Madhya Pradesh High Court
Charan Singh Yadav vs The State Of Madhya Pradesh on 2 December, 2019
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 47657/2019
(Charan Singh Yadav Vs. State of M.P.)
Gwalior, Dated:-02/12/2019
Shri Pradeep Katare, learned counsel for the applicant.
Shri Arjun Parihar, learned Panel Lawyer for the
respondent/State.
Case diary is perused.
The applicant has filed this first bail application u/S.439, Cr.P.C. for grant of bail. The applicant has been arrested by Police Station Surpura, District Bhind in connection with Crime No.33/2019 registered in relation to the offences punishable u/Ss.307, 34 of IPC.
Learned counsel for the applicant submits that the applicant has been falsely implicated in the case. He is in custody since 17.10.2019. The trial will take its own time and there is no possibility of his absconding or tampering with the prosecution case. It is submitted on behalf of the applicant that he is not main accused of the case and he is not present at the place of incident; therefore, he was not involved directly in the incident. There was quarrel between the husband and wife and he was mediating the quarrel between the husband and wife. Accordingly, it is submitted that applicant has not committed any offence. Under these circumstances, counsel for the applicant prays for grant of bail.
Learned Panel Lawyer for the respondent/State opposed the prayer and prayed for not to grant bail to the applicant. 2
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 47657/2019 (Charan Singh Yadav Vs. State of M.P.) Heard learned counsel for the parties and perused the case diary. On perusal of case diary it is apparent that he was not main accused in the case.
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 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 ha 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 nonbailable 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 ware in custody.
One of the complaints made by the applicants, in this case is that their letters sent from custody have 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 47657/2019 (Charan Singh Yadav Vs. State of M.P.) 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 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."
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."
In Mansab Ali Vs. Irsan, AIR 2003 SC 707, it is observed as under:-
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THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 47657/2019 (Charan Singh Yadav Vs. State of M.P.) "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. 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 for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 47657/2019 (Charan Singh Yadav Vs. State of M.P.) 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 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 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 47657/2019 (Charan Singh Yadav Vs. State of M.P.) 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."
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.
(xi) The impact of release on the society.
(xii) The presence of the accused in Court be secured.
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 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 47657/2019 (Charan Singh Yadav Vs. State of M.P.) always calls for judicious exercise of discretion by the Court. The basic concept 'Bail is rule and Jail is exception' should continue.
In view of above and considering the facts and circumstances of the case and without expressing any opinion on the merits of the case, application is allowed.
It is hereby directed that the applicant be released on bail on his furnishing a personal bond of Rs.75,000/- (Rupees Seventy Five Thousand Only) with one solvent surety in the like amount to the satisfaction of the Trial Court to appear before the Court on the dates given by the concerned Court.
This order will remain operative subject to compliance of the following conditions by the applicant :-
1. The applicant will comply with all the terms and conditions of the bond executed by him;
2. The applicant will cooperate in the investigation/trial, as the case may be;
3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquitted 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 will not seek unnecessary adjournments during the trial;
5. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the 8 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 47657/2019 (Charan Singh Yadav Vs. State of M.P.) case may be; and
6. It is further directed that the applicant shall not commit an offence similar to the offence of which he is accused otherwise this bail order shall automatically stand cancelled.
A copy of this order be sent to the Court concerned for compliance.
Certified copy as per rules.
(Rajeev Kumar Shrivastava) Judge Shubhankar* SHUBHANKAR MISHRA 2019.12.02 17:38:45 +05'30'