Gujarat High Court
Ketan @ Archit Pravinbhai Patel vs State Of Gujarat on 21 March, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/22317/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 22317 of 2015
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KETAN @ ARCHIT PRAVINBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR HARDIK H DAVE, ADVOCATE for the Applicant(s) No. 1
MS NISHA THAKORE, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 21/03/2016
ORAL ORDER
1. Rule. Ms. Nisha Thakore, waives service of notice of rule for and on behalf of respondent-State.
2. Applicant herein is seeking regular bail under section 439 of the Code of Criminal Procedure in connection with CR.No.I-185 of 2010 registered with Kishanvadi police station for the offences punishable under sections 392,397,342,34 and 120-B of the Indian Penal Code and section 25(A)(B) of the Arms Act.
3. This Court had rejected four times the bail applications of the applicant. Firstly, on 15.10.2012 a detailed order was passed on merits and considering his role it was not deemed appropriate to allow him the regular bail. Secondly, on 1.3.2013 and then on Page 1 of 12 HC-NIC Page 1 of 12 Created On Thu Mar 24 01:50:58 IST 2016 R/CR.MA/22317/2015 ORDER 11.10.2013 and lastly on 24.3.2015 his bail applications were rejected.
4. This Court at the time of disposing of the third application had directed the jail authority to provide the means of commutation from Central Jail, Ahmedabad to Sessions Court, Vadodara in the pending proceedings.
5. This Court noted that on the last occasion, while rejecting the bail application, following directions were issued:-
"8. On thus hearing both the sides and considering the material on record, for the reasons to follow hereinafter the present application deserves no consideration :
8.1 Since this Court has already decided at length the merits of the matter, those reasons continue to hold the field as on today as there is no further challenge to the same and, hence, the same does not need to be ingeminated.
8.2 The present application is being considered only on the ground of delayed trial and it could be noted that 13 witnesses have already been examined. The trial is likely to take about six months' period, according to the prosecution.
In such given facts and circumstances of the case, so also keeping in mind the gravity of the offence and the criminal antecedents, the present application deserves to be rejected."
6. This application has been preferred essentially relying on the decision of the Apex Court rendered in the case of Bhim Singh vs. Union of India and others passed in Writ Petition(s) (Criminal)No(s). 310 of 2005 on 5.9.2014, wherein the Apex Court interpreted on section 436A of the Code of Criminal Procedure and has directed that the period of imprisonment of all those undertrials who have undergone the detention for the period extending one-half Page 2 of 12 HC-NIC Page 2 of 12 Created On Thu Mar 24 01:50:58 IST 2016 R/CR.MA/22317/2015 ORDER of the maximum period of imprisonment specified for that offence under the law, shall be released by the Court on his personal bond with or without sureties. The Court has given various other directions in this regard and present applicant, therefore, has approached this Court essentially relying on section 436A of the Code of Criminal Procedure as also on the decision of the Apex Court rendered in the case of Reference-Inhuman Conditions in 1382 prisons passed in Civil Original Jurisdiction in Writ Petition(Civil) No.406 of 2013 on 5.2.2016, wherein the Apex Court has held thus:-
"16. With regard to the third issue regarding effective implementation of Section 436A of the Code of Criminal Procedure, (for short the Cr.P.C.), the affidavit stated that an advisory had been issued by the Ministry of Home Affairs of the Government of India on 17th January, 2013 to all the States and Union Territories to implement the provisions of Section 436A of the Cr.P.C. To reduce overcrowding in prisons. Among the measures suggested in this regard by the Ministry of Home Affairs was the constitution of a Review Committee in every district with the District Judge in the Chair with the District Magistrate and the Superintendent of Police as Members to meet every three months and review the cases of undertrial prisoners. The Jail Superintendents were also required to conduct a survey of all cases where undertrial prisoners have completed more than one fourth of the maximum sentence and send a report in this regard to the District Legal Services Committee constituted under The Legal Services Authorities Act, 1987 as well as to the Review Committee. It was also suggested that the prison authorities should educate undertrials of their right to bail and the District Legal Services Committee should provide legal aid through empanelled lawyers to the undertrial prisoners for their release on bail or for the reduction of the bail amount. The Home Department of the States was also requested to develop a management information system to ascertain the jail-wise progress in this regard."
