Rajasthan High Court - Jodhpur
Nizamuddin @ Raju vs State on 5 December, 2009
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
S.B. CRIMINAL MISC. 2nd BAIL APPLICATION NO. 5755/2009.
Nizamuddin @ Raju Vs. The State of Rajasthan
..
S.B. CRIMINAL MISC. 2nd BAIL APPLICATION NO. 5847/2009.
Nizamuddin @ Raju Vs. The State of Rajasthan
..
Date of Order :: 5th December 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Neel Kamal Bohra, for the petitioner.
Mr. Anil Joshi, Public Prosecutor.
...
BY THE COURT:
These two bail applications, though relating to different FIRs but concerning the same accused-petitioner and relating to similar nature offences, have been considered together; and are taken up for disposal by this common oder.
Briefly put, the facts and the background aspects relating to Bail Application No. 5755/2009 are that the FIR bearing number 254/2009 was registered on 24.08.2009 at Police Station Devgarh, District Rajsamand for the offence under Section 379 IPC on the information stated by one Naveen Singh that his Maruti Car bearing registration number RJ 27 3848 having Chasis No. 321986 and Engine No. 4115810 was stolen from his house on 12.07.2009 by certain unknown persons; and that he was lodging the report after having failed in his search. It appears from the papers placed on record that pursuant to this FIR, the petitioner Nizamuddin 2 @ Raju and so also the co-accused persons Saleem Mohammed and Mohammad Rafique were arrested on 25.08.2009 and upon the information allegedly extended by the accused persons, the said vehicle was recovered at Kunwariya, District Rajsamand.
In this case, the Investigating Agency proceeded to submit the charge-sheet against the accused persons for the offence under Section 379 IPC on 30.08.2009. The accused persons submitted a bail application bearing number 299/2009 that was dismissed by the learned Sessions Judge, Rajsamand on 05.09.2009.
Such relevant aspects concerning Bail Application No. 5847/2009 are that FIR No. 133/2008 was registered at Police Station Devgarh, District Rajsamand on 23.07.2008 on the report made by one Yusuf Bhai that his motorcycle bearing registration number RJ 30 SA 5904, parked near the Dargah gate, had been stolen. It appears that the said FIR was registered on 23.07.2008 but the investigation remained pending for long. However, the aforesaid accused persons including the present petitioner, were arrested in relation to this FIR on 27.08.2009; the other accused persons Saleem and Rafique stated that the whereabouts of the motorcycle could be divulged by the present petitioner Nizamuddin; and 3 upon the information allegedly divulged by the petitioner, the said motorcycle was recovered from his place of residence and at the time of recovery, it was found that attempts had been made to remove or obliterate the chasis number and the engine number of the said vehicle.
The Investigating Agency proceeded to submit a charge-sheet in the case relating to the said motorcycle on 11.09.2009 against the petitioner and the co-accused persons for offences under Sections 379, 411 IPC; and indicated that the petitioner Nizamuddin had been involved in other criminal cases too, including the one for the offences under Sections 363, 366 IPC. The bail application as moved in relation to this case bearing number 298/2009 was also considered and rejected by the learned Sessions Judge, Rajsamand with another order dated 05.09.2009.
In both the orders aforesaid as passed by the learned Sessions Judge on 05.09.2009, essentially the considerations have been stated thus:
"उभयपक क तक पर व च र ककय । अनसध न पत ल क अ ल कन स पकट ह त ह कक प र!गण/अभभयकगण क व रद एक म रत* क र, एक पलसर म टरस ईककल इस पकरण क. एक म टरस ईककल चर न क आर प ह0 । चर न क ब द इनक. नबर पलट बदलन चभसस नबर इजन नबर भमट न क भ* आर प ह0 । पकरण अभ* अनसध न ध*न ह । इस सटज पर यह नह कह ज सकत ह कक प र!गण/अभभयकगण क जम नत पर ररह 4 ककय ज न पर जम नत क दरपय ग कर इस पक र क अपर ध नह कर7 ग ।'' The bail applications as jointly moved by the present petitioner and the said co-accused Saleem Mohammed and Mohammed Rafique in each of the cases aforesaid bearing numbers 5284/2009 and 4967/2009 were considered together by this Court 14.10.2009; and, while the learned counsel did not press on the bail applications as moved on behalf of the present petitioner Nizamuddin @ Raju, the other accused-
petitioners were granted bail with the following order:-
"These two bail applications, though relating to different FIRs but having been filed by the same petitioners, have been considered together and are takenup for disposal by this common order.
