Gujarat High Court
Mukesh Ishwarlal Jaiswal vs State Of Gujarat on 26 October, 2023
NEUTRAL CITATION
R/CR.MA/17537/2023 ORDER DATED: 26/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 17537
of 2023
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MUKESH ISHWARLAL JAISWAL
Versus
STATE OF GUJARAT
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Appearance:
MR. DHRUVIN U MEHTA(9993) for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 26/10/2023
ORAL ORDER
1. Rule returnable forthwith. Learned APP waives service of Rule for and on behalf of the respondent-State.
2. By way of present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - original accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R No.11824004231514 of 2023 registered at Songadh Police Station, Dist. Tapi, for the offences punishable under Sections 65(A)(A) and 81 of the Gujarat Prohibition Act.
3. Learned counsel for the applicant submits that the applicant has nothing to do with the alleged offence and has falsely been implicated in the offence. The applicant is implicated on the basis of the statement of co-accused. He is permanent resident of Nandurbar, Maharashtra State and the alleged offence is committed in the territory of Gujarat state. The applicant having beer shop and having license in the name of his mother and also having Nokarnama. He further submitted that the alleged confiscated Page 1 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined muddamal is not purchased from the applicant and even Prohibition Act is not applicable in the present case as the applicant is resident of Maharashtra State and selling his liquor selling business there. Even the alleged offence is considered qua the applicant is against violation of condition of license, then the police authority has nothing to do, but the Excise Officer has to take action and he has relied upon the Circular issued by Maharashtra Government. He further submitted that one police constable namely Sandeep Hiralal Raut approached the applicant and made illegal demand and as the applicant denied the same, he has been falsely implicated in the alleged offence. One by one five complaints have been registered within 22 days though the applicant has nothing to do with the alleged offence. Even the applicant was not present at the spot and insisted to fulfill illegal demand and also threatened to falsely implicate in the offence and to invoke PASA proceedings against him with enmity. He also submitted that one Sumitra Ganesh Gavit has also preferred complaint against said police constable before S.P. Vyara and other higher authorities for harassment caused by said constable Sandeep Raut. Considering the facts of the case and frivolity of the complaint, he prays to allow the application and enlarge the applicant on bail.
To buttress his arguments, Mr. Mehta has relied upon the oral judgment dated 10.10.2016 delivered by a coordinate Bench of this Court in Criminal Misc. Application No.15693/2013 (Kantilal G. Tandel Vs. State of Gujarat & Ors.) as well as the oral orders dated 22.04.2022 passed by a coordinate Bench of this Court in Criminal Misc. Application No.7638/2022 (Alkeshbhai Chhatrasinh Bakaliya Vs. State of Gujarat) and dated 02.09.2022 passed in Criminal Misc. application No.14788/2022 (Ashokkumar Parasmal Balotiya Vs. State of Gujarat).
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It is submitted that the present applicant is ready and willing to join the investigation. In view of the above, the applicant may be granted anticipatory bail.
4. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. It is submitted that the applicant is not holding any valid license, in fact, the license was in the name of his mother, which had expired way back in the year 2006 and that too for retail sale. She further submitted that, even that license was of retail business and that too for selling in the premises and not for selling out of Maharashtra. She further submitted that the allegation against the police constable is not only with a view to mislead the Court, but with a view to get sympathy from the Court. She also submitted that, even if, the complaint is filed against the police person, then in that event, higher officer has to take a call. Here in the instant case, prohibited liquor was transported from one place to another place and therefore, it is not a case of breach of license condition. The applicant has sold liquor illegally without holding any pass and permit. According to the provisions of condition of Excise Duty Act, 1964, quantity of liquor is in excess quantity, which is not permissible to sell. Though the applicant was fully aware that there is a prohibition in Gujarat State, he supplied the liquor and has continued such illegal activities out of the premises. Considering the peculiar facts of the case, custodial interrogation of the applicant is required. In view of the above, she has requested to dismiss the present application.
Ms. Pathak submitted that the applicant has not only provided the liquor, but the license issued by the Excise Department only for retail sell and only for the purpose of consumption in the premises only, wherein, present case is of no license and not a case of Page 3 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined consumption. The allegations levelled against the present applicant is that, he has supplied the liquor. The involvement of the present applicant is clearly revealed that liquor is recovered from the accused, which was supplied by the applicant. It is submitted that applicant has supplied the liquor, as it is well known fact that Gujarat being a dry state, prohibition does exist in the State. Subsequently, to eliminate evil and considering the adverse effect on public health, the provision of law being made stringent by the State Government. Due to this, custodial interrogation is required. In view of above, it is submitted that, investigation is at preliminary stage. Merely statement that the applicant was only supplier and on the statement of the co-accused, he has been implicated is not a ground that he is not involved in the crime. The Investigating Agency has collected sufficient material to connect the applicant with the alleged offences. It was, accordingly, prayed that no discretion may be exercised in favour of the applicant and she has requested to dismiss the present application.
