Gujarat High Court
Suketu @ Sunni Harshadbhai Modi vs State Of Gujarat on 31 August, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
R/CR.MA/29959/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 29959 of 2017
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SUKETU @ SUNNI HARSHADBHAI MODI Versus STATE OF GUJARAT =============================================================== Appearance:
MR HIMANSHU C DESAI(6832) for the PETITIONER(s) No. 1 MR VIJAY PATEL FOR HL PATEL ADVOCATES(2034) for the RESPONDENT(s) No. 1 MR MITESH AMIN APP(2) for the RESPONDENT(s) No. 1 =============================================================== CORAM: HONOURABLE MR.JUSTICE P.P.BHATT Date : 31/08/2018 CAV ORDER
1. The present third successive application is filed under Section 439 of the Code of Criminal Procedure by the applicant for regular bail in connection with an F.I.R.
being C.R.No.I - 127 of 2016 registered with Umra Police Station, Surat, for the offences punishable under Section 302, 201, 203, 114, 120(B) of the Indian Penal Code, 1860 and Section 135 of the Gujarat Police Act.
2. The brief facts of the present case are as under:
That on 28.6.2016, one Velsi wife of Dishit Hitesh Jariwala lodged an FIR with Umra Police Station disclosing that her husband was attacked by two unknown persons with knife on the night of 27.6.2016 and looted certain ornaments from her. It was alleged in the FIR that she along with her husband and the daughter, travelled in their car - Huyndai Jazz having Registration Number GJ- 5A-6879 and went to her parental home and returned at about 10.30 in the night. After sometime, when she Page 1 of 21 R/CR.MA/29959/2017 CAV ORDER entered their bedroom, she found that two unknown persons wearing mask on their faces, shown a knife to her and asked her to hand over the ornaments. Therefore, she handed over the articles. Her deceased husband tried to protect himself. However, the complainant along with her daughter were taken to a bathroom and the door of the bathroom was shut from outside by those persons. It was alleged in the FIR that at around 11.45 in the night, she shouted from the bathroom and called her relative Kishorbhai. Thereafter, two other persons, namely, Anil Goswami and Jitubhai along with other persons visited the house and found her husband lying dead on the bed of their bedroom. Accordingly, FIR was lodged for the offence punishable under Sections 397, 302 and 114 of the Indian Penal Code read with Section 135 of the Gujarat Police Act.
3. Earlier, the applicant has filed application under Section 439 of the Code of Criminal Procedure, being Criminal Misc. Application No.30385 of 2016, which was withdraw with a liberty to file afresh after receiving FSL report vide order dated 22.12.2016. Thereafter, second application being Criminal Misc. Application No.18814 of 2017 was filed for the very purpose, but the same was rejected by the Coordinate Bench of this Court vide order dated 08.09.2017. Thereafter present application is moved by the applicant on 06.12.2017.
4. Learned advocate Mr. H.C. Desai appearing for the applicant states that the applicant is an innocent person, however, he has been falsely implicated in the alleged Page 2 of 21 R/CR.MA/29959/2017 CAV ORDER offence. The applicant is aged about 29 years and is in Jail since 30.06.2016, approximately two and half years. Learned advocate further submits that in this matter, charge-sheet is filed against the applicant and therefore, there is no possibility of tampering with the evidence. It is further submitted that the present case is based on circumstantial evidence and there is eye-witness to the present incident. The gold ornaments were discovered at the instance of the present applicant, but there is no evidence to prove that those gold ornaments belongs to aforesaid Velsi. It is further submitted that Test Identification Parade was carried out by the Investigating Agency, wherein the rickshaw driver in whose rickshaw, the applicant along with his driver went to deceased house, has identified both the accused. It is also submitted that there are serious lacunas in the T.I. Parade as prior to conducting the T.I. Parade, photos of the accused had published in the newspaper and names were also given due to which the T.I. Parade was influenced and therefore, it is very weak piece of evidence. Learned advocate further submits that there is nothing in CCTV footage and the applicant is seen in CCTV footage though the CCTV camera was on at that time, so the allegation raised by the prosecution that on 25.06.2016, the applicant and Velsi met at Prince Hotel and the applicant has asked the Manager to stop the CCTV camera. Learned advocate also submits that the prosecution has relied on the conversion between the applicant and co-accused Dhirendra, but there is no voice spectrography test conducted by the Officer.
