Abhay Shrenikbhai Gandhi vs State Of Gujarat on 24 January, 2017

[Cites 61, Cited by 2]

Gujarat High Court

Abhay Shrenikbhai Gandhi vs State Of Gujarat on 24 January, 2017

HC-NIC Page 1 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT 1 Rule returnable forthwith. Ms. Thakore, the learned Additional Public Prosecutor waives service of notice of Rule for and on behalf of the respondent - State of Gujarat.

2 This is an application at the instance of an accused praying for bail in connection with the First Information Report bearing IC.R. No.12 of 2011 registered with the D.C.B. Police Station, Ahmedabad for the offence punishable under Sections 406, 409, 420 and 120B of the Indian Penal Code. At the end of the investigation, the police filed chargesheet which culminated in the Criminal Case No.293 of 2011 in the Court of the learned Metropolitan Magistrate, Court No.11, Ahmedabad. The said case came to be transferred on 19th August 2016 to the Court No.13 and has been now renumbered as the Criminal Case No.706 of 2016.

3 The case of the prosecution may be summarized as under:

3.1 There are in all five criminal cases pending as on date against the applicant herein. The allegations in all the five cases are the same. So far as the case at hand is concerned, one Shirinben Shadikbhai Shaikh, a resident of Ahmedabad, lodged a First Information Report on 2nd June 2011 with the D.C.B. Police Station stating that she wanted to invest Rs.50,000/. Her sister informed the first informant that one Imtiyaz Saiyed Khambhatwala would pay her Rs.4,500/ per month on deposit of Rs.50,000/. The first informant visited the Bank with Rs.50,000/ for obtaining a Demand Draft of the said amount and at that point of time one Nasar Shaikh, serving in the Bank, advised the first informant not to deposit with or pay any amount to Imtiyaz Saiyed. Nasar Shaikh, in turn, informed the first informant that he would see to it that she would get at least Rs.6,000/ per month on the deposit of Rs.50,000/. The applicant herein is running a firm in the name of "A.I.S.E. Capital Management Page 2 of 46 HC-NIC Page 2 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT Private Limited". The first informant was made to understand that the applicant would invest the amount in the share market and a minimum return at the rate 15% was also ensured. The first informant handed over Rs.50,000/ to Nasar Shaikh, who, in turn, gave a letter bearing No.871 dated 29th October 2010 of the "A.I.S.E. Capital Management Private Limited" promising an amount of Rs.68,000/ with interest on the date of maturity i.e. on 29th January 2011. It is also alleged in the F.I.R.

that Nasar Shaikh gave the first informant three vouchers of Rs.6,000/ each and a cheque of the amount of Rs.50,000/ drawn on the Axis Bank. It is further stated in the F.I.R. that Nasar Shaikh used to take back the vouchers at the time of paying Rs.6,000/ and at the end of three months i.e. on the date of maturity, Nasar Shaikh took back the cheque of Rs.50,000/ which was handed over to the first informant. Nasar Shaikh, thereafter, issued another cheque dated 29th April 2011 drawn on the Axis Bank being cheque No.194574 and gave two vouchers of Rs.6,000/ each. Out of the two said vouchers, Rs.6,000/ was paid and Nasar Shaikh took away one voucher. Thereafter, Nasar Shaikh did not turn up. The first informant frantically tried to contact Nasar Shaikh, but his whereabouts could not be traced. One day, the first informant learnt having read a news item published in a newspaper that the firm of the applicant herein had gone bankrupt. The applicant defaulted in making the payments as promised. According to the first informant, Nasar Shaikh once again came at her house and assured that her money would be paid back to her.

4 It appears that five such F.I.Rs. came to be filed including the one at hand.

5 The applicant herein came to be arrested on 17th November 2012.



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The applicant came before this Court with a plea for bail by filing the Criminal Miscellaneous Application No.2099 of 2015. This Court, vide order dated 4th February 2015 rejected the application observing as under:

"1. By this application under Section 439 of the Code of Criminal Procedure, 1973, the applicant prays for bail in connection with C.R. No. I12 of 2011 registered with the DCB Crime Branch Police Station, Ahmedabad of the offence punishable under Sections 406, 420 and 120B of the Indian Penal Code.

2. The case of the prosecution in brief is that the applicant herein promoted a company namely AISE Capital Management Pvt. Ltd. He lured people to invest on the assurance that they would get high rate of interest.

3. On such false representation, many people deposited their hard earned money with the company. The amount, as it appears from the materials on record, comes to around more than three crores. After collecting such a huge amount, the applicant seems to have wounded up the company and failed to pay a single penny to the investors.

4. It appears that there are many such FIRs registered against him. It also appears from the observations made by the learned Judge in paragraph No.6 of the impugned order that the applicant herein was absconding for a long period of time, and came to be arrested, almost after a period of one and half years from the date of the registration of the FIR.

5. In my view, although the chargesheet has been filed, yet no case is made out by the applicant for grant of bail, considering the fact that he was absconding for a long period of time and a warrant under Section 70 of the Code was also issued, and with great difficulty, he could be arrested.

6. I am informed that the charge has also been framed and the trial is now ripe enough for recording of the evidence.

7. Ms. Benajeer Hakim tried to persuade me to exercise my discretion on the ground that the other coaccused have been enlarged on bail.

8. Well, considering the role attributed to the present applicant, no case for parity is made out. Even otherwise, parity has no legal force."

6 This is a successive bail application substantially on the ground Page 4 of 46 HC-NIC Page 4 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT that the applicant is in the judicial custody past more than four years and the trial is not likely to conclude in near future.

7 On 16th December 2016, the following order was passed by this Court:

"1. Pursuant to the order passed by this Court, the Additional Chief Metropolitan Magistrate, Court No.13, Ahmedabad, has forwarded his report, which reads as under: R.W.Cs to Hon'ble the Registrar General Saheb, Ahmedabad through Hon. The Chief Metropolitan Magistrate Saheb, Ahmedabad.

Certified that this case is transferred from the additional Chief Metropolitan Magistrate Court No.11 on Dt.29/8/16 in this court. There are 4 (Four) accused in this cases and Accused No.1 to 3 was discharged and Accused no.4 Abhay Gandhi is in central Jail, Ahmedabad. This case is fixed for framing charge against the accused. A note has been made in the Writ Register wide Entry No. /2016.

2. It appears that the information furnished by the Court concerned is not correct. In the report, it has been stated that the case is now fixed for framing of the charge against the accused. The charge came to be framed against the accused wayback in December, 2014 and I am told that two witnesses have already been examined.

