Mithun Hagjer Alias Action Dimasa Vs. State of Assam and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/894836
SubjectCriminal
CourtGuwahati High Court
Decided OnJun-12-2009
JudgeChelameswar, C.J. and ;I.A. Ansari, J.
Reported in2009CriLJ4370
AppellantMithun Hagjer Alias Action Dimasa
RespondentState of Assam and ors.
DispositionPetition dismissed
Cases ReferredWillie (William) Slaney v. State of M.P.
Excerpt:
- i.a. ansari, j.1. is it not legally permissible for a court, which has granted bail to an accused, in a non-bailable offence, to cancel bail unless the accused is shown to have violated any of the conditions for bail already granted to him and, if so, is it not possible, in law, to cancel bail by a court, which granted bail to an accused in a non-bailable offence, if the accused was not already released, despite having been granted bail, for reasons beyond the control of the court, and, in the meanwhile, charge-sheet is submitted by the investigating agency expressing apprehension that if the accused is released on bail, there is likelihood of the accused absconding and/or that the accused would not be available for trial and the court, which had granted bail, considers such an apprehension reasonable? when a person, accused of an offence, while seeking bail, or while challenging an order of cancellation of bail, in the high court, makes false statements or suppresses material facts, what will be the effect of such a conduct of the accused on the order(s), which might have been passed by the high court on such an application? while in seisin of a proceeding under art. 226, is it permissible for the high court, in the light of the provisions of juvenile justice (care and protection of children) act, 2006, to hold an enquiry to determine if a person, accused of an offence, is or is not a juvenile? these are some of the important questions, which this writ petition has raised.2. we have heard mr. g. n. sahewalla, learned senior counsel, for the petitioner, and mr. p. s. deka, learned government advocate, assam.3. the material facts, giving rise to this writ petition, may, in brief, be set out as under:(i) a written information was lodged, on 23-2-2006, at haflong police station, alleging, inter alia, that on 23-2-2006, when the informant, accompanied by one thangneikuing changsan, was proceeding towards his village, some unknown miscreants had fired bullet from a white maruti car, the bullet hit thangneikuing changsan's throat and he died on the spot. based on this fir, haflong police station case no. 08/2006, under section 302, i.p.c. read with section 27 of the arms act, was registered.(ii) during investigation of haflong police station case no. 08/06, the present petitioner was arrested, on 17-11-2006, in connection with haflong police station case no. 104/2006 under sections 120-b/121/121-a/387, i.p.c. on his arrest, the petitioner was also, on 27-11-2006, on the basis of an application made by the officer-in-charge, haflong police station, shown arrested in haflong police station case no. 08/2006 aforementioned.(iii) by order, dated 18-8-2007, the petitioner was granted bail, in haflong police station case no. 8/2006, on the ground that more than ninety days had elapsed and no charge-sheet had been filed, in the case, against the petitioner. the bail bond of the petitioner, as accused in case no. 8/2006 aforementioned, was accepted on 27-8-2007; but he was not released from custody, because he had not been granted bail in case no. 104/2006 aforementioned. the bail bond of the petitioner, as accused in case no. 104/2006, was accepted on 9-10-2007; but he was still not released, because he had already been, in terms of the provisions of national security act, 1981, placed, under preventive detention, with effect from 4-10-2007. thus, notwithstanding the fact that the petitioner had been granted bail in both the said cases, he remained in custody due to order of preventive detention passed against him.(iv) on completion of investigation of haflong police station case no. 08/2006, police laid charge-sheet against four persons including the present petitioner and three of such persons, against whom charge-sheet had been submitted, were shown as absconders. while submitting the charge-sheet, the investigating agency prayed that the petitioner should not be released, because there was likelihood of his jumping bail and that it would disturb smooth proceeding of the trial.(v) having taken the view that the accused should not be released, though he had been granted bail, inasmuch as detention of the accused was, in the facts and circumstances of the present case, necessary for smooth proceeding of the trial, the learned judicial magistrate, 1st class, passed an order, dated 29-9-2008, cancelling the bail earlier granted.(vi) on cancellation of his bail by order, dated 29-9-2008, aforementioned, passed by the learned court below, the petitioner came to this court with an application, made under section 439, cr. p. c., seeking bail in haflong police station case no. 08/2006. this bail application gave rise to bail application no. 5995/2008. by order, dated 13-2-2009, the high court rejected the prayer for bail, but a direction was given to the learned trial court to dispose of the case by taking all necessary steps, as were required by law, as early as possible. in short, while rejecting the prayer for bail, the high court directed disposal of the case by expeditiously holding trial.(vii) on rejection of his bail application by order, dated 13-2-2009, passed by this court, the petition filed against the order, dated 29-9-2008, aforementioned, a criminal revision challenging the legality and correctness of the order, dated 29-9-2008, whereby learned court below had cancelled his bail, as already indicated hereinbefore, in haflong police station case no. 08/2006. criminal revision no. 30/2009 came to be accordingly registered.(viii) by order, dated 9-4-2009, passed in the criminal revision, a learned single judge of this court disposed of the revision by directing the learned trial court to hear, in presence of the accused, the investigating officer's prayer that the accused be not released on bail. while giving this direction, the learned single judge, however, made it clear that until an order is passed afresh by the learned court below, the accused shall not be released from custody. , .(ix) following the directions given in the said criminal revision, on 9-4-2009, the petitioner moved an application in the court of learned deputy commissioner, nc hills, haflong, seeking bail. the learned court below accordingly heard the learned public prosecutor and the learned counsel for the petitioner. upon having heard both sides and having noted that granting of bail had been seriously objected by the state on the ground that there was every possibility of the accused jumping bail and absconding, the learned trial court took the view that there was every possibility of the accused absconding. the learned court below, therefore, rejected the prayer for bail by order, dated 21-4-2009.