ORDER

T. NK. Singh, J.

1. Heard Ms. Ch. Bidyamani Devi, learned P.P. appearing for the petitioner as well as Mr. N. Kerani Singh, learned senior counsel assisted by Mr. N. Umakanta, learned Counsel appearing on behalf of respondent/accused (petitioner in Bail Application No. 47 of 2005).

2. By this application (sic) the Cr.P.C. the petitioner is asking for cancellation of the order of this Court dated 28-10-2005 passed in Bail Application No. 47 of 2005 for releasing the respondent/accused on bail on the condition that the respondent/accused shall furnish bail bond/personal bond of Rs. 10,000/- (Rupees ten thousand) and surety of the like amount to the satisfaction of the learned Judicial Magistrate 1st Class, Imphal, Manipur and also that the respondent/accused shall not leave Imphal without necessary permission of the concerned Judicial Magistrate, i.e. Judicial Magistrate 1st Class, Imphal, Manipur.

3. By neglecting all the details but precise facts that give rise to filing of the present application is that :

(i) On 24-3-2005 one Shri Ningombam Mohen Meitei, s/o N. Mani Meitei of Khongman Zone-II, Imphal, the Assistant Secretary of Investor Forum lodged a complaint with the officer-in-charge of the City Police Station alleging that the respondent/ accused along with other accomplises started launching a scheme purported to be implemented by Veer Bhumi Plantation (India) Ltd., Imphal Branch in the year, 1998-1999 by opening an office at Imphal. Admittedly the said Company, i.e. Veer Bhumi Plantation (India) Ltd. was closed by an order of the Security Exchange Board of India (SEBI) in or around August, 2001. Even after closing of the said Company, the respondent/accused started another new Company under the name and style of Denizen Agro Resorts and Developers (India) Ltd. having its Head Office at Denzen House Harikripa Complex, 1st Floor Tulapati, Silchar, Assam with all the establishment liability, assets of Veer Bhumi Plantation (India) Ltd. having been taken over by the said new Company i.e. Denizen Agro Resorts and Developers (India) Ltd.

(ii) The said Denizen Agro Resorts and Developers (India) Ltd. collected a huge amount of money in terms of crores of Rupees from the innocent people of Manipur by way of fixed deposits, recurring etc. But the said company i.e. Denizen Agro Resorts and Developers (India) Ltd. of which the respondent/accused is the Managing Director, failed to pay the matured amount to the account holders as per the terms and conditions with the company and then suddenly closed down the office of the company. After closing down of the said company, the respondent/accused who is the Managing Director of the Company suddenly disappeared from the State of Manipur and his whereabouts could not be traced. On receipt of the said complaint/Ejahar, the Officer-in-charge, City Police Station, Imphal registered a Criminal Case being FIR No. 59(3)05 City P.S. under Section 420/120-B, IPC against the respondent/accused, Mr. Dipak Kumar Das and others.

(iii) The Officer-in-charge of the Paltan Bazar Police Station, Guwahati, Assam vide message No. PLTP.P. 1614-19105, dated 13-9-2005 had informed the petitioner that the respondent/accused who is the main accused had been arrested by the Assam Police, CID in connection with CID case No. 2105 under Section 406/420, IPC and kept at Paltan Bazar Police Station lockup w.e.f. 23-8-2005 for 7 (seven) days in Police Custody. FIR No. 59(3)05 City P.S. under Section 420/120-B, IPC is being investigated by the CID Branch, Manipur. On the strength of the production of warrant issued by the learned Judicial Magistrate 1st Class, Imphal vide order No. JMIC/Imphal/2005/ 302, dated 17-9-2005 the respondent/accused had been taken from the Central Jail, Guwahati on 5-10-2005 and brought to Imphal by flight on 8-10-2005. The learned Judicial Magistrate 1st Class, Imphal remanded the respondent/accused to the Police custody up to 22-10-2005.

(iv) From the record maintained by the said Denizen Agro Resorts & Developers (India) Ltd. of the respondent/accused, according to the investigation made by the Investigating Officer of the FIR Case No. 59(3)05 City P.S. under Section 420/120-B, IPC, the total amount of money invested by the people residing in the State of Manipur is about Rs. 5,17,55,243/- (Rupees five crores seventeen lakhs fifty five thousand two hundred and forty three) out of which matured amount of Rs. 1,12,17,964/- (Rupees one crore twelve lakhs seventeen thousand nine hundred sixty four) only in respect of 1641 account holders is to made payment to the concerned Account holders. It is also said that the respondent/accused has avoided payment of the said huge amount of money to the account holders alleging that without the original records available at the Headquarters of the office of the said company, i.e. Denizen Agro Resorts & Developers (India) Ltd. at Silchar, Assam, payment cannot be made. Such being the situation the Investigating Authority of the said FIR Case No. 59(3)05 City P.S. under Section 420/120-B, IPC required to collect the material documents available at the Headquarter of the said Denizen Agro Resorts & Developers (India) Ltd., at Silchar for ascertaining the exact amount of money misappropriated by the respondent/accused.

