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2022 DIGILAW 162 (MAN)

Mohammed Abdul Nasir v. State of Manipur

2022-08-17

M.V.MURALIDARAN

body2022
JUDGMENT 1. The petition has been filed by the petitioner under Section 438 Cr.P.C. seeking to enlarge him on bail in event of arrest in connection with the FIR No.58(6)2021 under Sections 379/411/482/ 483/468/34 IPC on the file of Lilong Police Station. 2. Heard Mr. Th. Babloo, learned counsel for the petitioner and Mr. Y. Ashang, the learned Additional Public Prosecutor for the respondents. 3. The case of the prosecution is that on 1.6.2021 at about 10.00 a.m., the Sub-Inspector of Police Ng. Arunkumar Singh on reliable information that some stolen Honda Activa were concealing at the residence of Phusam Mustak of Lilong Chingkham Makha rushed to the said residence along with his team. On reaching the spot, found two unknown person in a suspicious manner and they were detained for verification. On verification, they identified them as Phusam Mustak and Phusam Altaf. On further searching, the team found one suspected Honda Activa bearing No. Nil parking at the shed. On enquiry, they disclosed that they had purchased one stolen Honda Activa bearing No.MNO1AF-8153 from one Md. Imtiyas Shah with tampered chasis number and engine number. Further case of the prosecution is that the chasis number and engine number were tampered by Md. Abdul Nasir (petitioner) and the fake RC book of the above vehicle and RC book were seized by preparing seizure memo from the possession of Phusam Mustak and thereafter, arrested the above two persons. 4. According to the prosecution, the team thereafter rushed to the residence of Md. Imtiyas Shas, but he was not found at his residence. On further follow up action, the team rushed at the residence of Md. Abdul Nasir, but he was not found at his residence absconding police arrest. On further searching of the residence, they found three suspected stolen two wheelers and later on they were seized by preparing a formal seizure. 5. Resisting the petition, the respondent police filed counter stating that the petitioner has been granted interim bail by the Sessions Court. Though the petitioner appeared on 17.8.2021, thereafter, he failed to appear. It is stated that during examination, the petitioner diverting the charge against him. Therefore, in order to ascertain the real involvement in the case, the custodial interrogation of the petitioner is highly required. 6. Mr. Th. Though the petitioner appeared on 17.8.2021, thereafter, he failed to appear. It is stated that during examination, the petitioner diverting the charge against him. Therefore, in order to ascertain the real involvement in the case, the custodial interrogation of the petitioner is highly required. 6. Mr. Th. Babloo, the learned counsel for the petitioner submitted that the petitioner is not named in the FIR and he is just implicated falsely by the named accused in the FIR, as an act of revenge for the earlier scuffle. He would submit that there is sufficient reasons or likelihood of the petitioner being arrested by the police and in case the petitioner is arrested by the respondent police, his family will be suffered, as he is the bread winner of the family. 7. The learned counsel further submitted that earlier the petitioner approached the learned Sessions Judge, Thoubal by filing Crl. Misc. (AB) No.75 of 2021. By the order dated 2.8.2021, the learned Sessions Judge granted interim anticipatory bail, however, by the order dated 4.9.2021, the application rejected. 8. The learned counsel then submitted that the petitioner will not leave the station without the permission of the Court and will abide by the conditions imposed by this Court. The learned counsel urged that even assuming but not admitting that the petitioner has any nexus with the FIR, being a respectable and responsible citizen, he is not likely to abscond or otherwise misuse the liberty on bail. Therefore, there is no justification to require him in custody for investigation of the case. Thus, a prayer is made for grant of anticipatory bail. 9. Per contra, Mr. Y. Ashang, the learned Additional Public Prosecutor submitted that the investigation reveals commission of cognizable offence by the petitioner and the other accused. It is the statutory duty of the investigating officer to investigate the case and, as such, naming of the petitioner is not the mandatory for investigating the case. He would submit that it is to be ascertained only during the course of investigation. As such, not named the petitioner in the FIR is not a ground for granting anticipatory bail. More so, in the interest of proper investigation, custodial interrogation of the petitioner is highly necessary in order to find out the truth. Thus, a prayer is made to dismiss the petition. 10. As such, not named the petitioner in the FIR is not a ground for granting anticipatory bail. More so, in the interest of proper investigation, custodial interrogation of the petitioner is highly necessary in order to find out the truth. Thus, a prayer is made to dismiss the petition. 10. This Court considered the rival submissions and also perused the materials available on record. 11. The grievance of the petitioner is that he has not committed any offence and he is innocent. When the petitioner was away from his residence, the police personnel of Lilong Police Station came to the residence of the petitioner and enquired about him. Being suspicious, the petitioner through friends enquired about the matter and learnt that the arrested two accused namely Pusham Mustak and Pusham Altaf have named the petitioner to the police while they were interrogated during police custody alleging that all the illegal acts were done by the petitioner. According to the petitioner, the allegation levelled against him by the arrested accused is not correct. If the petitioner has really committed any offence, his name would have been mentioned in the FIR and on the other hand, the petitioner has been falsely implicated in this case. Earlier the petitioner has filed anticipatory bail application before the learned Sessions Judge, who initially granted interim anticipatory bail and finally, dismissed the petition. Thereafter, the petitioner has filed this petition before this Court. 12. Admittedly, the allegation levelled against the petitioner cannot be gone into at this stage, as the same would involve oral and documentary evidence. On a perusal of the FIR, this Court finds that the FIR No.58(6)2021 was registered against Pusham Mustak and Pusham Altaf only and the petitioner's name not found. 