TMI Blog1991 (11) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners should be released on bail. Merely because the statement of the co-accused recorded u/s. 108 of the Act is retracted subsequently by the accused, it cannot be said that it is no evidence. Conviction can be based by the Court even on the sole retracted statement of the co-accused recorded u/s. 108 of the Act, provided that the Court is satisfied that the said retracted statement of the co-accused is otherwise reliable and trustworthy, after considering the attending circumstances of the case. At the most it can be said that it would be risky to base conviction on the sole retracted statement of the co-accused; but it can never be said that no conviction can be based on the retracted statement of the co-accused. If the accused cannot be convicted on the basis of the retracted statement of the co-accused, then the accused would try his best to see that his co-accused retracted his statement which he has made u/s. 108 of the Act and in that case, the whole purpose and object be hind Section 108 of the Act will become nugatory. Thus, there is no merit and substance in the above submission made by Mr. Kapadia, therefore, it fails and is rejected. Even if I had to hold that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That finding can only be given at the conclusion of the trial after the evidence is led before the court and the witnesses are duly cross examined before the Court. At this stage of the matter, the Court has to proceed upon the assumption that the statements of the co-accused were voluntary. Merely because the co-accused have retracted their statements from the jail within two days after they were sent to judicial custody and filed criminal complaints against the police personnel and customs officials, within few days thereafter, can never be considered as the evidence by the Court at this stage to hold that the statements were recorded under threats and coercion. However, as Mr. Kapadia insisted that I should give reasons at this stage as to how it cannot be said that the statements were recorded under threats and coercion? Therefore, I am compelled to deal with the same. I have gone through the three statements of each co-accused recorded on three different dates i.e. on 20th, 21st and 23rd May 1991. If I discuss the same here, it may prejudice the accused during the trial, therefore, I have refrained myself from setting out the reasons in detail. But prima facie, it appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essions Judge considered the attendant circumstances which were not considered by the ld. Chief Judicial Magistrate viz. (1) The D.S.P., Kutch at Bhuj received an information on 6-5-1991 that silver is going to be smuggled in Kutch. Patrolling was intensified; but inspite of that, silver worth more than Rs. 6 crores was brought to Kutch and said information was received on 16-5-1991. Both the informations revealed that the petitioners are connected with smuggling said silver. The police recovered 248 silver bars worth more than Rs. 6 crores and the same was subsequently seized by the customs department. (2) On 20-5-1991, first statement of both the co-accused were recorded and on their information, three more silver bars worth more than lacs of rupees were recovered. Thereafter, on 21st and 23rd of May 1991, again their statements were recorded and all three statements clearly involved both the petitioners. (3) The D.S.P., Kutch and Assistant Collector, Customs refuted the allegations made by the petitioners against them that the statements of the co-accused were recorded under threats and coercion and filed an affidavit to that effect stating that false complaints have been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant considerations,. therefore, the ld. Sessions Judge was fully justified in exercising his Revisional jurisdiction u/s. 397 Cr.P.C. and setting aside the said order. In substance, it was a bail application and bail can be granted or refused by the ld. Sessions Judge u/s. 439 Cr.P.C. In the peculiar facts and circumstances of the case, if the ld. Sessions Judge had not exercised his Revisional powers u/s. 397 Cr.P.C. then perhaps, it could have been said that he had failed to exercise his powers. However, fortunately the ld. Sessions Judge by giving very goods reasons on sound principle of law considering the entire material on record of the case has set aside the order passed by the ld. Chief Judicial Magistrate releasing the petitioners on bail. Therefore, the above contention raised by Mr. Kapadia also has no merit and the same is rejected. 