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2022 DIGILAW 1442 (ALL)

Satish Sachan v. State of U. P.

2022-09-12

SUBHASH VIDYARTHI

body2022
JUDGMENT : 1. Heard Sri Agni Pal Singh, the learned counsel for the applicant, Sri Dinesh Kumar Srivastava, the learned Additional Government Advocate, Sri Meraj Ahmad Khan, the learned counsel for the informant and perused the record. 2. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 481 of 2020, under Sections 147, 148, 149, 307, 452, 324, 504, 506 IPC, Police Station Ghatampur, District Kanpur Dehat during pendency of the trial in the Court below. 3. The aforesaid case has been registered on the basis of an F.I.R. lodged on 05.10.2020 at 20:36 hours against the applicant -Satish Sachan and three other named accused persons (1) Uttam Tiwari (2) Ravi Sachan and (3) Bauwa Sachan and six unknown persons alleging that all the accused persons had abused the informant's father and uncle and the applicant had assaulted the informant's uncle on the chest with a Barchchi (a sharped edged weapon). It is alleged that co-accused Uttam Tiwari had assaulted on the head of the informant's father with an axe. The medico legal examination report of both the accused persons mentions that both of them had suffered only simple injuries. 4. In the affidavit filed in support of the bail application, it has been stated that the applicant has been falsely implicated in the present case. The incident took place because of a dispute between the parties regarding a piece of agricultural land. The affidavit contains an undertaking that if the applicant is released on bail, he will not misuse the liberty and will not tamper with the evidence. 5. It has further been stated that the applicant is a recorded tenure holder of land bearing Gata No. 242 Kh and the informant and some other persons of his side were ploughing the applicant’s field and when the applicant resisted it, they had beaten up the applicant and one Gore Sachan. On the same day i.e. on 05.10.2020, the applicant had lodged a Non Cognizable Report at 23:08 hours against the informant Raja Singh, his father Dinesh Singh and his uncle Sumant Singh complaining about the aforesaid incident. The medico legal examination reports of the applicant and Gore Sachan have been annexed with the affidavit, which indicate that both of them had suffered multiple injuries of simple nature. 6. The medico legal examination reports of the applicant and Gore Sachan have been annexed with the affidavit, which indicate that both of them had suffered multiple injuries of simple nature. 6. Although in the affidavit it has been stated that the applicant has no criminal history, but when it was pointed out that this statement is wrong, a supplementary affidavit has been filed on behalf of the applicant, in which the following criminal history of the applicant has been stated: - (i) Case Crime No. 173 of 2005 under Sections 302/34 IPC, in which the applicant has been acquitted by means of an order dated 25.01.2011 passed by the Trial Court. (ii) Case Crime No. 214 of 1995, under Section 214/95, in which the applicant has been acquitted by means of an order dated 11.03.2008. (iii) Case Crime No. 1562 of 2008 under Sections 323, 325, 504 IPC, in which the applicant has been acquitted by means of an order dated 01.09.2008. (iv) The applicant has been convicted in the judgment dated 21-06-2007 passed by the Additional Sessions Judge / Fast Track Court No. 2, Kanpur Nagar in Session Trial No. 1547, 1547A, 1546 and 1546 A of 1990 of offences under Section 307/34, I.P.C. and 25 Arms Act, for which he has been sentenced to imprisonment for 7 years and 3 years respectively and he has challenged the aforesaid judgment and order by filing Criminal Appeal No. 5608 of 2007, which has been admitted by this Court by means of an order dated 14-09-2007 and the execution of sentence has been suspended by this Court. (v) Case Crime No. 84 of 2008 under Sections 147, 148, 307/149 IPC, in which the applicant has been acquitted by means of a judgment and order dated 25.08.2009 passed by the trial court. (vi) In case crime No. Nil/1996 under Sections 41/411 I.P.C, the applicant has been acquitted by means of the judgment and order dated 18-02-2020 passed by the Judicial Magistrate Ghatampur in Case No. 620 of 2009. Copies of the aforesaid orders have been annexed with the supplementary affidavit. 7. The applicant is languishing in jail since 07.10.2020 whereas co-accused person Uttam Tiwari has been granted bail by means of an order dated 01.02.2021 passed by this Court in Criminal Misc. Bail Application No. 48365 of 2020. 8. Copies of the aforesaid orders have been annexed with the supplementary affidavit. 7. The applicant is languishing in jail since 07.10.2020 whereas co-accused person Uttam Tiwari has been granted bail by means of an order dated 01.02.2021 passed by this Court in Criminal Misc. Bail Application No. 48365 of 2020. 8. Per contra, the learned Additional Government Advocate and Sri Meraj Ahmad Khan, the learned counsel for the informant have opposed the prayer for grant of bail. The learned counsel appearing for the informant has submitted that the applicant has already been convicted and he is not entitled to be granted bail in view of the specific provision contained in Section 437 (1) (ii). He has next submitted that the applicant has not approached this Court with clean hands as in Paragraph No. 24 of the affidavit filed in support of the bail application, it has been stated that the applicant is neither a previous convict nor does he have any criminal history. 9. Section 437 of Criminal Procedure Code provides as follows: - “437. 9. Section 437 of Criminal Procedure Code provides as follows: - “437. When bail may be taken in case of non-bailable offence.— (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but— (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: * * * 10. It becomes manifest on a bare reading of Section 437, that this provision does not apply to applications seeking bail under Section 439 of the Code filed before the High Court and it even does not apply to the bail applications filed before the Session Court. 11. It becomes manifest on a bare reading of Section 437, that this provision does not apply to applications seeking bail under Section 439 of the Code filed before the High Court and it even does not apply to the bail applications filed before the Session Court. 11. Moreover, even the Courts to which the provisions of Section 437 apply, are not absolutely barred from granting bail to a person if he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years, as the Second Proviso appended to sub-section (1) of Section 437 provides that a person referred to in clause (ii) may be released on bail if the Court is satisfied that it is just and proper so to do for any other special reason. 12. The power of the High Court and even the Court of session to grant bail are ‘special powers’ provided under Section 439 of the Code, which provides as follows: “439. Special powers of High Court or Court of Session regarding bail.