Javed vs State of Himachal Pradesh

By way of instant petition, filed under Section 439 of the Code of Criminal Procedure, a prayer has been made on behalf of the bail petitioner,

namely, Javed for grant of bail in FIR No. 275/2017, dated 01.11.2017, under Sections 452, 307, 323, 324, 325, 107, 147, 148, 149, 504,

506,201 and 120B of the Indian Penal Code, registered at Police Station, Chamba, District Chamba, Himachal Pradesh.

Sequel to orders dated 2nd January, 2018, ASI Ram Singh, Police Station, Sadar, District Chamba, has come present in the Court alongwith

the record of the case. Mr. Rajat Chauhan, Law Officer, has also placed on record status report prepared on the basis of investigation carried out

by the Investigating Agency.

The facts which emerged from the record/status report suggest that FIR, detailed here-in-above, came to be lodged at Police Station, Chamba

at the behest of the complainant namely Nagina Begum, who alleged that on 6th November, 2017, at 8.00 PM, three persons jumped the wall and

entered her house. As per complainant, her son namely Anwar Sekh, who at that relevant time was sleeping in his room, was attacked by these

three persons. Complainant having heard the cries, went into the room of her son and found that he was given merciless beatings by the persons

who jumped from the wall. On account of beatings given by persons, referred to here-in-above, son of the complainant suffered grievous injuries.

As per status report/record, complainant Nagina Begum could only see/identify one person namely Kuki, son of Sh. Quam at the time of alleged

incident. Since the complainant had made hue and cry, as a consequences of which, villagers gathered on the spot of occurrence and they

apprehended three persons at the distance of 50 meters. Since, victim Anwar Sekh had suffered grievous injuries, he was taken to Regional

Hospital at Chamba, from where he was referred to PGI Chandigarh. As per the investigation, police could not record the statement of victim

Anwar Sekh, as he was not in a position to make statement. It also emerges from the status report/record that victim was referred to PGI,

Chandigarh, from where he was discharged on 13th November, 2017, whereafter he was again admitted at Regional Hospital, Chamba. As per

report, FIR came to be registered on 2nd November, 2017 but the present bail petitioner was not named in the same. On 11.11.2017,

complainant Nagina Begum made a statement before the police that present bail petitioner as well as Shaukat Ali were also involved in the crime

and as such, police arrested both of them on 14.11.2017.

At this stage, it may be noticed that the person namely Shaukat Ali was ordered to be enlarged on bail by this Court vide judgment dated 22nd

November, 2017, which fact is not disputed by the learned Law Officer. Mr. Vinod Thakur, learned counsel representing the bail petitioner

vehemently argued that bare perusal of record/status report clearly suggest that nothing has emerged against the present bail petitioner namely

Javed, who was admittedly not seen by the complainant Nagina Begum on the date of alleged incident. Mr. Thakur further contended that bare

perusal of statement having been made by the complainant Nagina Begum recorded under Section 154 of the Code of Criminal Procedure clearly

suggests that she had not named Javed while lodging FIR on 7th November, 2017, rather she had stated that she could only recognize one person

Kuki son of Sh. Quam. He further contended that even as per story of the prosecution, only three persons could be apprehended at the spot by

the persons gathered outside the residence of complainant Nagina Begum. Mr. Thakur further contended that there is no explanation available on

record that why complainant Nagina Begum kept mum for more than six days after lodging of the FIR, because her subsequent statement came to

be recorded on 11th November, 2017, wherein for the first time, she named two persons including the bail petitioner.

Lastly, learned counsel for the petitioner, contended that nothing has been adduced by the investigating agency on record, from where it can be

concluded that other co-accused arrested by the investigating agency disclosed the name, if any, of the present bail petitioner and as such, he being

innocent person deserves to be enlarged on bail. While seeking regular bail on behalf of the bail petitioner, learned counsel for the petitioner,

contended that there is nothing on record suggestive of the fact that in the event of petitioner''s being enlarged on bail, he may flee from justice,

rather being local resident of the area, he shall always remain available for the investigation as well as trial. Mr. Thakur further contended that

otherwise challan has already been filed in the court and nothing is to be recovered from the bail petitioner at this stage, as such, the bail petitioner

who is in custody for no fault, for more than two months, is required to be enlarged on bail.

Mr. Rajat Chauhan, learned Law Officer, while opposing aforesaid prayer having been made by learned counsel for the bail petitioner,

contended that keeping in view the gravity of offence allegedly committed by the bail petitioner, he does not deserve any leniency, rather needs to

be dealt with severely. Mr. Chauhan further contended that true it is that there is no mention of the name of the bail petitioner in the FIR, but that

cannot be a ground for this Court to rule out the involvement, if any, of the bail petitioner in the crime allegedly committed by him as well as other

co-accused, wherein victim namely Anwar Sekh, suffered grievous injuries. Mr. Chauhan further contended that it is not only complainant Nagina

Begum, who has named the present bail petitioner, rather other person named Mohammad Illyas also saw him on the spot of occurrence. Mr.

Chauhan, further contended that bare perusal of medical record produced on record clearly suggest that victim Anwar Sekh suffered grevious

injuries and he remained admitted at PGI Chandigarh for considerable time. While acknowledging fact that the investigation stands completed and

nothing is required to be recovered from the bail petitioner, learned Law Officer contented that treatment summary of victim Anwar Sekh is yet to

be procured from the Hospital. He further contended that present address as well as call details of mobile number of the bail petitioner, are yet to

be ascertained/obtained by the investigating agency.

