Uttarakhand High Court
Savez vs State Of Uttarakhand on 8 July, 2021
Equivalent citations: AIRONLINE 2021 UTR 386
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
1ST Bail Application No. 1682 of 2020
Savez ... Applicant
Vs.
State of Uttarakhand ... Respondent
Advocates : Mr. Bilal Ahmad, Advocate, for the applicant
Mrs. Meena Bisht, Brief Holder, for the State of Uttarakhand
Hon'ble Sharad Kumar Sharma, J.
(Via Video Conferencing) The applicant to the present Bail Application is an accused for commission of the offences under Section 394, 411 IPC, which was registered against as Case Crime No. 464 of 2018, at Police Station, Kotwali Manglaur, District Haridwar.
2. Though, apparently, the nature of offences, which are complained of against the present applicant may seem to be triable by the Magistrate; but, invariably, a common yardstick, while determining the bail application for involvement in the commission of the said offence which are trifle in nature may not be adopted, particularly, in those cases, where the applicant carries a very vast interstate criminal history, against him. For example, in the present case, the present applicant is an accused:-
(i) In Case Crime No. 78 of 2016, State Vs. Hashnood and others, for the offences under Sections 452, 323, 504, 506 IPC, in which, he was directed to be released from jail on 04.09.2020, by the Court of Additional Civil Judge (Junior Division), Deoband, Saharanpur, U.P.
(ii) The applicant is also an accused in Case Crime No. 646 of 2018, for the commission of offences under Sections 342, 392, 411 of IPC, which was registered against him at P.S. Manglaur, district Haridwar, in which he has been granted bail by the 2 coordinate Bench of this Court in 1st Bail Application No. 279 of 2020 dated 23.06.2020.
(iii) The applicant is an accused in an FIR No. 209 of 2018, for the commission of offences under Section 392/411 of the IPC, registered at P.S. Jhagreda, district Haridwar. In this case too, the applicant had filed a bail application before this Court, being Bail Application No. 280 of 2020 and he has been released on bail by the coordinate Bench of this Court on 19.06.2020.
(iv) The applicant is also an accused in an FIR, which was registered against him as Case Crime No. 29 of 2019, for commission of the offences under Sections 392, 411 IPC, registered at Thana Jhagreda, District Haridwar, in which he was granted bail by the Sessions Court, Haridwar being Bail Application No. 1965 of 2019, Savej Vs. State and others, vide its order dated 05.12.2019, on furnishing a security bond of Rs. 50,000/-.
(v) The applicant is an accused for commission of the offence, which was registered against him as Case Crime No. 678 of 2018, for the offences under Section 392 IPC, at Kotwali Mangalore, district Haridwar, in which he has been granted bail by the District & Sessions Judge, Haridwar, being Bail Application No. 830 of 2020, vide its order dated 12.08.2020, on furnishing of a personnel bond of Rs. 40,000/-.
(vi) The applicant is an accused for commission of the offences, which was registered against him as Case Crime No. 257 of 2019 for the offences under Section 392 IPC registered at Police Station Jhagreda, district Haridwar, in which he filed a bail application before the District & Sessions Judge, District Haridwar, being Bail Application No. 1989 of 2019, Savez Vs. State and the learned District & Sessions Judge, Haridwar had granted bail vide its order dated 10.12.2019.
3(vii) The applicant is also an accused in Case Crime No. 464 of 2018, registered against him at P.S. Kotwali, Mangalore, district Haridwar, for the offence under Section 394, 411 IPC. For the said offence too, he had preferred a bail application being Bail Application No. 843 of 2020, which was rejected by the learned District & Sessions Judge on 17.08.2020.
3. Apart from it, in the counter affidavit filed by the Government Advocate, he has given the details of following other cases which were registered, or in which the applicant, was shown to be involved as detailed hereunder:-
"i. Case Crime No. 6528/2018 under Section 395 IPC, P.S. Kotwali Dehat, Saharanpur, U.P. ii. Case Crime No. 279/2013 under Section 395 IPC, P.S. Devband, Saharanpur, U.P. iii. Case Crime No. 18/19 under Section 395/411 IPC, P.S. Devband, Saharanpur, U.P. vi. Case Crime No. 253/08 under Section 392/411 IPC, P.S. Jhabreda, Haridwar vi. Case Crime No. 9019 under Section 379 IPC, P.S. Bandgaon, Saharanpur, U.P.
