Whether magistrate can release accused on bail if police fails to produce remand report?

I have perused the impugned order dated 06.10.2016 and the same is reproduced herein below for ready reference:

"ORDER

Date: 06.10.2016

CR put up today before me on being endorsed with police papers and bail matters by the Hon'ble Addl. D.C. (Judl.)

Accused person Md. Nurul Haque is produced before me today.

No remand report has been submitted by the I/O. Hence, accused Shri. Md Nurul Haque is hereby granted bail for Rs. 50, 000/- with two sureties of the like amount and the following conditions:-

1. That the accused shall not abscond.

2. That the accused shall appear before the court as and when required. However as the accused is unable to furnish sureties today, accused is remanded back to judicial custody.

Accused person states that he can enlarge his own counsel. Fix 20.10.2016 for production.

Sd/-

(Smti. N.M. Momin)

Judicial Magistrate First Class

Shillong Court."

6. On perusal of the said impugned order, it appears and is understood that the learned trial Court below failed to appreciate the criminal jurisprudence, but rather passed an order in a very whimsical manner by passing a statutory provision of the Code of Criminal Procedure. We all know that while granting bail the Court is mainly guided by Section 437 and Section 167 Cr.P.C. along with other provisions as well as the gravity of offence. But here, it appears that the learned trial Court below has totally put all the procedures and principles on fire and passed a mechanical order without giving any reason before granting such bail.

From record it also appears that before granting bail the Court did not even bother to enquire with the Public Prosecutor or the Prosecuting Inspector as to why remand report had not been placed and simply came to the conclusion that, since there was no remand report, bail is to be granted for a sum of Rs. 50,000/- (Rupees fifty thousand) only. In my understanding, the impugned order dated 06.10.2016 is not a "bail order" as it is contrary to the provisions of law. We must remember that the Court is not to do the charity, but to render substantial justice. It is a settled principle of law that it is the duty of the criminal Court to find out the truth and should not miss the ends of justice even if the prosecution fails. But, after reading the impugned order dated 06.10.2016, I find that the concerned Magistrate has forgotten the gravity of offence and principle of criminal justice system, for which I expressed my anguish and displeasure.

IN THE HIGH COURT OF MEGHALAYA AT SHILLONG

Crl. Rev. P. No. 6 of 2016

Decided On: 14.10.2016

 State of Meghalaya and Ors.

Vs.

 Md. Nurul Haque

Hon'ble Judges/Coram:

S.R. Sen, J.

Citation: 2017 CRLJ794

1. Heard Mr. N.D. Chullai, learned Sr. GA assisted by Mr. B. Khyriem, learned GA appearing on behalf of the State of Meghalaya who moved an application under Section 397 read with Section 482 of the Code of Criminal Procedure.

2. The brief fact of the petitioner's case in a nutshell is that:

"The brief facts of the case is that that on 26.07.2016 one Smt. Sunita Das of Jail Road, Shillong lodged a written First Information Report (FIR) at Shillong Sadar Police Station to the effect that her husband namely Shri Arabindra Kumar Das aged about 77 years old had gone for a morning walk on 25th July, 2016 at about 5:00 AM morning and did not return home. At about 7: 15 PM her daughter namely Smt. Sampa Das who is residing at Pune received a call from an unknown person informing her that her father had been kidnapped and a ransom of Rs. 5 crores was demanded. On receipt of the written First Information Report, Shillong Sardar P.S. Case No. 214 (7) 2016 u/s. 364(A) 34/IPC was registered and an investigation was taken up. The abductee (victim) Shri Arabindra Kumar Das, 77 years old was rescued by the Assam Police on 15.09.2016 after a gap of 53 days in captivity and one captor i.e. the Opposite Party herein who was with the victim at the time of rescue operation was arrested and brought to Shillong after observing all legal formalities. The Opposite Party (Accused) was produced before the Hon'ble Court on 18.09.2016 and a Police remand of 4 (four) days was allowed. On expiry of 4 (four) days police custody the Opposite Party was produced before the Court of Magistrate on 22.09.2016 and was remanded to judicial custody for a period of 14 (fourteen) days. During custodial interrogation of the Opposite Party, the Opposite Party/Accused provided some vital information about the kidnapping and based on his information some of the identities of the accused including that one of Shri Bapannath who was earlier involved in several kidnapping cases was ascertained. That during the course of investigation other co-accused involves in the kidnapping have been arrested and considering the gravity and nature of the offence involved the investigation of the case is being supervised by the Special Cell, East Khasi Hills District, Shillong headed by the Superintendent of Police (City), Shillong. Following the profiling of the suspected persons and intelligence gathering/evidence done by the Special Cell it was found that one Shri Tapan Malakar of LumKhyriem, Umpling was behind the kidnapping and on his leading (04.10.2016) a Police team headed by the Superintendent of Police (City), Shillong along with the Investigating Officer of the case SI K.P. Singh left for Karimganj (Assam) and Dharamnagar, Tripura and apprehended another two persons. Raids were also conducted in several parts of Kailasheher, Tripura and Karimganj, Assam to apprehend other persons involved in the said case. A Police team returned back to Shillong in the morning of 07.10.2016 and the since the Investigating Officer of the case (Applicant No. 2) was with the above team remand report in respect of Md. Nurul Haque (Opposite Party) could not be submitted.