3. The A.S.I. attached to the DCB Police Station, Ahmedabad, is present in the Court. He informs that the prosecution proposes to examine 92 witnesses. The applicant herein is in custody since November, 2012. Let me assume that 50% are examined even the the trial Court is likely to take a considerable long time before it is concluded. The Additional Chief Metropolitan Magistrate, Court No.13, Ahmedabad, is directed to furnish fresh information as regards the following: (1) Is it possible to conduct the trial on daytoday basis. (2) If it is not possible to conduct the trial on daytoday basis, then how much more time it is likely to consume before the trial is completed with judgment.

4. Before appropriate orders are passed on the plea of bail, the information referred to above is necessary.

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5. The Registry shall call for the report of the concerned Court at the earliest. Post this matter on 23/12/2016."

8 Pursuant to the directions issued by this Court, the Additional Chief Metropolitan Magistrate, Court No.13, Ahmedabad forwarded his report dated 22nd December 2016 stating as under:

"Certified that in the matter, offence registered as D.C.B. Police Station, Criminal Registration No.12/11, the Chargesheet was first filed in the Court of Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad on 01/10/2011, the same chargesheet was ordered to be registered on Criminal Case No.293/11. Thereafter, supplementary chargesheet filed against the absconding accused on 12/02/2013 and it was registered as no.40/2013. In this case, the charge was framed against the accused on 09/01/11 and 18/12/2014 respectively. Thereafter, the above case has been pending for evidence. Thereafter, these cases were transferred to this Court from Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad on 20/08/2016. On receipt of the record of the above cases, they have been numbered as Criminal Case Nos.706/2016 and 707/2016. As the matter was transferred to this Court, my Predecessor Magistrate had issued the notice to the accused to remain present before this Court. But the notice is not served & neither the accused nor their Advocate remain present before this Court. Moreover, it is pointed out that other cases filed against the accused of present case, Mr. Abhay Shrenikbhai Gandhi, are pending in Additional Chief Metropolitan Magistrate, Court No.11. Wherein, Mr. Abhay Gandhi was brought before the said Court. Whereas, he was not brought before this Court and Ld. Advocate of the accused Mr. Abhay Gandhi has also not remained present before the present Court.

In this case, total 98 witnesses are to be examined by the Page 6 of 46 HC-NIC Page 6 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT prosecution. So, if this case is conducted on day to day basis, it will take 6 to 8 months to conduct the trial and pronouncement of judgment is this case. Since, this Court is required to conduct other old cases, I will try my level best to conduct this case on day to day basis and dispose the same."

9 Mr. Gondaliya, the learned counsel appearing for the applicant vehemently submitted that the charge was framed almost two years back i.e. on 18th December 2014. The prosecution proposes to examine almost 100 witnesses and according to the report forwarded by the trial Court, it will take at least six to eight months before the trial is concluded. The learned counsel would submit that the maximum punishment that the trial Court is empowered to impose is seven years, out of which the applicant has already undergone four years and three months in the judicial custody. Having regard to the pace at which the trial Court is proceeding and the number of witnesses yet to be examined, the trial is not likely to conclude even in next two years of time period. According to the learned counsel, this is nothing, but a pretrial punishment to the accused.

10 Mr. Gondaliya submitted that except the applicant herein, all other coaccused are on bail including those who had lured the first informant to invest the money in the firm of the applicant. Mr. Gondaliya submitted that the bank accounts running in the name of the firm have been freezed by the bank authorities upon the instructions issued by the police. There is a substantial amount as on date in those bank accounts. He further pointed out that the passport of the applicant is also with the trial Court. He submitted that subject to any terms or conditions, the applicant may be ordered to be released on bail.





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         11     In support of his submissions, Mr. Gondaliya has placed reliance 
         on two decisions of the Supreme Court:

                [1] Sanjay Chandra vs. C.B.I. [2012 (1) G.L.H. 93]

[2] Siddharam Satlingappa Mhetre vs. State of Maharashtra [(2011) 1 SCC 694 = 2011(1) GLH 11] 12 On the other hand, this application has been vehemently opposed by Ms. Thakore, the learned Additional Public Prosecutor appearing for the State. The learned A.P.P. submitted that having regard to the nature of the offence, this Court may not exercise discretion in favour of the applicant. Poor people hailing from the lower strata have lost their hard earned money. She pointed out that the misappropriation is to the tune of almost Rs.5 Crore. She submitted that mere delay in conclusion of the trial is no ground to release an accused charged with a very serious economic offence on bail. It cannot be said that the personal liberty of the accused is curtailed illegally.

13 The learned A.P.P. submitted that although the offences are magistrate triable, yet the trial Court may deem fit to invoke the provisions of Sections 323 or 325 of the Code. It is submitted that Section 323 of the Cr.P.C. empowers the Magistrate to send a case to the Court of Sessions on the ground that he cannot pass the sentence sufficiently severe for want of powers. The learned A.P.P. submitted that it is also not open for the applicant to invoke the provisions of Section 437(6) of the Cr.P.C., because Section 437(6) of the Code does not confer any indefeasible right on the accused to seek bail if the trial is not concluded within sixty days from the date fixed of taking evidence. In support of her submissions, reliance has been placed on a Division Bench Page 8 of 46 HC-NIC Page 8 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT decision of this Court in the case of Nehul Prakashbhai Shah and others vs. State of Gujarat reported in [2012(3) G.L.R. 2685].

14 In such circumstances referred to above, the learned A.P.P. prays that there being no merit in this application, the same be rejected.

15 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether discretion should be exercised in favour of the applicant herein.

16 The Supreme Court in the case of Siddharam Satlingappa Mhetre (supra) has explained the relevance and importance of personal liberty in the following words:

"36. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why "liberty" is called the very quintessence of a civilized existence.

37. Origin of "liberty"' can be traced in the ancient Greek civilization. The Greeks distinguished between the liberty of the group and the liberty of the individual. In 431 B.C., an Athenian statesman described that the concept of liberty was the outcome of two notions, firstly, protection of group from attack and secondly, the ambition of the group to realize itself as fully as possible through the selfrealization of the individual by way of human reason. Greeks assigned the duty of protecting their liberties to the State. According to Aristotle, as the State was a means to fulfill certain fundamental needs of human nature and was a means for development of individuals personality in association of fellow citizens so it was natural and necessary to man. Plato found his "republic" as the best source for the achievement of the selfrealization of the people.




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38. Chambers' Twentieth Century Dictionary defines "liberty" as "Freedom to do as one pleases, the unrestrained employment of natural rights, power of free chance, privileges, exemption, relaxation of restraint, the bounds within which certain privileges are enjoyed, freedom of speech and action beyond ordinary civility".

39. It is very difficult to define the "liberty". It has many facets and meanings. The philosophers and moralists have praised freedom and liberty but this term is difficult to define because it does not resist any interpretation. The term "liberty" may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of three factors, firstly, harmonious balance of personality, secondly, the absence of restraint upon the exercise of that affirmation and thirdly, organization of opportunities for the exercise of a continuous initiative.