4. These are the aforesaid criminal historical background of the applicant, showing applicant's consistent engagement in the commission of offences, which have been detailed above, in which he has been bailed out, the details of which has been given by the applicant himself in the bail application.
5. The learned counsel for the applicant to the present bail application had addressed the Court and has solicited a findings on the issues as argued to the following effect:-
(a) His argument is that the applicant is not named in the FIR.4
(b) He submits that his implication in commission of the offences complained of in the present FIR, by way of Case Crime No. 464 of 2018, is on the discloser of the name made by the co-
accused person and since the discloser of involvement of the applicant, in commission of offence, has come before the police in a statement which was recorded under Section 161 of Cr.PC, the same cannot be taken cognizance of in view of the provisions contained under Section 25 of the Evidence Act, because the said statement cannot be read to be admissible to establish a commission of offence against the applicant.
(c) He submits that applicant's implication in the present offence, has chanced after 13 months of the date of commission of the offence i.e. on 31.07.2018, and hence no credible reliance can be placed on the prosecution story of the applicant's involvement.
(d) He further argues that since the applicant had been bailed out for the other offences, which have been detailed above (para 2 of this order), hence, he will be entitled for bail in the present offences also by this Court.
(e) He submits that since all the offences, which are complained of in the FIR No. 464 of 2018, are triable by the Magistrate, the bail has to be liberally considered by this Court.
(f) He submits that since there was no identification parade conducted and there is no independent witness of recovery, as contemplated under Section 100(4) of the Cr.PC, no direct acquisition of the applicant in commission of offence could be made out against him.
(g) Lastly, he submits that since the applicant is languishing in jail since 21.08.2019, the Court should express a mercy on him while considering the bail application of the applicant.
56. After a very prolonged address made by the learned counsel for the applicant, when this Court has expressed its opinion for not granting bail to the applicant, he had sought time to file rejoinder affidavit, which was already granted to him, by an order passed by this Court on 15.06.2021, and no rejoinder has been filed till date. The request for filing of the rejoinder, first of all, it cannot be claim as a matter of right, and secondly, when already an opportunity was provided to the counsel for the applicant and that was not availed, in that eventuality, the applicant's counsel had to shoulder an onerous responsibility and he ought to have made a prayer at the initial stage itself and not after exhausting the Court's valuable time for addressing the bail application on merits on all the points, which have been referred to above. Hence, at this stage, after the culmination of the argument, this Court declines to grant time for filing the rejoinder affidavit.
7. Lastly, the learned counsel for the applicant submits that, while considering the present bail application, the Court may also record the finding, pertaining to the tenacity of every argument, which has been extended by the applicant while pressing his bail application, hence, each aspects are being dealt with independently.
8. The first argument, which was extended by the learned counsel for the applicant was that since his name is not reflected in the FIR, which was registered against on 01.08.2018, in relation to the incident or commission of offence dated 31.07.2018, under Sections 394 and 411 IPC, hence, he cannot be directly attributed to be involved in commission of the present offence, is not acceptable by this Court, for the reason being, that if the contents of the FIR are itself taken into consideration, the 6 time of commission of the offence, is in the midnight at 1:30 AM. Meaning thereby, at the time when the incident had chanced under Sections 394, 411 IPC, by an unknown intruders, who had barged into a residence of the person to commit a loot and robbery it is practically impossible for any person to recognise or realise a person, who is engaged or involved in committing the offence, hence the discloser of the name in the FIR in these circumstances, where the offences are committed under these circumstances, it may not be practically possible, in each and every case, particularly, when the person who has committed the offence is not known to the victim, in whose residence the offence was committed, hence, this argument of the learned counsel for the applicant is not acceptable by this Court. That, since he is not named in the FIR, he deserves to be released on bail, because as per the counsel, his involvement in commission of the offence becomes doubtful, cannot be accepted.
9. The second argument of the applicant's counsel, is that the applicant has been implicated on the basis of the statement of the co-accused persons and the same would not be readable to establish commission of offence because in view of Section 25 of the Evidence Act. In that eventuality, a reference to Section 25 of the Evidence Act becomes eminent, which is extracted hereunder:-
"25. Confession to police officer not to be proved.--No confession made to a police officer1, shall be proved as against a person accused of any offence."