(x) following rejection of his application for bail by the order dated 21-4-2009, aforementioned, the petitioner has, now. filed this application, tinder article 226 of, the constitution of india, seeking, inter alia, issuance of a writ of habeas corpus directing his release on the ground, inter alia, that the petitioner was a juvenile at the relevant point of time.4. what is, now, extremely important to point out is that while moving the application for bail in the high court, the petitioner did not inform this court that tiespite the fact that his bail bond had been accepted, on 27-8-2007, in haflong police station case no. 08/2006, he could not be released on ball, because of the fact that haflong police station case no. 104/2006 was still pending against him, wherein he had not been granted bail. in fact, and as already mentioned, the bail bond of the accused, in case no. 104/2006, was accepted on 1-10-2007, but he could still not be released as he was placed under preventive detention, with effect from 2-10-2007, for a period of one year.5. thus, the accused was not released despite having been granted ball in case no. 8/2006, not because of any fault on the part of the learned court below, but because of the fact that he had remained in custody, in connection with case no. 104/2006, till 1-10-2007 and, with effect from 2-10-2007, he had been placed under preventive detention. in order to, however, make out a case for bail, what the petitioner did was that he claimed, in his application under section 439, cr. p.c., before this court, in bail application no. 5995/2008, that bail already stood granted to him, in case no. 104/2006, before he was granted bail in case no. 08/2006. this assertion of the petitioner was, as can be noted, wholly untrue.6. coupled with the above, on coming to this court with criminal revision, the petitioner, once again, suppressed the truth from this court inasmuch as the petitioner did not bring it to the notice of this court that his application for bail had already been rejected by the high court by order, dated 13-2-20d9, passed in ball application no. 5995/2008. this apart, while, in the bail application, which gave rise to bail application no. 5995/08, the petitioner had projected that he had already been granted bail, in case no. 104/2006, before he was granted ball in case no. 08/2006, the petitioner did not repeat, in the criminal revision, his earlier false assertion that before his bail bond was accepted, in case no. 08/2006, he already stood granted bail in case no. 104/2006,7. the petitioner, in fact, gave no indication, in the criminal revision, as to why he had not been released from custody in connection with case no. 104/2006 despite the fact that the bail bond stood accepted in the said case. this apart, the petitioner, in the criminal revision, contended, before this court, for the first time, that he was a juvenile as per the birth certificate issued to him and that, on submission of charge-sheet, the learned court below had illegally cancelled his bail. in the revision, the petitioner had also submitted that before his bail was cancelled, he was given no opportunity of hearing and no notice was served upon him. the petitioner, however, gave no indication, in his criminal revision, that after his ball had been cancelled by order, dated 29-9-2008, he had come to this court, in bail application no. 5996/2008, but this court did not interfere with his cancellation of bail nor did it direct his release on bail; rather, his prayer for bail was rejected and the trial was directed to be expedited.8. two things become clear from the above narration of facts, namely, (i) with effect from the date of rejection of his bail application, on 13-2-2009, by the high court, the petitioner had actually remained in judicial custody by virtue of the directions given by the high court inasmuch as the high court, instead of granting ball to the petitioner, had directed holding of trial expeditiously; and (ii) even, while disposing of the criminal revision, this court did not direct release of the petitioner on bail, rather, this court directed that the petitioner be kept, in custody, until appropriate order was passed afresh.9. having noticed all the relevant facts and also taking into account the petitioner's claim that he was a 'juvenile', we formed the view, during the course of progress of the proceedings of this writ petition, that in the facts and circumstances of the present case, it is necessary that this court holds an 'enquiry' into the question as to whether the petitioner was or was not a juvenile within the definition of the term 'juvenile', as contained in the juvenile justice (care and protection of children) act, 2006. we took the decision to hold the enquiry in the light of the provisions of section 7-a of the said act inasmuch as section 7-a makes it clear that whenever a claim of juvenile is raised before any court or a court is of the opinion that accused person was a juvenile on the date of commission of the offence, the court shall make an 'enquiry', take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile, or a child, or not, stating his age as nearly as may be.10. an order directing that the enquiry would be held, was, therefore, passed, in this writ petition, on 28-5-2009 and an 'enquiry' has accordingly been held. in this 'enquiry', the petitioner has adduced evidence by examining his father. from the evidence given by the petitioner's father, we find that according to his evidence, the petitioner was born on 17-1-1990, but his date of birth came to be registered as late as on 21-4-2001. in his evidence, this witness has deposed that he approached the local public health centre for registration of his son's birth, but he was asked by the public health centre to obtain an order from a magistrate, whereupon he approached a magistrate, at haflong, for passing an order directing registration of his son's birth. it is in the evidence of the petitioner's father that the magistrate passed an order and accordingly, his son's birth was registered and the birth certificate (ext. 1) was issued, which shows the petitioner's date of birth as 17-1-1990.11. what is, now, important to note is that the petitioner admits that he has read up to class v and he joined service in the year 1989. explaining as to why registration of his son's birth was delayed by as many as 11 years, the petitioner's father has deposed that he did not know that birth was required to be registered and that he came to know about this requirement only in the year 2001. though the petitioner's father deposed that he was unaware of the fact that birth was required to be registered, he admits that he got his own birth registered in the year 1989. this shows that the petitioner's father knew as far back as in the year 1989 itself, i.e., even before the petitioner was born (if we were to believe the petitioner's father), that date of birth was required to be registered and yet he got his son's birth registered as late as in the year 2001. thus, the explanation, offered by the petitioner's father, as regards delay in getting his son's birth registered, is palpably belied by the evidence adduced by none other than the petitioner's father himself.12. we may also point out that the petitioner's father admits that his son passed hslc examination in the year 2006, but he has not submitted before this court the admit card, where the date of birth of his son stands recorded, nor does he claim that the date of birth, mentioned in his son's school records, is same as the date of birth mentioned in the birth certificate (ext. 1) aforementioned. this apart, the petitioner has not produced any order, certified or uncertified, issued by the magistrate, directing registration of birth of the petitioner. in fact, the petitioner's witness admits that he has no proof of the fact that the magistrate had passed any order to register his son's date of birth.13. we may, at this stage, refer to rule 9, which lays down that the information, as regards birth, has to be given to the registrar within a period of 30 days of the birth. rule 9(1) also lays down that the information as regards birth, if given to the registrar after expiry of 30 days, but within a period of six months of