4. The Bail Application filed by the respondent/accused had been considered and rejected by the learned Judicial Magistrate 1st Class, Imphal, Manipur vide her order dated 22-10-2005, copy of which is available at Annexure-P/2 to the present application and remanded the respondent/accused in judicial custody till 5-11-2005. Again the respondent/accused filed the Bail Application being No. 47 of 2005 before this Court in connection with the said FIR Case No. 59(3)05 City P.S. under Section 420/120-B, IPC and it was moved before this Court in the vacation sitting of this Court on 28-10-2005. At the time of Motion hearing of the said Bail Application No. 47 of 2005, this Court was overwhelmingly influenced by the letter dated 27-10-2005 said to have been written by the Addl. Superintendent, Central Jail, Sajiwa, Manipur to the learned Judicial Magistrate 1st Class, Imphal, Manipur that the respondent/accused is suffering from Haemorrhoid and also that on inquiry made by the Jail official/staff, it had been found out that no vacant bed is available at the Security Ward, J. N. Hospital and as such the Central Jail, Sajiwa, Manipur was not in a position to hospitalize the respondent/accused at the security ward of the J. N. Hospital and also no security ward was available at the RIMS Hospital, and passed the impugned judgment and order dated 28-10-2005 for releasing the respondent/accused with the condition quoted above on bail.

5. In the present application a serious plea has been taken that the respondent/ accused had obtained the bail order i.e. impugned order dated 28-10-2005 by misrepresentation and/or suppression of fact inasmuch as no Medical Officer of the Central Jail, Sajiwa has given the report that the respondent/accused had been suffering from the disease (Haemorrhoid) mentioned in the said alleged letter of the Addl. Superintendent, Central Jail, Sajiwa dated 27-10-2005 and also that the learned Judicial Magistrate 1st Class, Imphal never received the said alleged letter of the Addl. Superintendent, Central Jail, Sajiwa dated 27-10-2005. Some more grounds taken in the present application for assailing the impugned order dated 28-10-2005 are that the prosecution was not given any opportunity to produce the record arid/or bail objection and also to file bail objection report before granting bail to the respondent/accused under the impugned order dated 28-10-2005 and, the respondent/accused can influence the other accomplices and tamper the material documents which are yet to be seized in connection with the FIR Case No. 59(3)05 City P.S. under Section 420/120-B, IPC.

6. This Court vide order dated 23-3-2006 directed the Registry of this Bench to collect the record(s) relating to the Bail matter of the respondent/accused in connection with the FIR Case No. 59(3)05 City P.S. under Section 420/120-B, IPC from the Judicial Magistrate 1st Class, Imphal, Manipur by sending a special messenger within two days. Accordingly, the Registry of this Bench collected the record and placed the same before this Court. From the case record of the learned Judicial Magistrate 1st Class, Imphal, Manipur in connection with the FIR Case No. 59(3)05 City P.S. under Section 420/120-B, IPC it is clear that the learned Judicial Magistrate 1st Class, Imphal passed an order dated 9-12-2005 that "vide order dated 9-12-2005 passed in the said FIR, the released order is prepared for the accused-Dipak Kumar Das and the accused is directed to appear before this Court on 16-12-2004." Again on 16-12-2005 the learned Judicial Magistrate 1st Class passed an order to the effect that the accused Dipak Kumar Das is not present and the application for dispensing with the personal appearance of the accused is rejected due to want of appearance of the accused (respondent/accused) and issued warrant to the accused. Fix 2-1-2006 for appearance. Later on the present respondent/accused appeared before the learned Judicial Magistrate 1st Class. Vide order of the learned Judicial Magistrate 1st Class, Imphal dated 3-2-2006 permission to leave Imphal for a period of three months till 3-5-2006 was granted to the respondent/accused subject to the condition that the accused is to furnish his destiny address and further the accused (respondent/accused) is to execute a bond of Rs. 1 lakh with one surety of the like amount.

7. This Court in the State of Manipur v. S.N. Quite (1981) 1 GLR 299 : 1982 Cri LJ 897 held that the order of granting bail without giving opportunity to prosecution to place its case is liable to be cancelled. In that case, the learned Magistrate, as he was overwhelmingly influenced by the alleged fact that the accused was suffering from diabetes and he was holding the post of Director of Horticulture and Soil Conservation, Government of Manipur and he was aged about 53, years passed bail order without giving chance to the prosecution to place its case. In an application filed by the State Government against the order of the learned Magistrate for granting bail to S. N. Guite without giving opportunity to produce record, this Court passed the judgment and order to the effect that (Para Nos. 8 and 9) :

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 Procedure Code as to when bail may be taken in case of non-bailable offence are known and the law as to cancellation of bail under Section 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 not available for consideration by the learned Magistrate. Considering the nature of the offence and the fact that the hearing was earlier 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 . Till the accused-respondent so surrenders to the custody of the Court, he need not surrender elsewhere.

