K.N. Saikia, J.
1. This is an application by the State of Manipur under Article 227 of the Constitution of India and/or Under Section 439(2)/482 of the Criminal P. C, praying for setting aside and cancellation of the bail order dated 31-7-1981 passed by the learned Judicial Magistrate, First Class, Imphal, in Criminal Misc, (Bail) Case No. 226 of 1981, granting bail to the accused-respondent Shri S. N. Guite and for committing him to custody.
2. On the basis of a telephonic message received on 20-7-1981, at the Imphal Police Station to the effect that one Shri Bhaumik, Adviser, Agriculture Department, Manipur, was shot dead at his residence at Officers' Colony, Sanjenthong, by two unknown miscreants, the Imphal Police Station F.I.R. Case No. 41(7) 81 I.P.S. Under Section 121/121A/448/302, I. P. C, and Section 25, Arms Act and Section 13, Unlawful Activities (Prevention) Act, 1967, was registered. It is stated in the petition that during the interrogation of the arrested accused persons, it was re-> vealed that sometime in May, 1981, the accused No. 1 Shri N. Imoba Singh, Farm Superintendent at Maram, (2) Shri Th. Nimaichand Singh, D.O., North (Hortif culture) and (3) Shri S. N. Guite, Direct tor of Horticulture and Soil Conservation, Manipur, met at the residence of Shri S. N. Guite and they hatched a criminal conspiracy to murder Shri S. Bhaumik and that Shri Guite chalked out a master plan of the said criminal conspiracy and engaged accused No. 1 Shri M. Binoy-chand Singh and (2) Shri Mohan Singh to execute the plan. The respondent S. N, Guite was arrested by the police on 29-7-81 and he was produced before the Judicial Magistrate First Class at his residence on 30-7-81 at 8-00 a.m. with a prayer for remand to police custody till 10-8-81. The learned Judicial Magistrate, after hearing the accused, was pleased to remand him to police custody till 1-00 p.m. of 5-8-1981. That very day, the bail application was filed on his behalf before the Judicial Magistrate First Class, who registered it as Criminal Misc. (B) Case No. 226 of 1981' and passed an order as: 'Call for a report from the I.O. of the case along with the Case Diary, Fix 1-8-81 for hearing the bail matter. A.P.P, is to take step.' The main grounds stated in the bail petition were that the accused was the Director of Horticulture and Soil Conservation, Government of Manipur, aged about 53 years, a diabetic patient, undergoing treatment for the same and that if he was not released, his service career would be totally spoilt and it would tell heavily upon his health. It appears that on 31-7-81, another application was filed by one Thangtungnung on behalf of the accused, praying that the hearing of the bail matter be taken up on that very day, because Shri Guite was suffering from diabetes and also that 'the accused was very much provoked unnecessarily by the police in the course of investigation' and his blood pressure had suddenly become very high. The learned Magistrate considered that the bail matter need be considered that very day on the ground of ill health of the accused and he called for a report from the I.O. and from the O.C., Imphal Police Station, along with the case diary to be submitted before 2-00 p.m. that day and directed the A.P.P. to take necessary steps for production of the necessary materials and for hearing of the matter at 2-00 p.m. that very day. A copy of the order was sent to the Investigating Officer of the case. The O.C., Imphal Police Station informed in writing that the I.O. of the case was one Shri N, Babudhon Singh, Dy. Superintendent of Police, Special Cell and the connected case records were in his personal custody and he was conducting the investigation independently and that the I.O. had already left his office before the copy was received by the Police Station for unknown place to recover incriminating materials and prayed that another date for hearing the bail matter may be fixed so that the information could be passed to the 1.0. in time.
3. At 2-00 p.m. the above report of the O.C., Imphal Police Station was considered. The A.P.P. prayed for time. The learned Magistrate, however, decided to consider the matter that very day 'taking into account the health condition of the accused'. The learned Magistrate stressed upon this factor observing that the accused was suffering from diabetes and that he was holding the post of the Director of Horticulture and Soil Conservation and he was aged about 53 years. The learned Magistrate also observed:
This shows that the accusation against the accused is not well founded and only point is that at this stage accused is going to be cornered. True fact of the case is not known to the investigating authority. The above statement made in the remand prayer would mean only that there is no evidence against the accused. There is only the probable information which cannot be ground for refusal of bail.
Rejecting the prayer of the learned A.P.P. that chance should be given to the prosecution and also that the prosecution should also be heard, the learned Magistrate observed;
The accused person who is a responsible officer of the Government of Manipur, now aged about 53 years and suffering from diabetes, shall be entitled to bail. Further, there is no incriminating evidence against the present accused. The investigation of the case shall not be hampered, and the accused may be made available to police in course of investigation.