the date of birth, such information, regarding birth, can be registered only with the written approval of the legal revenue authority not below the rank of circle officer and on payment of requisite fees. however, rule 9(3) makes it clear that birth shall not be registered if it has not been registered within one year from the date of birth unless an order is passed by a magistrate, 1st class, on payment of court-fees, directing registration of birth.14. in the present case, the petitioner orally claims that an order was passed by the magistrate. however, no such direction has been placed on record. in the absence of relevant records and in the absence of any written materials, one cannot, in a case of present nature, rely upon the oral testimony of the ptitioner's father, particularly, when the law does not permit substitution of documentary evidence (i.e., the written records) by oral evidence. in such circumstances, it is clear that in the absence of any written record, it cannot be held that the magistrate had passed an order, as claimed by the petitioner's father, nor can this court, merely on the basis of a birth certificate, which is shown to have been issued by a public health centre; hold that the petitioner was juvenile, i.e., less than 18 years of age, at the time, when the petitioner had allegedly committed the offence.15. in the above view of the matter, we have no hesitation in holding that the petitioner has not satisfactorily shown, far less proved, to have been a junvnile at the time, when the offences, in question, were allegedly committed by him. in such circumstances, the question of directing release of the accused petitioner, on bail, on the ground that he was a juvenile, at the relevant point of time, does not arise 'at all.16. we, therefore, hold that the petitioner is not a juvenile and he was, on the day of the alleged offence, older than 18 years. consequently, this writ petition cannot be allowed on the ground that the petitioner, being a juvenile, has been kept in prison as discussed above.17. coming to the question as to whether the learned magistrate could have cancelled the bail, we may point out that mr. sahewalla, learned counsel, has submitted, on behalf of the petitioner, that it is not possible to cancel bail of an accused unless the court is satisfied that the accused has abused the liberty of bail. mr. sahewalla has also referred to the case of mehboob dawood shaikh v. state of maharashtra reported in : (2004) 2 scc 362 : 2004 cri lj 1359, to lay emphasis on the fact that on expiry of statutory period of detention, a person acquires an indefeasible right to be released on bail. mr. sahewalla has, in this rgard, referred to dr. bipin shantilal panchal v. state of gujarat, reported in : (1996) 1 scc 718 : 1996 cri lj 1652 also. according to the decision in dr. bipin shantilal panchal (supra), when bail is granted to an accused on the ground of omission to file chargeshet within the statutory period of detention, the bail cannot be cancelld on mere filing of the charge-sheet; rather, bail, in such a case, can be candied only when a case for cancellation of bail has been made under section 437(5) or 439(2).18. while considering the cited authorities, what needs to be borne in mind is that both the cases, referred to above, relate to a situation, where bail was granted and pursuant to granting of bail, the accused stood released. there is no dispute with the proposition of law, as contended by mr. sahewalla, that when the accused already stands released on bail, his ball cannot be cancelled merely on filing of charge-sheet unless the court finds that the accused has abused his liberty on bail. in a case, however, where the accused, for reasons beyond the control of the court, has not been released despite bail having been granted, there is no question of the accused having abused the liberty of bail. can, in such a case, the order of bail passed, in favour of the accused, be not cancelled even if there are genuine apprehensions that if released on bail, the accused is likely to abscond? this is the question, which this court is, now, required to address.19. it may be borne in mind that an accused may be granted ball for a variety of reasons. he may be granted ball, because of the fact that no reasonable ground for his having committed the offence exists or that his liberty on ball is not likely to adversely affect further investigation, if any, of the case. an accused may also be granted ball if he is sick or infirm or if the accused is a female. a person may also be released on ball if the court is satisfied that due to any special reason, which is just and proper the accused needs to be released on bail.20. in a case, of course, where the charge-sheet is not submitted against the arrested accused within the statutorily prescribed period of 60, 90, or 180 days, as the case may be, the arrestee acquires a right to be released on bail. in such circumstances, the court is bound to direct his release on bail with or without surety as may be deemed fit by the court. in a case, however, where the court grants bail to such an arrestee subject to any condition and the condition is not fulfilled or where the arrestee is not released due to the fact that he is kept detained in connection with some other cases, it is not illegal to cancel such an accused person's bail if the court apprehends, in view of the attending facts and circumstances of a given case, that the accused is not likely to be available for trial.21. when an arrestee is released not due to the fact that no case against him is made out, but on account of the fact that the investigation is not completed within the prescribed statutory period, the person acquires a right to be released on bail subject to such conditions as the court may impose. logically, therefore, when charge-sheet is submitted after the accusd already stands released on ball, his bail cannot be cancelled merely because of the fact that charge-sheet has been submitted against the accused unless he can be shown to have violated any of the conditions of bail already granted to him. in a case, however, where bail has been granted on expiry of the prescribed statutory period, but the accused has not been released on account of some legally valid reasons and if, in such a case, the investigating agency, while laying charge-sheet against the accused, satisfies the court that if released on bail, the accused is not likely to be available for trial, it would be within the ambit of the powers of the court, which had granted bail, to cancel the bail. the court, in such a case, may not take the risk of watching and observing if the accused really abuses his liberty of bail. in a given case, the court may not be in a position to take the risk of releasing the accused, though bail had been granted to him, provided that there are good grounds justifying the court's apprehension that the accused is not likely to be available for trial.22. it is worth pointing out that bail cannot be granted, particularly, in a non-bailable offence, unless the court is satisfied that the presence of the accused will not adversely affect further investigation, if any, of the case and that the accusd would be available for trial if charge-sheet is submitted. when the court has reasons to apprehened that the accused would not be available for trial, the court cannot grant bail unless the law has vested, in the accused, a right to claim bail on account of the fact that no charge-sheet, within the prescribed statutory period, has been submitted against him. a court can impose only such conditions as may be deemed necessary for the purpose of ensuring that