MARGAO
In a day which saw developments unfolding in the Malcolm Pereira’s anticipatory bail application in the South Goa Sessions Court and then in the High Court, the South Goa Sessions Court on Friday evening rejected his bail plea with Additional Sessions Judge-I Ram Prabhu Dessai observing that granting anticipatory bail may adversely affect the investigation by creating a realistic possibility of influencing witnesses and interfering with the collection of further evidence.
Within hours of the Sessions Court order, the High Court granted interim bail to Pereira till the next date of hearing fixed on September 22. Pereira’s lawyer, Adv Amay Prabhudesai told the media that the High Court has granted conditional interim bail to Pereira, including the condition that he should not enter Chinchinim village.
He said the High Court has also directed the Cuncolim police to release Pereira on bail bond of Rs 50,000 if arrested by the police. He further said the High Court had directed the applicant not to leave the State of Goa till the disposal of the petition. “We immediately proceeded to the High Court after our anticipatory bail application was rejected by the South Goa Sessions Court since the court was going on Ganesh Chathurti vacation. The bail was important for Pereira because he has taken the Sopo collection and the feast fair was starting in Chinchinim village from September 13,” Adv Prabhudesai said.
To a question, he said the matter would come up before the High Court for hearing of arguments on the bail application on September 22.
Malcolm Pereira had filed the anticipatory bail application in the South Goa Sessions Court earlier this week fearing arrest in the assault on Chinchinim Sarpanch and Aam Aadmi Party Working President Gerson Gomes.
Sessions Judge cites risk of witness influence, evidence tampering in anticipatory bail denial
MARGAO
Additional South Goa Sessions Judge, Ram Prabhu Desai had rejected Malcolm Pereira’s anticipatory bail application on the ground that the investigation in the attack on Chinchinim Sarpanch Gerson Gomes is at the nascent stage and that the police need sufficient time and opportunity to collect further evidence.
“At this stage, granting anticipatory bail may adversely affect the investigation by creating a realistic possibility of influencing witnesses and interfering with the collection of further evidence. The Apex Court time and again has held that the power to grant anticipatory bail is extraordinary in character and the same has to be exercised with care and circumspection. I find that the facts and circumstances of the present case do not justify the exercise of the above extraordinary power of this Court,” the Judge said.
The Judge added: “Having regard to the prima facie corroboration available from independent witnesses and medical material, the allegation of a subsequent attempt to assault the complainant, the allegation of threats extended after registration of the offence, (iv) the antecedent conduct disclosed in the record, and the likelihood of interference with witnesses at this stage of investigation, I am not satisfied that this is a fit case for exercise of the extraordinary jurisdiction under Section 482 BNSS for grant of anticipatory bail.”
The Judge observed that the applicant will further commit such a crime and will not hesitate to threaten, influence or pressurise the witnesses if enlarged on anticipatory bail. “The impact of the grant of anticipatory bail in the present case shall be of larger magnitude. Considering the nature of the offence and past conduct of the applicant, there is every possibility that the applicant can threaten the witnesses or manipulate the evidence and misuse the liberty. The likelihood of the applicant repeating such offences also cannot be ruled out,” the judge said, adding that there is no scope to say that the accusations made against the applicant are with ulterior motives to humiliate him. In the backdrop of the gravity of the offence and antecedents of the applicant, the question of causing stigma on the applicant also does not arise.
On the argument that the police did not arrest the applicant since they had issued the notice under Section 35(3) of BNSS to the applicant, the Judge said, “I have perused the entire case papers and have not found any reasons recorded in writing by the police for not arresting the applicant as stipulated under the proviso to section 35(1) (b) (ii) of BNSS, 2023. The IO was directed to produce such reasons; however, he submitted that no such reasons were recorded before issuing notice under section 35(3) of BNSS”.
Saying the legality or propriety of the Investigating Officer’s exercise under Section 35 BNSS is a separate issue, the Judge further observed “even assuming such lapses exist, they do not dilute the prima facie material against the applicant nor create an entitlement to anticipatory bail”.
Interim relief, not a clean chit: AAP
MARGAO: Aam Aadmi Party president Valmiki Naik and Velim MLA Cruz Silva on Friday said the High Court’s interim relief to Malcolm Pereira came with stringent conditions and should not be misconstrued as a clean chit.
Naik said Pereira had been directed not to contact Gerson Gomes or his family, stay away from Chinchinim and not leave Goa without informing the investigating officer.
Naik also read out the Sessions Court’s order rejecting Pereira’s anticipatory bail plea, which stated that the applicant demonstrated “complete disregard for the law”. The court observed that material collected during the investigation prima facie indicated that Pereira had assaulted Gomes while he was discharging his public function as sarpanch.
The court further observed that the alleged acts amounted to an attempt to intimidate or undermine the authority of an elected grassroots institution, which forms the backbone of democratic governance.
Naik said the judge also noted that police had not recorded reasons for not arresting Pereira as required under the relevant provisions.
Silva said the Sessions Court’s observations could not be ignored, noting that it had prima facie found an assault on a person discharging his public function. “These are not allegations made by a political party. These are observations recorded by a court while considering the bail application. They must be taken seriously,” Silva said.
Referring to Gomes’ 94-year-old mother, Silva said the family had already endured immense distress while seeking justice.