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5. Learned advocate while relying upon the CDRs, submits that there were no record of conversion between the applicant and the complainant since last six months and the locations stated in the CDRs are different. Therefore, the theory narrated by the prosecution that the present applicant in collusion with the complainant hatched conspiracy is not believable.
6. Learned advocate submits that applicant was released on temporary bail on so many occasions, and during the said period, no untoward incident was reported.
7. Learned advocate states that in the earlier round, the Coordinate Bench of this Court has rejected the bail of the applicant by observing that the accused is wearing mask in CCTV footage, but in fact, that was in reconstruction of Panchnama. It is submitted that the Coordinate Bench has also observed that in the newspaper, only one photograph was published, but as in fact, photographs of all other accused were published after their arrest. Therefore, there is no direct or indirect evidence against the applicant.
8. Learned advocate submitted that the identification of the applicant by the Rickshaw Driver may be considered along with statement of the said Rickshaw Driver recroded on 05.07.2016, wherein he has stated that he came to know about the incident of theft and murder of Dishit Jariwala from the newspaper on next date of incident. The said Rickshaw Driver further stated that the accused persons were not sure where they wanted to go and he was in hurry, he dropped the passengers on the Page 4 of 21 R/CR.MA/29959/2017 CAV ORDER road. He further stated that he came to know from the Police Inspector before whom he recording the statement that the accused persons have committed themurder of the deceased. Moreover, he has stated that since he has seen the photographs of the accused in the newspaper, he presumed that the passengers whom he dropped might be the accused persons. Therefore, it appears that he was not clear about indentification of the accused persons. Learned advocate for the applicant further submitted that Test Identification Parade was conducted after publication of news along with the photographs of the accused persons. Therefore, the Test Indentification Parade is required consider in light of the statement of the Rickshaw Driver.
9. Learned advocate submits that co-accused, who is also the complainant, having graver role in the commission of offence, has been released on regular bail by this Court vide order dated 26.04.2017 passed in Criminal Misc. Application No.8145 of 2017. The complainant is shown as main accused in the charge-sheet as she hatched the conspiracy having mens rea in the commission of alleged offence. Therefore, the present applicant may be granted bail on parity ground.
10. While concluding his submissions, learned advocate submits that keeping the petitioner behind the bar, would not serve any purpose as the applicant is in jail since last about two and half years and there is no likelihood that the trial will be completed in near future as there are 108 witnesses to be examined. The applicant is having roots Page 5 of 21 R/CR.MA/29959/2017 CAV ORDER in Surat District and he is having responsibilities towards his family and and his presence can be secured during the course of trial and will not flee from justice, therefore, the applicant may be enlarged on regular bail by imposing suitable conditions.
11. Per contra, learned Public Prosecutor for the respondent -
State strongly objected the application. It is submitted that from the charge-sheet, there appears prima facie case against the applicant in committing the alleged offence. It is submitted that there cannot be any dispute that the case rests on the circumstantial evidence, but the chain of circumstances, connecting the present applicant with the crime, is established very well. He submitted that the present applicant was the part of the conspiracy, which can be revealed from the conduct of the applicant. It is submitted that start from beginning i.e. from choosing the date till the crime was actually committed, it was planned well and the present applicant has played active role in the same.
12. Learned Public Prosecutor submits that earlier two applications were not considered by the Coordinate Bench of this Court considering the involvement of the accused in the alleged serious offences. He also submits that present applicant and said Velsi having illicit relationship, hatched conspiracy with other accused to kill Dishit Jariwala and thereby committed the alleged offence. Therefore, present applicant is not required to be enlarged on bail.