the accused does not take the liberty of his bail and adversely affect further investigation of the case and if charge-sheet is filed, the accused would be available for trial. the question of granting bail to an accused, whose presence at the trial is not reasonably assured, does not arise unless the law forces the court to release the accused on bail. granting of bail, in a non-bailable case, is, it may be noted, circumscribed by the various provisions of the code of criminal procedure itself; but as far as cancellation of bail is concerned, there is no prescribed limit except for special reasons to be assigned by the court. however, in order to make exercise of the power, as regards cancellation of bail, reasonable and consistent and to avoid arbitrariness in such exercise of power, judicially evolved principles govern grant or cancellation of bail. such principles are, therefore, to be followed depending upon the facts of a given case.23. as regards the submission, made on behalf of the petitioner that his bail could not have been cancelled inasmuch as he had not misused the liberty of ball, suffice it to point out that when a person, on completion of statutory period of detention, is ordered to be released on bail, but is not, eventually, released due to the fact that he had not been able to give bail bond or for some other reason beyond the control of the court, the court, which granted bail, does not lose the power to cancel the bail if any such circumstances are brought to the notice of the court (which had granted bail), showing that the bail granted to the petitioner must be cancelled. such a power is traceable to sub-section (5) of section 437 inasmuch as section 437(5) makes it clear that the court, which granted ball, has the power to cancel the bail. since the code of criminal procedure does not assign any specific ground on which an order of cancellation of bail under section 437(5), can be cancelled, the decisions, which mr. sahewalla relies upon, and which relate to cases of cancellation of bail after the accused already stood released on bail, can have no application at all.24. it is trite that a decision is an authority for what it decides and not what can be deduced therefrom. the cases, which relate to cancellation of bail, after the accused had already been released on bail, cannot be made an authority for the proposition that even in a case, where the accused had not been released, shall be governed by the decisions, rendered in those cases, wherein the bail of the accused was cancelled after he already stood released on bail.25. there is no such thing, observes the supreme court, in mehboob dawood shaikh (supra), which mr. sahewalla relies upon, as a judicial precedent on facts, though counsel, and even judges, are sometimes prone to argue and to act as if they were, said bose, j., about half a century back, in willie (william) slaney v. state of m.p. : air 1956 sc 116 : 1956 cri lj 291. the supreme court reiterated, in mehboob dawood shaikh (supra), that 'a decision is available as a precedent only if it decides, a question of law. a judgment should be understood in, the light of facts of that case and no more should be read into it than what it actually says. it is neither desirable nor permissible to pick out a word or a sentence from the judgment of this court divorced from the context of the question under consideration and treat it to be complete law decided by this court.' the judgment, points out the supreme court, in mehboob dawood shaikh (supra), must be read as a whole and the observations from the judgment have to be considered in the light of the questions, which were before the court, (see cit v. sun engineering works (p) ltd. reported in : (1992) 4 scc 363 : air 1993 sc 43.26. as already indicated above, the cases, which mr. sahewalla has relied upon, are cases, where, bail was sought to be cancelled or cancelled after the accused hid already been released on ball. the case at hand is one, where the accused, though granted ball, could not be released. to a case, such as, the one at hand, the decision, in mehboob dawood shaikh (supra), is not applicable.27. in the case at hand, three of the four accused, against whom charge-sheet had been submitted, were absconding and it was not only rational, on the part of the learned court below, to take the view, on the basis of the apprehensions, expressed on behalf of the prosecution, that if released, there was likelihood of the petitioner jumping bail, particularly, when the petitioner was wanted in more than one case. the petitioner's bail was not cancelled, because of the fact that charge-sheet had been submitted against him; but due to the apprehension that there would not be smooth proceeding of the trial. such an inference, drawn by the learned court below, on the basis of the materials available on record, cannot be held to be wholly unfounded.28. be that as it may, the high court, as already indicated above, rejected the petitioner's prayer for bail. once the high court had rejected the prayer for bail, in bail application no. 5995/2008, the question of the learned court below granting the petitioner bail could not have arisen. this apart, and as already indicated above, the petitioner, while coming to this court, with the criminal revision, had, once again, suppressed the fact that his prayer for bail had already been considered and rejected by this court.29. in view of the fact that the petitioner had suppressed, in the criminal revision, that his application for bail had already been considered and rejected by this court, his subsequent conduct, in the absence of any explanation whatsoever, cannot, but be regarded as fraudulent conduct. the petitioner cannot, therefore, on the basis of the subsequent order, passed in the criminal revision, demand that he ought to have been released on bail.30. in the factual setting of the present case, what clearly transpires is that the petitioner had not been released, because of the reasons beyond the control of the learned court below inasmuch as he had, initially, remained in custody (despite his bail bond having been accepted) on account of the fact that he had not been granted bail in connection with haflong police station case no. 104/2006 and, thereafter, due to the order of preventive detention passed against him.31. coupled with the above, the petitioner's bail was cancelled by order, dated 29-9-2008, and despite the fact that the petitioner had come to this court seeking bail after the sale order dated 29-9-2008, his prayer for bail was rejected even by the high court. the order, dated 13-2-2009, whereby petitioner's prayer for bail was rejected by this court, is not amenable to this court's jurisdiction under article 226. the remedy against the order, dated 13-2-2009, if any, lies in the petitioner making appropriate application to the apex court. so long as the order dated 13-2-2009, remains in force, the question of the petitioner being enlarged on bail, in consequence of the order, passed in the criminal revision, does not arise at all, particularly, when the petitioner's conduct is too fraudulent to ignore. this apart, the subsequent order, dated 9-4-2009, which was passed in the criminal revision, is an order, which was obtained by the petitioner by suppressing facts and misleading the court. the directions, obtained in the criminal revision, therefore, stood vitiated.32. as the order, dated 13-2-2009, has remained in force and in view of the other reasons that we have assigned hereinabove, we do not find any merit in this writ petition. this writ petition, therefore, fails and the same shall accordingly stand dismissed.
Judgment:

I.A. Ansari, J.

1. Is it not legally permissible for a Court, which has granted bail to an accused, in a non-bailable offence, to cancel bail unless the accused is shown to have violated any of the conditions for bail already granted to him and, if so, is it not possible, in law, to cancel bail by a Court, which granted bail to an accused in a non-bailable offence, if the accused was not already released, despite having been granted bail, for reasons beyond the control of the Court, and, in the meanwhile, charge-sheet is submitted by the investigating agency expressing apprehension that if the accused is released on bail, there is likelihood of the accused absconding and/or that the accused would not be available for trial and the Court, which had granted bail, considers such an apprehension reasonable? When a person, accused of an offence, while seeking bail, or while challenging an order of cancellation of bail, in the High Court, makes false statements or suppresses material facts, what will be the effect of such a conduct of the accused on the order(s), which might have been passed by the High Court on such an application? While in seisin of a proceeding under Art. 226, is it permissible for the High Court, in the light of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2006, to hold an enquiry to determine if a person, accused of an offence, is or is not a juvenile? These are some of the important questions, which this writ petition has raised.

2. We have heard Mr. G. N. Sahewalla, learned Senior counsel, for the petitioner, and Mr. P. S. Deka, learned Government Advocate, Assam.

3. The material facts, giving rise to this writ petition, may, in brief, be set out as under:

(i) A written information was lodged, on 23-2-2006, at Haflong Police Station, alleging, inter alia, that on 23-2-2006, when the informant, accompanied by one Thangneikuing Changsan, was proceeding towards his village, some unknown miscreants had fired bullet from a white Maruti Car, the bullet hit Thangneikuing Changsan's throat and he died on the spot. Based on this FIR, Haflong Police Station Case No. 08/2006, under Section 302, I.P.C. read with Section 27 Of the Arms Act, was registered.

(ii) During investigation of Haflong Police Station Case No. 08/06, the present petitioner was arrested, on 17-11-2006, in connection with Haflong Police Station Case No. 104/2006 under Sections 120-B/121/121-A/387, I.P.C. On his arrest, the petitioner was also, on 27-11-2006, on the basis of an application made by the Officer-in-Charge, Haflong Police Station, shown arrested in Haflong Police Station Case No. 08/2006 aforementioned.

(iii) By order, dated 18-8-2007, the petitioner was granted bail, in Haflong Police Station Case No. 8/2006, on the ground that more than ninety days had elapsed and no charge-sheet had been filed, in the case, against the petitioner. The bail bond of the petitioner, as accused in Case No. 8/2006 aforementioned, was accepted on 27-8-2007; but he was not released from custody, because he had not been granted bail in Case No. 104/2006 aforementioned. The bail bond of the petitioner, as accused in Case No. 104/2006, was accepted on 9-10-2007; but he was still not released, because he had already been, in terms of the provisions of National Security Act, 1981, placed, under preventive detention, with effect from 4-10-2007. Thus, notwithstanding the fact that the petitioner had been granted bail in both the said cases, he remained in custody due to order of preventive detention passed against him.

(iv) On completion of investigation of Haflong Police Station Case No. 08/2006, police laid charge-sheet against four persons including the present petitioner and three of such persons, against whom charge-sheet had been submitted, were shown as absconders. While submitting the charge-sheet, the investigating agency prayed that the petitioner should not be released, because there was likelihood of his jumping bail and that it would disturb smooth proceeding of the trial.

(v) Having taken the view that the accused should not be released, though he had been granted bail, inasmuch as detention of the accused was, in the facts and circumstances of the present case, necessary for smooth proceeding of the trial, the learned Judicial Magistrate, 1st Class, passed an order, dated 29-9-2008, cancelling the bail earlier granted.

(vi) On cancellation of his bail by order, dated 29-9-2008, aforementioned, passed by the learned Court below, the petitioner came to this Court with an application, made under Section 439, Cr. P. C., seeking bail in Haflong Police Station Case No. 08/2006. This bail application gave rise to Bail Application No. 5995/2008. By order, dated 13-2-2009, the High Court rejected the prayer for bail, but a direction was given to the learned trial Court to dispose of the case by taking all necessary steps, as were required by law, as early as possible. In short, while rejecting the prayer for bail, the High Court directed disposal of the case by expeditiously holding trial.

(vii) On rejection of his bail application by order, dated 13-2-2009, passed by this Court, the petition filed against the order, dated 29-9-2008, aforementioned, a criminal revision challenging the legality and correctness of the order, dated 29-9-2008, whereby learned Court below had cancelled his bail, as already indicated hereinbefore, in Haflong Police Station Case No. 08/2006. Criminal Revision No. 30/2009 came to be accordingly registered.

(viii) By order, dated 9-4-2009, passed in the Criminal Revision, a learned Single Judge of this Court disposed of the revision by directing the learned trial Court to hear, in presence of the accused, the investigating Officer's prayer that the accused be not released on bail. While giving this direction, the learned Single Judge, however, made it clear that until an order is passed afresh by the learned Court below, the accused shall not be released from custody. , .

(ix) Following the directions given in the said Criminal Revision, on 9-4-2009, the petitioner moved an application in the Court of learned Deputy Commissioner, NC Hills, Haflong, seeking bail. The learned Court below accordingly heard the learned Public Prosecutor and the learned Counsel for the petitioner. Upon having heard both sides and having noted that granting of bail had been seriously objected by the State on the ground that there was every possibility of the accused jumping bail and absconding, the learned trial Court took the view that there was every possibility of the accused absconding. The learned Court below, therefore, rejected the prayer for bail by order, dated 21-4-2009.

(x) Following rejection of his application for bail by the order dated 21-4-2009, aforementioned, the petitioner has, now. filed this application, tinder Article 226 of, the Constitution of India, seeking, inter alia, issuance of a writ of habeas corpus directing his release on the ground, inter alia, that the petitioner was a juvenile at the relevant point of time.

4. What is, now, extremely important to point out is that while moving the application for bail in the High Court, the petitioner did not inform this Court that tiespite the fact that his bail bond had been accepted, on 27-8-2007, in Haflong Police Station Case No. 08/2006, he could not be released on ball, because of the fact that Haflong Police Station Case No. 104/2006 was still pending against him, wherein he had not been granted bail. In fact, and as already mentioned, the bail bond of the accused, in Case No. 104/2006, was accepted on 1-10-2007, but he could still not be released as he was placed under preventive detention, with effect from 2-10-2007, for a period of one year.

