Pradeep Singh Alias Bhura Kirar vs State Of MP

This 6th  Application under Section 439 of Cr.P.C. has been filed for grant of bail.

The applicant has been arrested on 09/06/2017 in connection with Crime No.435/2017 registered at Police Station Janakganj, District Gwalior for offence under Sections 302, 307 of IPC and under Section 25/27 of the Arms Act.

The last application of the applicant has already been dismissed on merits by order dated 02/03/2020 passed in MCRC No.7414/2020.

It is submitted by the counsel for the applicant that although the prosecution witnesses have supported the prosecution case, but they are not reliable because they have adopted the policy of pick and choose by not supporting the prosecution case in respect of some of the accused persons. It is further submitted that all the material witnesses have been examined and now there is no possibility of tampering with the prosecution case.

Heard the learned counsel for the applicant.

So far as the question of examination of prosecution witnesses is concerned, this Court in the case of of Bhupat Singh vs State of MP by order dated 11/05/2018 passed in MCRC No.14129/2018, has held as under:-

''So far as the submissions made by the counsel for the applicant is concerned, it is not the case of the applicant that all the eyewitnesses who have been examined by the prosecution have turned hostile and they have not supported the prosecution case. Merely because the witnesses have been examined before the Trial Court and there is no possibility of winning over or tampering the witnesses, the same cannot be a sole ground to release the present applicant on bail and my view is fortified by the judgment passed by the Supreme Court in the case of Virupakshappa Gouda & Anr. vs. State of Karnataka reported in (2017) 5 SCC 406 in which it has been held as under:-

"15. The court has to keep in mind what has been stated in Chaman Lal v. State of U.P. 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 v. Ashis Chatterjee , 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: (SCC p. 499, para 9)

"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 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;

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

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

In CBI v. V. Vijay Sai Reddy, 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."

(emphasis in original)

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 v. State of U.P., 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 second respondent? We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of the 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 civilised society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilised. 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 its members, 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."

In this context what has been stated by a three-Judge Bench in Dinesh M.N. v. State of Gujarat 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.

In the instant case, as is demonstrable, the learned trial Judge has not been guided by the established parameters for grant of bail. He has not kept himself alive to the fact that twice the bail applications had been rejected and the matter had travelled to this Court. Once this Court has declined to enlarge the appellants on bail, endeavours to project same factual score should not have been allowed. It is absolute impropriety and that impropriety calls for axing of the order."

In the case of Dinesh M.N. (S.P.) vs. State of Gujarat reported in (2008) 5 SCC 66 it has been held that the bail cannot be granted to an accused by taking into consideration irrelevant materials and in case such an order is passed then the order becomes vulnerable and such vulnerability warrants annulment of the order. Merely, the witnesses have been examined and ignoring the fact that they have supported the prosecution case, in the considered opinion of this Court the bail cannot be granted only on the ground that now there is no possibility or winning over or tampering the prosecution case.

It is well settled principle of law that while considering the bail application, the gravity of the offence and allegations against the accused persons is to be taken into consideration. The severity of punishment in case of conviction is also one of the relevant consideration for deciding the bail application and only after considering the nature of accusation, then the question would arise that whether there is any possibility of winning over or tampering with the prosecution witnesses or not. But ignoring all other material facts, the bail cannot be granted merely on the ground that since the eyewitnesses and material witnesses have been examined, therefore, there is no possibility of winning over or tampering the prosecution witnesses. In the present case, since none of the eyewitness has turned hostile and all the witnesses have supported the prosecution case and considering the allegations made against the applicant, this Court is of the considered opinion that the order passed by the Co-ordinate Bench of this Court in M.Cr.C.No.12139/2018 and M.Cr.C.No.12162/2018 thereby granting bail to the co-accused Kaptan Singh Rawat and Mukesh Rawat cannot be treated as precedent.

Accordingly, this application fails and is hereby dismissed.''

The aforesaid order passed by this Court has already been affirmed by the Supreme Court by order dated 21/06/2018 passed in Special Leave to Appeal (Crl) No.(s).5103/2018 [Bhupat Singh Rawat vs. The State of Madhya Pradesh]. Thus, a person cannot be granted bail merely on the ground that since the eye-witnesses/material witnesses have been examined therefore, now there is no possibility of tampering the prosecution evidence.

So far as the question of period of pre-trial detention is concerned, it is sufficient to hold three years pre-trial detention is not sufficient to release a person, who is facing trial for an offence punishable with life imprisonment.

So far as the question of reliability and credibility of the witnesses is concerned, in the light of 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, this Court cannot look into the reliability and credibility of evidence of the witnesses at the stage of bail. Accordingly, no case is made out for grant of bail. The application fails and is hereby rejected.