7. Mr. Kapadia next contended that the petitioners are socio-politically leading persons and the petitioner No. 1 is the Vice President of Janta Dal (G) and is also the Chairman of Fisheries Board of the State of Gujarat, therefore, both the petitioners should be released on bail. If both the petitioners cannot be released on bail, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ump the bail or they will tamper with the prosecution evidence, therefore, the order passed by the ld. Sessions Judge is require to be set aside. It is true that no where in his order the ld. Sessions Judge has found that the petitioner, if released on bail, they will jump the bail or tamper with the prosecution evidence. It is equally true that the petitioners remained on bail upto 7-10-1991 till they themselves surrendered to judicial custody. But this court can certainly consider that whether the accused are likely to jump the bail or not, if they are released on bail. Though, no specific finding is given by the ld. Sessions Judge to the above effect, the ld. Sessions Judge did take into consideration the fact that as soon as the goods were seized, both the petitioners disappeared. Several attempts were made by the customs department to serve them with the summons to remain present before them for interrogation; but they evaded the service of summons. When the anticipatory bail application was moved before him though directed by him, the petitioner did not remain present before the Court. The petitioners appeared before the ld. Chief Judicial Magistrate only after the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that they did not surrender and for that even the ld. Sessions Judge was also mis-led by them. Not only that when the matter was kept for further hearing on 9-10-1991 by me, again I was told by Mr. Naik, L.A. for the customs that on 7-10-1991 another attempt was made by the petitioners before the ld. Sessions Judge by submitting an application to further extend the time. Obviously, in view of my order passed on 5-10-1991 that application was rejected by the ld. Sessions Judge. If my order was not communicated to the ld. Sessions Judge on 5-10-1991, perhaps the ld. Sessions Judge might have extended the time. It appears that realising the fact that if they will not surrender, then the allegation of the customs department can easily be accepted by this court that if the petitioners are released on bail, then they are likely to jump the bail, therefore, they produced themselves before the ld. Chief Judicial Magistrate on 7-10-1991 and thereafter they were taken in judicial custody. In view of these facts, in all probability if the petitioners are released on bail, then they might jump the bail and they will not make themselves available during the trial. Mr. Kapadia pointed out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence or the evidence is insufficient. As held by me, at this stage there is evidence on which the bail can be refused. Therefore, I do not find any substance or merit in this contention raised by Mr. Kapadia, therefore, it fails and is rejected. 10. As stated by me earlier, ld. Sessions Judge after allowing the Revision Application of the customs department and cancelling the order of bail granted by the ld. Chief Judicial Magistrate in favour of the present petitioners, stayed the operation of his order upto 4-10-1991 on an application by the accused-petitioners. Thereafter, again on 4-10-1991 the ld. Sessions Judge suspended his own order upto 6-10-1991. By my order dated 5-10-1991, I called for the report of the ld. Sessions Judge and the ld. Sessions Judge in his report dated 6-10-1991 has stated that he further suspended his own order for two days, because he was mis-led by the petitioners' advocate and he was given to understand that though the Revision Application is filed against his order before the High Court on 3-10-1991, it is not likely to reach for hearing for couple of days. Therefore, in the interest of justice, he has suspended his own order for two days only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have suspended his own order. That apart, even Sec. 389 Cr.P.C. provides that for special reasons, the bail can be refused, even though the accused is on bail. In that view of the matter also the ld. Sessions Judge ought not to have suspended his own order. What would happen if the Sessions Court after cancelling the order of bail granted by the ld. Magistrate, does not suspend its own order? The accused will have to be taken in judicial custody and at the most the accused has to remain in judicial custody. The accused can come out if ultimately he is granted bail by the High Court. Thus, till the High Court grants the bail, the accused has to remain in jail for few days and nothing more will happen in that situation. But when the Sessions Court cancelled the bail and therefore if it suspends its own order even for few days, then in all probability the accused who is charged with the offence would be tempted to misuse the same by jumping the bail or tampering with the prosecution evidence. In such situation, the damage which would be done would not be repairable. The very purpose and object of not granting or cancelling the bail might be frustrated in such cases. Therefore, af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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