5. Thus, the accused was not released despite having been granted ball in Case No. 8/2006, not because of any fault on the part of the learned Court below, but because of the fact that he had remained in custody, in connection with Case No. 104/2006, till 1-10-2007 and, with effect from 2-10-2007, he had been placed under preventive detention. In order to, however, make out a case for bail, what the petitioner did was that he claimed, in his application under Section 439, Cr. P.C., before this Court, in Bail Application No. 5995/2008, that bail already stood granted to him, in Case No. 104/2006, before he was granted bail in Case No. 08/2006. This assertion of the petitioner was, as can be noted, wholly untrue.

6. Coupled with the above, on coming to this Court with Criminal Revision, the petitioner, once again, suppressed the truth from this Court inasmuch as the petitioner did not bring it to the notice of this Court that his application for bail had already been rejected by the High Court by order, dated 13-2-20d9, passed in Ball Application No. 5995/2008. This apart, while, in the bail application, which gave rise to Bail Application No. 5995/08, the petitioner had projected that he had already been granted bail, in Case No. 104/2006, before he was granted ball in Case No. 08/2006, the petitioner did not repeat, in the Criminal Revision, his earlier false assertion that before his bail bond was accepted, in Case No. 08/2006, he already stood granted bail in Case No. 104/2006,

7. The petitioner, in fact, gave no indication, in the Criminal Revision, as to why he had not been released from custody in connection with Case No. 104/2006 despite the fact that the bail bond stood accepted in the said case. This apart, the petitioner, in the Criminal Revision, contended, before this Court, for the first time, that he was a juvenile as per the birth certificate issued to him and that, on submission of charge-sheet, the learned Court below had illegally cancelled his bail. In the revision, the petitioner had also submitted that before his bail was cancelled, he was given no opportunity of hearing and no notice was served upon him. The petitioner, however, gave no indication, in his criminal revision, that after his ball had been cancelled by order, dated 29-9-2008, he had come to this Court, in Bail Application No. 5996/2008, but this Court did not interfere with his cancellation of bail nor did it direct his release on bail; rather, his prayer for bail was rejected and the trial was directed to be expedited.

8. Two things become clear from the above narration of facts, namely, (i) with effect from the date of rejection of his bail application, on 13-2-2009, by the High Court, the petitioner had actually remained in judicial custody by virtue of the directions given by the High Court inasmuch as the High Court, instead of granting ball to the petitioner, had directed holding of trial expeditiously; and (ii) even, while disposing of the Criminal Revision, this Court did not direct release of the petitioner on bail, rather, this Court directed that the petitioner be kept, in custody, until appropriate order was passed afresh.

9. Having noticed all the relevant facts and also taking into account the petitioner's claim that he was a 'juvenile', we formed the view, during the course of progress of the proceedings of this writ petition, that in the facts and circumstances of the present case, it is necessary that this Court holds an 'enquiry' into the question as to whether the petitioner was or was not a juvenile within the definition of the term 'juvenile', as contained in the Juvenile Justice (Care and Protection of Children) Act, 2006. We took the decision to hold the enquiry in the light of the provisions of Section 7-A of the said Act inasmuch as Section 7-A makes it clear that whenever a claim of juvenile is raised before any Court or a Court is of the opinion that accused person was a juvenile on the date of commission of the offence, the Court shall make an 'enquiry', take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile, or a child, or not, stating his age as nearly as may be.

10. An order directing that the enquiry would be held, was, therefore, passed, in this writ petition, on 28-5-2009 and an 'enquiry' has accordingly been held. In this 'enquiry', the petitioner has adduced evidence by examining his father. From the evidence given by the petitioner's father, we find that according to his evidence, the petitioner was born on 17-1-1990, but his date of birth came to be registered as late as on 21-4-2001. In his evidence, this witness has deposed that he approached the local Public Health Centre for registration of his son's birth, but he was asked by the Public Health Centre to obtain an order from a Magistrate, whereupon he approached a Magistrate, at Haflong, for passing an order directing registration of his son's birth. It is in the evidence of the petitioner's father that the Magistrate passed an order and accordingly, his son's birth was registered and the birth certificate (Ext. 1) was issued, which shows the petitioner's date of birth as 17-1-1990.

11. What is, now, important to note is that the petitioner admits that he has read up to Class V and he joined service in the year 1989. Explaining as to why registration of his son's birth was delayed by as many as 11 years, the petitioner's father has deposed that he did not know that birth was required to be registered and that he came to know about this requirement only in the year 2001. Though the petitioner's father deposed that he was unaware of the fact that birth was required to be registered, he admits that he got his own birth registered in the year 1989. This shows that the petitioner's father knew as far back as in the year 1989 itself, i.e., even before the petitioner was born (if we were to believe the petitioner's father), that date of birth was required to be registered and yet he got his son's birth registered as late as in the year 2001. Thus, the explanation, offered by the petitioner's father, as regards delay in getting his son's birth registered, is palpably belied by the evidence adduced by none other than the petitioner's father himself.

12. We may also point out that the petitioner's father admits that his son passed HSLC examination in the year 2006, but he has not submitted before this Court the admit card, where the date of birth of his son stands recorded, nor does he claim that the date of birth, mentioned in his son's school records, is same as the date of birth mentioned in the birth certificate (Ext. 1) aforementioned. This apart, the petitioner has not produced any order, certified or uncertified, issued by the Magistrate, directing registration of birth of the petitioner. In fact, the petitioner's witness admits that he has no proof of the fact that the Magistrate had passed any order to register his son's date of birth.

