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2022 DIGILAW 222 (MAN)

Sajish Khan v. State of Manipur

2022-11-14

M.V.MURALIDARAN

body2022
JUDGMENT 1. This petition has been filed by the petitioner under Section 439 Cr.P.C. praying to enlarge him on bail in connection with FIR No.33(05)2022 under Sections 342/364/34 IPC added Section 302 IPC on the file of Lilong Police Station. 2. The case of the prosecution is that on 21.5.2022 one Md. Abdul Barik of Yairipok Changamdabi Makha Leikai lodged a complaint to the Superintendent of Police, Thoubal stating that on 16.5.2022 at about noon hours, his son Md. Abdullah left his house being accompanied by three persons, namely Md. Baksar, Sajish Khan and M.Tarique Aziz and his son did not return. On 20.5.2022, it was known from the persons who accompanied with his son that his son was kidnapped and abducted and also wrongfully confined without any reason. Hence, the complainant filed a complaint before the Superintendent of Police. Upon receipt of the complaint, the same was forwarded to Lilong Police Station and the Officer-in- Charge of Lilong Police Station registered the case in FIR No.33(5)2022 under Section 342, 364/34 IPC against Md.Mujibur and others. During the course of investigation, on 22.5.2022 at about 2.00 p.m., an information was received that an unidentified body later identified to be the missing Md. Abdullah was found floating on Imphal river at Arong Nongmaikhong. Thereafter, the investigating officer altered Section 302 IPC. 3. Mr. M. Gunedhor, the learned counsel for the petitioner submitted that the petitioner is innocent and he has been falsely implicated in this case. He would submit that on 16.5.2022 at 12.00 noon, one Tabasum and Regina (Tabasum's sister) invited the deceased Md. Abdullah for dinner. The deceased along with three of his friends, namely, the petitioner, Md. Baksar and Tarique Aziz went to Rajina Begum's place to have dinner. At around 8.00 p.m., the accused and the deceased were told by Regina Begum to take her sister Tabasum along with them. As they disagree, it led to a heated argument amongst themselves. Thereafter, the petitioner along with two of his friends left the said place leaving the deceased Md. Abdullah at Regina's place and the deceased did not return home the said night. The petitioner on the same night informed parents of the deceased about the confinement by Tabasum, Regina Begum, Mijibur Rahaman and Bilkis. Therefore, the petitioner is in no way connected with the crime and he has been falsely impleaded as an accused. 4. Abdullah at Regina's place and the deceased did not return home the said night. The petitioner on the same night informed parents of the deceased about the confinement by Tabasum, Regina Begum, Mijibur Rahaman and Bilkis. Therefore, the petitioner is in no way connected with the crime and he has been falsely impleaded as an accused. 4. The learned counsel further submitted that the accused Tabasum, Md. Mijibur Rahaman, Rajina Begum and Md. Ningthou @ Arif were granted bail by the learned Sessions Judge, Thoubal on 22.8.2022 and 28.9.2022 respectively. He would submit that under no fault, the petitioner has been in custody and the investigating agency is yet to substantiate the allegations levelled against the petitioner till date after his detention on 22.5.2022 and rather the persons who are directly connected to the death of the deceased are released on bail by the Court. Thus, the learned counsel prayed for bail on the ground that the petitioner is innocent of all charges; the allegations are not substantiated till date; the petitioner has no criminal antecedents and he will abide by all the conditions imposed by this Court. 5. Per contra, Mr. H. Samarjit, the learned Additional Public Prosecutor submitted that there is strong prima facie case against the petitioner. He would submit that the investigation reveals that there was intention/conspiracy on the part of the petitioner to confine wrongfully the deceased Md. Abdullah in collusion as he was more acquainted with Tabasum, not ready to take Tabasum along with them and that the petitioner was also the driver of the car and objected to carry her even when deceased was ready to take her and even told them if she had to come, then she should come in another vehicle as he will not be able to carry in the vehicle driven by him. Since the allegations levelled against the petitioner are serious in nature, the learned Additional Public Prosecutor objected for granting bail to the petitioner. 6. This Court considered the rival submissions and also perused the materials available on record. 7. The allegation levelled against the petitioner and other accused is that on continuous insistence to carry the accused Tabasum along with the deceased by accused Rajina Begum and Md. Ningthou, the deceased agreed to take Tabasum as his wife with him. 6. This Court considered the rival submissions and also perused the materials available on record. 7. The allegation levelled against the petitioner and other accused is that on continuous insistence to carry the accused Tabasum along with the deceased by accused Rajina Begum and Md. Ningthou, the deceased agreed to take Tabasum as his wife with him. However, they strongly denied to carry Tabasum and the petitioner herein told deceased to remain there and he will send his parents, but deceased requested him not to leave him alone. At that time, the petitioner told deceased that nothing would happen and left the place and he and his friends did not inform the matter to the parents of the deceased in time and remained silent and he also did not inform the police. However, on 18.5.2022 at about 2.00 p.m., he reported the matter to the Officer-in-Charge of Lilong Police Station. 8. On the other hand, the petitioner contended that on the same day night i.e. 16.5.2022, the petitioner and the other accused informed the parents of the deceased that the deceased was kept concealing in a wrongful confinement by the other accused persons, namely Tabasum, Rajina Begum, Mujibar Rahaman and Bilkis. 