Learned Counsel for the petitioners, having regard to the circumstances of the case, does not press these bail applications qua the petitioner No.1 Nizamuddin @ Raju S/o Shri Rahimuddin.
The bail applications moved on behalf of petitioner No.1 Nizamuddin @ Raju are accordingly dismissed as not pressed.
In relation to other accused-petitioners, it is submitted that they have unnecessarily been sought to be implicated in these two cases particularly with reference to the information extended by the petitioner No.1 Nizamuddin and even the informations and recoveries as sought to be relied upon by the prosecution are not of any legal value. It is submitted that the petitioners are accused in these cases only and cannot be said to be involved in multiple number of cases.5
The bail applications have been opposed by the learned Public Prosecutor.
Having heard the learned counsel for the petitioner, the learned Public Prosecutor for the State and having examined the material placed on record, without comments on the merits, it appears just and proper to enlarge these petitioners on bail.
Accordingly, these bail applications under Sec. 439 Cr.P.C. are allowed in relation to the petitioners No. 2 and 3 and it is directed that the petitioners Saleem Mohammed S/o Shri Amir Mohammed and Mohammad Rafique S/o Shri Mohammad Hussain be released on bail in relation to FIRs No. 133/2008 and 254/2009, Police Station Devgarh, District Rajsamand provided each of them executes in each case a personal bond in a sum of Rs. 10,000/- (Rupees Ten Thousand) with two sound and solvent sureties in the sum of Rs. 5,000/- (Rupees Five Thousand) each to the satisfaction of learned Trial Court for their appearance before that court on each and every date of hearing and whenever and wherever called upon to do so till the completion of trial."
After the aforesaid order dated 14.10.2009, the petitioner Nizamuddin @ Raju has moved these second bail applications directly to this Court on 26.10.2009.
The learned counsel for the petitioner has vehemently argued that mere alleged involvement of the petitioner in other criminal case ought not be taken as a ground for denial of bail to him in the present cases. It is submitted that the present cases, at the most, involve the offences under Sections 379, 411 IPC and when the co-accused persons have been granted bail, no useful purpose would be served by the detention of the petitioner and he deserves bail on parity. The learned 6 counsel also submitted that though the petitioner is said to be involved in one more criminal case pertaining to offences under Sections 363, 366 IPC but he has already been granted bail therein and the trial in that relation is pending. The learned counsel has particularly referred to Section 437 of the Code of Criminal Procedure and submitted that the considerations that might be relevant for a person convicted of an offence cannot be applied in relation to the person who is merely accused of an offence but the case is otherwise pending because, unless found guilty, a person is presumed to be innocent. The learned counsel has particularly referred to the decisions in Gurcharan Singh & Ors. Vs. State (Delhi Administration) : AIR 1978 SC 179, Gurbaksh Singh Sibba Vs. The State of Punjab : AIR 1980 SC 1632, Jaipal Vs. State of Rajasthan : 1984 RLR 1077, Mohammad Ishaq Vs. The State : 1951 RLW 274, Om Prakash Vs. State of Rajasthan : 2009 (2) Cr.L.R. (Raj.) 1476.
The learned Public Prosecutor has strenuously opposed the bail applications essentially with the submissions that with rise in the instances of theft of vehicles and dealing in stolen vehicles, the persons accused of such offences deserve to be sternly dealt with.
7
Having given a thoughtful consideration to the rival submissions and having examined the material on record with reference to the law applicable, this Court does not feel persuaded to grant bail to the petitioner in these cases at this stage.
A comprehension of the material on record makes it clear that it has not been a kind of sporadic looseness of conduct on the part of the petitioner but, apparently, he has regularly been involved in the crimes including those of theft of vehicles and dealing in stolen vehicles. As noticed, the motorcycle aforesaid was allegedly recovered from the very place of residence of the petitioner and it has been indicated that the engine number and chasis number of the said vehicle were attempted to be obliterated. The complicity of the petitioner in the theft of Maruti Car is also prima facie shown on the record.
Moreover and apart from these two cases, it has been pointed out that the petitioner had been involved in another criminal case in FIR No. 118/2007 for offences under Sections 363, 366 IPC.
