IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CRIMINAL MISC. BAIL APPLICATION NO.7239/2011 [ENTITY] vs. The State of Rajasthan Date of Order: 11th November, 2011 HON'BLE MR. JUSTICE [ENTITY] Reportable Mr. [ENTITY], for the petitioner. Mr. [ENTITY], Public Prosecutor.
By the Court.
This bail application under [SECTION] [ACT] has been filed by the accused petitioner against the order dated 15.07.2011 passed by the learned District and Sessions Judge, Dholpur in FIR No.234/2011 which was registered at Police Station, Sarmathura, District Dholpur for the offences under [SECTION] and [SECTION] [ACT], [SECTION] of the [ACT] and [SECTION] of the [ACT].
2. The case of the prosecution is that on 06.07.2011, Shri [ENTITY], SHO, Police Station Sir Mathura, having received information, proceeded with force towards the temple of [ENTITY] and the road coming from [ENTITY] where they had put barricade on the road. At about 5.20 pm., one motorcycle with two persons came from [ENTITY] and a plastic cane was kept between them on the motorcycle. When the police party tried to intercept the motorcycle, on having seen the persons in police uniform the accused ran towards the jungle after throwing away the motorcycle. Subsequently, the police personnels succeeded in catching the person who was driving the motorcycle and on the enquiry made from him, it was revealed that he was the petitioner [ENTITY]. Further, it was found that he was carrying a country made pistol of 315 bore which was loaded with one live cartridge. He had disclosed the name of the other person traveling on the motorcycle as [ENTITY]. On further checking made by the police, it was found that the plastic cane contained liquor prepared from spirit and the accused persons were not possessing any document with regard to liquor, country made pistol or cartridge carried by them, in the form of licence or permit.
3. The motorcycle was also found to be a stolen one. After preparing the seizure memos of the articles recovered, the accused was arrested and taken to the police station. Thereupon the instant first information report (234/2011) was registered for the offences under [SECTION] [ACT], [SECTION] of the [ACT] and [SECTION] of the [ACT]. The investigation commenced thereafter.
4. The bail application filed by the accused petitioner was dismissed by the learned Magistrate and thereafter by the learned Sessions Judge, Dholpur on 15.07.2011 against which the present bail application has been filed.
5. The learned counsel for the accused petitioner has submitted that no offence has been committed by the accused and he has been falsely implicated. Further, he has submitted that none of the offences alleged against the accused petitioner are made out in the present case and the entire prosecution version is a concocted one. He has also submitted that the learned Sessions Judge, Dholpur has erred in rejecting the bail application of the accused petitioner on the ground that other criminal cases are pending against him as the same cannot be the question of consideration for grant of bail. In support of his submission, he has placed reliance on the cases of [PRECEDENT] and Shri [ENTITY] vs. State of Sikkim, RLW 2001(3) SC 375.
6. On the other hand, the learned Public Prosecutor has seriously opposed the bail application. He has submitted that the accused petitioner had not only been caught on the spot but fire arm as well as illicit liquor were recovered from him. Further, he has submitted that the accused petitioner is a habitual offender and six other cases under various offences are pending against him which were registered at different police stations. Therefore, he has submitted that background of the accused, his antecedents, impact on the society on his release, the possibility of retribution, larger interest of the public and other similar factors are relevant questions while considering the question of bail to an accused. He has submitted that similar submissions, made by the counsel for the petitioner, had been considered by this Court in the case of [PRECEDENT], decided on 03.08.2011 and the bail application was dismissed.
7. The submissions made by the counsel for the rival parties as well as the material on record, including the impugned order dated 15.07.2011 passed by the learned court below have been carefully considered by this Court. List of cases pending against the petitioner, given by the SHO concerned, has also been placed on record by the prosecution. At the outset, it may be noted that while considering the bail application of an accused, it is the cumulative effect of all the combined circumstances which must weigh with the Court and the considerations are too numerous to be classified or catalogued extensively. It is also true that the liberty of a person is of a paramount consideration and the same is to be kept in mind at the time of bail. But the Court has to take note of all the relevant factors, in the facts and circumstances of each case, so as to keep a balance between the individual accused; the complainant/ victim and the society as well.
8. As early as in the year 1989, the Hon'ble Supreme Court, in the case of [PRECEDENT], while considering the principles for bail, in para 7, had held as under:
Liberty occupies a place of pride in our socio-political order. And who knew the value of liberty more than the founding fathers of our [ACT] whose liberty was curtailed time and again under Draconian laws by the colonial rulers. That is why they provided in [SECTION] of the [ACT] that no person shall be deprived of his personal liberty except according the procedure established by law. It follows therefore that the personal liberty of an individual can be curbed by procedure established by law. The [ACT], is one such procedural law. That law permits curtailment of liberty of anti-social and anti-national elements. [SECTION] casts certain obligations on the authorities in the event of arrest of an individual accused of the commission of a crime against society or the Nation. In cases of under-trials charged with the commission of an offence or offences the court is generally called upon to decide whether to release him on bail or to commit him to jail. This decision has 'to be made, mainly in non-bailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution, etc.