13. It is to be noted that earlier the petitioner approached the learned Sessions Judge, Thoubal for anticipatory bail. Though the learned Sessions Judge granted interim anticipatory bail with certain conditions, finally by the order dated 4.9.2021, dismissed the petition. After the dismissal, the petitioner has approached this Court for anticipatory bail apprehending arrest in the hands of the respondent police. 14. When a person apprehends arrest and approaches a Court for anticipatory bail, his apprehension, has to be based on concrete facts relatable a specific offence or particular of offences and not vague or general allegations. After the dismissal, the petitioner has approached this Court for anticipatory bail apprehending arrest in the hands of the respondent police. 14. When a person apprehends arrest and approaches a Court for anticipatory bail, his apprehension, has to be based on concrete facts relatable a specific offence or particular of offences and not vague or general allegations. Applications for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. In the instant case, the petitioner has narrated the facts relating to the offence and also apprehension in the petition. 15. The provision of anticipatory bail enshrined in Section 438 of Cr.P.C. is conceptualized under Article 21 of the Constitution of India. It relates to personal liberty of a particular person and such a provision calls for liberal interpretation of Section 438 of Cr.P.C. in the light of Article 21 of the Constitution of India. 16. Section 438 of Cr.P.C. clearly stipulates in the beginning statement itself that when a person has a reasonable apprehension to believe that they can be arrested on an accusation for commitment of a non-bailable offence, they can move the High Court or the Court of Sessions for grant of an anticipatory bail. The power to grant anticipatory bail must be exercised by the Court in very exceptional cases. The Court must be satisfied that there is a reasonable cause and a reasonable ground for grant of anticipatory bail. Section 438 Cr.P.C. protects the right to life and personal liberty of such persons by providing them with a remedy against frivolous detention. In a country where rifts and rivalries are common, its citizens should have a remedy which prevents disgracing their right to life and personal liberty. 17. In Bhadresh Bipinbhai Sheth v. State of Gujarat and another, reported in (2016) 1 SCC 152 , the Hon'ble Supreme Court has laid down certain guidelines in respect of application for anticipatory bail. In paragraph 25.10, the Hon'ble Supreme Court held as under: '25.10. 17. In Bhadresh Bipinbhai Sheth v. State of Gujarat and another, reported in (2016) 1 SCC 152 , the Hon'ble Supreme Court has laid down certain guidelines in respect of application for anticipatory bail. In paragraph 25.10, the Hon'ble Supreme Court held as under: '25.10. We all also reproduce para 112 of the judgment in Siddaram Satingappa case, wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail: (a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (c) The possibility of the applicant to flee from justice; (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the Court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern; (h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. (j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.' 18. As held by the Hon'ble Supreme Court in Bhadresh Bipinbhai Sheth (supra), frivolity in prosecution should always be considered and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. It should necessarily depend on facts and circumstances of each case in consonance with the legislative intention. 19. The law is well settled that anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the Court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. Presumption of innocence is a human right. No doubt, placing of burden of proof on accused in certain circumstances may be permissible, but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law. 20. It is the duty of the Court to exercise its jurisdiction in proper way to protect the personal liberty of a citizen. If Courts do not interfere, we are troubling the path ondestruction. This proposition of law has been laid down by the Hon'ble Supreme Court in its recent decision in the case of Arnab Manoranjan Goswami Vs. The State of Maharashtra and Others, decided on 11.11.2020. 21. Considering the facts and circumstances of the case and in the absence of any indication that the petitioner will flee the process of law and the undertaking given by the petitioner that he is not likely to abscond or otherwise misuse the liberty on bail, this Court is of the opinion that anticipatory bail can be granted to the petitioner by imposing appropriate conditions. 22. In view of the above, the application is allowed. Accordingly, in the event the petitioner is arrested in FIR No.58(6) registered under Sections 379/462/483/468 on the file of the Lilong Police Station, he shall be released on bail on the following conditions: (a) The petitioner shall furnish personal bond of Rs.25,000/- (Rupees Twenty Thousand)with two sureties each in the like amount. Accordingly, in the event the petitioner is arrested in FIR No.58(6) registered under Sections 379/462/483/468 on the file of the Lilong Police Station, he shall be released on bail on the following conditions: (a) The petitioner shall furnish personal bond of Rs.25,000/- (Rupees Twenty Thousand)with two sureties each in the like amount. (b) The petitioner and the sureties shall affix their photographs and left thumb impression in the surety bonds. (c) The petitioner shall cooperate with the investigation. (d) The petitioner shall appear before the respondent police daily at 10.00 a.m. for 2(two) weeks and thereafter as and when required. (e) The petitioner shall not tamper with the evidence or influence the witnesses. (f) On breach of any of the aforesaid conditions, the respondent police is entitled to take appropriate action against the petitioner in accordance with law. (g) If the accused thereafter absconds, a fresh FIR can be registered under Section 229-A IPC. 23. It is made clear that the observations made in this order are limited to the question of considering the anticipatory bail to the petitioner.