5. Having heard learned advocates for the respective parties, this Court has considered the rival submissions made by learned counsel for both the sides and considered the material placed on record. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused. Though at the stage of granting bail execution and appreciation of evidence is not permissible. Having gone through the complaint, prima facie, it appears that the present applicant is involved in the offence. Hence, custodial Page 4 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined interrogation is required.
6. The applicant is named in the complaint. Muddamal 58 bottles of liquor are recovered from the accused and the present applicant has abetted the offence as he has supplied it. Other similar offences are also registered against the applicant. It is needless to say that the applicant does not have any license to sell and supply the contraband liquor, in fact, it was on the name of his mother. Even perusing the license, it clearly reveals that the license was for retail sale and that too in the premises. Further, the applicant was not a license holder and even second license was also expired in 2006. Hence, question of violation of any condition of license does not arise. Here, the applicant has relied on one Nokarnama, but it is needless to say that once the license is expired, then question of Nokarnama in the name of mother does not arise. Even we accept the Nokarnama, then also the applicant is having no any authority to supply the liquor out of the premises.
6.1. Considering the fact that present applicant is facing charge under Sections 65(A) (A) and 81 of the Prohibition Act. The contraband liquor was seized from the accused, which was supplied by the applicant. It is alleged that the present applicant has transported the said liquor in collusion and connivance with the accused persons and he has abetted the offence.
6.2. Considering the allegations levelled in the complaint, it appears that there is a large-scale racket of transportation and supply of prohibited goods in the Gujarat State where prohibition law is in force. Though such illegal activities are carried out only with a view to eye on personal gain, put on the peril public health and challenging the government machinery. The evidence collected Page 5 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined during the investigation qua present applicant is concerned, it clearly reveals that the accused has supplied the liquor and his active participation appears in the transportation of muddamal to Gujarat State.
6.3. Learned advocate for the applicant has stated that the applicant is resident of Maharashtra state and he has only supplied liquor and for that, he was having license and hence, offence under the Prohibition Act is not applicable. So far as the said argument is concerned , the license was only in the name of his mother and that too expired in the year 2006. The said license was for the retail only and for the consumption purpose and that too in the premises and in the present case, the applicant does not have valid licence. Therefore, the question of breach of any condition of licence and to initiate the proceedings for breach of the condition of any licence issued by Excise Department does not arise as the applicant does not have any licence. Hence, the arguments canvassed by the learned advocate is not sustainable.
6.4. The arguments canvassed by learned advocate qua applicability of the Prohibition Act is concerned, this Court has taken into consideration the decision rendered in case of Kantilal Gopalbhai Tandel vs. State of Gujarat reported in 2017(0)AIJEL-HC237411, following paragraphs are required to be reproduced:
"35. The general Rule is that it is only the act or omission, which is made punishable by the Indian Penal Code, that will be an offence for the purposes of the I.P.C. However, this general rule is subject to the exception as detailed in the section itself. Under the General Clauses Act, the word "offence" means any act or omission made punishable by any law for the time being in force. The word "punishable" means a "punishable offence"
or an act or omission to which punishment is attached under the law. Section 40 of the I.P.C. refers to not only an act or omission which is made Page 6 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined punishable under the Code as an offence, but to that act or omission also which has been made punishable under any special or local law in cases as specified in paragraphs 2 and 3 of the section. Thus, with the exception of the provisions specified in paragraphs 2 and 3, no other act or omission made punishable under a special or local law will fall within the term "offence", as used in the Code. In regard to the sections of the Code specified in para 3, the word "offence" used in such section will include acts made punishable under a special or local law only in those cases in which the prescribed punishment for such acts is imprisonment for six months or onwards. The expression "special law" and "local law" have been defined in Sections 41 and 42 of the Code. The words "special law"
referred to a law, which is not applicable generally, but it applies only to a particular or specified subject of class of subjects. In some cases, the same law may be a general law in regard to a particular subject and a special law with regard to some other subject. "Local law" is a law applicable only to a particular part of India. The abetment of an offence is in itself an offence within the meaning of Section 40 of the Code, and as such the provisions of the Code relating to abetment are applicable also to the offences under the special and local laws and such abetment is punishable.
