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2021 DIGILAW 175 (ORI)

Mukesh Jain v. State Of Odisha

2021-04-06

S.K.PANIGRAHI

body2021
JUDGMENT 1. The petitioner has filed the instant application under Section 439 of Cr. P.C seeking bail in connection with C.I.D. Cyber Crime P.S. Case No.16 of 2020 corresponding to G.R. Case No.691 of 2020 pending before the court of the learned Judicial Magistrate First Class (City), Cuttack. The petitioner herein is the accused in connection with alleged commission of offences punishable under Sections 150/153/153-A/506 of the Indian Penal Code. 2. The case of the prosecution is that on 22.06.2020 at about 5:45 P.M., the Inspector of Police, CID Crime Branch, Odisha, Cuttack (informant) submitted a written report before the Superintendent of Police, CID, Crime Branch, Odisha to the effect that the petitioner claiming himself as the National Chairman Dharma Rakshyak Shree Darasena circulated WhatsApp messages (Mobile No.7292005711) casting aspersion upon the impartiality of the Hon'ble Judges of the Supreme Court especially the Hon'ble Chief Justice of India and provoking his likeminded people to mobilize and congregate in front of the residence of the Hon'ble Chief Justice of India to assault him physically. It is further alleged in the FIR that the rest part of the WhatsApp messages has been sent with an intention to promote enmity between different groups on the ground of religion. Thereafter the petitioner has been taken into custody. 3. Heard Mr. S.D. Das, learned Senior Counsel appearing for petitioner and Mr. Sk. Zafarulla, learned Additional Standing Counsel for the State-opposite party and perused the case records. 4. Learned counsel for the petitioner has contended that the learned 2nd Additional Sessions Judge, Cuttack has rejected the bail application of the petitioner without applying his judicial mind and without taking into consideration the facts and documents on record and has wrongly relied on the version of the informant. The petitioner has been falsely implicated in the above said case. Further, he has contended that the prosecution story is totally false and fabricated and has been made in accordance with the direction of police with malicious intent. The alleged offences have not been committed by the petitioner and there is no connection or involvement of the petitioner with the alleged WhatsApp conversation. Moreover, there is no evidence on record to show whether the petitioner provoked a third party or the method of such provocation. Learned counsel has further contended that Section 196(1) of Cr. The alleged offences have not been committed by the petitioner and there is no connection or involvement of the petitioner with the alleged WhatsApp conversation. Moreover, there is no evidence on record to show whether the petitioner provoked a third party or the method of such provocation. Learned counsel has further contended that Section 196(1) of Cr. P.C. provides that no court shall take the cognizance of offence under Section 153A of the Indian Penal Code without the prior sanction of the Central and State Government, and in the present case no such sanction has been granted to the prosecution. Moreover, the petitioner is a person of good character awarded with many accolades many times in different cities in India. Therefore, it is submitted that all the allegations made in the FIR are patently false which can be seen at the perusal of the FIR itself and there is not even a single allegation, which makes out the offence and the alleged WhatsApp messages were sent only to four persons after his phone was hacked at midnight by professional hackers while the petitioner was asleep. Hence, he should be granted bail. 5. On the contrary, Mr. Zafarulla, the learned counsel for the State has contended that the offences alleged against the petitioner are very serious in nature. On perusal of the FIR, statements recorded under Section 161 Cr. P.C., seizure list and screenshots of the alleged WhatsApp messages, it is clear that the petitioner has maliciously attempted to create aspersions on the sanctity of Indian judiciary and especially the Office of the Hon'ble Chief Justice of India, giving rise to promotion of religious disharmony and glorifying murders. Additionally, the petitioner may tamper with prosecution evidence, if released on bail, and therefore the prayer for bail deserves to be rejected. 6. On bare perusal of the Case Diary, it is noted that police, during the course of investigation, have seized the mobile handset from the possession of the present petitioner through which the alleged messages were texted and sent in large scale. Even though the necessary documents show that the petitioner's son is the registered owner of the SIM card bearing mobile No.7292005711, the fact remains that the said mobile handset with the SIM card were seized from the possession of the present petitioner. Even though the necessary documents show that the petitioner's son is the registered owner of the SIM card bearing mobile No.7292005711, the fact remains that the said mobile handset with the SIM card were seized from the possession of the present petitioner. The petitioner is allegedly involved in a good number of criminal cases of similar nature in different parts of the country and has the habit of not attending the court proceedings on the dates of posting of those cases pending in those courts. 7. Section 153-A of IPC provides for punishment for promoting enmity between different groups on ground of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever or brings about disharmony or feeling of hatred or ill-will between different religious, racial, language or regional groups or castes or communities. It is only where the written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or affect public tranquility that the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A, IPC and the prosecution has to prove the existence of mens rea in order to succeed. It is also important that Section 196(1)(a) of Cr. P.C. mandates the prior sanction of the Central Government for proceeding to prosecute the accused for that offence. The prosecution has failed to show that such sanctions have been obtained. 8. The basic rule in respect of an accused in a cognizable, non-bailable offence, and an under-trial is to grant him bail. The option to commit him to jail is the exception. This is because refusal of bail is a restriction on the personal liberty of the individual, which is guaranteed under Article 21 of the Constitution and, therefore, the personal liberty of the accused/ under trial should not be curbed lightly. The Supreme Court also referred to Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281 , wherein the concept and philosophy of bail was discussed by the said Court as follows: '6. 'Bail' remains an undefined term in CrPC. 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. 'Bail' remains an undefined term in CrPC. 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 sum 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 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. 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. 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.' Further, in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 , wherein the principles, which the Court must consider while granting or declining bail, have been culled out by the Supreme Court as follows: '8. The jurisdiction to grant bail has to be exercised on the basis of well-settled 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 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.' 9. Having considered the matter in the aforesaid perspective, guided by the precedents cited hereinabove and the length of detention of the petitioner in custody, this Court is inclined to allow the prayer of the petitioner. Accordingly, the court in seisin over the matter will enlarge the petitioner on bail by imposing some stricter terms and conditions as deems fit and proper with further conditions that:- (i) The petitioner shall cooperate with the investigation as and when required by the Investigating Officer; (ii) He shall not indulge himself in any criminal activities in future; (iii) he shall not mis-utilise the liberty granted to him and (iv) he shall remain present before the trial court on each date of hearing of the case till its conclusion. Violation of any of the aforesaid conditions shall entail automatic cancellation of the bail. However, it is made clear that any of the observation made hereinabove with respect to the facts of the case, shall not come in the way or prejudicially affect the fair trial of the present case. The Bail Application is accordingly disposed of.