On 06.10.2016 the Opposite Party (Md. Nurul Haque) was produced before the Court of the Learned Judicial Magistrate First Class, Shillong. The Learned Magistrate on the same date itself in view of the non-submission of the Remand Report by the Investigating Officer granted Bail to the Opposite Party. During the course of investigation it reveals an organized interstate gang is present and there is involvement of the present accused arrested in connection with this instant case.

Being aggrieved by the impugned Order dated 06.10.2016 passed by the Learned Judicial Magistrate in connection with Shillong Sardar P.S. Case No. 214 (7) 2016 u/s. 364 (A) 34/IPC preferred this Revision Petition".

3. On call, the Superintendent of Police, East Khasi Hills District, Shillong, Mr. M. Kharkrang, the I/O. Mr. K.P. Singh, the Prosecuting Inspector Mr. B. Khongshei appeared along with the case record and produced before this Court.

4. The learned Sr. GA, Mr. N.D. Chullai vehemently challenged the impugned order dated 06.10.2016 and submits that the learned trial Court sou moto granted bail in favour of the accused, Md. Nurul Haque who was involved in a kidnapping of one Mr. Arabindra Kumar Das aged about 77 years old from Jail Road, Shillong when he had gone for a morning walk.

The learned Sr. GA also contended that the said accused Md. Nurul Haque after kidnapping the said victim with the help of some other associates removed the victim to Assam and after a gap of 53 (fifty three) days in captivity, the victim was rescued by the Assam police on 15.09.2016 along with the accused and then handed over to the Meghalaya police. Thereafter, the accused was produced before the Court on 18.09.2016 and a police remand of 4 (four) days' was allowed, but unfortunately the I/O. Mr. K.P. Singh was out of station as he went to Tripura in connection with the same case for arresting the other co-accused(s) and to collect the information for the purpose of investigation; so he could not file the remand prayer.

The learned Sr. GA further contended that on 06.10.2016 the learned trial Court merely granted bail in favour of the accused for a sum of Rs. 50,000/- (Rupees fifty thousand) only on the ground that the I/O failed to submit the remand report. Hence, this instant petition before this Court.

5. I have perused the impugned order dated 06.10.2016 and the same is reproduced herein below for ready reference:

"ORDER

Date: 06.10.2016

CR put up today before me on being endorsed with police papers and bail matters by the Hon'ble Addl. D.C. (Judl.)

Accused person Md. Nurul Haque is produced before me today.

No remand report has been submitted by the I/O. Hence, accused Shri. Md Nurul Haque is hereby granted bail for Rs. 50, 000/- with two sureties of the like amount and the following conditions:-

1. That the accused shall not abscond.

2. That the accused shall appear before the court as and when required. However as the accused is unable to furnish sureties today, accused is remanded back to judicial custody.

Accused person states that he can enlarge his own counsel. Fix 20.10.2016 for production.

Sd/-

(Smti. N.M. Momin)

Judicial Magistrate First Class

Shillong Court."

6. On perusal of the said impugned order, it appears and is understood that the learned trial Court below failed to appreciate the criminal jurisprudence, but rather passed an order in a very whimsical manner by passing a statutory provision of the Code of Criminal Procedure. We all know that while granting bail the Court is mainly guided by Section 437 and Section 167 Cr.P.C. along with other provisions as well as the gravity of offence. But here, it appears that the learned trial Court below has totally put all the procedures and principles on fire and passed a mechanical order without giving any reason before granting such bail.

From record it also appears that before granting bail the Court did not even bother to enquire with the Public Prosecutor or the Prosecuting Inspector as to why remand report had not been placed and simply came to the conclusion that, since there was no remand report, bail is to be granted for a sum of Rs. 50,000/- (Rupees fifty thousand) only. In my understanding, the impugned order dated 06.10.2016 is not a "bail order" as it is contrary to the provisions of law. We must remember that the Court is not to do the charity, but to render substantial justice. It is a settled principle of law that it is the duty of the criminal Court to find out the truth and should not miss the ends of justice even if the prosecution fails. But, after reading the impugned order dated 06.10.2016, I find that the concerned Magistrate has forgotten the gravity of offence and principle of criminal justice system, for which I expressed my anguish and displeasure.

