be of any practical value in t nrp<on+ -I-^ T'-- I anxiety of the leamed public prosecutor s understandable and at the sarri6 time jt is pertinent to note that such an observation as sought for can be made in order to correct miscarriage of justice arising from mis-conception of law, irregularity of procedure and sjmilar other infirmities, in I exercise of revisionsal jurisdiction of this Court under section 401Cr.P.C.'{torunderotherenablingprovisions. 11. `+hils comlng to the propriety or otherwise of the impugned.o.rders, it may be noticed the learned thief Judicial r` ', Magistrate,i south & West (in-charge) took up`qthe remand :!'' in applications'iand the baH applications Separately at different L,j!, i hours of t:he same day and passed separate orders. The contention 6f Shn Pradhan, learned public prosecutor is that ' since the remand orders were passed after proper application of mind, the learned Court ought not to have released the accused persons on,baH by subsequently taking up t:he hearing of the bail applicciFjons on the very same day. Therefore, the quest:ion is whether,.the impugned orders suffer from any illegality or irregularity on this account:. ^b6 +,€ Thereafter, ' applications r `- The ,records show that the 'respondent accuseds were arrested o`n 9" March, 2005 on charges of having commit:ted offencesuhdersections420,468and471which.arepunishable with imprisonment up t:o 7 years in the maximum and were produced before the Court of Chlef Judicial Mag,lstrate, South ' and Westf'(jn-charge) on 10" March, 2005 in terms of section ' 167(2) of: Cr.P.C. for obtaining furth'er remand. On the appljcatjons so made by the I.0., the le:rned Chief Judicial `.\ Magistrate, South & West (in-charge) passed tlie orders of remand aLthorising further detention of the respondent accuseds in police custody for 4 days till 14"` March, 2005. the learned Court took up hearing of the baH Which were filed on the pervious day, i.e., 9th On hearing both parties and on perusal of the and also on taking note oF the further progress March, 2005. case papers '' _ _ _. ` .,., u,iiit=I progress made in the ongoing investigation, the learn:`a €!ourt came to be of the.,'opinion that the respondent petitiohers could be released on baH and according'y passed the impugned baH i,.. orders on G€rtai.n terms and conqjtjons as' already indicated hereinabove. 12. Itisadmittedatthebartha"hepetitionersasweH as the leaned Court were aware of the pending ba„ application filed by th,e respondent accuseds which were fixed for hearing ls` ' and werercoming up on the same day when the remand -I applications were taken up and orders were passed on t:hat day. i i However, `neither t:he resr]onclent accusedsy npr the `Shate `( r£ !r LL- ELI _--''` "t=a''Tlg ofthebaHapplicatlons.Admittedlytheremandordersandthe baHorderswerepassedonthesamedaywtthlnshortjnterval but without any reference of one to the other. There is no doubtthatitlssettledpracticethatwheneveranappllcatjonfor remand of an accused js moved on beh'alf nf I.hh h~-- I 9 I petltloner lncludlTg I.0. seem t:o have made a mention of it eltheratthetimeofobtainingremandordernoratthehearing ) Jf fhp hail `_-" apphcat,on;'orop-:::,un:Jt'::u:::y:::oern¢##:fe:hree:ra°::Ccuat:0:,:: be made by the accused and both can be heard together. rnHAJ,A I_,_ __.. ||,9C|'lcr, Indeed, the prosecution has to be prepared for the opposttlon oftheremandapplicationandalsoforp+ayerforreleaseofthe accused on .ba" In the present case, the remand orders seem tohavebeenpassedbyFheChiefJudicia'Ma,glstrate,South& a West (in-charge) mechanicaHy on the body of the applicatlons filedbythe`I.O.Itdoesnotappearfromtheseordersthatthe I( 2r-,,-_J, -' '_` |, 'C accusedhadanyopportunjtytoresisttheremandprayerorto I bringtothenoticeoftheCourtthattheapp'icatjonforbaHfiled '1 b„heresp6`ndentaccusedswerefixedit!;+tf;heanngrronthesame day. 13. Bfe that as it may, si:ce the pending baH applications were fixed for hearing for the same day and since t:he question of remand and the question of baH were directly related to [hf question of personal liberty of, t:he respondent accuseds and same day the (in-charge) since aH the applications could be heard on the -.\ learned Chief Judicial Magistrate, South & West : would riave dgne` weH to., hear, tlie r.e`ma.nd J.\. 'c] i,i zIrofa appljcatjons ) 10 as weH as the baH applications at a time I.n one hearing iris[ead of hearing them _---`'`.\J|® U\ the same day and passing dlfferent orders. Needless to say, it is deslrab`le that a Court of Magis`tr`at'e while taking up an +-..`1, _ . . separately at' different hours oF application filed by the poljce for I custodyshouldtakenoEeofthebaHappllcafion,if any,already flled and bending so as to hear the two matters together and dlspose them of by a common order to avoid passing contradictoryorders.Therefore,itisclearthateventhoughthe 1 \ , : _'1. _ the learn:d disposed of \ ( intervals on remand of the accused to _.'--I:',, LI'C: existencerI'ofaremandorderdoesnot,strictlyspeaking,operate as a bar to hear the baH application jt appears,'in the peculiar fact:sand`''circumstancesofthecase,thatthemannerjnwhich L.I`_ L i From the Sharma, ChiefJudjcialMagistrate,South&West(jn-charge) :.,i i( the two re'ated matters taking them up at different L i,( k3)j the very same day leaves much to be desired. existing circumstances, it js apparent that Shri a. C. Distr;ct & Sessions Judge, South & West, Namchi who ) was in~charge of the Court of Chief Judjcial Magistrate, South & West, Namchi at t:he relevant time utterly failed to maintain the procedural standard in the matter leading to lack of `( transparehcy jn the judicial process for which this Court 1 expresses its deep displeasure. Keeping in view the fact that the Staterpetitioner has not I i (I pressed for any further order and also the'ifact that the C investigation is at rinal stage and no purpose would be served I by setting aside the impugned baH order, I do not consider it I,,_ q -i.,i r,, 1 11 essent:ial under the peculiar facts and circumstances of this case to make any further order. 14. With the above observations, both the Criminal Revision Petitions stand disposed of. Records of the lower Court may be returned forthwith along with a copy of this order. I A Sd/- ( A. P. Subba ) Judge ls-04-2qos i mT!j;iED TO 98 TRug cop S <, Gnngtol.