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2023 DIGILAW 4272 (DEL)

Shubham @ Shivam v. State Govt. of NCT of Delhi

2023-07-21

SAURABH BANERJEE

body2023
ORDER 1. This is an application under Section 439 Cr.P.C. seeking regular bail in FIR No. 697/2022 dated 12.08.2022 under Sections 147/148/149/307/427/506/323/34 IPC and Sections 25/27 of the Arms Act registered at PS Wazirabad. 2. As per the FIR, a group of around 10-15 men including the applicant gathered outside the house of the complainant in an inebriated condition at about 10:30 pm on 11.08.2022, holding empty beer bottles, bricks and one of them even had a gun. It is stated that they had gathered, looking for one Deepu @ Deepak, and tried to enter the house of the complainant. When the complainant tried to pacify the group, they threw bricks and stones at the house and also fired from the gun. The complainant identified the applicant as he lived nearby the FataFat Seva in Jharoda. They also pushed and vandalised the vehicles parked by the road and fired 2 gunshots injuring 2 persons. 3. Learned counsel for the applicant submits that the investigation is complete and chargesheet has already been filed. The charges have already been framed on 20.01.2023, but no witnesses have been examined so far. He states that no recovery has been made from the applicant and also that the applicant has been in custody since 03.09.2022. He submits that since the investigation is already complete, there is no further need for the custodial investigation of the applicant. He then submits that the FSL report does not link the cartridge found at the site with the pistol recovered from the co accused (CCL) and the evidence of the complainant has also already been concluded. 4. He further submits that the applicant shall abide by all the conditions imposed upon him and will in no way tamper with the evidence or approach the witnesses. Relying upon Prabhakar Tiwari vs. State of Uttar Pradesh , (2020) 11 SCC 648 he submits that pendency of other FIRs in which the accused is involved cannot itself be a ground for denial of bail. 5. Notice was issued and the Status Report and Nominal Roll was called for. As per Nominal Roll, the applicant has been in judicial custody for over 9 months as on date and also that there are 9 other FIRs pending against the applicant, out of which he has been granted bail in 8 FIRs. 5. Notice was issued and the Status Report and Nominal Roll was called for. As per Nominal Roll, the applicant has been in judicial custody for over 9 months as on date and also that there are 9 other FIRs pending against the applicant, out of which he has been granted bail in 8 FIRs. It is also stated that there are no previous convictions of the applicant and the overall jail conduct of the applicant has been satisfactory. 6. Learned APP for the State has handed over a copy of the Status Report during the course of hearing, which has already been supplied to the learned counsel for applicant. The same is taken on record. 7. Learned APP for the State opposes the grant of bail on the ground that the applicant is the main accused in the present FIR and that during the course of investigation one blank cartridge in front of house of one Ajay alongwith the pieces of glasses of beer bottles were seized and the pistol from which the shot was fired was recovered from co-accused (CCL). He also submits that the CCTV footages of the cameras installed in the nearby vicinity shows that 10 to 15 boys were involved and the applicant was arrested on 03.09.2022 after identification. 8. Learned APP for the State submits that the offences alleged are heinous in nature involving various sections. It is also submitted that the applicant is a habitual offender who has been involved in several other FIRs involving serious offences under the Arms Act, NDPS Act etc. It is submitted that since the witnesses are yet to be examined, there is likelihood of the applicant threatening the witnesses and derailing the investigation. 9. It is also submitted that the applicant is a habitual offender who has been involved in several other FIRs involving serious offences under the Arms Act, NDPS Act etc. It is submitted that since the witnesses are yet to be examined, there is likelihood of the applicant threatening the witnesses and derailing the investigation. 9. As recognised, settled and followed by the various judicial pronouncements, the Court while granting bail to an accused, is to contemplate and consider-[i] the nature and gravity of the offenses/charges coupled with the severity of punishment in case of conviction; [ii] if there are any chances of the accused absconding once out on bail; [iii] if there is a reasonable apprehension of the accused influencing the witnesses or tampering the records when released on bail; [iv] the past conduct and previous record of the accused as he should neither be a threat to the society of which he is going to be a part of once again nor there should be any chance of his repeating the same or indulging in any other offence; [v] whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; [vi] behaviour, means, position