9. The learned Sessions Judge, while dismissing the bail petition filed by the petitioner vide order dated 18.8.2022 in Cril. Misc. (B) Case No.168 of 2022 observed that the petitioner has failed to complain to the police timely about the wrongful confinement of the deceased and he was outright against the taking of Tabasum by the deceased as his wife with them and hence there are grounds for conspiracy and common intention to kill the deceased in collusion with the other accused. 10. The aforesaid observation of the learned Sessions Judge cannot be endorsed at this stage, as the same would involve oral and documentary evidence. Prima facie, the plea of the prosecution about the intention/conspiracy on the part of the petitioner to confine wrongfully the deceased in collusion of others has not been established. 11. At this juncture, the learned counsel for the petitioner submitted that the co-accused are released and thus the petitioner may be granted bail as he is in custody from 22.5.2022. In support, the learned counsel for the petitioner has produced the order dated 22.8.2022 passed by the learned Sessions Judge, Thoubal in Cril. Misc. 11. At this juncture, the learned counsel for the petitioner submitted that the co-accused are released and thus the petitioner may be granted bail as he is in custody from 22.5.2022. In support, the learned counsel for the petitioner has produced the order dated 22.8.2022 passed by the learned Sessions Judge, Thoubal in Cril. Misc. Case No.240 of 2022 in respect of accused Tabasum, Md. Mujibur Rahaman and Rajina Begum and also the order dated 28.9.2022 in Cril. Misc. (B) Case No.297 of 2022. 12. On a perusal of the order dated 22.8.2022 passed in Cril. Misc. Case No.240 of 2022, it is seen that the charge sheet has already been filed on 6.8.2022. The relevant portion of the order dated 22.8.2022 reads thus: 'It is not denied that the C.S. in c/w present case has been submitted through proper channel on 06.08.2022. It implies that investigation of the case is over. The accused have been in custody for about three months now. So as to secure the presence of the accused before the Court at the time of trial, sufficient surety has to be imposed by the Court. The prosecution has not stated that the accused would threaten the PWs if released on bail or that they are likely to abscond if released on bail.' 13. Since charge sheet has already been filed and co-accused are released on bail, this Court is of the considered view that the petitioner herein can also be enlarged on bail, as no criminal antecedents against the petitioner has been placed on record by the prosecution. 14. For granting bail to the petitioner, this Court is relying upon the following decisions of the Hon'ble Supreme Court: (i) In State of Kerala v. Raneef, (2011) 1 SCC 784 : 2011 Legal Eagle (SC) 6, the Hon'ble Supreme Court held: '15. In deciding bail applications an important factor which should be certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr.Manettee in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille.' (ii) In Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281 : 2008 Legal Eagle (SC) 1673, the Hon'ble Supreme Court held thus: '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. 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. (See A.K.Gopalan v. State of Madras)' 15. It is well settled that while considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. This requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. 16. As stated supra, the allegations levelled against the petitioner are to be proved by way of oral and documentary evidence and thus, at this stage, an elaborate analysis on the merits of the allegations cannot be gone into. Only on the ground of considering the role played by the petitioner in the alleged crime, this Court has noted the merits in order to consider the bail application. This Court, in the earlier paragraphs of this order, only discussed that the allegation levelled against the petitioner is to be proved during trial. 17. Time and again, the Hon'ble Supreme Court held that a procedure which keeps large number of people behind bars without trial, for long, cannot be regarded as "reasonable, just, fair" so as to be in conformity with the provisions of Article 21 of the Constitution of India. Detaining the under-trial prisoners in custody for an indefinite period is a gross violation of Article 21 of the Constitution of India. 18. It is settled law that the grant of bail ought not to be denied only on the perceived apprehension by the Court that the accused, if restored to liberty, will tamper with the evidence. There must be some prima facie evidence on record or reasonable and justifiable grounds to believe that in case the benefit of bail is extended to an accused, he is going to misuse his liberty or he would create conditions which are not conducive to hold a fair trial. The Hon'ble Supreme Court in various judgments has confirmed that "bail is the rule and jail is an exception. The object of bail is neither punitive nor preventive but is meant to secure presence of the accused during the trial. 19. When the under-trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution of India is violated. Every person, detained or arrested, is entitled to speedy investigation and trial. Merely the fact that serious allegations are levelled against the petitioners, the petitioners cannot be denied bail. 20. As stated supra, the petitioner is in custody for more than five months. Every person, detained or arrested, is entitled to speedy investigation and trial. Merely the fact that serious allegations are levelled against the petitioners, the petitioners cannot be denied bail. 20. As stated supra, the petitioner is in custody for more than five months. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of detaining him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. 