Madhya Pradesh High Court
Jeetu Kushwah vs The State Of Madhya Pradesh on 21 June, 2019
Equivalent citations: AIRONLINE 2019 MP 563
-( 1 )- MCRC No. 24121/2019
Jeetu Kushwaha vs. State of MP
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Single Bench)
Misc. Cri. Case No. 24121/2019
Jeetu Kushwaha ..... APPLICANT
Versus
State of MP ..... NON-APPLICANT
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CORAM
Hon. Shri Justice Rajeev Kumar Shrivastava
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Appearance
Shri O.P.Mathur, learned counsel for the applicant.
Shri Sunil Dubey, learned Panel Lawyer for the Non-
Applicant/State.
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Whether approved for reporting : Yes
Law laid down Relevant paras
(1) In view of the pronouncement of
judgments of Hon'ble Apex Court in
Emperor vs. H.L. Hutchinson [AIR
1931 All 356]; Anil Sharma vs. State
of Himachal Pradesh [(1997) 3
Crimes 135 (H)]; Mansab Ali vs.
Irsan [AIR 2003 SC 707]; and,
Dataram Singh vs. State of Uttar
Pradesh and another [(2018) 3 SCC
22], while deciding the bail application
-( 2 )- MCRC No. 24121/2019
Jeetu Kushwaha vs. State of MP
following factors are relevant for
consideration :
(i) The existence of a prima facie
case against the accused.
(ii) The reasonable apprehension of
tampering/influencing with the Paras 10, 11,
witnesses. 12, 13 & 14.
(iii) The gravity of offence/
allegations.
(iv) Likelihood of accused's fleeing
from justice.
(v) Possibility of repeating the
offence.
(vi) The criminal antecedents of the
accused.
(vii) The Courts should not delve
into the merits of the case while
considering bail.
(viii) Probability of conviction or
acquittal is not required to be seen at
the time of considering bail.
(ix) At this stage detailed
examination of evidence and
elaborate documentation of minute
details of the case is not required to be
done.
(x) Was there any pre-meditation or
the incident occurred was at the spur
of moment.
(xi) The impact of release on the
society.
(xii) The presence of the accused in
Court be secured.
(2) There are no hard and fast rules
regarding grant or refusal of bail, each
case has to be considered on its own Para 15
merits. The matter always calls for
judicious exercise of discretion by the
Court. The basic concept 'Bail is rule
and Jail is exception' should continue.
-( 3 )- MCRC No. 24121/2019
Jeetu Kushwaha vs. State of MP
ORDER
(Passed on 21st June, 2019) This first bail application for grant of regular bail under Section 439 of the Cr.P.C has been filed on behalf of applicant in relation to Crime No.128/2019 registered at Police Station Badarwas, District Shivpuri in reference to offences punishable under Sections 457 and 380 of IPC.
2. As per prosecution story, complainant lodged FIR alleging that on 29.5.2019, the family members had gone to attend marriage ceremony at village Khiriya and returned home on 30.5.2019, then he saw that the lock of his house has been broken and two kattas of gram (chana) kept in plastic containers costing Rs.2800/- have been stolen, whereupon name of his son Sandeep has been written. When he was searching the same, on 2.6.2019 he found the plastic kattas in the house of present applicant and one Ajaypal Kushwaha, hence FIR has been lodged.
3. The applicant is in custody since 4.6.2019. It has been contended by counsel for the applicant that the applicant has been falsely implicated in the crime. The applicant is an young boy of 19 year old and the only bread earner of his family. If he is kept in custody, his family members will face starvation. It is also -( 4 )- MCRC No. 24121/2019 Jeetu Kushwaha vs. State of MP submitted that charge sheet has been filed, the completion of trial will take sufficient time, hence it is prayed that benefit of regular bail be given to the applicant.
4. Per contra, above mentioned prayer has been strongly opposed by the learned Public Prosecutor appearing for the State on the ground that two plastic kattas containing grams have been seized from the possession of the present applicant.
5. Perused the case diary.
6. Law Lexicon defines "bail" as security for the appearance of the accused person, on giving which he is released during pending trial or investigation. The basis of bail lies in the principle that there is presumption of innocence of a person till he is found guilty.
7. Section 437 of Cr.P.C. reads as under:-
"437. When bail may be taken in case of non-bailable offence.- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but--
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable -( 5 )- MCRC No. 24121/2019 Jeetu Kushwaha vs. State of MP offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:
Provided that the Court may direct that a person referred to in clause (I) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further -( 6 )- MCRC No. 24121/2019 Jeetu Kushwaha vs. State of MP inquiry into his guilt, [the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions,--
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.
(4) An officer or a Court releasing any person on bail under sub-section (1), or sub-
section (2), shall record in writing his or its [reasons or special reasons] for so doing.
(5) Any Court which has released a person on bail under sub-section (1), or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
-( 7 )- MCRC No. 24121/2019Jeetu Kushwaha vs. State of MP (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody, during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of an non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
8. Section 438 Cr.P.C. reads as under:
"438. Direction for grant of bail to person apprehending arrest.-- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:--
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he 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; and
(iv) where the accusation has been -( 8 )- MCRC No. 24121/2019 Jeetu Kushwaha vs. State of MP made with the object of injuring or humiliating the applicant by having him so arrested;
either reject the application forthwith or issue an interim order for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(IA) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(IB) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.] (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including--
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the -( 9 )- MCRC No. 24121/2019 Jeetu Kushwaha vs. State of MP case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time whale in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).
(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of Indian Penal Code.