37. The definition of the term "offence" as provided in Section 2(n) of the Cr.P.C. consists of two parts. The first part is an initial definition and the second part is an extensional one. The first part corresponds with the definition in Section 3(38) of the General Clauses Act, 1897, and the second part in Section 4(1) of the Code of Criminal Procedure. From a reading of Section 2(n) of the Cr.P.C. and Section 40 of the I.P.C., it is clear that Section 40 of the I.P.C. refers to the offences prescribed by the Indian Penal Code. While Section 2(n) of the Cr.P.C. refers to offences under the different laws, apart from those under the I.P.C. Thus, the definition of "offence" under Section 2(n) of the Cr.P.C. is wider enough to enable the police to investigate into the offences under the other enactments also, apart from those under the I.P.C.
38. I find it extremely difficult at this point of time, more particularly, when all the F.I.Rs. are at the stage of investigation to take the view that the applicants are not liable to be prosecuted for the offences punishable under the provisions of the Bombay Prohibition Act with regard to the different F.I.Rs. registered in the State of Gujarat. The clandestine manner in which the consignments are supplied and brought within the State of Gujarat, speaks volumes as regards the complicity of the applicants in one way or the other in the alleged offence. Only the proper investigation would reveal the exact involvement of the applicants in the alleged offence.
39. Considerable emphasis has been laid upon the fact that the acts and omissions, which amount to a criminal offence under the Bombay Prohibition Act, have not been incorporated into the body of the Indian Penal Code as separate or distinct offence. I agree that it is so, but I am Page 7 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined clearly of the opinion that this makes no difference. It would have made the Indian Penal Code extremely cumbrous, if the offences under the various special and local Acts were included as separate offences under the Indian Penal Code and punishments separately provided for them in the said Code. To avoid repetition, the provisions have been made in the Indian Penal Code with reference to the offences generally and distinct punishment has been provided for them in Sections 109 to 117 of the Indian Penal Code. Where abetments of offences, under the special or local Act, satisfy the conditions of Sections 109 to 117, all the ingredients constituting an offence are complete, and there does not appear to be any reason why a person against whom all the ingredients of these offences are present should not be prosecuted under those sections.
40. Having regard to the materials on record, prima facie, I am of the view that the applicants herein could be said to have abetted the commission of the offences punishable under the Bombay Prohibition Act. Section 107 of the I.P.C. explains what amounts to abetment. Abetment can be by way of instigation, it can be by way of aiding any act or illegal omission and it can be in the form of a conspiracy. To put it in other words, Clause secondly of Section 107 of the I.P.C. provides that a person abets the doing of a thing, if he engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing."
7. Learned advocate for the applicant has relied on the judgments rendered by this court in Kantilal G. Tandel Vs.State (Crim. Misc. Application No.15693/2013), Alkeshbhai Chhatrasinh Bakaliya Vs. State of Gujarat (Crim. Misc. Application No.7638/2022) and Ashokkumar Parasmal Balotiya Vs. State of Gujarat (CRMA No.14788/2022).
7.1. Prior to deal with aforesaid submission, it is profitable to make the reference of the judgment of the of the Apex Court reported in 2005 Criminal Law Reporter [SC] 234, is required to be made, wherein in case of KALYAN CHANDRA SARKAR v. RAJESH RANJAN @ PAPPU YADAV & ANR the Hon'ble Supreme Court of India has laid down the law as under(para-42) -
"While deciding the cases on facts, more so in criminal cases the Court should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case."Page 8 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023
NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined 7.2. Further, the Hon'ble Apex Court has observed in case of Sushil Suri V/s. CBI reported in 2011 SCC(Cri)Page 773 "It needs little emphasis that even one additional or difference between the conclusions in two cases and blindly placing reliance on decision is never proper. It is trite that, while applying ratio, the court may not pick out a word or sentence from the judgment divorced from the context, in which the said question arose for consideration. Keeping in mind the case reported in 2005 (4) SCC page 649 Zee Tele films Ltd. V/s.Union of India, wherein, held that each case depends on its own facts and close similarity between one case and another is not enough because even single significant detail may alter the entire aspect. In deciding such cases, one should avoid temptation to decide cases(as said by Cardozo)by matching the colour of one case against the colour of another to decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." keeping in mind aforesaid preposition of law facts of present case and merits and demerits of the case requires to be appreciate rather than blindly relied upon precedents having different and peculiar facts of respective cases.