This Court considered the overall circumstances of the case comprehensively while dealing with the first bail applications aforesaid that were decided on 14.10.2009. The 8 bail applications as moved on behalf of the present petitioner were dismissed as not pressed and so far the other accused persons were concerned, in view of the submissions as noticed in the said order, they were ordered to be enlarged on bail. So far the present petitioner Nizamuddin @ Raju is concerned, this Court is unable to find any material change of circumstance since after rejection of the first bail applications, albeit as not pressed, so as to consider the repeat bail plea on his behalf.
The suggestion that the circumstances have changed due to enlargement of the co-accused persons on bail cannot be accepted for the obvious reason that it were the common and composite order dated 14.10.2009 wherein while the bail plea of the petitioner was not pressed and the bail was granted to the other accused persons. Nothing has thereafter occurred that could be said to be a material change of circumstance so as to consider granting of bail to the petitioner at this stage.
So far the aspect of involvement in other criminal cases is concerned, the argument so broadly advanced by the learned counsel for the petitioner that mere involvement in other criminal case is of no relevance at all, in the opinion of this Court, cannot be accepted. The considerations for grant or 9 refusal of bail to a particular accused are conditioned by several factors and variables like those summed up by the Hon'ble Supreme Court in the case of Anil Kumar Tulsiyani Vs. State of U.P. and another: (2006) 9 SCC 425 thus:
''(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.'' When the character, behaviour, position and the standing of the accused and likelihood of the offence being repeated are also the factors very much relevant, it cannot be said that involvement of an accused person in multiple number of criminal cases in the past could be ignored altogether or that such an aspect would be considered only with reference to conviction, if any, and not otherwise.
Though the learned counsel for the petitioner attempted to argue that so far the character and behaviour of a person is concerned, any aspect related thereto having any impact on the society is otherwise taken care of by the other provisions of law, like those contained in Section 116 Cr.P.C. and, therefore, the alleged bad behaviour may not by itself be a ground for denial of bail but such submissions have their shortcomings 10 when viewed in the light of the above observations of the Hon'ble Supreme Court. The preventive action as spelt out in the Code of Criminal Procedure for any want in a person's behaviour is a matter entirely different; and it cannot be said that the aspect of character and behaviour of a person or likelihood of repetition of offence are not to be taken into account for the purpose of considering the bail plea of such a person under Section 439 Cr.P.C.
So far the provisions of Section 437 Cr.P.C. are concerned, per clause (ii) of Sub-section (1) of Section 437 Cr.P.C., the embargo has been put in granting of bail to a person who is charged of a cognizable offence if he had previously been convicted of an offence punishable with death, imprisonment for life or imprisonment for 7 years or more; and further prohibition has been stated in granting bail to a person who had been previously convicted for two or more cases of a cognizable offence punishable with imprisonment for 3 years or more but not less than 7 years. Upon reading of such provisions, it is very difficult to draw a conclusion for the purpose of Section 439 Cr.P.C. that unless a person is convicted of an offence, the aspect of his involvement in other criminal cases, which might be pending trial, could be ignored altogether. As noticed above, the grant or denial of bail by a 11 Court is considered on several factors and variables. When the character and the behaviour of a person are the aspects relevant and so is relevant the aspect of likelihood of repetition of offence, in a given case, involvement of the accused in other criminal cases is not a factor that could be lightly ignored as being absolutely irrelevant.
Of course, 'bail and not jail' is a well recognised principle; and right to personal liberty is one of the very fundamentals recognised and protected by the Constitution of India (vide Article 21) but then, such a right remains subject to the larger public interest and social order. It is for these reasons that while granting bail, the Courts do look at the matter comprehensively rather than on one factor here or another factor there.
So far the decision of this Court in Jaipal's case (supra) is concerned, the proposition so broadly put therein that while deciding bail applications, no consideration should be given to the fact that other cases are pending against the accused, in the opinion of this Court, cannot be taken to be laying down a binding proposition of law and could only be read as relevant for the said case because therein, one of the factors was that the identified co-accused persons had already been released on bail and the case of the petitioner was found 12 standing on the same footing. That every individual case is considered on its own facts and circumstances is a principle indicated therein too when this Court said,-
"Bail-applications are considered on the facts and circumstances of each individual case."