13. Learned Public Prosecutor further submits that while Page 6 of 21 R/CR.MA/29959/2017 CAV ORDER rejecting the earlier application being Criminal Misc. Application No.18814 of 2017 vide order dated 08.09.2017, the Coordinate Bench has given the detailed reasons. Therefore, present application is not required to be entertained. From the FSL report, it appears that the presence of two persons wearing masks are visible and therefore, their faces could not be recognized. It is required to be noted that those two persons were wearing masks is recorded in CCTV Camera installed near the house of the deceased. It is found that Jazz Car belonged to the deceased moving in the area subsequent to commission of crime. He further submits that the present applicant was found in the company of his driver within a period of two days from the date of incident. Even from the investigation, it is found that the ornaments belonging to the complainant were discovered at the instance of applicant. It is also submitted that at the place of incident, chili powder was found and from the Skoda car of the accused, the same was found. It is also submitted that mobile phone of the deceased was discovered from the driver of the applicant. The bloodstains are found from Skoda car. It is also submitted that a systematic designed is adopted by the complainant by lodging the FIR stating that loot has been committed by the applicant, but in fact, the applicant in collusion with the complainant along with one other co- accused committed alleged offence.
14. Learned Public Prosecutor in view of the aforesaid submissions, submits that considering the role attributed to the applicant in commission of the alleged offence, Page 7 of 21 R/CR.MA/29959/2017 CAV ORDER earlier two applications preferred by the applicant were not entertained by the Coordinate Bench of this Court and out of which, one application is rejected with detailed reasons order, there is no change of substantial circumstances for which the present application is filed, the application for bail is required to be rejected.
15. Learned advocate Mr. Vijay Patel appearing for H.L. Patel Advocates for the complainant supported the submissions made by the learned APP and prayed to dismiss the application. He, under the instructions, further submitted that co-accused, who has been granted regular bail by this Court, which was challenged before the Hon'ble Supreme Court and the same was rejected. Considering the involvement of the accused the alleged offence, the application is not required to be entertained.
16. Perused the application along with record and considered the submissions made by the learned advocate for respective parties. Prima facie, it appears that the complainant filed the complaint against the applicant, wherein the complainant herself is accused No.3. It also appears that there is no direct evidence against the applicant and it is a case of circumstantial evidence. Earlier the applicant has filed application for bail on two occasions i.e. first application being Criminal Misc. Application No. 30385 of 2016, which was was withdrawn vide order 22.12.2016 with a liberty to revive after receiving FSL report and second application i.e. Criminal Misc. Application No. 18814 of 2017, which was rejected vide order 08.09.2017.
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17. As per the submission of the learned advocate for the applicant, case of applicant rests on circumstantial evidence. Prima facie, it appears that there is no direct evidence against the applicant. This Court has minutely perused the FSL report, wherein it is stated that there was no record regarding phone call, message or chat was made between the applicant and complainant. It also appears from the said report that the locations are different fromwhere the phone call made by the complainant as well as applicant. So, it prima facie appears that they were not in concact since last six months as per FSL report. Even the report does not disclose the identity of the applicant. The phone call details examine prior and subsequent to the incident covering more than three to six months period would not lead that there was affair between the applicant and wife of the deceased and had hatched conspiracy to commit murder. With regard to the discovery of the gold ornaments at the instance of the present applicant, prima facie there appears substance in the submission advanced by the learned advocate for the applicant as the complaint has not identified the ornaments as her ornaments. With regard to the Test Identification Parade of the present applicant, prima facie, there appears to be substance in submissions advanced by the learned advocate for the applicant that Rickshaw Driver is not sure about indefication of the applicant, since the photographs of the accused were published in the newspaper prior to TI parade. According to learned advocate for the applicant, they are cousins and not having any such relation. Looking to all these aspects, Page 9 of 21 R/CR.MA/29959/2017 CAV ORDER prima facie it appears that at this stage of bail, there is no evidence against the applicant to show that the applicant has played active role in the commission of the offence and this is case of circumstantial evidence, which is not required to be discussed at this stage because the trial Court will decide the same after examining witnesses and scrutinizing the record.