10. If Section 25 of the Evidence Act, itself is taken into consideration, the language in itself provides that a "confession" made to a police officer, shall be proved as against an accused person of any offence. There are two very important words, 7 which are used in the said Section i.e. one 'confession' and second 'has to be proved against the accused person'.
11. The implications of the use of these two words in Section 25 of the Evidence Act, means that it is not only a "disclosure" of name by co-accused persons, which attracts an implication of "confession". "Confession" and "discloser" of name by co- accused bears altogether a different connotation under law, secondly, its not that absolutely the implications of Section 25 of the Evidence Act, is excluded to be considered, for the reason being that the subsequent part of Section 25 of the Evidence Act; says that the statement recorded before the Court in relation to a confession made by an accused person could rather be read but that would be subject to an evidence and would be subject to its establishment of offence by proof of evidence. Meaning thereby, that has to be proved at the stage of trial. Meaning thereby, the strict implications of Section 25, is not to be considered at the time of invoking a discretionary jurisdiction for consideration of the bail under Section 439 of the Cr.PC.
12. The learned counsel for the applicant submits that there is no independent recovery made and hence the recovery procedure itself was violative of the provisions contained under Section 100(4) of the Cr.PC. At this stage, the reference to Section 100(4) of the Cr.PC. is extracted hereunder:-
"4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."8
13. Section 100 (4) of the Cr.PC, literally in its language and the meaning assign to it, where it contemplates the process to be adopted it was exclusively for the purposes of search or seizer, it provides that officer or other persons, who should call upon two or more independent witnesses or respectable persons or residents of the locality; from where the search and seizure has been made. This Court is of the view that this procedural implication of search and seizure by calling two or more independent witnesses or respectable inhabitants of the locality, for the purposes of making a recovery may not be a strict rule to be adhered in each and every cases, where the recovery is made under a peculiar circumstances and that too when the factum of recovery of the stolen articles from the applicant is not disputed in the present case by the applicant; that the stolen articles, of the offences, which was committed on 31.07.2018, was recovered from him and from his possession, as would be apparent from recovery memo dated 02.09.2019.
14. The argument of the learned counsel for the applicant is that the applicant has been bailed out in other cases, which have been detailed above, hence he would be entitled to be bailed out in the present case too, is not acceptable by this Court for the reason being that this Court is of the view that there are two logical reasons for not to accept this argument:-
(i) That apparently, the grant of bail in the seven cases, which have been detailed above, itself shows the basic psychology of the applicant to engage himself recurringly in commission of the offences, and hence, grant of a bail would mean that it would amount to give him an another opportunity to commit yet any other offences.
(ii) Apart from that, grant of bail will in other criminal cases filed against him, would never be a guiding factor to be 9 considered by the Court, who has to consider the bail application, independently depending upon the facts and circumstances of each case and grant of bail in the other offences, cannot be claimed as a matter of right. Hence, the said argument of the learned counsel for the applicant too is not acceptable by this Court.
15. The argument of the learned counsel for the applicant that the offence complained of against the present applicant under Sections 394, 411 of IPC, registered against the present applicant at Kotwali, Haridwar are triable by Magistrate. There cannot be any dispute that these offences are triable by Magistrate, but while pressing for a parity or equity before the Court for exercising its discretionary powers, the Court will also have to bear in mind, while considering the bail application, even for the offences which are triable by Magistrate as to what social implications will it have, particularly, when admittedly the applicant is carrying a very vast criminal history of eleven such criminal cases. His consistent engagements in criminal offences, itself is sufficient not to accept the argument of the applicant's counsel, that since the offences are triable by Magistrate, he is required to be release on bail on the principles that the bail is to be granted normally and jail should be by way of an exception. This logic could be adopted only in those cases, where the applicant is not habitual offender of commission of the criminal offences.
16. Lastly, his submission that, a mercy has to be expressed by this Court. I am of the view that looking to the past historical background of the applicant, which he alleges that he has been falsely implicated by the police in the commission of offence, this Court is of the view that no mercy could be extended to such 10 type of accused person, who admittedly and apparent from the records, has got a criminal history of eleven cases behind him, hence, I am not inclined to release the applicant on bail to the present applicant. Accordingly, the present bail application would stand rejected.
17. However, it is made clear that whatsoever observation, which has been made by this Court while rejecting bail to the present applicant, is only tentative in nature, exclusively for the purposes of considering the bail application. It will not prejudice the trial, which has to be decided independently (Sharad Kumar Sharma, J.) 08.07.2021 Mahinder/