— (1) A High Court or Court of Session may direct— (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice:” * * * 13. Section 439 of the Code contains a reference to Section 437 thereof only to the extent that if the offence is of the nature specified in subsection (3) of Section 437, while granting bail to the accused, the High Court or Court of Session may impose any condition which it considers necessary for the purposes mentioned in that sub-section. Section 439 of the Criminal Procedure Code conferring special powers of High Courts and Session Courts, is a provision of a special character whereas Section 437 contains a general provision regarding grant of bail in non-bailable offences. It is a well-established rule of interpretation, that a special provision will take precedence over and override a general provision of law. Therefore, the provision contained in Section 439 of the Code will take precedence over Section 437 of the Code and the bar contained in Section 437 (1) (ii) of the Code will not limit the special powers of the High Court under Section 439 of the Code. I, therefore, reject the submission of counsel for the respondent based on Section 437 of the Code. 14. Now I come to the second objection raised by the learned Counsel for the informant that it has been falsely stated in para 24 of the affidavit filed in support of the bail application that the applicant has no criminal history, which indicates that the applicant has not come before this Court with clean hands and the bail application is liable to be rejected on this ground. In this regard, it has to be noticed that the applicant is languishing in jail since 07.10.2020 and the affidavit has been filed by one Beena Devi wife of Ravi Shankar, who is a housewife and who is the sister-in-law of the applicant and she has verified the contents of para 24 of the affidavit to be true on the basis of her personal knowledge. Neither the applicant has signed the affidavit nor has he provided any false information regarding his criminal history to the deponent of the affidavit. Neither the applicant has signed the affidavit nor has he provided any false information regarding his criminal history to the deponent of the affidavit. Upon the applicant’s criminal history being pointed out, his wife has filed a supplementary affidavit mentioning the details of the facts regarding the cases in which the applicant has been implicated and in that supplementary affidavit, it has specifically been averred that the applicant is convicted and that the appeal against the order of conviction has been admitted by this Court and sentence passed against the applicant has been suspended by means of an order dated 14.09.2007 passed in Criminal Appeal No. 5608 of 2007. Therefore, I do not find the second objection of the learned Counsel for the informant to be tenable. 15. The law regarding grant of bail has been explained in numerous decisions of the Hon'ble Supreme Court and it will be apt to refer to a few of those judgments. 16. In Sanjay Chandra v. CBI, (2012) 1 SCC 40 , the Hon’ble Supreme Court has observed that: “21. 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 is required to ensure that an accused person will stand his trial when called upon. The courts owe more 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. 22. 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. 22. 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. 23. Apart from the question of prevention being the object of 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.” 17. In the case of Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22 , the Hon'ble Supreme Court was pleased to reiterate the law of bail in the following words:— “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. ** * 5. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. ** * 5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India [ (2018) 11 SCC 1 ] going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab [ (1980) 2 SCC 565 ] in which it is observed that it was held way back in Nagendra v. King-Emperor [AIR 1924 Cal 476] that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson [ AIR 1931 All 356 ] wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.” 18. In Emperor v. H. L. Hutchinson AIR 1931 All 356 , this Court had held that an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. 19. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. 19. Having considered the submissions made by the learned Counsel for the parties in light of the law explained in the above referred judgments and gone through the record, I find the following factors to be relevant for deciding the application for grant of bail to the applicant: - (i) The applicant claims himself to be a recorded tenure holder of a certain piece of land and the incident took place because the informant and some other persons of his side also claim rights in respect of the same land; (ii) The applicant had lodged a Non Cognizable Report of the incident promptly on the same day i.e. on 05.10.2020, at 23:08 hours against the informant Raja Singh, his father Dinesh Singh and his uncle Sumant Singh complaining about the incident; (iii) The medico legal examination reports of the applicant and Gore Sachan indicate that both of them had suffered injuries in the incident; (iv) The present case prima facie appears to be a cross case and it is yet to be ascertained as to who was the aggressor; (v) The F.I.R., alleges assaults made by sharp edged weapons by the applicant as by the co-accused Uttam Tiwari and the assaults made by both of them are said to have resulted in simple injuries to two brothers, and the co-accused Uttam Tiwari has already been granted bail by means of an order dated 01.02.2021 and the case set up against the applicant is similar to that set up against the co-accused Uttam Tiwari; (vi) Although the applicant has a criminal history of six cases, in five cases he has already been acquitted and the appeal filed by the applicant against the conviction in the sixth case has been admitted by this Court and the order of sentence has been suspended by this Court; (vii) The affidavit filed in support of the bail application contains an undertaking that if the applicant is released on bail, he will not misuse the liberty and will not tamper with the evidence and nothing has been said in the counter affidavit so as to raise a reasonable doubt against this undertaking ; (viii) As the applicant is claiming title to the land which appears to be the root cause of the incident, there appears to be no reasonable probability of his absconding, in case he is released on bail. 20. In light of the preceding discussion and without making any observation on the merits of the case, the instant bail application is allowed. 21. Let the applicant Satish Sachan be released on bail in Case Crime No. 481 of 2020, under Sections 147, 148, 149, 307, 452, 324, 504, 506 IPC, Police Station Ghatampur, District Kanpur Dehat on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below, subject to the following conditions:- (i) The applicant will not tamper with the evidence during the trial. (ii) The applicant will not influence any witness. (iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. (iv) The applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence. 22. In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.