13. We may, at this stage, refer to Rule 9, which lays down that the information, as regards birth, has to be given to the Registrar within a period of 30 days of the birth. Rule 9(1) also lays down that the information as regards birth, if given to the Registrar after expiry of 30 days, but within a period of six months of the date of birth, such information, regarding birth, can be registered only with the written approval of the legal revenue authority not below the rank of Circle Officer and on payment of requisite fees. However, Rule 9(3) makes it clear that birth shall not be registered if it has not been registered within one year from the date of birth unless an order is passed by a Magistrate, 1st Class, on payment of Court-fees, directing registration of birth.

14. In the present case, the petitioner orally claims that an order was passed by the Magistrate. However, no such direction has been placed on record. In the absence of relevant records and in the absence of any written materials, one cannot, in a case of present nature, rely upon the oral testimony of the ptitioner's father, particularly, when the law does not permit substitution of documentary evidence (i.e., the written records) by oral evidence. In such circumstances, it is clear that in the absence of any written record, it cannot be held that the Magistrate had passed an order, as claimed by the petitioner's father, nor can this Court, merely on the basis of a birth certificate, which is shown to have been issued by a Public Health Centre; hold that the petitioner was juvenile, i.e., less than 18 years of age, at the time, when the petitioner had allegedly committed the offence.

15. In the above view of the matter, we have no hesitation in holding that the petitioner has not satisfactorily shown, far less proved, to have been a junvnile at the time, when the offences, in question, were allegedly committed by him. In such circumstances, the question of directing release of the accused petitioner, on bail, on the ground that he was a Juvenile, at the relevant point of time, does not arise 'at all.

16. We, therefore, hold that the petitioner is not a juvenile and he was, on the day of the alleged offence, older than 18 years. Consequently, this writ petition cannot be allowed on the ground that the petitioner, being a juvenile, has been kept in prison as discussed above.

17. Coming to the question as to whether the learned Magistrate could have cancelled the bail, we may point out that Mr. Sahewalla, learned Counsel, has submitted, on behalf of the petitioner, that it is not possible to cancel bail of an accused unless the Court is satisfied that the accused has abused the liberty of bail. Mr. Sahewalla has also referred to the case of Mehboob Dawood Shaikh v. State of Maharashtra reported in : (2004) 2 SCC 362 : 2004 Cri LJ 1359, to lay emphasis on the fact that on expiry of statutory period of detention, a person acquires an indefeasible right to be released on bail. Mr. Sahewalla has, in this rgard, referred to Dr. Bipin Shantilal Panchal v. State of Gujarat, reported in : (1996) 1 SCC 718 : 1996 Cri LJ 1652 also. According to the decision in Dr. Bipin Shantilal Panchal (supra), when bail is granted to an accused on the ground of omission to file chargeshet within the statutory period of detention, the bail cannot be cancelld on mere filing of the charge-sheet; rather, bail, in such a case, can be candied only when a case for cancellation of bail has been made under Section 437(5) or 439(2).

18. While considering the cited authorities, what needs to be borne in mind is that both the cases, referred to above, relate to a situation, where bail was granted and pursuant to granting of bail, the accused stood released. There is no dispute with the proposition of law, as contended by Mr. Sahewalla, that when the accused already stands released on bail, his ball cannot be cancelled merely on filing of charge-sheet unless the Court finds that the accused has abused his liberty on bail. In a case, however, where the accused, for reasons beyond the control of the Court, has not been released despite bail having been granted, there is no question of the accused having abused the liberty of bail. Can, in such a case, the order of bail passed, in favour of the accused, be not cancelled even if there are genuine apprehensions that if released on bail, the accused is likely to abscond? This is the question, which this Court is, now, required to address.

19. It may be borne in mind that an accused may be granted ball for a variety of reasons. He may be granted ball, because of the fact that no reasonable ground for his having committed the offence exists or that his liberty on ball is not likely to adversely affect further investigation, if any, of the case. An accused may also be granted ball if he is sick or infirm or if the accused is a female. A person may also be released on ball if the Court is satisfied that due to any special reason, which is just and proper the accused needs to be released on bail.

20. In a case, of course, where the charge-sheet is not submitted against the arrested accused within the statutorily prescribed period of 60, 90, or 180 days, as the case may be, the arrestee acquires a right to be released on bail. In such circumstances, the Court is bound to direct his release on bail with or without surety as may be deemed fit by the Court. In a case, however, where the Court grants bail to such an arrestee subject to any condition and the condition is not fulfilled or where the arrestee is not released due to the fact that he is kept detained in connection with some other cases, it is not illegal to cancel such an accused person's bail if the Court apprehends, in view of the attending facts and circumstances of a given case, that the accused Is not likely to be available for trial.

21. When an arrestee is released not due to the fact that no case against him is made out, but on account of the fact that the investigation is not completed within the prescribed statutory period, the person acquires a right to be released on bail subject to such conditions as the Court may impose. Logically, therefore, when charge-sheet is submitted after the accusd already stands released on ball, his bail cannot be cancelled merely because of the fact that charge-sheet has been submitted against the accused unless he can be shown to have violated any of the conditions of bail already granted to him. In a case, however, where bail has been granted on expiry of the prescribed statutory period, but the accused has not been released on account of some legally valid reasons and if, in such a case, the investigating agency, while laying charge-sheet against the accused, satisfies the Court that if released on bail, the accused is not likely to be available for trial, it would be within the ambit of the powers of the Court, which had granted bail, to cancel the bail. The Court, in such a case, may not take the risk of watching and observing if the accused really abuses his liberty of bail. In a given case, the Court may not be in a position to take the risk of releasing the accused, though bail had been granted to him, provided that there are good grounds justifying the Court's apprehension that the accused is not likely to be available for trial.