40. "Liberty" may be defined as a power of acting according to the determinations of the will. According to Harold Laski, liberty was essentially an absence of restraints and John Stuard Mill viewed that "all restraint", qua restraint is an evil". In the words of Jonathon Edwards, the meaning of "liberty" and freedom is:

"Power, opportunity or advantage that any one has to do as he pleases, or, in other words, his being free from hindrance or impediment in the way of doing, or conducting in any respect, as he wills."

41. It can be found that "liberty" generally means the prevention of restraints and providing such opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on man's liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to "liberty" and freedom is lost. At the same time "liberty" without restraints would mean liberty won by one and lost by another. So "liberty" means doing of anything one desires but subject to the desire of others.

42. As John Emerich Edward Dalberg in his monograph Action on "Essays on Freedom and Power" wrote that Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization.

43. A distinguished former Attorney General for India, M.C. Setalvad in Page 10 of 46 HC-NIC Page 10 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT his treatise "War and Civil Liberties" observed that the French Convention stipulates common happiness as the end of the society, whereas Bentham postulates the greatest happiness of the greatest number as the end of law. Article 19 of the Indian Constitution averts to freedom and it enumerates certain rights regarding individual freedom. These rights are vital and most important freedoms which lie at the very root of liberty. He further observed that the concept of civil liberty is essentially rooted in the philosophy of individualism. According to this doctrine, the highest development of the individual and the enrichment of his personality are the true function and end of the stage. It is only when the individual has reached the highest stage of perfection and evolved what is best in him that society and the state can reach their goal of perfection. In brief, according to this doctrine, the state exists mainly, if not solely, for the purpose of affording the individual freedom and assistance for the attainment of his growth and perfection. The state exists for the benefit of the individual.

44. Mr. Setalvad in the same treatise further observed that it is also true that the individual cannot attain the highest in him unless he is in possession of certain essential liberties which leave him free as it were to breathe and expand. According to Justice Holmes, these liberties are the indispensable conditions of a free society. The justification of the existence of such a State can only be the advancement of the interests of the individuals who compose it and who are its members. Therefore, in a properly constituted democratic State, there cannot be a conflict between the interests of the citizens and those of the State. The harmony, if not the identity, of the interests of the State and the individual, is the fundamental basis of the modern Democratic National State. And, yet the existence of the State and all Government and even all law must mean in a measure the curtailment of the liberty of the individual. But such a surrender and curtailment of his liberty is essential in the interests of the citizens of the State. The individuals composing the State must, in their own interests and in order that they may be assured the existence of conditions in which they can, with a reasonable amount of freedom, carry on their other activities, endow those in authority over them to make laws and regulations and adopt measures which impose certain restrictions on the activities of the individuals.

45. Harold J. Laski in his monumental work in "Liberty in the Modern State" observed that liberty always demands a limitation on political authority. Power as such when uncontrolled is always the natural enemy of freedom.

46. Roscoe Pound, an eminent and one of the greatest American Law Professors aptly observed in his book "The Development of Constitutional Page 11 of 46 HC-NIC Page 11 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT Guarantee of Liberty" that "whatever, 'liberty' may mean today, the liberty is guaranteed by our bills of rights, "is a reservation to the individual of certain fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a politically organized society to adjust that society to individuals."

47. Blackstone in "Commentaries on the Laws of England", Vol. I, p. 134 aptly observed that "Personal liberty consists in the power of locomotion, of changing situation or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint unless by due process of law".

48. According to Dicey, a distinguished English author of the Constitutional Law in his treatise on Constitutional Law observed that:

"Personal liberty, as understood in England, means in substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification." [Dicey on Constitutional Law, 9th Edn., pp.20708].

According to him, it is the negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory. In ordinary language personal liberty means liberty relating to or concerning the person or body of the individual, and personal liberty in this sense is the antithesis of physical restraint or coercion.

49. Eminent English Judge Lord Alfred Denning observed:

"By personal freedom I mean freedom of every law abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasion without hindrance from any person.... It must be matched, of course, with social security by which I mean the peace and good order of the community in which we live."

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50. An eminent former Judge of this Court, Justice H.R. Khanna in a speech as published in 2 IJIL, Vol.18 (1978), p.133 observed that "liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein, there is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no servility of the human mind or enslavement of the human body."

The Court, thereafter, explained the concept of right to life and personal liberty under the Constitution in the following words:

"51. We deem it appropriate to deal with the concept of personal liberty under the Indian and other Constitutions.

52. The Fundamental Rights represent the basic values enriched by the people of this country. The aim behind having elementary right of the individual such as the Right to Life and Liberty is not fulfilled as desired by the framers of the Constitution. It is to preserve and protect certain basic human rights against interference by the State. The inclusion of a Chapter in Constitution is in accordance with the trends of modern democratic thought. The object is to ensure the inviolability of certain essential rights against political vicissitudes.

53. The framers of the Indian Constitution followed the American model in adopting and incorporating the Fundamental Rights for the people of India. American Constitution provides that no person shall be deprived of his life, liberty, or property without due process of law. The due process clause not only protects the property but also life and liberty, similarly Article 21 of the Indian Constitution asserts the importance of Article 21. The said Article reads as under : "21. Protection of life and personal liberty no person shall be deprived for his life or personal liberty except according to procedure established by law"

the right secured by Article 21 is available to every citizen or non citizen, according to this article, two rights are secured :

1. Right to life

2. Right to personal liberty.

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54. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society.

55. This court defined the term "personal liberty" immediately after the Constitution came in force in India in the case of A. K. Gopalan v. The State of Madras, AIR 1950 SC 27. The expression 'personal liberty' has wider as well narrow meaning. In the wider sense it includes not only immunity from arrest and detention but also freedom of speech, association etc. In the narrow sense, it means immunity from arrest and detention. The juristic conception of 'personal liberty', when used the latter sense, is that it consists freedom of movement and locomotion.

56. Mukherjea, J. in the said judgment observed that 'Personal Liberty' means liberty relating to or concerning the person or body of the individual and it is, in this sense, antithesis of physical restraint or coercion. 'Personal Liberty' means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification. This negative right constitutes the essence of personal liberty. Patanjali Shastri, J. however, said that whatever may be the generally accepted connotation of the expression 'personal liberty', it was used in Article 21 in a sense which excludes the freedom dealt with in Article 19. Thus, the Court gave a narrow interpretation to 'personal liberty'. This court excluded certain varieties of rights, as separately mentioned in Article 19, from the purview of 'personal liberty' guaranteed by Article 21.