9. Section 439 Cr.P.C. reads as under:-
"439. Special powers of High Court or Court of Session regarding bail.--
(1) A High Court or Court of Session may direct--
(a) that any person accused or an offence and in custody be released on bail, an if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any -( 10 )- MCRC No. 24121/2019 Jeetu Kushwaha vs. State of MP person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
[Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.] [(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860.] (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
10. The Apex Court held in the case of Emperor Vs. H.L. Hutchinson ( AIR 1931 All 356) as under:-
"On general principles and on principles on which Sections 496 and 497 (as amended in 1923) are framed the grant of a bail -( 11 )- MCRC No. 24121/2019 Jeetu Kushwaha vs. State of MP should be the rule and refusal of bail should be the exception. In the cases of a bailable offence, the law expressly says that if the accused person applies for bail he shall be released (Section
496). Section 497 applies to cases of non-
bailable offences and there it is said that the accused person shall be released on bail except where there appears to be a reasonable ground for believing that he has been guilty of a very heinous offence, viz, one which may be punished by either death or by transportation for life:
Section 497 (1). Again it is laid down that, where at any stage of the investigation or trial, there are not reasonable grounds for believing that the accused person has committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt, the accused shall be released on bail: Section 497 (2).
The principle to be deduced from Sections 496 and 497, Criminal P.C., therefore is that grant of bail is the rule and refusal is the exception. That this must be so is not at all difficult to see. An accused person is presumed under the law to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to freedom and every opportunity to look after his own case. It goes without saying that an accused person, if he enjoys freedom, will be in a much better position to look after his case and to properly defend himself than if he were in custody. One of the complaints made by the applicants, in this case is that their letters sent from custody have been opened and inspected and censored and therefore they were not in a position to conduct their defence with the aid of such friends as may be outside the prison. As I have said, it is obvious that a presumably innocent person should have his freedom to enable him to establish his innocence.
This being the rule there may, of course, be exceptions. I will not attempt to lay down any oases of exceptions, because these oases before -( 12 )- MCRC No. 24121/2019 Jeetu Kushwaha vs. State of MP us are not exceptions and I do not want to say anything which will be only in the nature of an obiter dictum.
It is manifest that the discretion given to this Court, and also to the Court of Session, is unrestricted in any way by the terms of the statute. Two things follow from this, firstly that the discretion is one which must be judiciously exercised, and secondly that the Court has power if it does grant bail to grant it on such conditions as the circumstances of the case and the public interest may require."
11. The Apex Court further observed in the case of Anil Sharma Vs. State of Himachal Pradesh, (1997) 3 Crimes 135 (HP) which reads as under:-
" in non-bailable cases in which the person is not guilty of an offence punishable with death of imprisonment for life, the court will exercise its discretion in favour of granting bail subject to sub-section (3) of section 437 if it deems necessary to act under it. It is also observed that unless exceptional circumstances are brought to the notice of the court which may defeat the proper investigation and fair trial, the court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life."
12. In Mansab Ali Vs. Irsan, AIR 2003 SC 707, it is observed as under:-
"since the jurisdiction is discretionary, it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general.-( 13 )- MCRC No. 24121/2019
Jeetu Kushwaha vs. State of MP
13. In Dataram Singh Vs. State of Uttar Pradesh and another reported in (2018) 3 SCC 22, the Hon'ble Apex Court held 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 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.
3. 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.
4. 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 -( 14 )- MCRC No. 24121/2019 Jeetu Kushwaha vs. State of MP 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.
5. 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.
6. 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 [(2018) 11 SCC 1] going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] in which it is -( 15 )- MCRC No. 24121/2019 Jeetu Kushwaha vs. State of MP observed that it was held way back in Nagendra v. King-Emperor [1923 SCC OnLine Cal 318] that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson [1931 SCC OnLine All 14] 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.
7. 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."
14. On the basis of above, while deciding the bail application following factors are relevant for consideration:-
(i) The existence of a prima facie case against the accused.
(ii) The reasonable apprehension of tampering/ influencing with the witnesses.
(iii) The gravity of offence/allegations.
(iv) Likelihood of accused fleeing from justice.
(v) Possibility of repeating the offence.
(vi) The criminal antecedents of the accused.
(vii) The Courts should not go deep into the merits of the case when considering bail.
(viii) Probability of conviction or acquittal is not required at the time of considering bail.
(ix) At this stage a detailed examination of evidence and elaborate documentation of minute details of the case is not required to be done.
(x) Was there any pre-meditation or the incident was at the spur of the moment.-( 16 )- MCRC No. 24121/2019
Jeetu Kushwaha vs. State of MP
(xi) The impact of release on the society.
(xii) The presence of the accused in Court be secured.
15. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court. The basic concept 'Bail is rule and Jail is exception' should continue.
16. In view of the above, considering the rival submissions made by the counsel appearing on either side, without commenting on the merits of the case, the present application filed under Section 439 of the Cr.P.C. is hereby allowed and it is ordered that on furnishing a personal bond in the sum of Rs. 20,000/- (Rupees twenty thousand only) by the applicant with one solvent surety in the like amount to the satisfaction of the Court concerned for his regular appearance on the dates given by the concerned Court, he be released on bail subject to following conditions:-
1. The applicant will comply with all the terms and conditions of the bond executed by him;
2. The applicant will cooperate in the trial.
3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer, as the case may be;
4. The applicant shall not commit an offence similar to the offence of which he is accused;-( 17 )- MCRC No. 24121/2019
Jeetu Kushwaha vs. State of MP
5. The applicant will not seek unnecessary adjournments during the trial;
6. The applicant will not leave India without previous permission of the trial Court.
A copy of this order be sent to the Court concerned for compliance as well as copy of the order be given to the learned Panel Lawyer with a direction to keep the same in the concerned case diary.
(Rajeev Kumar Shrivastava)
vv Judge
VALSALA
VASUDEVA
N
VALSALA
VASUDEVAN
2019.06.25
15:23:47
2018.10.26
15:14:29 -07'00'
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