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56. The sum and substance of the aforesaid discussion is that prisoners, like all human beings, deserve to be treated with dignity. To give effect to this, some positive directions need to be issued by this Court and these are as follows:
1. The Under Trial Review Committee in every district should meet every quarter and the first such meeting should take place on or before 31st March, 2016. The Secretary of the District Legal Services Committee should attend each meeting of the Under Trial Review Committee and follow up the discussions with appropriate steps for the release of undertrial prisoners and convicts who have undergone their sentence or are entitled to release because of remission granted to them.
2. The Under Trial Review Committee should specifically look into aspects pertaining to effective implementation of Section 436 of the Cr.P.C. and Section 436A of the Cr.P.C. so that undertrial prisoners are released at the earliest and those who cannot furnish bail bonds due to their poverty are not subjected to incarceration only for that reason. The Under Trial Review Committee will also look into issue of implementation of the Probation of Offenders Act, 1958 particularly with regard to first time offenders so that they have a chance of being restored and rehabilitated in society.
3. The Member Secretary of the State Legal Services Authority of every State will ensure, in coordination with the Secretary of the District Legal Services Committee in every district, that an adequate number of competent lawyers are empanelled to assist undertrial prisoners and convicts, particularly the poor and indigent, and that legal aid for the poor does not become poor legal aid.
4. The Secretary of the District Legal Services Committee will also look into the issue of the release of undertrial prisoners in compoundable offences, the effort being to effectively explore the possibility of compounding offences rather than requiring a trial to take place.
5. The Director General of Police/Inspector General of Police in-charge of prisons should ensure that there is proper and effective utilization of available funds so that the living conditions of the prisoners is commensurate with human dignity. This also includes the issue of their health, hygiene, food, clothing, rehabilitation etc.
6. The Ministry of Home Affairs will ensure that the Management Information System is in place at the earliest in all the Central and District Jails as well as jails for women so that there is better and effective management of the prison and prisoners.
7. The Ministry of Home Affairs will conduct an annual review of the implementation of the Model Prison Manual 2016 for Page 4 of 12 HC-NIC Page 4 of 12 Created On Thu Mar 24 01:50:58 IST 2016 R/CR.MA/22317/2015 ORDER which considerable efforts have been made not only by senior officers of the Ministry of Home Affairs but also persons from civil society. The Model Prison Manual 2016 should not be reduced to yet another document that might be reviewed only decades later, if at all. The annual review will also take into consideration the need, if any, of making changes therein.
8. The Under Trial Review Committee will also look into the issues raised in the Model Prison Manual 2016 including regular jail visits as suggested in the said Manual. We direct accordingly."
7. Learned advocates appearing for both the sides have been heard at length.
8. This Court has also taken into consideration affidavit filed by the father of the applicant, who has also provided his permanent address.
9. The affidavit filed by the Inspector General of police with regard to providing security personnels for the petitioner to be commuted from jail to the trial Court is also taken note of. On some of the adjournments, despite specific direction of this Court issued earlier, the applicant could not be taken to the trial Court because of certain special circumstances for which unconditional apology is tendered.
9. Having thus considered the submissions, contents of the affidavit and the ratio laid down by the Apex Court in relation to section 436A of the Code of Criminal Procedure, this Court is of the opinion that the maximum punishment provided of all the offences petitioner is charged with is section 392 of the Indian Penal Code and the punishment prescribed for the said offence of robbery extends to 10 years also with fine. However, the robbery if is committed on highway between sunset and sunrise, the imprisonment shall be Page 5 of 12 HC-NIC Page 5 of 12 Created On Thu Mar 24 01:50:58 IST 2016 R/CR.MA/22317/2015 ORDER extended to 14 years. It is surely not the case of the prosecution that robbery is committed on highway between sunset and sunrise. The case of the prosecution is that the robbery was committed during the day time in the bank in the afternoon. With this specific case of prosecution and in absence of anything to indicate that the present applicant has contributed in the delay in the trial, which is going on before the Sessions Court, Vadodara being Sessions Case No.112 of 2011, as he has already undergone imprisonment of 5 years which is admittedly one-half of the maximum period of imprisonment specified for section 392 of the Indian Penal Code and considering his date of arrest on 16.2.2011, he requires to be given benefit of section 436A of the Code of Criminal Procedure. It is required to be noted that the Apex Court while considering the legislative policy of section 436A had directed the jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge to hold one sitting in a week in each jail/prison for two months commencing from 1.10.2014 for the purposes of effective implementation of section 436A of the Code of Criminal Procedure. It is further directed that the judicial officers shall identify the under-trial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436A pass an appropriate order in jail itself for release of such under-trial prisoners who fulfill the requirement of section 436A for their release immediately. They have also been directed that jurisdictional Magistrate/Chief Judicial Page 6 of 12 HC-NIC Page 6 of 12 Created On Thu Mar 24 01:50:58 IST 2016 R/CR.MA/22317/2015 ORDER Magistrate/Sessions Judge shall submit the report of each of such sitting to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of Apex Court without any delay.
