Mahendra alias Sonu Sikarwar vs State of Madhya Pradesh

This is sixth application under Section 439 of CrPC for grant of bail.

The applicant has been arrested on 09/08/2017 in connection with Crime No.230/2017 registered at Police Station Purani Chhawni, Gwalior for

offence under Sections 294, 307/34 of IPC.

This is sixth application under Section 439 of CrPC for grant of bail and, therefore, the counsel for the applicant was requested to point out the

changed circumstances. By referring to the memo sent by the Superintendent of Police, Gwalior to FSL Sagar, it is submitted by the counsel for the

applicant that the applicant was arrested on 09/08/2017, but as per the memo, a 315 bore country-made pistol is alleged to have been recovered on

10/08/2017 from the bushes near Gangamalanpur Village, therefore, it cannot be said that the said country-made pistol has been seized from the

possession of the applicant. By referring to the said memo, it is submitted by the counsel for the applicant that from serial no.3, it is clear that blood-

stained clothes of the complainant were recovered from the house of the complainant, whereas according to the prosecution case, he was admitted in

the hospital, therefore, those clothes should have been recovered from the hospital. Further, by referring to the reply received under the RTI from the

office of Chief Medical & Health Officer, District Gwalior, it is submitted that the following information has been given in the said reply:-

“We have received a call at our dispatch centre at 20:08:23 pm on 8 August 2017, in order to avail the service for Mr. Jay Bahadur who got injured

in a Road Traffic Accident (RTA) held at Gangamalanpur which comes under Thana Purani Chawni. Our dispatch centre executive Captured all

necessary details and assigned the nearest available ambulance Purani Chawwni Location at 20:09, case id was 80036.''

By referring to the contents of the letter, it is submitted by counsel for the applicant that initially, an information was given that the injured Jay Bahadur

had sustained injury in a road traffic accident. Therefore, it is clear that a false case has been prepared against the applicant. Again, counsel for the

applicant referred to the cross-examination of the injured Jay Bahadur (PW1) and submitted that according to this witness, a gunshot was fired by the

applicant after catching hold of his collar from short range, but it is clear from the FSL report that the gunshot was fired from the distance of more

than 3 feet, as blackening and gunshot powder was not found around the holes in the shirt as well as baniyan. It is further submitted by counsel for the

applicant that the applicant is in jail from 09/08/2017 i.e. more than a year and the trial is likely to take sufficiently long time.

Per contra, it is submitted by counsel for the State that so far as the memo sent by the Superintendent of Police, Gwalior to FSL Sagar is concerned,

the country-made pistol was recovered on the disclosure statement made by the applicant and merely because, it was recovered from a place, where

the country-made pistol was kept by the applicant, after one day of his arrest, therefore, it cannot be said that the country-made pistol was not

recovered at the instance of the applicant. The contention made by the counsel for the applicant that merely because the country-made pistol was

recovered from the bushes on 10/08/2017 i.e. one day after arrest of the applicant, therefore, cannot be said that the country-made pistol was not

recovered on the disclosure statement made by the applicant is contrary to law. It is further submitted that it was the applicant who alone was aware

of the fact that where he had kept the country-made pistol. Therefore, the recovery of country-made pistol is an incriminating circumstance. So far as

the recovery of blood-stained clothes from the house of the complainant is concerned, it is submitted that it is well-established principle of law that any

defective investigation on the part of the doctor or Police shall not give any undue advantage to the accused. If the doctor after attending the injured,

had handed over his blood-stained clothes to the sister of the complainant, then it cannot be said that the applicant is entitled to get any advantage of

the same. At the most, it may be said that the doctor, instead of handing over the blood-stained clothes to the sister of the complainant, should have

handed over to the police authorities. So far as the information given by Chief Medical & Health Officer, District Gwalior is concerned, it is submitted

by counsel for the State that although in the said information, it is mentioned that the complainant Jay Bahadur had suffered injury in a road traffic

accident, but it is clear that injured Jay Bahadur had sustained gunshot injury and it would be beyond any stretch of imagination to say that any gunshot

injury can be sustained during road traffic accident. Thus, it is clear that the information recorded in the reply given by Chief Medical & Health