57. In Kharak Singh v. State of U.P. and others, AIR 1963 SC 1295, Subba Rao, J. defined 'personal liberty', as a right of an individual to be free from restrictions or encroachment on his person whether these are directly imposed or indirectly brought about by calculated measure. The court held that 'personal liberty' in Article 21 includes all varieties of freedoms except those included in Article 19.

58. In Maneka Gandhi v. Union of India and another (1978) 1 SCC 248 : (AIR 1978 SC 597), this court expanded the scope of the expression 'personal liberty' as used in Article 21 of the Constitution of India. The court rejected the argument that the expression 'personal liberty' must be so interpreted as to avoid overlapping between Article 21 and Article 19(1). It was observed: "The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and some of them have been Page 14 of 46 HC-NIC Page 14 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT raised to the status of distinct fundamental rights and given additional protection under Article 19." So, the phrase 'personal liberty' is very wide and includes all possible rights which go to constitute personal liberty, including those which are mentioned in Article 19.

59. Right to life is one of the basic human right and not even the State has the authority to violate that right. [State of A.P. v. Challa Ramakrishna Reddy and others (2000) 5 SCC 712] : (AIR 2000 SC 2083).

60. Article 21 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter III of this Constitution, personal liberty of man is at root of Article 21 and each expression used in this Article enhances human dignity and values. It lays foundation for a society where rule of law has primary and not arbitrary or capricious exercise of power. [Kartar Singh v. State of Punjab and others (1994) 3 SCC 569]."

Thereafter, the Court gave a fair idea of the European Convention for the protection of Human Rights and Fundamental Freedoms, 1950:

"82 This Convention contains a most elaborate and detailed codification of the rights and safeguards for the protection of life and personal liberty against arbitrary invasion.

83. In every civilized democratic country, liberty is considered to be the most precious human right of every person. The Law Commission of India in its 177th Report under the heading 'Introduction to the doctrine of "arrest" has described as follows:

"Liberty is the most precious of all the human rights". It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The universal declaration of human rights adopted by the general assembly on United Nations on December 10, 1948 contains several articles designed to protect and promote the liberty of individual. So does the International Covenant on Civil and Political Rights, 1996. Above all, Article 21 of the Constitution of Page 15 of 46 HC-NIC Page 15 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT India proclaims that no one shall be deprived of his right to personal liberty except in accordance with the procedure prescribed by law. Even Article 20(1) and (2) and Article 22 are borne out of a concern for human liberty. As it is often said, "one realizes the value of liberty only when he is deprived of it." Liberty, along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by the Constitution. Of equal importance is the maintenance of peace, law and order in the society. Unless, there is peace, no real progress is possible. Societal peace lends stability and security to the polity. It provides the necessary conditions for growth, whether it is in the economic sphere or in the scientific and technological spheres."

84. Just as the Liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important.

85. It is a matter of common knowledge that a large number of under trials are languishing in jail for a long time even for allegedly committing very minor offences. This is because section 438, Cr.P.C. has not been allowed its full play. The Constitution Bench in Sibbia's case (supra) clearly mentioned that section 438, Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were sections 437 and 439, Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that section 438, Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab [(1980) 2 SCC 565].

86. According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest visavis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent court.

87. The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the Page 16 of 46 HC-NIC Page 16 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the Investigating Officer is established then action be taken against the Investigating Officer in accordance with law.

88. The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.

90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a preconviction stage or post conviction stage."

17 In Sanjay Chandra vs. C.B.I. (supra), the Supreme Court considered Section 439 of the Code of Criminal Procedure, 1973 visavis Article 21 of the Constitution of India. I may quote the relevant observations made by the Court as under:

"14. 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 Page 17 of 46 HC-NIC Page 17 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT 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. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted 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. 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. In the instant case, as we have already noticed that the "pointing finger of accusation" against the appellants is 'the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State Exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice." The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has 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 our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42 : (AIR 2005 SC 921), observed that "under the criminal laws of this country, a person accused of offences which are nonbailable, is liable to be detained Page 18 of 46 HC-NIC Page 18 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of nonbailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so."

16. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308 : (AIR 1977 SC 2447), this Court opined:

"2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight."

17. In the case of Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 : (AIR 1978 SC 429), V. R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus:

Page 19 of 46

HC-NIC Page 19 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT "3. What, then, is "judicial discretion" in this bail context? In the elegant words of Benjamin Cardozo:

"The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life". Wide enough in all conscience is the field of discretion that remains."

Even so it is useful to notice the tart terms of Lord Camden that "the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable...."

Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Articles 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr Bottomley.

6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows:

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HC-NIC Page 20 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT "I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial .... It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted.

In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death."

7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.

8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being.

9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant is, therefore, not an exercise in irrelevance.

13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Page 21 of 46 HC-NIC Page 21 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT Court's verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding if that be so of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and sociogeographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal."

18. In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 :

(AIR 1978 SC 179), this Court took the view:

"22. In other nonbailable cases the Court will exercise its judicial discretion in favour of granting bail subject to subsection (3) of Section 437, Cr.P.C. if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1), Cr.P.C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.

24. Section 439(1), Cr. P.C. of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), Cr. P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed Page 22 of 46 HC-NIC Page 22 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1), Cr. P.C. of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1), Cr. P.C. of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."

19. In Babu Singh v. State of U.P., (1978) 1 SCC 579 : (AIR 1978 SC

527), this Court opined:

"8. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I had to deal with this uncanalised caseflow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right.

....

16. Thus the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to Page 23 of 46 HC-NIC Page 23 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT find whether he has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore, not an exercise in irrelevance.

17. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, evenhanded and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi focal interests of justice to the individual involved and society affected.

18. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, "community roots" of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our subjails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

20. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding if that be so of innocence has been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village Page 24 of 46 HC-NIC Page 24 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT where feuds have provoked the violent offence. It depends. Antecedents of the man and sociogeographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal."

20. In Moti Ram v. State of M.P., (1978) 4 SCC 47 : (AIR 1978 SC 1594), this Court, while discussing pretrial detention, held:

"14. The consequences of pretrial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family."

21. The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281 : (AIR 2009 SC 1362), thus (Paras 13 to 16 of AIR) :

"6. "Bail" remains an undefined term in Cr.P.C. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression "bail" denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb "bailer" which means to "give" or "to deliver", although another view is that its derivation is from the Latin term "baiulare", meaning "to bear a burden". Bail is a conditional liberty. Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states:

"... when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King's use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed that is to say, set at liberty until the day appointed for his Page 25 of 46 HC-NIC Page 25 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT appearance."

Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.

7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras (AIR 1950 SC 27)).

8. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt."

22. More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (AIR 2011 SC 312), this Court observed that "(j)ust as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important." This Court further observed :

"116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."

This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569; Vivek Kumar v. State of U.P., (2000) 9 SCC 443 :

(AIR 2000 SC 3406.2); Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383 : (2000 AIR SCW 1903)].

