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Madhya Pradesh High Court

Rahul Jain vs The State Of Madhya Pradesh on 15 December, 2017

                                1       MCRC No.23532/2017


                              (Rahul Jain vs. State of M.P.)
Gwalior, Dated : 15.12.2017
     Shri A.S. Bhadoriya, Counsel for the applicant.
     Shri Pramod Pachauri, Public Prosecutor for the
respondent/State.

Case diary is available.

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

The applicant has been arrested on 22.8.2017 in connection with Crime No.531/2017 registered by Police Station Kotwali, District Ashoknagar for offence punishable under Sections 363, 302, 201, 404, 34 of IPC.

It is submitted by the counsel for the applicant that the applicant is in jail from 22.8.2017. According to the prosecution case, on 14.8.2017 a minor boy aged about 15 years went missing and his dead body was recovered on 20.8.2017 and the applicant has been arrested on 22.8.2017. From the possession of the applicant one towel has been seized which according to the prosecution was used for strangulation of the deceased. There is no other evidence against the applicant except the confessional statements of the co-accused persons which are not admissible. The applicant is in jail for the last 4 months and the trial is likely to take sufficiently long time. It is further submitted that in the case of circumstantial evidence the prosecution has to establish each and every chain of circumstance beyond reasonable doubt and unless and until the chain of circumstance is complete the applicant cannot be convicted. It is further submitted that in case if the applicant is not granted bail and if he is forced to face the 2 MCRC No.23532/2017 trial as an under trial prisoner and in case of his acquittal it would be very difficult for anybody including the State to set the clock back and the golden period of the applicant would be spoiled in the jail. It is further submitted that in the entire case diary there is no motive for the applicant to commit murder of the deceased Gautam.

It is further submitted that the police has created the evidence in order to falsely implicate the applicant and he has no criminal history. To buttress his contention, the counsel for the applicant has relied upon the following judgments in the cases of Sujit Biswas vs. State of Assam reported in 2014 (1) CCSC 41 (SC), State of Kerala vs. Dr. Raneef reported in 2011 (1) CCSC 210 (SC), Dipak Subhashchandra Mehta vs. CBI reported in 2012 (1) CCSC 425 (SC), Pannayar vs. State of Tamil Nadu reported in 2010 (1) CCSC 547 (SC) and Roop Singh @ Rupa vs. State of Punjab reported in 2008 (3) Crimes 52 (SC).

Per contra, the application is opposed by the counsel for the respondent/State. It is submitted by the counsel for the State that the bail application of the co-accused has already been dismissed as withdrawn. The minor boy was missing from 14.8.2017 and the statement of one Sahil Jain was recorded on 15.8.2017 who had seen the co-accused Rohit Jain along with the deceased and thereafter the dead body of the deceased was found on 20.8.2017. Thus there is evidence of last seen together against the co-accused Rohit Jain. It is further submitted that the confessional statement of an accused can always be utilized for investigation purposes and taking clue from the 3 MCRC No.23532/2017 confessional statement, the applicant has been arrested and from his possession a towel which was used for strangulating the deceased has been recovered.

In reply, it is submitted by the counsel for the applicant that so far as the evidence of last seen together is concerned, Sahil Jain has given an affidavit to the effect that he had never disclosed to the police and he was forced to sign certain documents. It is further submitted that Sahil Jain is also present in the Court and the Court may also verify the correctness of the affidavit. It is further submitted that the dead body was recovered on 20.8.2017 i.e. after almost six days from the date on which the deceased went missing and, therefore, even if the co- accused Rohit Jain was seen along with the deceased on 14.8.2017, then it would not mean that there is a close proximity of time between the date of going missing and the recovery of the dead body.

Heard the learned counsel for the parties. So far as the affidavit given by Sahil Jain mentioning that he had never given any statement to the police on 15.8.2017 is concerned, it cannot be relied upon at this stage. At the stage of deciding the bail application, this Court is not under an obligation to verify the correctness of the statements of the witnesses recorded under Section 161 of Cr.P.C. This Court is also not under an obligation to verify the affidavits of the witnesses. It is for the Trial Court to record the evidences and then to pass a judgment. A mini trial by this Court prior to the full-fledged trial is not permissible. Even otherwise, this Court at the stage of entertaining the application under Section 439 of Cr.P.C. is 4 MCRC No.23532/2017 not required to consider the affidavits filed by the witnesses. On the contrary, it appears that the applicant is trying to win over the prosecution witnesses and that alone can be a good ground for rejecting the bail application.