10. The Apex Court in the case of Reference-Inhuman Conditions in 1382 prisons observed that an application software, namely, Prison Management System as has been in use in Tihar Jail, requires duplication. The Court also directed the Ministry of Home Affairs to carefully study this application software and prepare a detailed project management report. It would be apt to reproduce the relevant directions:-
"Keeping this in mind and the various suggestions that have been made in the affidavit, we are of the view that the following directions need to be issued:
1. A Prisoners Management System (a sort of Management Information System) has been in use in Tihar Jail for quite some time, as stated in the affidavit. The Ministry of Home Affairs should carefully study this application software and get back to us on the next date of hearing with any suggestions or modifications in this regard, so that the software can be improved and then deployed in other jails all over the country, if necessary.
2. We would like the assistance of the National Legal Services Authority (NALSA) in this matter of crucial importance concerning prisoners in the country. We direct the Member Secretary of NALSA to appoint a senior judicial officer as the nodal officer to assist us and deal with the issues that have arisen in this case.
3. For the purpose of implementation of Section 436A of the Code of Criminal Procedure, 1973 (for short "the Code"), the Ministry of Home Affairs has issued an Advisory on 17th January, 2013. One of the requirements of the Advisory is that an Under Trial Review Committee should be set up in every district.
The composition of the Under Trial Review Committee is the District Judge, as Chairperson, the District Magistrate and the District Superintendent of Police as members.The Member Secretary of NALSA will, in coordination with the Page 7 of 12 HC-NIC Page 7 of 12 Created On Thu Mar 24 01:50:58 IST 2016 R/CR.MA/22317/2015 ORDER State Legal Services Authority and the Ministry of Home Affairs, urgently ensure that such an Under Trial Review Committee is established in every District, within one month. The next meeting of each such Committee should be held on or about 30th June, 2015.
4. In the meeting to be held on or about 30th June, 2015, the Under Trial Review Committee should consider the cases of all under trial prisoners who are entitled to the benefit of Section 436A of the Code. The Ministry of Home Affairs has indicated that in case of multiple offences having different periods of incarceration, a prisoner should be released after half the period of incarceration is undergone for the offence with the greater punishment. In our opinion, while this may be the requirement of Section 436A of the Code, it will be appropriate if in a case of multiple offences, a review is conducted after half the sentence of the lesser offence is completed by the under trial prisoner. It is not necessary or compulsory that an under trial prisoner must remain in custody for at least half the period of his maximum sentence only because the trial has not been completed in time.
5. The Bureau of Police Research and Development had circulated a Model Prison Manual in 2003, as stated in the affidavit. About 12 years have gone by and since then there has been a huge change in circumstances and availability of technology. We direct the Ministry of Home Affairs to ensure that the Bureau of Police Research and Development undertakes a review of the Model Prison Manual within a period of three months.
We are told that a review has already commenced. We expect it to be completed within three months.
6. The Member Secretary of NALSA should issue directions to the State Legal Services Authorities to urgently take up cases of prisoners who are unable to furnish bail and are still in custody for that reason. From the figures that have been annexed to the affidavit filed by the Ministry, we find that there are a large number of such prisoners who are continuing in custody only because of their poverty. This is certainly not the spirit of the law and poverty cannot be a ground for incarcerating a person. As per the figures provided by the Ministry of Home Affairs, in the State of Uttar Pradesh, there are as many as 530 such persons. The State Legal Services Authorities should instruct the panel lawyers to urgently meet such prisoners, discuss the case with them and move appropriate applications before the appropriate court for release of such persons unless they are required in custody for some other purposes.