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23. The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 : (AIR 2001 SC 1444), thus:

"The jurisdiction to grant bail has to be exercised on the basis of wellsettled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing 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 or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the 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 it (sic 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."

24. In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 : (AIR 2005 SC 3490), this Court held as under:

"18. It is well settled that the matters to be considered in 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 charge; (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 tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi (AIR 2001 SC 1444) and Gurcharan Singh v. State (Delhi Admn.) (AIR 1978 SC 179)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan (AIR 2004 SC 1866) : (SCC pp. 53536, para 11) Page 27 of 46 HC-NIC Page 27 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (AIR 2002 SC 1475) and Puran v. Rambilas (AIR 2002 SC 2023).)"

22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary."

25. Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds : The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State Exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively Page 28 of 46 HC-NIC Page 28 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. v. State, AIR 1978 SC 179, observed that two paramount considerations, while considering petition for grant of bail in nonbailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.

26. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State Exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the chargesheet. This Court, in the case of State of Kerala v. Raneef (2011) 1 SCC 784 : (AIR 2011 SC 340), has stated : "15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counteraffidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."

27. In 'Bihar Fodder Scam', this Court, taking into consideration the Page 29 of 46 HC-NIC Page 29 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pretrial prisoners would not serve any purpose

28. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."

18 A Division Bench of this Court in the case of Nehul Shah(supra) explained the provisions of Section 437(6) of the Code. While holding that the accused has no absolute or indefeasible right of bail under Section 437(6) of the Cr.P.C., it was observed as under:

"9. The grounds relevant for the purpose of refusing bail would not be the same which could have weighed with the Magisterial Court while refusing bail under Section 437(1) & (2) of the Code. That is a stage much prior to trial. Whereas the stage contemplated under Section 437(6), is after filing of chargesheet and framing of charge when trial commences and the accused prefers an application after lapse of 60 days from first date fixed for taking evidence. If the grounds were expected or intended by the legislature to be the same, there was no reason for the legislature to insert subsection (6) of the Code. In our view, therefore, reasons for rejection of application under subsection (6) of the said Section have to be different and little more weighty than the reasons that may be relevant for rejection for bail at the initial stage. If this meaning is not given, subsection (6) would be rendered otiose.

9.1 We may, however, hasten to add that, that cannot be an absolute proposition and some of the reasons which may be relevant for rejection for regular bail under Section 437(1)(2) of the Code, may also be relevant for rejection of application under subsection (6) of the said Section, in a given situation. We do not subscribe to the theory that factors which are relevant for rejection of regular bail, at the initial stage are not at all Page 30 of 46 HC-NIC Page 30 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT relevant for rejection of application under subsection (6) of the said Section. Fact situations are so large in numbers, that it may not be possible to contemplate, enumerate, illustrate or incorporate here the factors which would be relevant and which would not be relevant for the purpose of rejection of application under subsection (6) of Section 437 of the Code. But, it can certainly be said that grounds relevant for considering application under subsection (6) of Section 437 of the Code and the grounds relevant for considering application for regular bail would be different to some extent.

9.2 In our view, following factors would be relevant.

1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused?

2. Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?

3. Whether there are any chances of abscondence of the accused on being bailed out?

4. Whether accused was not in custody during the whole of the said period?

If the answer to any one of the above referred fact situations or similar fact situations is in affirmative then that would work as a fetter on the right that accrues to the accused under first part of subsection (6) of Section 437 of the Code.

9.2.1 The right accrues to him only if he is in custody during the whole of the said period as can be seen from the language employed in subsection (6) of Section 437 of the Code by the legislature.

9.2.2 It would also be relevant to take into consideration the punishment prescribed for the offence for which the accused is being tried in comparison to the time that the trial is likely to take, regard being had to the factors like volume of evidence, number of witnesses, workload on the Court, availability of prosecutor, number of accused being tried with accused and their availability for trial, etc. 9.3 Therefore, so far as question Nos.3 and 4 are concerned, this Court is of the view that the factors, parameters, circumstances and grounds for seeking bail by the accused as well as grounds to be considered by the Magistrate for his satisfaction, would not be exactly the same, but they may in a fact situation be relevant and may overlap each other in both the situation. The factors which are quoted above by this Court are only illustrative and not exhaustive.





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9.4 This Court is of a considered view that applications under Section 437 (6) have to be given a liberal approach and it would be a sound and judicious exercise of discretion in favour of the accused by the Court concerned more particularly where there is no chance of tampering of evidence e.g. where the case depends on documentary evidence which is already collected; where there is no fault on part of the accused in causing of delay; where there are no chances of any abscondence by the accused; where there is little scope for conclusion of trial in near future; where the period for which accused has been in jail is substantial in comparison to the sentence prescribed for the offence for which he is tried. Normal parameters for deciding bail application would also be relevant while deciding application under Section 437 (6) of the Code, but not with that rigour as they might have been at the time of application for regular bail.

9.4.1 Differently put, where there is absence of positive factors going against the accused showing possibility of prejudice to prosecution or accused being responsible for delay in trial, application under Section 437 (6) has to be dealt with liberal hands to protect individual liberty as envisaged under the Constitution of India and sought to be protected by insertion of subsection (6) to Section 437 of the Code by the legislature. The provision has to be read or construed strictly in favour of individual liberty but at the same time, protecting larger interest of justice or society. In this context, observations of the Hon'ble Apex Court in case of Aslam Babalal Desai v. State of Maharashtra, (1992) 4 SCC 272 in the context of compulsive bail under the proviso to section 167(2) may be referred to though may not be applied to an accused seeking bail under section 437(6) of the Code stricto senso.

"15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously or does not complete it within the time allowed by law."

9.4.2 Our say, in context of Section 437 (6), would be better understood if word 'investigation' is read to mean 'trial' in the above quote.

10. Attempt on part of the Magisterial Court in such situation should be to strike a balance by putting one hand on right to speedy trial of an accused as embodied under Article 21 of the Constitution of India and the interest of the prosecution and society on the other hand.

11. A close reading of provisions of Section 437 (6) of the Code, prima facie would show that a duty is cast upon the concerned Magistrate to see Page 32 of 46 HC-NIC Page 32 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT that the trial of an accused is concluded within a period of sixty days from the first date of taking evidence. The Magistrate is obliged to make all possible endevours to see that provisions contained in Section 437 (6) of the Code are complied with in its true, letter and spirit. To that extent, it appears that a right accrues in favour of an accused to tell the Court concerned that the trial has not been concluded within sixty days from the first date fixed for taking evidence for no fault on his part and, therefore, he should be released on bail, may be at that stage, there is some discretion vested in the Magistrate to refuse bail for the reasons which the Magistrate may deem fit to record. Such reasons can not be routine. Such reasons have to weighty enough to outweigh the right that accrues to the accused in first part of subsection (6) of Section 437 of the Code, which appears to be drawing force from Article 21 of the Constitution of India.