and standing of the accused in the society [Re: Deepak Yadav v. State of U.P. , (2022) 8 SCC 559 ]. No doubt, each of the above depends upon the factual matrix and circumstances involved in a particular case. 10. Thus, what emerges from the aforesaid is that an accused cannot seek the liberty of being released on bail as a matter of right, similarly , the State cannot also seek the denial of release on bail of the accused as a matter of right. Even though while granting bail the Court is dealing with the liberty of an accused, however , the same is not unfettered. As there are no hard and fast rules for granting or rejecting a bail and it is a discretionary remedy, however , while granting bail to an accused, the Court has to apply its judicious mind to the facts and circumstances of the case. The Court is to see the reality involved and how reasonable it is for granting bail to an accused. The Court is to see the reality involved and how reasonable it is for granting bail to an accused. This is because at the end of the day granting bail to an accused means that the accused is only being released from custody and is being entrusted in the hands of the sureties. 11. In the considered opinion of this Court, by and large the nature of offences/charges involved being grave and serious and/or pendency of other/several criminal cases against an accused are/can not be the only basis for rejection of bail to an accused and the Court has to take a holistic view of the facts and circumstances [ Re.: Prabhakar Tiwari vs. State of Uttar Pradesh (supra)]. In view thereof, in the present case also, though the offences against the applicant are serious in nature, however , that itself cannot be a ground for refusal for grant of bail to him. 12. In the present case, considering that the investigation is complete and the evidence of the complainant has been concluded, though evidence of two witnesses are yet to commence, in the opinion of this Court, there is no plausible reason for letting the applicant remain in jail as the trial, though has commenced, is in likelihood going to take a long time. Further, the applicant has been in jail for over 9 months and his jail conduct has also been satisfactory. 13. Accordingly, this Court directs the applicant to be released on regular bail in FIR No. 697/2022 dated 12.08.2022 under Sections 147/148/149/307/427/506/323/34 IPC and Sections 25/27 of the Arms Act registered at PS: Wazirabad on his furnishing a personal bond in the sum of Rs.1,00,000/- along with one surety of the like amount by family member/friend having no criminal case pending against them, subject to the satisfaction of the learned Trial Court, and further subject to the following conditions: i. Applicant shall not leave the National Capital Territory of Delhi without prior permission of this Court and shall ordinarily reside at the address as per prison records. If he wishes to change his residential address he shall immediately intimate about the same to the Jail Superintendent by way of an affidavit. ii. Applicant shall surrender his passport to the Investigating Officer, within three days. If he wishes to change his residential address he shall immediately intimate about the same to the Jail Superintendent by way of an affidavit. ii. Applicant shall surrender his passport to the Investigating Officer, within three days. If he does not possess the same, he shall file an affidavit before the Investigating Officer to that effect within the stipulated time. iii. Applicant shall appear before the Court as and when the matter is taken up for hearing. iv. Applicant shall join investigation as and when called by the Investigating Officer concerned. He shall not obstruct or hamper with the police investigation and shall not play mischief with the evidence collected or yet to be collected by the Police. v. Applicant shall provide all his mobile numbers to the Investigating Officer concerned which shall be kept in working condition at all times and shall not be switch off or change the mobile number without prior intimation to the Investigating Officer concerned. The mobile location be kept on at all times. vi. Applicant shall report to the Investigating Officer at P.S.: Wazirabad, Delhi once every month in the first week of the month unless leave of every such absence is obtained from the learned Trial Court. vii. Applicant shall not indulge in any criminal activity and shall not communicate with or come in contact with any of the prosecution witnesses, the victim/complainant or any member of the victim's/complainant's family or tamper with the evidence of the case or try to dissuade them from disclosing such facts to the Court or to any police officials. 14. Any observations made on the merits of the matter are only for the purposes of deciding the present application for enlarging the applicant on bail and they shall not be construed as expressions on merits of the matter. 15. Copy of the present order be sent to the concerned Jail Superintendent for onward information and necessary compliance thereof. 16. Accordingly, the present application is disposed of in the above terms.