18. It appears that trial has not progressed at all. The charge is framed recently and the trial has just commenced. As such there is no substantial progress in the trial as there are 108 witnesses and therefore, obviously, the trial will take long time. It also appears that the applicant is in jail from 30.06.2016 i.e. 2 and half years. It also appears that the applicant has been granted temporary bail on some / few occasions and during the period of temporary bail, there was no adverse report about misuse of liberty or breach of conditions imposed by the Court or there is no adverse remarks against the applicant in the jail remarks. In fact, his conduct in jail is shown good. Even he has surrendered in time before the jail authority.
19. Besides above facts and circumstances of the present case, this Court has also perused the decision in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 Supreme Court Cases 40, wherein the Hon'ble Supreme Court has settled the principles for grant of bail. The object of bail is to secure the appearance of accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be Page 10 of 21 R/CR.MA/29959/2017 CAV ORDER considered a punishment unless it can be required to ensure that an accused person will stand his trial when call upon. Detention in custody pending completion of trial could be a cause of great hardship. The investigation is over and charge-sheet is filed and therefore, their presence in the custody may not be necessary for further investigation.
20. This Court has perused the case of Vinod Bhandari Vs. State of Madhya Pradesh reported in (2015)11 Supreme Court Cases 502, wherein the Hon'ble Supreme Court has observed as under:
"It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time."
(Emphasized supplied)
21. In one another case of State of Kerala Vs. Raneef reported in (2011) Supreme Court Cases 784, wherein on the issue of delay in trial is one of the factor for granting bail. The Hon'ble Supreme Court in para 15 has observed as under:
"In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is Page 11 of 21 R/CR.MA/29959/2017 CAV ORDER denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in paragraph 2 of his counter affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."
22. This Court has perused the decision in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav reported in (2005) 2 Supreme Court Cases 42, wherein the Hon'ble Supreme Court has held as under:
"Personal liberty cannot be taken away except in accordance with the procedue establsihed by law. Personaly liberty is a constitutional guarantee. However, Article 21 which gurantees the above right also contemplates deprivation of personal liberty by procedure establsihed by law. Under the criminal laaws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accorance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorized by law. But even persons accused of non-bailable offences are entiteld to bail if the court concerned comes to the conclusion that the prosecution has fialed to establish a prima facie case againstt him and / or if the Court is satisfied for reasons to be recorded, that in spite of the existence of a prima facie case there is a need to release such persons on bail where fact situations require it to do so.
The principles of re-jurisdicata, and such analogous principles, although are not aplicable in a criminal Page 12 of 21 R/CR.MA/29959/2017 CAV ORDER proceedings, still the Courts are bound by the doctrine of judicial discipline, having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate Bench must recive serious consdieration at the hands of the country entertaining a bail application at later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the frmer or higher court in rejecting the bail application. Ordinarily, the issues which had been cavassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to speculation and uncertainty in the administration of justice and may lead to forum hunting. The decisions given by a superior forum, undoubtedly, are binding on the subordinate fore on the asme issue evne in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing subsequent bail in application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the ealrier view being interferred with or where the earlier finding has become obsolete. In such cases if the circumstances then previaling require that such persons be rleased on bail, in sp9ite of their ealrier applications being rejected, the Courts can do so. This the limited area in which an accused who has been denied bail earlier, can move a subsquent applciation. Therefore, in it is not open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier, including the Apex Court of the country.
46. It is not necessary for us to weigh the evidence at this stage since we have already come to the conclusion that the prosecution, on the basis of the material avaialble on record has established a prima facie case against the accused and we are also of the opinion that the conduct of the respondent-accused as broguht on record clearly indicates that enlarging the said accused on bail would impede the progress of the trial."