I have heard learned counsel representing the parties and have carefully gone through the record made available.

Careful perusal of the record/status report clearly suggest that complainant Nagina Begum while making her first statement under Section 154

Cr.P.C., nowhere named bail petitioner, rather, she categorically stated that she could only recognize only one person namely Kuki son of Sh.

Quam. Similarly, it is not disputed that the name of bail petitioner as well as other co-accused Shaukat Ali came to be included in FIR on 11th

November, 2017 i.e. after 7 days of lodging of FIR. Otherwise also, as per own story of the Investigating Agency, crowd gathered at the spot

apprehended/nabbed three persons, but admittedly bail petitioner was not one of them. True, it is that the complainant namely Nagina Begum, has

named the bail petitioner, but she has nowhere explained or stated that what role actually was played by the bail petitioner because it has nowhere

come in her statement that she saw present bail petitioner accompanying other co-accused including Kuki son of Sh. Quam, who allegedly gave

merciless beatings to the victim Anwar Sekh. Apart from the above, statement of complainant Nagina Begum made to the police, in case read in its

entirety, no where suggest that from whom she came to know that bail petitioner was also involved in the crime. As per her own version, she

named only one person named Kuki, son of Shri Quam, who allegedly gave merciless beatings to the victim Anwar Sekh. Statement given by

Illiyas Mohammad also nowhere suggests that the bail petitioner was one of the three people, who jumped wall of complainant''s house and

thereafter caused injury to the victim namely Anwar Sekh, rather, it has come on the record that he saw Shaukat Ali leaving the site of occurrence

in his vehicle and not the bail petitioner.

Though aforesaid aspects of the matter is to be considered and decided by the Court below on the basis of evidence, if any collected by the

Investigating Agency but this court having carefully perused the record finds considerable force in the arguments addressed by the learned counsel

for the bail petitioner that the presence of the bail petitioner on the site of occurrence is doubtful and as such, merely on the basis of material

collected on record at this stage by the prosecution, this Court sees no reason to let the bail petitioner incarcerate in jail for indefinite period during

the trial. Investigation in the case is almost complete save and except certain reports/details are to be procured by investigating agency, which are

completely beyond the domain and control of bail petitioner.

Mr. Rajat Chauhan fairly admitted that statements of proposed prosecution witnesses stand recorded by police and nothing is required to be

recovered from the bail petitioner. No material has been placed on record by the Investigating Agency suggestive of the fact that in the event of bail

petitioner''s being enlarged on bail, he may flee from justice. At this stage, Mr. Chauhan, contended that correct address and mobile phone number

given by the bail petitioner was found to be incorrect and as such, he does not deserve to be enlarged on bail. Aforesaid contention/ apprehension

expressed by learned Law officer can be met by putting bail petitioner''s to stringent conditions.

By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the

court while exercising its discretion. It has been repeatedly held by the Hon''ble Apex Court that object of bail is to secure the appearance of the

accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon''ble Apex Court in Sanjay

Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; wherein it has been held as under:-

The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive

nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his

trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is

deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship.

From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial

but in such cases, ""necessity"" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the

Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he

should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary

circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment

before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former

conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of

imprisonment as a lesson.

Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof,

severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that

crime.

Law with regard to grant of bail is now well settled. The apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others,

(2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2

SCC 565, laid down the following parameters for grant of bail:-

No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no

attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly

visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should

necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia''s case (supra) that the

High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by

their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and

honour.

The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court

in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused''s likelihood to repeat similar or the other offences.

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role

of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court

should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be

caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) 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.

(Emphasis supplied)

In Sundeep Kumar Bafna versus State of Maharashtra & another (2014)16 Supreme Court Cases 623, wherein it has been held as under:-

Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being

brought before a Court"", the present provision postulates the accused being ""brought before a Court other than the High Court or a Court of

Session"" in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State( Delhi Admn) (1978) 1 SCC 118,

there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be

immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The Legislature could have

easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this

jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan

Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be extended to a person accused of the commission of a non-

bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of

reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of

Haryana vs Bhajan Lal, 1992 (Supp)1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or

prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. CrPC severely curtails the powers of the Magistrate

while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that

can be arrived at on a conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order to complete the picture so far as concerns

the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this

is done, it will at once be evident that the CrPC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he

is not in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that

the Public Prosecutor should be put on notice. We have not found any provision in the CrPC or elsewhere, nor have any been brought to our ken,

curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the

Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of

the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the

science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. ''where there is a right

there is a remedy''. The universal right of personal liberty emblazened by Article 21 of our Constitution, being fundamental to the very existence of

not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact

that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established

principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some

salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence

and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in

custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the

word ''custody'' the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power

of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher

Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if

circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and

intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of ''Committal

of cases to the Court of Session'' because of a possible hiatus created by the CrPC.

The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the following principles

to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(viii) reasonable apprehension of the witnesses being influenced; and

(ix) danger, of course, of justice being thwarted by grant of bail.

In view of the aforesaid discussion as well as law laid down by the Hon''ble Apex Court, petitioner has carved out a case for grant of bail,

accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in

the sum of Rs one lac with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate, with following conditions:

(a) He shall make herself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of

hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from

disclosing such facts to the Court or the Police Officer; and

(d) He shall not leave the territory of India without the prior permission of the Court.

It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to

move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal

of this application alone. The petition stands accordingly disposed of.