22. It is worth pointing out that bail cannot be granted, particularly, in a non-bailable offence, unless the Court is satisfied that the presence of the accused will not adversely affect further investigation, if any, of the case and that the accusd would be available for trial if charge-sheet is submitted. When the Court has reasons to apprehened that the accused would not be available for trial, the Court cannot grant bail unless the law has vested, in the accused, a right to claim bail on account of the fact that no charge-sheet, within the prescribed statutory period, has been submitted against him. A Court can impose only such conditions as may be deemed necessary for the purpose of ensuring that the accused does not take the liberty of his bail and adversely affect further investigation of the case and if charge-sheet is filed, the accused would be available for trial. The question of granting bail to an accused, whose presence at the trial is not reasonably assured, does not arise unless the law forces the Court to release the accused on bail. Granting of bail, in a non-bailable case, is, it may be noted, circumscribed by the various provisions of the Code of Criminal Procedure itself; but as far as cancellation of bail is concerned, there is no prescribed limit except for special reasons to be assigned by the Court. However, in order to make exercise of the power, as regards cancellation of bail, reasonable and consistent and to avoid arbitrariness in such exercise of power, judicially evolved principles govern grant or cancellation of bail. Such principles are, therefore, to be followed depending upon the facts of a given case.

23. As regards the submission, made on behalf of the petitioner that his bail could not have been cancelled inasmuch as he had not misused the liberty of ball, suffice it to point out that when a person, on completion of statutory period of detention, is ordered to be released on bail, but is not, eventually, released due to the fact that he had not been able to give bail bond or for some other reason beyond the control of the Court, the Court, which granted bail, does not lose the power to cancel the bail if any such circumstances are brought to the notice of the Court (which had granted bail), showing that the bail granted to the petitioner must be cancelled. Such a power is traceable to Sub-section (5) of Section 437 inasmuch as Section 437(5) makes it clear that the Court, which granted ball, has the power to cancel the bail. Since the Code of Criminal Procedure does not assign any specific ground on which an order of cancellation of bail under Section 437(5), can be cancelled, the decisions, which Mr. Sahewalla relies upon, and which relate to cases of cancellation of bail after the accused already stood released on bail, can have no application at all.

24. It is trite that a decision is an authority for what it decides and not what can be deduced therefrom. The cases, which relate to cancellation of bail, after the accused had already been released on bail, cannot be made an authority for the proposition that even in a case, where the accused had not been released, shall be governed by the decisions, rendered in those cases, wherein the bail of the accused was cancelled after he already stood released on bail.

25. There is no such thing, observes the Supreme Court, In Mehboob Dawood Shaikh (supra), which Mr. Sahewalla relies upon, as a judicial precedent on facts, though counsel, and even Judges, are sometimes prone to argue and to act as if they were, said Bose, J., about half a century back, in Willie (William) Slaney v. State of M.P. : AIR 1956 SC 116 : 1956 Cri LJ 291. The Supreme Court reiterated, in Mehboob Dawood Shaikh (supra), that 'a decision is available as a precedent only if it decides, a question of law. A judgment should be understood in, the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court divorced from the context of the question under consideration and treat it to be complete law decided by this Court.' The judgment, points out the Supreme Court, in Mehboob Dawood Shaikh (supra), must be read as a whole and the observations from the judgment have to be considered in the light of the questions, which were before the Court, (See CIT v. Sun Engineering Works (P) Ltd. reported in : (1992) 4 SCC 363 : AIR 1993 SC 43.

26. As already indicated above, the cases, which Mr. Sahewalla has relied upon, are cases, where, bail was sought to be cancelled or cancelled after the accused hid already been released on ball. The case at hand is one, where the accused, though granted ball, could not be released. To a case, such as, the one at hand, the decision, in Mehboob Dawood Shaikh (supra), is not applicable.

27. In the case at hand, three of the four accused, against whom charge-sheet had been submitted, were absconding and it was not only rational, on the part of the learned Court below, to take the view, on the basis of the apprehensions, expressed on behalf of the prosecution, that if released, there was likelihood of the petitioner jumping bail, particularly, when the petitioner was wanted in more than one case. The petitioner's bail was not cancelled, because of the fact that charge-sheet had been submitted against him; but due to the apprehension that there would not be smooth proceeding of the trial. Such an inference, drawn by the learned Court below, on the basis of the materials available on record, cannot be held to be wholly unfounded.

28. Be that as it may, the High Court, as already indicated above, rejected the petitioner's prayer for bail. Once the High Court had rejected the prayer for bail, in Bail Application No. 5995/2008, the question of the learned Court below granting the petitioner bail could not have arisen. This apart, and as already indicated above, the petitioner, while coming to this Court, with the criminal revision, had, once again, suppressed the fact that his prayer for bail had already been considered and rejected by this Court.

29. In view of the fact that the petitioner had suppressed, in the criminal revision, that his application for bail had already been considered and rejected by this Court, his subsequent conduct, in the absence of any explanation whatsoever, cannot, but be regarded as fraudulent conduct. The petitioner cannot, therefore, on the basis of the subsequent order, passed in the criminal revision, demand that he ought to have been released on bail.

30. In the factual setting of the present case, what clearly transpires is that the petitioner had not been released, because of the reasons beyond the control of the learned Court below inasmuch as he had, initially, remained in custody (despite his bail bond having been accepted) on account of the fact that he had not been granted bail in connection with Haflong Police Station Case No. 104/2006 and, thereafter, due to the order of preventive detention passed against him.

31. Coupled with the above, the petitioner's bail was cancelled by order, dated 29-9-2008, and despite the fact that the petitioner had come to this Court seeking bail after the sale order dated 29-9-2008, his prayer for bail was rejected even by the High Court. The order, dated 13-2-2009, whereby petitioner's prayer for bail was rejected by this Court, is not amenable to this Court's jurisdiction under Article 226. The remedy against the order, dated 13-2-2009, if any, lies in the petitioner making appropriate application to the Apex Court. So long as the order dated 13-2-2009, remains in force, the question of the petitioner being enlarged on bail, in consequence of the order, passed in the criminal revision, does not arise at all, particularly, when the petitioner's conduct is too fraudulent to ignore. This apart, the subsequent order, dated 9-4-2009, which was passed in the Criminal Revision, is an order, which was obtained by the petitioner by suppressing facts and misleading the Court. The directions, obtained in the Criminal Revision, therefore, stood vitiated.

32. As the order, dated 13-2-2009, has remained in force and in view of the other reasons that we have assigned hereinabove, we do not find any merit in this writ petition. This writ petition, therefore, fails and the same shall accordingly stand dismissed.