21. In Sanjay Chandra v. CBI, reported in (2012) 1 SCC 40 : 2011 Legal Eagle (SC) 973, the Hon'ble Supreme Court observed as follows: '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. In a catena of decisions, the Hon'ble Supreme Court as well as this Court held that bail is the rule and committal to jail is an exception. The Courts have also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution of India. 23. In State of Rajasthan v. Balchand alias Baliay, (1977) 4 SCC 308 : 1977 Legal Eagle (SC) 276, the Hon'ble Supreme Court held: '2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. 3. We do not intend to be exhaustive but only illustrative. 3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner is this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betrary the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight.' 24. The principles relating to grant or refusal of bail have been stated in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan, reported at (2004) 7 SCC 528 : 2004 Legal Eagle (SC) 252. In Kalyan Chandra Sarkar, supra, the Hon'ble Supreme Court observed that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting ball to consider among other circumstances and the following facts also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting ball to consider among other circumstances and the following facts also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the Court in support of the charge. 25. In Dataram Singh v. State of Uttar Pradesh and another, reported in (2018) 3 SCC 22 : 2018 Legal Eagle (SC) 68, the Hon'ble Supreme Court observed that 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 correctional home 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. 26. Thus, it is clear that grant or denial of bail is entirely the discretion of the Judge considering the bail application, but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by the Hon'ble Supreme Court as well as by the High Courts in the country. 27. To put it shortly, a humane attitude is required to be adopted by a Judge while dealing with the ball application. Even if the offence is a serious offence, requires a humane treatment by the Court, humane treatment to all including an accused is requirement of law. 28. 27. To put it shortly, a humane attitude is required to be adopted by a Judge while dealing with the ball application. Even if the offence is a serious offence, requires a humane treatment by the Court, humane treatment to all including an accused is requirement of law. 28. It is settled law that if there is no prima facie case there is no question of considering other circumstances but even where a prima facie case is established the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment, but whether the presence of the accused would be readily available for the trial or that he is likely to abuse the discretion granted in his favour by tampering with the evidence. 29. In the instant case, admittedly, there is no prima facie case against the petitioner. Assuming that a prima facie case exists, what is of the paramount importance is to consider two vital aspects, namely (1) Whether there exist any chance of the accused influencing the witness or tampering with evidence and (2) Whether the accused is likely to abscond or flee away the course of justice. 30. The petitioner in his petition stated that he shall neither abscond nor fled from justice or trial and he will abide by the conditions imposed by this Court. The petitioner specifically stated in his petition that if he is released on bail, he shall not do anything to tamper and hamper with the evidence of the prosecution or any such thing whatsoever to affect the case of the prosecution. 31. Since the allegations levelled against the petitioner would involve oral and documentary evidence, the learned Special Judge ought not to have arrived at a finding that the petitioner has concealed the real facts and there are grounds for conspiracy and common intention to kill the deceased in collusion with the other accused. Considering the facts and circumstances of the case and the petitioner is in custody since 22.5.2022 and also co-accused are released on bail, this Court is inclined to grant bail to the petitioner. 32. Considering the facts and circumstances of the case and the petitioner is in custody since 22.5.2022 and also co-accused are released on bail, this Court is inclined to grant bail to the petitioner. 32. Accordingly, Bail Application No.22 of 2022 is allowed and the petitioner is ordered to be enlarged on bail in connection with FIR No.33(05) under Sections 302/342/364/34 IPC on the file of Lilong Police Station, subject to the petitioner furnishing a personal bond in the sum of Rs.2,00,000/-(Rupees Two lakh) with two local sureties each of the like sum to the satisfaction of the learned Sessions Judge, Thoubal, with the following conditions: (i) The petitioner shall not leave the place of his residence without permission of the Court and shall ordinarily reside at a place of his residence and the complete address of such place shall be furnished to the learned Sessions Judge, Thoubal at the time of release. (ii) The petitioner shall appear before learned Sessions Judge, Thoubal weekly once i.e. every Monday at 10.30 a.m. until further orders. (iii) If the petitioner has passport, he shall also surrender the same before the learned Sessions Judge, Thoubal. (iv) The petitioner shall not contact nor visit nor threaten nor offer any inducement to any of the prosecution witnesses. (v) The petitioner shall not tamper with evidence nor otherwise indulge in any act or omission that would prejudice the proceedings in the matter. (vi) Since charge sheet filed, the petitioner is directed to co-operate the Court concerned for further proceedings and trial of the case. (vii) The petitioner shall not commit similar offence. (viii) It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the prosecution shall be free to move this Court for cancellation of the bail. (ix) Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of the present bail application. (x) The Court concerned is directed to expedite further proceedings and complete the trial as expeditiously as possible in accordance with law.