(Emphasized supplied) Page 13 of 21 R/CR.MA/29959/2017 CAV ORDER
23. In the case of Lt. Col. Prasad Shrikant Purohit Vs. State of Maharashtra reported in (2018)11 Supreme Court Cases 458, it observed that "an accused has a right to make successive applications for grant of bail, the Court entertaining such subsequent bail applications has a duty to considered the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. The grant or refusal to grant bail is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The grant or refusal to grant bail is regulated to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational rights of the agency. It must result in minimum interference with the personal liberty of the accused and the right of the agency to investigate the case."
24. This Court has also perused the decision in the case of Nikesh Tarachand Shah Vs. Union of India and Anr. reported in (2018) 11 SCC, wherein it is observed by the Hon'ble Supreme Court as under:
Page 14 of 21R/CR.MA/29959/2017 CAV ORDER "14. In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 at 586-588, the purpose of granting bail is set out with great felicity as follows:-
"27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King-Emperor [AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732] that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the 'Meerut Conspiracy cases' observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [AIR 1931 All 504 : 33 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. Hutchinson [AIR 1931 All 356, 358 : 32 Cri LJ 1271] it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, 30 having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the Page 15 of 21 R/CR.MA/29959/2017 CAV ORDER various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1) "... the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right."
29.In Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the court, that: (SCC p. 129, para 29) "29. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail."
30. In AMERICAN JURISPRUDENCE (2d, Volume 8, p. 806, para 39), it is stated:
"Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end."Page 16 of 21
R/CR.MA/29959/2017 CAV ORDER It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
(Emphasized supplied)
25. The Hon'ble Supreme Court in the case of Dataram Singh Vs. State of Uttar Prradesh and Anr. reported in (2018) 3 Supreme Court Cases 22 has observed as under:
"2. 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 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.
3. 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 Page 17 of 21 R/CR.MA/29959/2017 CAV ORDER 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.
4. 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.
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in NikeshTarachand Shah v. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab in which it is observed that it was held way back in Nagendra v. King-Emperor that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.Page 18 of 21
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6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory."
26. Considering the aforesaid cases, wherein the Hon'ble Supreme Court has settled principles for entertaining the successive bail, like delay in commencement and conclusion of trial, personal liberty, detention in custody pending completion of trial could be a cause of great hardship etc., they are squarely applicable to the present case.
27. In view of the above facts and circumstances, of the case and considering the nature of allegations made against the applicant in the F.I.R. and the charge-sheet papers and the fact that the co-accused has been released by the Coordinate Bench of this Court as well as the underlined ratio laid down in the above reffered judgements of the Hon'ble Apex Court, this Court is of the view that discretion is required to be exercised to enlarge the applicant on regular bail. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with the aforesaid F.I.R. on executing a personal bond of Rs.1,00,000/- (Rupees One Lakh Only) with two sureties in the sum of Rs.50,000/- each to the satisfaction of the learned Trial Court and subject to the conditions that the applicant shall;
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[a] not take undue advantage of liberty or misuse
liberty;
[b] not act in a manner injurious to the interest of
the prosecution;
[c] surrender passport, if any, to the lower court
within a week;
[d] not leave the State of Gujarat without prior
permission of the Sessions Judge concerned;
[e] not enter into Surat City for a period of six months except marking presence or attending the trial;
(f) mark presence before the concerned Police Station on every Monday of each English calendar month for a period of three months and thereafter, alternate Monday for a period of six months, between 11:00 a.m. and 2:00 p.m.;
(g) furnish latest and permanent address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
28. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at Page 20 of 21 R/CR.MA/29959/2017 CAV ORDER this stage, made by this Court while enlarging the applicant on bail.
29. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(P.P.BHATT, J) YNVYAS Page 21 of 21