9. Later on, the Larger Bench of the Hon'ble Apex Court, after considering in detail the case law on the point, had laid down in the case of [PRECEDENT], in para 16 as under:-
The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in [PRECEDENT] and [PRECEDENT] and basically they are- the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case
10. In order to elaborate the aforesaid principles for consideration of bail, particularly in respect of the larger interest of the public or the state and other similar factors, background, antecedents, past conduct/ record of the accused, are certainly relevant factors which need to be looked into by the Court. It is for the interest of the culprit/ victim and public at large that such factors are relevant while granting bail.
11. The Hon'ble Supreme Court in the case of [PRECEDENT], has laid down, in para 8, as under;-
This Court while setting aside the bail granted to the accused at earlier occasion had specifically said that the fact that accused had several other accusations to his credit had not received consideration at the hands of the High Court. In the bail application which was filed afresh in the High Court wherein the impugned order has been passed on 27.05.2004, the applicant had himself given details of seven criminal cases in which he is involved
Instead of giving due consideration to the aforesaid fact, namely, on account of involvement of the accused in several other criminal cases whether a discretion of granting bail should be exercised in his favour, the learned Judge merely said that when the bail application was heard by him at the earlier stage, the fact regarding involvement of the accused in other cases was not brought to his notice
12. Subsequently, in the case of [PRECEDENT], the Hon'ble Supreme Court, in paras 18, 19, 20, 21, 22 and 28, had observed as under;-
18. The High Court by the impugned order has granted bail to the respondent [ENTITY] (in the second case) on three grounds- (i) that the respondent was in judicial custody since March 2004; (ii) that trial had yet not commenced and no prosecution witness had been examined; and (iii) that the Court had tested the respondent twice by granting temporary bail to him with stringent conditions for a duration of one month each i.e. From 27-12-2005 to 27-1-2006 and 6-3-2006 to 5-4-2006 and, on both the occasions, the respondent had surrendered within time, without breach of any of the conditions.
19. From a reading of the impugned order it is found that the learned Judge, who incidentally happens to be the same Judge who had declined to release the respondent on bail earlier, did not advert to any of the reasons given by him declining to release the respondent on bail. There was no change of circumstances. The reasons given by the learned Judge in the impugned order for grant of bail are untenable.
20. That the respondent did not misuse his liberty while on temporary bail twice by itself is no ground to grant bail in a murder case especially when he was allegedly involved in a subsequent case of murder. It may be mentioned here that apart from the present two cases of murder, respondent has been named in 10 other criminal cases in the last 25 years or so, out of which 5 cases were under [SECTION] [ACT] for attempt to murder and another under [SECTION] [ACT] for committing murder. We are informed at the Bar that the respondent has been acquitted in most of the cases for want of sufficient evidence. This speaks volumes. We refrain from saying anything further, lest it may prejudice the trial in these two cases.
21. The other reason given in the impugned order is that the trial of the case has not progressed / begun. We find from the record that between 2-6-2004 and 19-12-2005 the case was listed before the trial court 31 times and on each date, it had to be adjourned on the ground that one or the other accused was not present. There are 16 accused in the case. It is not clear from the record whether the accused were not brought by the police from the jail or that they were on bail and had not appeared of their own, but the fact remains that the complainants were not in any way instrumental in delaying the trial between 2-6-2004 and 19-12-2005. It was brought to our notice that the only witness who has been examined so far has turned hostile. Trial was stayed by the High Court on 15-2-2007 at the instance of the appellant as Shri [ENTITY], APP, to whom the case had been assigned for conducting the trial and was allegedly the counsel for the respondent in some other case earlier, continued to appear in the case in spite of the fact that he was replaced by another APP. It just shows that the trial was not progressing smoothly. In any case, the complainant party was in no way responsible for any delay in trial.
22. The third reason given by the High Court for grant of bail, that the respondent had been in jail for the last more than 2 years, is equally untenable in view of the observations made by this Court in [PRECEDENT]:
19 '14 the condition laid down under [SECTION] is sine qua non for granting bail even under [SECTION] of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail." [Underlining is ours]
28. Taking the overall view of the entire matter and in particular of the antecedents of the respondent [ENTITY], the alleged statements made by the witnesses, who were present at the spot, to the police and the admitted enmity between the parties (which is a double edged weapon to commit the crime as well as to falsely implicate), we are of the view that it was not a fit case to grant bail to the respondents in this case as well. Without elaborating further, we set aside the impugned orders granting bail to the respondents. Respondents are directed to surrender to the judicial custody forthwith. In case, the respondents do not surrender within seven days, steps be taken, in accordance with law, to apprehend them.
13. After considering the facts of the present case as well as number of criminal cases against the accused petitioner and the nature of accusation against him, the case of Shri [ENTITY] (supra) would be of no assistance to him. Moreover, the Hon'ble Apex Court, in the subsequent cases referred to above, has very categorically laid down that background, antecedents and pending cases against accused are relevant considerations and even if he has been discharged/ acquitted in some cases, it is not of much consequence while considering bail in criminal cases subsequently registered against him. In the contemporaneous times, the interest of public at large, law and order of the society and to restrain repetition of offences by accused persons are certainly considerations which cannot be overlooked by the Court while deciding a bail application. The balance between the individual interest and social interest has to be maintained which is the need of hour and to ignore the criminal record of an accused would certainly amount to failing in duty and responsibility which a court of law is to perform.
14. Consequently, there is no just reason to enlarge the petitioner on bail and the bail application is dismissed.
However, the trial in this case be held expeditiously.
([ENTITY]
[ENTITY]
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
[ENTITY] Junior Personal Assistant.