7. There are a large number of compoundable offences for which persons are in custody. No attempt seems to have Page 8 of 12 HC-NIC Page 8 of 12 Created On Thu Mar 24 01:50:58 IST 2016 R/CR.MA/22317/2015 ORDER been made to compound those offences and instead the alleged offender has been incarcerated. The State Legal Services Authorities are directed, through the Member Secretary of NALSA to urgently take up the issue with the panel lawyers so that wherever the offences can be compounded, immediate steps should be taken and wherever the offences cannot be compounded, efforts should be made to expedite the disposal of those cases or at least efforts should be made to have the persons in custody released therefrom at the earliest.
A copy of this order be given immediately to the Member Secretary, NALSA for compliance."
11. In the facts and circumstances of the case, the application is allowed and applicant is ordered to be released on bail in connection with CR.No.I-185 of 2010 registered with Kishanvadi police station, on executing a personal bond of Rs.20,000/- (Rupees Twenty Thousand only) with one solvent surety of like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
(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 Gujarat and India without prior permission of
the Sessions Judge concerned;
(e) mark presence before the Halol City police station on the
5th of every English Calender month between 11.00
a.m. and 2.00 p.m.;
(f) shall regularly attend the Court till the trial of this case is
over.
(g) furnish the present 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;
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R/CR.MA/22317/2015 ORDER
(h) shall neither make even an attempt to win over the
witness or hamper the process of trial.
12. The Authorities will release the applicant only if not required in connection with any other offence for the time being.
13. If breach of any of the above conditions is committed, the trial Court concerned will be free to issue warrant or take appropriate action in the matter, including cancellation of bail.
14. Bail bond to be executed before the lower court having jurisdiction to try the case.
15. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
16. While disposing of this matter, it is required to be observed that this Court in its earlier order dated 24.3.2015 in Criminal Miscellaneous Application No.16643 of 2014 had directed the jail authority to provide on regular basis, facility for carrying the prisoner to the concerned trial Court over and above general directions issued by the Home Department, special directions were issued for this petitioner. It can be noticed that on various dates, despite such specific assurances and despite specific order the present petitioner was not taken to the trial Court although I.G. Prisons in his affidavit has explained the reasons and has apologized for non-compliance of this order. This Court was not convinced to enlarge him on regular bail on merit bearing in mind nature of allegation and offences Page 10 of 12 HC-NIC Page 10 of 12 Created On Thu Mar 24 01:50:58 IST 2016 R/CR.MA/22317/2015 ORDER involved. While such order was passed, only 13 witnesses remained to be examined. It can also be seen that he has not contributed to delay of trial and it is caused on the part of the prosecution. On one hand if transfer is made from one central jail to another central jail on administrative grounds, jail authority is expected to provide facilities of commutation to ensure production of under trials. As the trial has not been over, provisions of section 436A of the Code of Criminal Procedure and the ratio laid down in Bhim Singh's case(supra) need exercise of discretion in favour of the petitioner. The issue does not deserve to be any further stretched. However, while accepting this apology it is being directed that when video conferencing facility is made available by the State between the Central Jails and the district Courts, their use may not be restricted to production of the accused alone for taking their presence but, instead of transporting the undertrial prisoners from jail to the concerned Court, for the purpose of trial, technological advances can be employed and a way could be found out by putting the maximum use of this video conferencing facility. For the consistent and regular use of this facility for the purpose of conducting trial, let some concerted effort be made out. Even otherwise research study indicates that the expense of production of the undertrial through video conferencing facility compared to the physical production is about 1% only.
17. Copy be served to the learned Additional Public Prosecutor for respondent No.1-State for onward communication to the I.G. Prison Page 11 of 12 HC-NIC Page 11 of 12 Created On Thu Mar 24 01:50:58 IST 2016 R/CR.MA/22317/2015 ORDER necessary action at his end. Rule is made absolute accordingly.
Direct service is permitted.
(MS SONIA GOKANI, J.) SUDHIR Page 12 of 12 HC-NIC Page 12 of 12 Created On Thu Mar 24 01:50:58 IST 2016