4. In this application, it is further alleged that subsequent to his being released on bail, the accused was required to attend Imphal Police Station in the morning of 2-8-1981 and also in the morning of 3-8-1981, but the requisition or summons could not be served to him as he evaded the service of the same, and that subsequent to his being on bail, the accused had been planning through his agents to destroy or keep concealed the documents, office files etc. and influence the witnesses working under him and non-officials who are material to the case and thus there is overwhelming probability that the accused-respondent who is still in service will hamper the prosecution and also tamper with the prosecution evidence.
5. The accused-respondent, in his affidavit, denies the subsequent allegations. He states that he took casual leave from 1-8-81 to 4-8-81 and on 2-8-81 he was all along in his Government Quarter. On 3-8-81 he left his quarter at about 9-00 a.m. for District Hospital at Imphal and from there he again proceeded to R.M.C, Hospital for his medical check-up and there urine and blood sugar test was carried on as advised by the Doctor at District Hospital. After doing the needful he returned to his quarter at about 1-00 p.m. Except this period he was all along in his quarter. None came on 2-8-81 and 3-8-81 to serve any requisition or summons on him for requiring his attendance in the Imphal Police Station. He also denies the allegation of planning through his agents to destroy or keep concealed the documents, office files etc.
6. The learned public prosecutor submits that the impugned order of bail is liable to be cancelled, inasmuch as, it was in violation of the principle of natural justice, without giving any opportunity to the prosecution to place its case. It is submitted that the application for bail and the subsequent application for putting ahead the date of hearing were, not supported by any affidavit and the allegation of the accused-respondent suffering from diabetes and high blood pressure were not correct and proper materials were not furnished on which the learned Magistrate could have been satisfied about it. It is further submitted that once the date having been fixed on 1-8-81 as the hearing date for the bail application, it was highly improper to have heard the bail application on 31-7-81. More so, when the Investigating Officer and the Case Diary were not available before him. Finally, it is submitted that the learned Magistrate was not at all justified in observing that there was no evidence, but only the probable information against the accused; that there was no incriminating evidence against the accused and that the investigation of the case would not be hampered should the accused be released on bail.
7. Mr. Y. Imo Singh, the learned Counsel appearing for the accused-respondent, answers that the learned Magistrate committed no illegality or irregularity in granting bail to the accused-respondent, who was suffering from diabetes and sudden rise of blood pressure. Counsel relies on the first proviso to Sub-section (1) of Section 437, Criminal Procedure Code, which reads:
Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.
According to the counsel, the learned Magistrate was justified in acting under this proviso and according to him this was the justification for bringing ahead the date of hearing despite the earlier order to hear it on 1-8-81. Counsel further submits that the allegations of avoiding service of summons and planning to tamper evidence or witness are totally baseless and he denied it categorically in his affidavit in opposition.
8. The only question requiring judicial determination at this stage is whether the impugned bail order is liable to be set aside or cancelled. The provisions of the Criminal P. C. as to when bail may be taken in case of non-bailable offence are well known and the law as to cancellation of bail u/s, 439(2) is also well-settled. The Court has to keep a balance between the rights of the investigation agency on the one hand and right to liberty of the accused on the other. Detailed examination of the evidence and elaborate documentation on merits of the case should be avoided. Neither party should have the impression that its case has been prejudiced by the order. No order should enable either of the two sides to take undue advantage of the other.
9. Under the facts and circumstances of this case, it is clear that the Investigating Officer was out of station and the Case Diary was not available for consideration by the learned Magistrate. Considering the nature of the offence and the fact that the hearing was earlier fixed on 1-8-81, it would have been proper for the learned Magistrate to give the prosecution a chance to put its case and satisfy the Court. As the State makes a grievance that the prosecution was not given this opportunity, it is considered expedient that this impugned bail order be cancelled and the bail application be remanded for being considered after giving opportunities to the prosecution as well as to the accused. The bail order is accordingly cancelled and the bail matter is remanded to the Chief Judicial Magistrate, Central, who shall positively hear it on 11-8-81' at 11-00 a.m. The accused-respondent shall surrender to the custody of the Court on that date at 11-00 a.m. as in Niranjan Singh v. V. Prabhakar Rajaram Kharote : 1980CriLJ426 ). Till the accused-respondent so surrenders to the custody of the Court, he need not surrender elsewhere.
10. Let the affidavits, documents and papers filed before this Court be treated as to have been filed before that Court. The parties shall be given opportunity to file further affidavits, documents and papers, if they so desire before the hearing starts. The petition is disposed of accordingly.