7.3. It would be further apposite to refer following decisions/ orders of the Co-ordinate Bench of this Court: (I) In case of Sunilbhai @ Kadia (supra), (ii) In case of Subhashbhai Mohanbhai (supra), (iii) In case of Bhupatbhai Mohanbhai Patel (supra) and (iv) In case of Mahendrabhai Dahayabhai Patel (supra). Nowhere in the aforesaid reference of oral order dated 10.10.2016 rendered in Kantilal G. Tandel Vs. State. In all those cases, no arguments or contentions raised or dealt with qua the applicability of Gujarat Prohibition Act and qua abetment or conspiracy. The case of the applicant was that the concerned Page 9 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined applicant / petitioner is having a valid licence and they were doing their business in Union Territory and there was a question of the breach of licence. In the present case, the applicant is having no any valid licence. Hence, question of breach of licence and proceeding required to be initiated by the Officer of the Excise Department itself does not arise. The allegation against the present applicant is not only abettment, but he has supplied the liquor and is not having a valid licence also. As discussed in the earlier part, the licence of mother of applicant is expired. It was a retail licence only for consumption purpose and that too in the premises and said licence was expired. Hence, fact of the case in the hands is quite different from the other orders.
7.4. Herein in the Kantilal Gopalbhai Tandel Vs. State of Gujarat, 2017 (0) AIJEL-HC-237411, subsequent in time judgment, the Co-ordinate Bench has considered the all aspects including the provisions of IPC and applicability of provisions of the Prohibition Act also discussed elaborately.
8. The criteria to grant anticipatory bail and regular bail has been laid down by the Apex Court in various decisions. While criminal administration of justice disturbed, arrest is a part of investigation. After the arrest of the accused when substantial part of the investigation including remand gets over, then the Court has to exercise jurisdiction considering the evidence collected during investigation. It is needless to say that Section 438 of the Code is pre-arrest bail as there is a part of investigation and importance of the arrest is time and again discussed by the Hon'ble Apex Court. When the involvement of the accused is prima facie revealed and if allegation is not levelled that to defame him/them or to tarnish his/their image, the Court has to exercise jurisdiction, but to seek anticipatory bail is not an extraordinary jurisdiction and absolute Page 10 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined right of the accused.
9. Considering the fact that present applicant was involved in supplying the liquor and he does not have a valid licence. He has violated the law and it appears that there is no frivolity. Hence, custodial interrogation is required for more elicitation of fact and involvement of other accused and to reach up to core of the offence.
10. Now coming back to the facts of the present case and looking to the material placed on record. The applicant is also involved in the offence and in the instant case, role of the applicant as attributed as he has supplied the liquor and it was very much within the knowledge of the applicant that Gujarat being a dry state, prohibition is there, however, they were involved in the illegal activity.
11. Considering the fact that the applicant is found in the illegal activity and the accused named in the FIR were found with the quantity of the liquor and made an arrangement to facilitate the accused persons. So far as the present applicant is concerned, he is implicated on the basis of the statement of the co-accused. It is needless to say that accused is having past criminal antecedents and the statement of the co-accused is relevant during the course of investigation.
12. In so far the statement of co-accused is concerned, it provides clues to the investigating agency as to how to investigate the case and thereafter the investigating officer has to collect evidence against the person who has been named as the accused. In the light of the above provisions, there is no bar on considering the state- ment of co-accused for investigation purposes. At this stage, it is rel- evant to note that this Court has observed in the case of Mohmed Page 11 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined Salim abdul Rasid Shaikh v. State of Gujarat, reported in 2001(2) GLR 1580, in para 12, as under:
"...It is pertinent to note that the prosecution case rests mainly on circumstantial evidence and police has received a clue against the present applicant from the statement of co-accused, already arrested. Irrespective of the fact that statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation..."
13. Further, in the case of Mohammed Fasrin v. State Rep. By the Intelligence Officer, rendered in Criminal Misc. Application No.296 of 2014, the Hon'ble Supreme Court observed as under:
".......The confessions of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co- accused....."
14. In this background facts, this Court prima facie is of considered view that, there is a reasonable ground to believe that the applicant has committed the alleged offence. Considering the facts of the present case, it cannot be said that the applicant herein has been falsely implicated in the alleged offence. If the anticipatory bail as sought for is granted, then it will affect the investigation of the case. Therefore, custodial interrogation of the applicant is required.
15. In the case of Indresh Kumar vs. State of Uttar Pradesh reported in 2022 Live Law 610, it has been held by the Hon'ble Supreme Court that statement under Section 161 of the CrPC recorded before the police is also relevant for the purpose of investigation and to consider the bail application and role of the accused as it provides clue.