7. I have also seen the application dated 07.10.2016 filed by the I/O. addressed to the Additional Deputy Commissioner (Judicial), East Khasi Hills, Shillong (Through P.I. Shillong Court). The same is reproduced herein below:

"To,

Hon'ble Court of

The Additional Deputy Commissioner (Judicial)

East Khasi Hills, Shillong

(Through P.I. Shillong Court)

Subject:- Submission for Review order Dated 07.10.2016

Ref;- Shillong Sadar P.S. Case No. 214(10) 2016 u/s. 364 (A)/34 IPC

Your Honour,

With due respect and humble submission, I beg to report that the below noted Accused person who is under Judicial custody and his Remand report was supposed to be given on the 6th October 2016 but due to some unavoidable circumstances the Remand Report was not submitted on due date.

Your Honour, I was out of station in connection with the same case for arresting other Co-Accused(s). I left for Dharmanagar, Tripura on 4/10/2016 and returned back today morning and arrested 3 (three) more Accused(s) involved in this serious nature of case and they will be forwarded to your Hon'ble Court today. Further, it is to be stated that if he is released on bail, the other 4 (four) accused, who are still large will be difficult to arrest. Thus, jeopardize the investigation.

Further, I beg to pray that the order passed Dated 06/10/2016 may kindly be vacated as released the Accused on Bail may hamper the investigation of the case.

Submitted for favour of your kind perusal.

Name of the Accused

Md. Nurul Haque 27 years

S/o. Md. Abdul Sukur

R/o. Purbo Gamari under Kali bari Outpost,

P/s.- Ram Krishna Nagar, Karimganj, Assam

Yours faithfully,

Sd/-

S.I. K.P. Singh (I/O.)

Pasteur Beat House"

8. On perusal of the said application, it appears that the I/O has explained why he could not file the remand report in time, but it appears that the learned Sessions Judge had no time or sense to consider the application.

9. It is worth mentioning here that, Section 397 Cr.P.C. has given equal power to the High Court as well as the Sessions Judge to examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court subordinate to it, either in its own motion or on application. The provision of Section 397 Cr.P.C. is reproduced herein below for perusal of the learned Sessions Judge so that he can understand when and where Section 397 to be applied for the ends of justice. He cannot simply say that he has no power and advised the applicant to go to the High Court.

"Section 397 Cr.P.C:- Calling for records to exercise powers of revision:- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such Inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation:- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them".

10. Now, the question that remains before me is whether filing of the remand report under Section 167 Cr.P.C. is the sole responsibility of the I/O. only. The answer is negative.

For ready reference Section 167 Cr.P.C. is reproduced herein below:

"167. Procedure when investigation cannot be completed in twenty-four hours.-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate".

On bare perusal of Section 167 Cr.P.C., I do not find any provision that it is only the responsibility of the I/O. to file the remand report. The Section is silent about it. If it is so, in that case any Police Officer of the District or Headquarter including the Prosecuting Officer can seek further remand if it is required for the interest of the case. It is also the duty of the Court that, while granting bail the Court should take very seriously and cautiously the gravity of offence and taking into consideration the provision of Section 167 Cr.P.C. in case of non bailable offence. In case if the I/O. fails to file the remand report, it is the duty of the Magistrate to call the Prosecuting Officer or the Public Prosecutor to enquire why the remand report has not been filed, but here it appears from the impugned order dated 06.10.2016 the Court did not take any step to inform the Prosecuting Officer or the Public Prosecutor before passing the said impugned order dated 06.10.2016 and the Court had also forgotten that the offence registered is under Section 364(A)/34 IPC which is serious in nature. Thus, the impugned order dated 06.10.2016 has no legs to stand as it cannot be called as a "bail order" since bail cannot be granted in non-bailable offence without formal bail application.

11. Before I part with this case record, I further observed that, if this kind of practice continues, I am sure it will encourage criminals and will create havoc to the society and the country. Such order is unwanted in our criminal justice system. Accordingly, the impugned order dated 06.10.2016 is hereby set aside.

12. To my humble understanding, to combat crime a joint effort is required by the Police, Public and the Court. We should not always blame the police for defective investigation. If the investigation is defective, it is also our duty to make it correct by adopting laws and rules as provided in law.

13. The Registry is directed to send a copy of this judgment and order immediately to all the District and Sessions Judge to circulate among all the Magistrates as well as to the Deputy Commissioners who are still functioning as Judicial Officers, the Director General of Police, the Superintendent of Police to all the Districts and to the Public Prosecutor and the Prosecuting Inspector.

14. Court Master is also directed to return back the case record to the I/O immediately.

15. Notice for cancellation of bail is not required as there is no formal bail application.

16. With this observation and direction, the petition stands disposed of.

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