7A. Similarly, the Apex Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan held that liberty of a citizen must be jealously safeguarded by the Court, nonetheless when a person is accused of a serious offence and his successive applications are rejected on merit, prosecution is entitled to place the correct fact before the Court while considering the application for bail inasmuch as the liberty is to be secured through the process of law. Further, in the Shahzad Hasan Khan v. Ishtiaq Hasan Khan (supra) it has been held that long standing convention and judicial discipline also required that the subsequent bail application should have been placed before the same Judge who had passed the earlier order.

8. It is, fairly well settled that, availability of overwhelming circumstances is necessary for an order as regards cancellation of a ball order. The Apex Court in Ram Govind Upadhyay v. Sudarshan Singh had formulated the points to be considered while

considering an application for bail :

4(a) While granting, bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

8A. The learned senior counsel appearing for the respondent/accused placed heavy reliance on the decision of the Apex Court in Bhagirathsinh Judeja v. State of Gujarat and submits that circumstances for consideration for cancellation of the bail would be that: (1) attempt for interference with due course of administration of justice, and (2) any abuse of the indulgence or/privilege granted to the accused.

9. The Apex Court in a clear and unequivocal term in Harjeet Singh alias Seeta v. State of Punjab and Anr. 2002 (1) SBR 33 : 2002 Cri LJ 571 held that if the accused obtained bail order by misrepresentation or suppression of fact, it is for the State Government or the party concerned to approach the same Judge who granted bail, if available for cancellation of bail on the ground of misrepresentation or misstatement. As discussed earlier the Apex Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan and Anr. 1987 Cri LJ 1872 (supra) also held that according to the long standing convention and judicial discipline, the subsequent bail application should have been placed before the same Judge who had passed the earlier order. Accordingly, the present application is placed before this Court (T. NKJ. J.) as the earlier judgment and order dated 28-10-2005 was passed by this Court i.e. (T. NK. J.).

10. Keeping in view of the law laid down by the Apex Court, this Court has meticulously examined the present misc. application, case diary, i.e. record maintained by the Investigating Officer of the FIR Case No. 59(3)05 City P. S. under Section 420/120-B, I.P.C. as well as the case record, relating with the bail matter in connection FIR of the Case No. 59(3)05 City P. S. under Section 420/120-B, I.P.C. of the court of Judicial Magistrate 1st Class, Imphal, Manipur and also the record of the earlier Bail Application No. 47 of 2005 of this Court, and found that there was misrepresentation of fact by the respondent/accused at the time of consideration of the Bail Application No. 47 of 2005 inasmuch as there was no letter dated 27-10-2005 alleged to have been written by the Addl. Superintendent, Central Jail, Sajiwa, Manipur which was again said to have been received by the learned Judicial Magistrate 1st Class, and also there is no report of the Medical Officer of the Manipur Central Jail that the respondent/accused has been suffering from serious illness (Haemorrhoid). As this Court was overwhelmingly influenced by the said alleged letter of the Addl. Superintendent (Central Jail, Sajiwa) dated 27-10-2005 the prosecution was not given the chance to place its case at the time of consideration of the said application and such failure to give an opportunity to the prosecution to place its case shall cause a serious prejudice to the right of the Investigating Authority inasmuch as this Court has to keep the balance between the right of the Investigating Agency on one hand and right to liberty of the accused on the other. No doubt, the detailed examination of evidence and elaborate documentation on merit of the case should not be avoided at the time of consideration of the bail application.

11. In the peculiar facts and circumstances of this case as discussed above, this Court has no alternative but to cancel the earlier order dated 28-10-2005 passed in Bail Appln. No. 47 of 2005. Accordingly, Bail Order dated 28-10-2005 is hereby cancelled. The respondent/accused shall surrender to the custody of the learned Judicial Magistrate 1st Class, Imphal, Manipur who shall consider the application for bail, if any, made by the respondent/accused and pass any order which deems fit and proper to the learned Judicial Magistrate 1st Class, according to law. Taking into the said consideration of the said order passed by the learned Judicial Magistrate 1st Class, dated 3-2-2006, it would be just and proper to fix 3-5-2006 as the date on which the respondent/accused has to surrender before the custody of the learned Judicial Magistrate 1st Class, Imphal in compliance with the order of this Court.

To the extent mentioned above, the present application is allowed. Parties are to bear their own costs.