16. In the case of Siddharam Satlingappa Mhetre vs State Of Maharashtra, reported in (2011) 1 SCC 694, the Hon'ble Court held that life and personal liberty are the most prized possessions of Page 12 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined an individual but not at the cost of larger interest of society and public. This is not a case, wherein accused is falsely enroped in the offence with a view to tarnish his image. Considering the fact that the custodial interrogation is required. Further, the Hon'ble Apex Court in the case of Jai Prakash Singh Vs State of Bihar & Anr. reported in 2012 4 SCC 379, has been pleased to hold as under:-
"Parameters for grant of anticipatory bail in a serious offences are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."
17. The coordinate Bench of this Court in a case of Jigneshkumar Maheshbhai Patel vs State of Gujarat, (Criminal Misc. Application No.3122 of 2018) has observed as under :
"15. This Court, in one of its judgments, in the case of State of Gujarat vs. Desai Jigisbhai @ Rajubhai Nagjibhai, Criminal Misc. Application No.23576 of 2015, decided on 4th February, 2016, observed as under;
"25. When a Court is given a discretion, the statute confers upon it the power to act according to what may appear to be best and appropriate under the circumstances of the particular case. The discretion is not willful or arbitrary, but is regulated by well-known and well established principles. In many circumstances, the Judge has a discretion as to whether, and in what manner, to exercise his powers. Commonly encountered instances of judicial discretion are the discretion as to grant of bail in a non-bailable offence. However, no discretion is absolute and there may be a successful appeal to the Court of Appeal in relation to the exercise of a judicial discretion if the appellant can show that the judge exercised his discretion under a mistake of law, or under a misapprehension as to the facts, or that he took into account irrelevant matters or gave insufficient weight, or too much weight, to certain factors or that he failed to exercise his discretion at all.
26.In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows :
"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under (SCC p. 124, para 16) :
"If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if Page 13 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."
16. The presumption of innocence, by itself, cannot be the sole consideration for grant of bail. The presumption of innocence is one of the considerations, which the court should keep in mind while considering the plea for bail. The salutary rule is to balance the cause of the criminal defendant and the cause of public justice. Over solicitous homage to the criminal defendant's liberty can, sometimes, defeat the cause of public justice. Over a period of time, a feeling seems to exist in some quarters that the object of criminal law is to protect the rights of the accused and that the criminal justicing system is envisioned as a sentinel of the rights of the accused. It is not so. The law is the sentinel of rights of the society and of the individual. The rights of the criminal defendant will be as zealously guarded, as the cause of public justice. Pre-trial detention in itself is not an evil, nor opposed to the basic presumption of innocence. If liberty is to be denied to an accused to ensure maintenance of law and order and public health, then the courts should not hesitate in denying such liberty. Ensuring security and order including public health is a permissible non-punitive objective, which can be achieved by pre-trial detention. Where overwhelming considerations in the nature aforesaid require denial of bail, it has to be denied"
18. It would be apposite to refer the judgment of the Hon'ble Apex Court rendered in case of Pratibha Manchanda vs. State of Haryana reported in 2023 (8) SCC 181, wherein the Hon'ble Apex Court has observed thus:-
"21. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."
19. In view of the above decision and in view of the facts and circumstances of this case, custodial interrogation of not only the Page 14 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023 NEUTRAL CITATION R/CR.MA/17537/2023 ORDER DATED: 26/10/2023 undefined applicant, but also all other suspect(s) is necessary imperative to unearth the truth. Hence, this is a not a fit case to exercise the jurisdiction in favour of the applicant.
20. Considering the question of public health and adverse effect and impact in the society, in the larger interest of justice, the Court has to struck down the balance between the personal liberty and larger interest of the society. In view of above, this Court is of the considered view that if the present accused is equipped with protective order, it would obviously affect the case of the prosecution and adversely the qualitative investigation. This is not a fit case, wherein accused is falsely enraged in the offence and it appears that there is no frivolity, with a view to tarnish his image. Considering such fact, custodial interrogation of the applicant is required as other similar type of offences are also registered against the applicant.
21. For the foregoing reasons and considering the law laid down in the above cited decisions of this Court as well as the Hon'ble Apex Court, this Court is of view that it is not a fit case to exercise the discretion under Section 438 of the Code in favour of the applicant. Accordingly, present application does not deserve consideration and is hereby dismissed. Rule is discharged.
(HASMUKH D. SUTHAR,J) SUCHIT Page 15 of 15 Downloaded on : Thu Nov 02 20:30:56 IST 2023