Mohd. Shahid vs State of Himachal Pradesh

Bail petitioner namely Mohd. Shahid, who at present is in Judicial lockup, has approached this Court for grant of regular bail under Section 439

of the Code of Criminal Procedure in case FIR No.275 of 2017, dated 7.11.2017, under Sections 452, 307, 324, 504, 107, 147, 148, 149 of

the Indian Penal Code, registered at Police Station, Chamba, District Chamba, Himachal Pradesh.

Sequel to orders dated 23.1.2018 and 2.2.2018, ASI Ram Singh Police Station, Chamba, has come present in Court alongwith the record of

the case. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of the

investigation carried out by the investigating agency.

Perusal of the record/status report suggests that FIR, detailed hereinabove, 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, as a consequences of which, he

had suffered grievous injuries. Complainant specifically alleged that she could see/identify one person namely Kuki son of Sh. Quam at the time of

alleged incident. As per investigation, said complainant made hue and cry, as consequences of which, villagers gathered on the spot of occurrence

and they apprehended three persons at the distance of 50 meters. Since, victim namely 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, as stated by Doctor attending upon him. Investigation report further reveals that

victim Anwar Sekh was discharged from PGI, Chandigarh on 13th November, 2017, whereafter he was again admitted at Regional Hospital,

Chamba.

Mr. N.K. Thakur, learned Senior Advocate, representing the bail petitioner vehemently argued that bare perusal of record/status report,

nowhere suggests involvement, if any, of the bail petitioner in the alleged crime. Mr. Thakur, further contended that bare perusal of aforesaid FIR

lodged at the behest of the complainant Nagina Begum further reveals that bail petitioner was not seen at the spot by the complainant on the date

of alleged incident, rather complainant-Nagina Begum, in her statement recorded under Section 154 of Cr.PC, categorically stated that she could

only recognize person namely Kuki S/o Quam. Mr. Thakur, further contended that even as per story of prosecution, only three persons could be

apprehended at the spot and admittedly, the bail petitioner was not one of them.

Lastly, Mr. Thakur, contended that even record nowhere suggest 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, Mr. Thakur, 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. Dinesh Thakur, learned Additional Advocate General, while opposing aforesaid prayer having been made on behalf of the bail petitioner,

contended that keeping in view the alleged offences committed by the bail petitioner, he does not deserve any leniency, rather needs to be dealt

with severely. Learned Additional Advocate General, further contended that true it is that complainant had not mentioned the name of the bail

petitioner in her initial statement, 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. Learned Additional

Advocate General, further contended that it is not only complainant Nagina Begum, who has named the present bail petitioner, rather her daughter

in law namely Sheelu Begum, has also named him. Mr. Dinesh Thakur, further contended that conduct of the bail petitioner is not above the board

because during his investigation, he has not disclosed true facts, rather he has made an attempt to hoodwink the Investigating Agency by giving his

incorrect/false phone number. Learned Additional Advocate General, further contended that in the event of bail petitioner''s being enlarged on bail,

there is every likelihood of his influencing material prosecution witnesses, which may be material for proving the case on behalf of the prosecution.

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

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 at the time of the alleged incident, 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.

Statement given by Sheelu Begum, 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 she has only stated that she saw bail petitioner leaving site of

occurrence in a vehicle.

Leaving everything aside, it is not understood that what prevented complainant Nagina Begum from disclosing name of bail petitioner Mohd.

Shahid, at first instance, because when she knew that bail petitioner was also one of the three persons, who jumped wall of her house, she could

always state this fact to the police in her statement recorded under Section 154 Cr.P.C, on the basis of which, formal FIR subsequently came to

be registered. Otherwise also, this Court finds that it has nowhere come in the statement of complainant that she was subsequently disclosed by

some person that the bail petitioner was also one of the persons, who allegedly gave beatings to her son. Perusal of record/status report nowhere

indicates direct involvement if any of the bail petitioner in the crime alleged to have been committed by him along with accused namely Kuki. Since

bail petitioner happened to be brother of Kuki, who was seen at the spot of the incident by the complainant, he has been also arrested in

connection with FIR detailed herein above. No specific role, if any, played by the bail petitioner has been imputed to him in the entire sequence of

events narrated in the status report and as such, this Court finds considerable force in the argument of learned Senior Counsel for the petitioner that

at present, there is no direct evidence available on record to associate the bail petitioner with the alleged crime. Though, aforesaid aspect of the

matter is to be considered and decided by the Court below on the basis of evidence collected on record by the prosecution, but this Court after

having perused the record/status report, finds substantial force in the arguments of learned Senior Counsel, representing the bail petitioner that

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.

Mr. Dinesh Thakur, learned Additional Advocate General, 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. Thakur, contended that

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 Additional Advocate General, 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.

Recently, the Hon''ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on

6.2.2018, has categorically held that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of

suspicion. Hon''ble Apex Court has further held that till the time guilt of the accused is not proved in accordance with law, he is deemed to be

innocent. The relevant paras of the aforesaid judgment are reproduced as under:

A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be

innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with

regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other

offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in

jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these

basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer

periods. This does not do any good to our criminal jurisprudence or to our society.

There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise

of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the

country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the

facts and in the circumstances of a case.

While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations

when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does

not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in

judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the

investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the

investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed

fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the

judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such

offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important

factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure,

1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal

Procedure, 1973.

To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect

or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an

accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is

enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in

1382 Prisons.

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 himself 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.

Copy dasti.