11.1 The words 'any case' appearing in subsection (6) of Section 437 of the Code point at the legislative intent to make that provision applicable to all cases which are Magisterial triable and nonbailable. Legislature has not drawn any other distinction for applicability of subsection (6) of Section 437 of the Code. In comparison to that, the provisions contained in Section 167 (2) (a) (i) and (ii) of the Code provide for grant of bail in event chargesheet is not filed within stipulated time. The provision is aimed at expeditious conclusion of investigation. It also protects liberty of an accused where the Investigating Agency fails to conclude investigation and file chargesheet within a stipulated time. Since the accused gets arrested on basis of allegations of offence, the legislature has deemed it proper to protect his interest by awarding to him a right of bail, irrespective of nature of offence if the chargesheet is not filed within stipulated time limit. That right has been held to be absolute and indefeasible. The parameters contained therein cannot be wholly employed while dealing with an application under Section 437 (6) of the Code since they both operate on different plains. Even the language employed in both the provisions is different. Whereas, it gives discretion to Judicial Officer to refuse bail under Section 437(6), it leaves no scope for such discretion under Section 167(2) of the Code.

12. So far as Question No.VI referred by the learned Single Judge is concerned, we state that decision of a coordinate Bench of equal strength will have a binding effect on another coordinate Bench as it lays down a principle of law rather than a statement of law in context of the subject matter.

13. So far as fundamental right of an accused envisaged under Article 21 of the Constitution of India is concerned, insofar as it relates to a speedy trial, the same cannot be pressed into service visavis the right of an accused accruing under Section 437 (6) of the Code. Because the right of the accused under Section 437 (6) of the Code is altogether different than one envisaged under Article 21 of the Constitution of India. Section 437 Page 33 of 46 HC-NIC Page 33 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT (6) of the Code takes in its sweep only the right to speedy trial, whereas Article 21 of the Constitution of India has a very wide connotation.

14. The foregoing discussion lead us to conclude and answer the questions under reference as under:

Q1 An accused involved in a nonbailable offence triable by Magisterial Court whose trial is not concluded within a period of sixty days from the first date fixed for taking evidence in that case, and who has been in custody during the whole of the said period, does not get an absolute or indefeasible right to be released on bail to the satisfaction of the Magistrate. The Magistrate has a discretion to direct otherwise (refuse bail) by recording in writing the reasons for such rejection.

Q2 The provisions contained in Section 437(6) of the Code are not mandatory.

Q3 The Magistrate has option/discretion to refuse bail by assigning reasons therefor. The parameters, factors, circumstances and grounds to be considered by Magistrate visavis such application preferred by the accused under Section 437(6) of the Code may be:

1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused?

2. Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?

3. Whether there are any chances of abscondence of the accused on being bailed out?

4. Whether accused was not in custody during the whole of the said period?

If the answer to any one of the above referred fact situations or similar fact situations is in affirmative than that would work as a fetter on the right that accrues to the accused under first part of subsection (6) of Section 437 of the Code.

The right accrues to him only if he is in custody during the whole of the said period as can be seen from the language employed in subsection (6) of Section 437 of the Code by the legislature.




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It would also be relevant to take into consideration the punishment prescribed for the offence for which the accused is being tried in comparison to the time that the trial is likely to take, regard being had to the factors like volume of evidence, number of witnesses, workload on the Court, availability of prosecutor, number of accused being tried with accused and their availability for trial, etc. The factors which are quoted above by this Court are only illustrative and not exhaustive.

Q4 The factors, parameters, circumstances and grounds for seeking bail by the accused as well as grounds to be considered by the learned Magistrate for his satisfaction would not be identical or similar to subsection (1) and subsection (2) of the Section 437 of the code, but may be relevant and overlapping each other depending upon facts and there cannot be any straight jacket formula. But, we may add that the reasons for rejection of applications under Section 437 (6) need to be more weighty than the routine grounds of rejection.

Q5 The parameters relevant for deciding application under Section 167 (2) (a) (I) (II) of the Code (default bail), cannot be imported for exercise of power under Section 437 (6) of the Code.

Q6 A decision in principle rendered by a coordinate Bench of equal strength would bind another coordinate Bench as it lays down a principle of law and not a statement of law in context of subject matter.

Q7 The legislature, while enacting Section 437(6) of the Code, has not given an absolute, indefeasible or unfettered right of bail. But right of bail is given with a rider investing the Magistrate with discretion to refuse bail by recording reasons therefor. Therefore, the right of accused for a speedy trial, though, Constitutional and aimed at liberty of accused, is not put on that high a pedestal that it becomes absolute. It is a right given with reasonable restrictions. This is the only way the provisions of Section 473(6) of the Code and Article 21 of the Constitution of India can be harmonised and have to read and interpreted accordingly."

19 In the case of Bhagirathsinh Jadeja vs. State of Gujarat [AIR Page 35 of 46 HC-NIC Page 35 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT 1984 SC 372], the Supreme Court observed as under:

"5...We fail to understand what the learned Judge of the High Court desires to convey when he says that once a prima facie case is established, it is necessary for the court to examine the nature and gravity of the circumstances in which the offence was committed. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence..."

20 In the case of Gudikanti Narasimhulu vs. Public Prosecutor, High Court of Andhra Pradesh [1978(1) SCCC 240], the Supreme Court observed as under:

"7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.

8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being.

(Patrick Debbrin, The Criminal Prosecution in England (London) 1960) p. 75 Mod. Law Rev. ibid p. 54)

9. Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad recordparticularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the member of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.




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10. The significance and sweep of Art. 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, evenhanded and geared to he goals of community good and State necessity spelt out in Art. 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bifocal interests of justice to the individual involved and society affected.

11. We must weight the contrary factors to answer the test the reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare of present his case than one remanded in custody. And if public justice is to be promoted. mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our subjails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

12. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defence and individual correction along an anti criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our Constitution.

13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which Page 37 of 46 HC-NIC Page 37 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the court's verdit once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding if that be so of innocence has been recorded by one court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and sociogeographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and policy prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the court into a complacent refusal."

21 In the State of Kerala vs. Raneef [AIR 2011 SC 340], the Supreme Court observed in para 12 as under:

"4) In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail."

22 In Dipak Shubhashchandra Mehta vs. C.B.I. [AIR 2012 SC 949], the Supreme Court observed as under:

"17. This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused. [Vide Babba v. State of Maharashtra, (2005) 11 SCC 569; Vivek Kumar v. State of U.P., (2000) 9 SCC 443.2] : (AIR 2000 SC 3406 But the same should not be applied to all cases mechanically.

18. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of Page 38 of 46 HC-NIC Page 38 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as : a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and c) prima facie satisfaction of the court in support of the charge. In addition to the same, the Court while considering a petition for grant of bail in a nonbailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted. Considering the present scenario and there is no possibility of commencement of trial in the near future and also of the fact that the appellant is in custody from 31.03.2010, except the period of interim bail, i.e. from 15.09.2011 to 30.11.2011, we hold that it is not a fit case to fix any outer limit taking note of the materials collected by the prosecution. This Court has repeatedly held that when the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. As posed in the Sanjay Chandra's case, (2011 AIR SCW 6838) (supra) we are also asking the same question i.e. whether the speedy trial is possible in the present case for the reasons mentioned above.

19. As observed earlier, we are conscious of the fact that the present appellant along with the others are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the fact that though the Investigating Agency has completed the investigation and submitted the chargesheet including additional chargesheet, the fact remains that the necessary charges have not been framed, therefore, the presence of the appellant in custody may not be necessary for further investigation. In view of the same, considering the health condition as supported by the documents including the certificate of the Medical Officer, Central Jail Dispensary, we are of the view that the appellant is entitled to an order of bail pending trial on stringent conditions in order to safeguard the interest of the CBI."

24 What is discernible from the above referred decisions is that it is the fundamental right of every undertrial prisoner and those who have appealed against the conviction to any higher Court - be it the Sessions Court, High Court and the Supreme Court - that their case be heard and disposed of quickly, fairly and justly. The Courts are duty bound to ensure this to all prisoners. Article 21 contains only one sentence and is Page 39 of 46 HC-NIC Page 39 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT perhaps, the smallest Article in the Indian Constitution. Article reads as under:

"Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law."

25 This right is perhaps the oldest recognised human right in the entire world. If the history of this right is to be traced, one has to refer to the Magna Carta (1215) of U.K., the Constitution of the United States, 1787, the Constitutions of Eire, U.S.S.R., West Germany, Japan, Canada and International Charters like the Universal Declaration and Political Rights, 1966, and the European Convention on Human Rights, 1950.

26 The obvious causes of delay in disposal of the criminal cases are not far to seek. The causes are:

[1] frequent adjournment applications;

[2] lengthy crossexaminations without any useful purpose;

[3] lengthy arguments which, on many occasion, sound much like an empty vessel without much substance;

[4] inadequacy of staff;

[5] noncooperation of the police;

[6] the absence of Judges.

27 The Supreme Court in Kadra Pehadiya vs. State of Bihar [AIR 1981 SC 939] observed quite pertinent "it is a shame upon our adjudicatory system which keeps men in jail for years without a trial". In the State of Maharashtra vs. Champalal Punjaji Shah [AIR Page 40 of 46 HC-NIC Page 40 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT 1981 Sc 1875], the Supreme Court referred to the Constitution of U.S.A. and European Convention of Human Rights and observed that the legitimate demand of any undertrial prisoner for speedy disposal of cases could hardly be brushed aside.

28 Even delay in pronouncing the judgments has been reprimanded by the Supreme Court. In Anil Rai vs. State of Bihar [AIR 2001 SC 3173], the Court observed that the unexplained long interval between the completion of arguments and delivery of judgment shakes the confidence of the people in the judicial system and affects the rights of the parties under Article 21 and laid down certain guidelines regarding the pronouncement of judgments.

29 Bearing in mind the principles enunciated in the decisions referred to above, I am of the view that the applicant deserves to be released on bail subject to terms and conditions.

30 I propose to take into consideration the following aspects:

(1) The trial is goingon in the Court of the learned Metropolitan Magistrate.

(2) The accused is in the judicial custody past four years and two months.

(3) The accused is not a hardcore criminal with any antecedent.

To his misfortune or for any other reason, the business venture failed and he could not fulfill the commitment.





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(4) According to the trial Court, it will take almost eight more months before the trial is concluded. When the trial Court says eight more months, the same is suggestive of the fact that it is going to take a longer time.

(5) Nothing is pointed out to even remotely indicate or suggest that the delay has occasioned on account of any fault on the part of the accused.

(6) There is no apprehension that the applicant would abscond since the passport is already with the trial Court.

(7) The bank accounts are also freezed.

31 At this stage, let me deal with the contention canvassed on behalf of the State as regards Sections 323 and 325 of the Cr.P.C. I can do no better than to refer and rely upon a decision of this Court in the case Jehangir Marazban Patel vs. State of Gujarat [2003(3) G.L.H. 116]. I may quote the relevant observations made by a learned Single Judge of this Court as under:

"9. When the present applicant is an undertrial for more than seven years and except the applicant, all the surviving coaccused have been enjoying bail till the termination of trial and I am told that most of them and practically all of them are also named as an accused in number of offences allegedly committed by a gang, the present applicant should not be discriminated. It is true that the status of the present applicant at the relevant point of time was of a Arm Dealer and so he ought to have acted with more responsibility and great caution while dealing with the arms and ammunitions either allegedly sold or supplied by him or by his family firm. But this would not disentitle him from praying for bail pending trial when he has been acquitted in number of such or similar cases registered during that relevant period. Learned Counsel Mr. Pardiwala has also Page 42 of 46 HC-NIC Page 42 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT satisfactorily submitted that as and when the original offender was apprehended, then in most of the cases, on the statement of the coaccused so arrested, or any other most interested witness like the police officer etc., he has been linked with that crime. It is not the say of the prosecution that in the present case, he was found with any lethal weapon or such ammunition so he can be linked with the offence punishable under Section 25(1AA) of the Act, and therefore only, he has been discharged by the Sessions Court and now relegated to the learned Metropolitan Magistrate for trial. Submission advanced by learned P.P. Mr. Oza, in light of the scheme of Section 323 & 325 of the Cr.P.C. are not wellfounded and these submissions are based on hypothesis framed in view of the phraseology of these two Sections. In the present case, in view of the nature of the offence mentioned in the police chargesheet, the accused was committed to the Court of Sessions in exercise of the powers vested with the Court under Section 209 of Cr.P.C. and the Sessions Court found that the offence exclusively triable by the Court of Sessions, prima facie, has not been committed as mentioned in the chargesheet, and therefore, the learned Sessions Judge discharged the accused from that very offence. So, the case of the present applicant cannot be sent again to the Court of Sessions in exercise of the powers vested under Section 323 of Cr.P.C.