In the case of Mohammad Ishaq (supra), the petitioner was being prosecuted for offence under Section 452 IPC, he was said to be involved in other case pertaining to Section 380 IPC, and the bail was denied by the Sessions Judge without disclosing as to what offence had been made out; and this Court found that the case was not such in which the petitioner should not be released on bail. The observations therein, again, could only be read as relevant for the said case.
In the case of Om Prakash (supra) the petitioner concerned was accused of offence under Section 3/25 of the Arms Act and an argument was raised on his behalf that in view of Section 37 of the said Act, such an offence is bailable one. It appears from the said order that the learned Public Prosecutor proceeded to concede on the point and this Court observed that the provisions of Section 37 were analogous to the provisions of Section 436 Cr.P.C. and bail could not have been refused by the learned Magistrate. As the subject matter 13 of this order remains confined to the points as raised by the learned counsel on the aspects related with the antecedents of the petitioner, therefore, it does not appear necessary to dilate much herein on the question as to whether every offence under the Arms Act is bailable or not, but this much appears apposite, per force, to observe that in a given case the proposition in Om Prakash would require reconsideration in the light of the provisions of Part-II of the Schedule to the Code of Criminal Procedure providing that an offence under any other law punishable with imprisonment for more than 7 years shall be cognizable, non-bailable, and triable by the Court of Sessions and that punishable with imprisonment for 3 years and upwards but not more than 7 years shall be, again, cognizable and non-bailable, but triable by a Magistrate of First Class; coupled with the relevant provisions of Section 25 of the Arms Act wherein, in respect of several classes of offences, the punishment has been provided for minimum 3 years and extending to 7 years, or for minimum 5 years and extending to 10 years and even 7 years and extending to life imprisonment.
In any case, so far the observations made in Om Prakash's case that pendency of criminal cases cannot be a ground to dismiss the bail application are concerned, the 14 same, again, could be read as confined to such order only and cannot be read, in any case, contrary to the principles enunciated by the Hon'ble Supreme Court as noticed above.
The learned counsel has relied upon the following passage in the decision in Gurcharan Singh's case (supra):-
"In other non-bailable cases the court will exercise its judicial discretion in favour of granting bail subject to sub-sec. (3) of Sec. 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."
However, the said decision has been considered by the Hon'ble Supreme Court in the later relevant decisions like those in the cases of State of U.P. Vs. Amarmani Tripathi :
(2005) 8 SCC 21 and Anil Kumar Tulsiyani (supra); and, in sum and substance, the position of law as delineated by the Hon'ble Supreme Court in Tulsiyani's case (supra) on the various factors to be kept in view, appears to be governing the field.
In the present case, the net position qua the present petitioner is that he has been found involved in theft of vehicles and dealing in stolen vehicles. One of the vehicle was stolen in the month of July 2008 (the motorcycle) whereas the other vehicle was stolen in the month of July 2009 (the car). This apart, the petitioner has been found involved in 15 another criminal case pertaining to offences under Sections 363, 366 IPC in the year 2007. The petitioner has been stated to be 22 years of age and such has been his conduct for last about 3 years. It appears that immediately after attaining the age of majority, the petitioner has taken to the world of crime and then, the suggestion of the attempt to obliterate the chasis and engine number of the motorcycle only confounds the matter. There is nothing on record to even remotely satisfy this Court that there is no likelihood of the crime being repeated nor the character and behaviour of the petitioner make out a case of satisfaction.
For the reasons foregoing, this Court is not inclined to enlarge the petitioner on bail at this stage.
The bail applications as moved on behalf of the petitioner Nizamuddin @ Raju S/o Rahimuddin stand rejected at this stage.
(DINESH MAHESHWARI), J.
//Mohan// 16 S.B. CRIMINAL MISC. 2nd BAIL APPLICATION NO. 5847/2009.
Nizamuddin @ Raju Vs. The State of Rajasthan ..
Date of Order :: 5th December 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Neel Kamal Bohra, for the petitioner.
Mr. Anil Joshi, Public Prosecutor.
...
This bail application stands rejected vide common order made in S.B. Criminal Misc. 2nd Bail Application No. 5755/2009 : Nizamuddin @ Raju Vs. The State of Rajasthan.
(DINESH MAHESHWARI), J.
//Mohan//