Officer, District Gwalior is incorrect. Even otherwise, when the case is based on direct evidence which is supported by the medical evidence, then this

document cannot be given any undue weightage to throw the case of the prosecution overboard. So far as the cross-examination of the complainant

Jay Bahadur is concerned, by referring to the judgment passed by the Supreme Court in the case of Satish Jaggi vs. State of Chhattisgarh and Others

reported in (2007) 11 SCC 195, it is submitted by the counsel for the State that the appreciation of evidence led by the prosecution in the trial cannot

be done by this Court at the stage of grant of bail. To substantiate his submission, the counsel for the State has referred to paragraph 12 of the

judgment of the Supreme Court in the case of Satish Jaggi (supra), which reads as under:-

''12. Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in

granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief

Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are

more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at

the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal

charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the

prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot

go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution

witnesses can only be tested during the trial.''

So far as the delay in trial is concerned, it is submitted by counsel for the State that this Court by order dated 03/07/2018 has already held that in fact,

it is the applicant himself, who is responsible for the delay in trial, as the charge sheet was filed on 04/01/2018 and for approximately five months

adjournments were sought by the applicant himself for advancing arguments on the question of framing of charges. When the applicant himself was

tried to delay the proceedings, then it cannot be said that there is delay in trial and since this Court has already dealt with the question of delay in trial

elaborately in the order dated 03/07/2018 passed in MCRC 23644/2018, therefore, the submission made by counsel for the applicant is not available.

At this stage, it is submitted by counsel for the applicant that since the applicant is in jail from 09/08/2017, therefore, the basic purpose of bail is to

ensure the appearance of the accused and since there is nothing on record to suggest that the applicant would not appear before the trial Court,

therefore, he may be granted bail ignoring the above-mentioned facts of the case. The submission made by the counsel for the applicant cannot be

accepted.

The Supreme Court in the case of Virupakshappa Gouda and Another vs. State of Karnataka and Another reported in (2017) 5 SCC

406 has held as under:-

''14. Be it noted, though the aforesaid passages have their relevance but the same cannot be made applicable in each and every case for grant of bail.

In the said case, the accused-appellant was facing trial for the offences under Sectons 420-B, 468, 471 and 109 of the IPC and Section 13(2) read

with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Thus, the factual matrix was quite different. That apart, it depends upon the nature of

the crime and the manner in which it is committed. A bail application is not to be entertained on the basis of certain observations made in a different

context. There has to be application of mind and appreciation of the factual score and understanding of the pronouncements in the field.

The court has to keep in mind what has been stated in Chaman Lal vs. State of U.P. (2004) 7 SCC 525. The requisite factors are: (i) the nature of

accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with

the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge.In Prasanta Kumar

Sarkar vs. Ashis Chatterjee (2010) 14 SCC 496 , it has been opined that while exercising the power for grant of bail, the court has to keep in mind

certain circumstances and factors. We may usefully reproduce the said passage:-

“9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to be believed 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;

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

(viii) danger, of course, of justice being thwarted by grant of bail.â€​

In Central Bureau of Investigation vs. V. Vijay Sai Reddy (2013) 7 SCC 452 , the Court had reiterated the principle by observing thus:-(SCC p.

465, para 34)

''34. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the

punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of

securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State

and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable

grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a

genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at

this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.â€​

From the aforesaid principles, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. In this context, we may,

with profit, reproduce a passage from Neeru Yadav vs. State of Uttar Pradesh (2014) 16 SCC 508 wherein the Court setting aside an order granting

bail observed: (SCC pp.514-15 para 16)

“16.The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd

respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional

right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like

to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of

emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilization rests. It cannot be allowed to be

paralyzed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is

wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its

collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the

collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society.

A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished

social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual

behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that

stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the

established parameters of law.â€​

In this context what has been stated by a three-Judge bench in Dinesh M.N. (S.P.) v. State of Gujarat (2008) 5 SCC 66 is quite instructive. In the

said case, the Court has held that where the Court admits the accused to bail by taking into consideration irrelevant materials and keeping out of

consideration the relevant materials the order becomes vulnerable and such vulnerability warrants annulment of the order.''

Considering the facts and circumstances of the case, this Court is of the considered view that it is not a fit case for grant of bail. The application is

hereby rejected.