10. Section 325 of Cr.P.C. empowers Magistrate or Metropolitan Magistrate to send a case to another Court on the ground that he cannot pass sentence sufficiently severe for want of powers. In that eventuality, the Magistrate cannot straightaway commit the case to the Court of Sessions. Bare reading of Section 323 & 325 of Cr.P.C. show that they are general in nature, but some part of Section 325 of Cr.P.C. provides for the case of special category. Under Section 323 of Cr.P.C., when a Magistrate finds that the case should be committed at any point of time during the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Sessions, then he has to commit the said case to that Court. As contained in Chapter XVIII, this can be done at any stage of the trial, but before signing the judgment. The Sessions Judge cannot frame charges against the accused while remitting the case under Section 228 of the Cr.P.C. to a Magistrate who in exercise of the powers under Section 323 of Cr.P.C. has committed the case to the Court of Sessions. On the other hand, when the accused is discharged who has been committed to the Court of Sessions under an order under Section 209 of Cr.P.C., the Sessions Judge may frame the charge against the accused mentioned on the ground mentioned in the order passed and transfer the case for trial to the learned Chief Metropolitan Magistrate. The present case is a case transferred to learned Chief Metropolitan Magistrate and in turn at present pending with learned Metropolitan Magistrate. It is rightly argued that while considering the bail plea, the quantum of punishment which the learned Metropolitan Magistrate may inflict, should be considered relevant and not the hypothesis that the learned Metropolitan Magistrate, after Page 43 of 46 HC-NIC Page 43 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT recording evidence, is likely that he may assign reasons at any time before signing judgment and shall commit the case either to the Court of Sessions as provided under Section 323 of Cr.P.C. or to the learned Chief Metropolitan Magistrate as provided under subSection (1) of Section 325 of the Cr.P.C. If the case is sent to award more severe or adequate punishment, than the reasons assigned and opinion 'expressed in that regard by the learned referring Magistrate who has conducted the trial, shall have to be considered by the learned Chief Metropolitan Magistrate/Metropolitan Magistrate; Even if it is accepted for the sake of arguments that there is some scope of such reference by learned Metropolitan Magistrate to the learned Chief Metropolitan Magistrate provided under Section 325(1) of Cr.P.C., even then the maximum punishment which can be inflicted in the present case, would be of 7 years. At one point of time, Mr. Pardiwala has submitted that the resistance put forward by the State of Gujarat in the present application amounts to an attempt by the State Government to see that the illegitimate confinement continues for more period. As the present applicant has undergone the period of incarceration of more than 7 years as an under trial prisoner, the bail Court also cannot assume that the trial Court may inflict the punishment with a direction that the accused should undergo punishment separately and not concurrently. On the contrary, it is relevantthat the Apex Court, irrespective of the pendency of number of trials against the present applicantaccused, has granted bail in a case where he has been held guilty, considering the period of incarceration undergone by him. Therefore, the submission of learned P.P. Mr. Oza is not found acceptable that even there is a scope that the applicantaccused may be sentenced to suffer R.I. for life because it is likely that in turn, against this case will go to the Court .of Sessions under the provisions either of Section 323 or Section 325 of Cr.P.C. Only with a view to consider the arguments of learned P.P. Mr. Oza, I have considered the decision of this Court in the case of Narendra Amrutlal Dalai v. State of Gujarat, reported in 1978 GLR 165 : 1978 Cri.LJ 1193. Of course, this decision deals with the transfer and retransfer of cases under Section 228(1) of Cr.P.C., but it also deals with the nittygritty of the provisions of Section 323 & 325 of Cr.P.C. There is no apprehension of jumping the bail by the accused. I am convinced that irrespective of this apprehension, other coaccused have been enlarged on bail by the competent Court. The applicant is inhabitant of Gujarat and was carrying on business since years and till date competent authorities have neither cancelled nor revoked the licences issued as Arms & Ammunition Dealer. His passport has expired and stringent conditions if imposed can take care of the situation. Normally, such arguments are advanced in all the cases where offence is either serious or offence committed is sensitive in nature. As mentioned hereinabove, he has been granted bail in 14 different cases at present pending against him. It is true that the severity of punishment tempts the accused to jump the bail, but unless this apprehension is wellfounded, or at least, is prima facie, found genuine, should not refuse to exercise the Page 44 of 46 HC-NIC Page 44 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT discretionary jurisdiction. It is not the say of the prosecution, that the co accused of the present applicant against whom the Government had passed the orders in exercise of the powers under Section 268 of Cr.P.C., have jumped the bail. This can be considered as relevant fact in appreciating this part of submission. "

32 At page 544 of the Legal and Constitutional History of India by M. Raman Jois, the following dictum of Katyan has been noticed:

"(i) The king should not delay in examining the witnesses. A serious defect, namely, miscarriage of justice, would result owing to delay in examination of witnesses.

(ii) The king should himself examine the witnesses that are present (in Court) and should consider along with the members of the Court the statement made by them."

The seed of the idea of speedy trial is thus hoary in its origin and springs in all civilised climes. But this is a matter for academicians and it suffices our purpose to notice that in i its modern and present aspect the genealogy of the rule can firmly be drawn as far back as the Magna Carta of King John and later concretised in the Sixth Amendment of the American Constitution. This can, perhaps, be best delineated in the words of Chief Justice Warren, delivering the opinion of the United States Supreme Court in Peter H. Klopfer v. State of North Carolina, (1967) 18 Law Ed 2d 1 :

386 US 213:

"We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its root at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, 'We will sell to no man, we will not deny or defer to any man either justice or right,' but evidence of recognition of the right to speedy justice in even earlier times is found in the Assiize of Clarendon (1166). By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer were visiting the countryside three times a year.

XX XX X ' In all capital or criminal prosecutions', the Virginia Declaration of Rights of 1776 provided, 'a man hath a right.... to a speedy trial.....' That this right was considered fundamental at this early period in our history is Page 45 of 46 HC-NIC Page 45 of 46 Created On Sat Aug 12 22:01:09 IST 2017 R/CR.MA/30852/2016 JUDGMENT evidenced by its guarantee in the Constitutions of several of the States of the new nation, as well as by its prominent position in the Sixth Amendment. Today, each of the 50 States guarantees the right to a speedy trial to its citizens.

The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution."

33 In the result, this application is allowed. The applicant is ordered to be released on bail in connection with the First Information Report bearing IC.R. No.12 of 2011 registered with the D.C.B. Police Station, Ahmedabad on he executing a personal bond of Rs.2,00,000/ (Rupees Two Lac only) with a solvent surety of the like amount to the satisfaction of the trial Court subject to the following terms and conditions:

[a] the applicant shall mark his presence at the concerned police station twice in a month i.e. on 15th and last day of the month.

[b] the applicant shall regularly attend the trial Court and extend full cooperation in the expeditious disposal of the criminal case.

[c] the applicant shall not leave the State of Gujarat without prior permission of this Court.

34 Rule is made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.) chandresh Page 46 of 46 HC-NIC Page 46 of 46 Created On Sat Aug 12 22:01:09 IST 2017

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