So far as the fundamental right of life and liberty as guaranteed under Article 21 of the Constitution of India is concerned, it is subject to reasonable restrictions and if a person is alleged to have committed an offence, then he can be dealt with in accordance with the law of land. In the present case, a minor boy aged about 15 years was kidnapped and he was killed. Before the recovery of the dead body, the statement of Sahil Jain was recorded in which he has stated that the deceased was seen for the last time in the company of co-accused Rohit Jain. A towel is alleged to have been recorded from the possession of the applicant. It is submitted by the counsel for the applicant that why a person would keep an evidence with him, when the towel is valueless article. The submissions made by the counsel for the applicant cannot be considered at this stage because what was going in the mind of the accused cannot be ascertained at this stage. A person may keep the weapon of offence with him in order to hide the same from the clutches of the police without realizing that the same can be recovered or a person may throw the weapon of offence in order to get rid of it. However, it is not known that in what manner the accused would react. The reaction of an accused may differ from case to case, therefore, if the applicant had kept the towel with him which was used for strangulating the deceased, it cannot be said that the evidence has been created by the police.

So far as the admissibility of Section 27 of Evidence Act is concerned, Section 30 of the Evidence Act will have some applicability in the present case. What would be the effect of Section 30 of Evidence Act, is to be seen by the Trial Court and no further observations are required in this regard. The Supreme Court in the case of Virupakshappa Gouda and another vs. State of Karnataka and another reported in 2017(3) MPLJ (Cri.) (SC) 1 has held as under:-

"14. The proposition expounded above, has to be accepted, but that has to be applied appositely to the facts of each case. A bail application cannot be allowed solely or exclusively on the ground that the fundamental principle of criminal jurisprudence is that the accused is presumed to be innocent till he is found guilty by the competent court. The learned trial Judge has also referred to the decision in Sanjay Chandra (supra), wherein a two- Judge Bench while dealing with bail applications, observed thus:-

"21. In bail applications, generally, it has been laid down from the earliest times that 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. 22. From the earliest times, it was appreciated that 6 MCRC No.23532/2017 detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un- convicted 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 this country, 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.

23. Apart from the question of prevention being the object of a 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 purpose of giving him a taste of imprisonment as a lesson."

15. Be it noted, though the aforesaid passages have their relevance but the same cannot be made applicable in each and every case for grant of bail. In the said case, the accused-appellant was facing trial for the offences under Sections 420-B, 468, 471 and 109 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Thus, the factual matrix was quite different. That apart, it depends upon the nature of the crime and the manner in 7 MCRC No.23532/2017 which it is committed. A bail application is not to be entertained on the basis of certain observations made in a different context. There has to be application of mind and appreciation of the factual score and understanding of the pronouncements in the field.

16. The Court has to keep in mind what has been stated in Chaman Lal vs. State of U.P. and another, 2004 MPLJ Online (S.C.) 4=(2004) 7 SCC 525. The requisite factors are: (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and another, 2010 MPLJ Online (Cri.) (S.C.) 15=(2010) 14 SCC 496, it has been opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. We may usefully reproduce the said passage:-

"9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence. (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail."

17. In Central Bureau of Investigation vs. V. Vijay Sai Reddy, 2013 MPLJ Online (Cri.) (S.C.) 8=(2013) 7 SCC 452, the Court had reiterated the principle by observing thus:-

"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."

18. From the aforesaid principles, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. In this context, we may, with profit, reproduce a passage from Neeru Yadav vs. State of Uttar Pradesh and another, 2014 MPLJ Online (Cri.) (S.C.) 11=(2014) 16 SCC 508, wherein the Court setting aside an order granting bail observed:-

"The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd 9 MCRC No.23532/2017 respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its 6 (2014) 16 SCC 508 collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the 10 MCRC No.23532/2017 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."

19. In this context what has been stated by a three-Judge bench in Dinesh M.N. (S.P.) v. State of Gujarat, 2008(2) MPLJ (Cri.) (S.C.) 144=(2008) 5 SCC 66 is quite instructive. In the said case, the Court has held that where the Court admits the accused to bail by taking into consideration irrelevant materials and keeping out of consideration the relevant materials the order becomes vulnerable and such vulnerability warrants annulment of the order."

Considering the totality of the facts and circumstances of the case, and without commenting on the merits of the case, this Court is of the view that it is not a fit case for grant of bail.

The application is accordingly dismissed.

                                               (G.S. Ahluwalia)
(alok)                                               Judge




   ALOK KUMAR
   2017.12.16 16:39:35 +05'30'