DATARAM SINGH versus STATE OF UTTAR PRADESH & ANR.

[2018] 1 S.C.R.

DATARAM SINGH

STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No. 227 of 2018)

FEBRUARY 06, 2018

[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

CBail:

FIR against appellant (accused) u/ss. 419, 420, 406 and 506IPC and complaint u/s. 138 of Negotiable Instruments Act – Duringinvestigation, appellant not arrested – While rejecting his petitionfor quashing the FIR, High Court granted two months time to appearDbefore trial judge – Once again High Court granted him furthertwo months time to appear before trial Judge – Thereafter, onappellant’s appearing before trial judge, taken into judicial custody– Bail applications rejected by trial court as well as High Court –On appeal, held: An important facet of criminal jurisprudence isthat grant of bail is the general rule and putting the person in jail isEan exception – Grant or denial of bail is entirely the discretion ofthe judge – Exercise of such discretion though unfettered, must beexercised judicially in humane manner and compassionately – Ifthe Investigating Officer does not find it necessary to arrest anaccused person during investigation, strong case should be madeFout for placing that person in judicial custody – Conduct/participation of accused in the investigation; fact as to whetheraccused is first-time offender; nature of offences; general conductof accused; indigent status of accused are to be taken intoconsideration while granting bail – In the present case, accusedwas not arrested during the investigation – Facts indicate that thereGwas no apprehension that the accused would abscond or hamperwith trial – Courts below were required to judiciously exercisediscretion and grant bail to the accused – Code of CriminalProcedure, 1973 – s. 436 Explanation; s.436 – Penal Code, 1860– ss.419, 420, 406 and 506 – Negotiable Instruments Act, 1881 –Hs.138.

Allowing the appeal, the Court

HELD : 1. An important facet of criminal jurisprudence isthat the grant of bail is the general rule and putting person injail or in prison or in correction home (whichever expressionone may wish to use) is an exception. Unfortunately, some ofthese basic principles appear to have been lost sight of with theresult that more and more persons are being incarcerated andfor longer periods. This does not do any good to criminaljurisprudence or to the society. [Para 2] [885-F-G]

2. The grant or denial of bail is entirely the discretion ofthe judge considering case but even so, the exercise of judicialdiscretion has been circumscribed by large number of decisionsrendered by this Court and by every High Court in the country.Yet, occasionally there is necessity to introspect whether denyingbail to an accused person is the right thing to do on the facts andin the circumstances of case. While so introspecting, amongthe factors that need to be considered is whether the accusedwas arrested during investigations when that person perhaps hasthe best opportunity to tamper with the evidence or influencewitnesses. If the investigating officer does not find it necessaryto arrest an accused person during investigations, strong caseshould be made out for placing that person in judicial custodyafter charge sheet is filed. Similarly, it is important to ascertainwhether the accused was participating in the investigations tothe satisfaction of the investigating officer and was not abscondingor not appearing when required by the investigating officer. Surely,if an accused is not hiding from the investigating officer or ishiding due to some genuine and expressed fear of beingvictimised, it would be factor that judge would need to considerin an appropriate case. It is also necessary for the judge toconsider whether the accused is first-time offender or has beenaccused of other offences and if so, the nature of such offencesand his or her general conduct. The poverty or the deemedindigent status of an accused is also an extremely important factorand even Parliament has taken notice of it by incorporating anExplanation to Section 436 Cr.P.C. An equally soft approach toincarceration has been taken by Parliament by inserting Section436A in Cr.P.C. [Paras 3-4] [885-H; 886-A-E]

A3. humane attitude is required to be adopted by judge,while dealing with an application for remanding suspect or anaccused person to police custody or judicial custody. There areseveral reasons for this including maintaining the dignity of anaccused person, howsoever poor that person might be, therequirements of Article 21 of the Constitution and the fact thatBthere is enormous overcrowding in prisons, leading to social andother problems. It should not be understood to mean that bailshould be granted in every case. Also, conditions for the grant ofbail ought not to be so strict as to be incapable of compliance,thereby making the grant of bail illusory. [Paras 3 and 7] [886-A-CB; 887-C]

Re-Inhuman Conditions in 1382 Prisons (2017) 10 SCC658 – referred to.

D4. In the present case, during the entire period ofinvestigations which appear to have been spread over sevenmonths, the appellant was not arrested by the investigating officer.Even when the appellant apprehended that he might be arrestedafter the charge-sheet was filed against him, he was not arrestedfor considerable period of time. When he approached the HighECourt for quashing the FIR lodged against him, he was grantedtwo months time to appear before the trial judge. All these factsare an indication that there was no apprehension that the appellantwould abscond or would hamper the trial in any manner. Thatbeing the case, the trial judge, as well as the High Court ought toFhave judiciously exercised discretion and granted bail to theappellant. It is nobody’s case that the appellant is shady characterand there is nothing on record to indicate that the appellant hadearlier been involved in any unacceptable activity, let alone anyalleged illegal activity. [Para 17] [889-C-E]

Nikesh Tarachand Shah v. Union of India(2017) 13SCALE 609 ; Gurbaksh Singh Sibbia v. State of Punjab(1980) 2 SCC 565 : [1980] 3 SCR 383 ; Nagendra v.King-Emperor AIR 1924 Cal 476 ; Emperor v.Hutchinson AIR 1931 All 356 – referred to.H

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 227 of 2018.

From the Judgment and Order dated 21.09.2017 of the High Courtof Judicature at Allahabad in Criminal Misc. Bail Application No. 18235of 2017.

Dharnidhar Jha, Sr. Adv, Rajnish Kumar Jha, Raman Kumar Singh,Mahendra Kumar, Advs for the Appellant.

Ms. Aishwarya Bhati, AAG, D.P. Chaturvedi, Ravi Panwar,Anuvrat Sharma, Ms. Alka Sinha, Advs for the Respondents.

The Judgment of the Court was delivered by

MADAN B. LOKUR, J. 1. Leave granted.

2. fundamental postulate of criminal jurisprudence is thepresumption of innocence, meaning thereby that person is believed tobe innocent until found guilty. However, there are instances in our criminallaw where reverse onus has been placed on an accused with regard tosome specific offences but that is another matter and does not detractfrom the fundamental postulate in respect of other offences. Yet anotherimportant facet of our criminal jurisprudence is that the grant of bail isthe general rule and putting person in jail or in prison or in correctionhome (whichever expression one may wish to use) is an exception.Unfortunately, some of these basic principles appear to have been lostsight of with the result that more and more persons are being incarceratedand for longer periods. This does not do any good to our criminaljurisprudence or to our society.

3. There is no doubt that the grant or denial of bail is entirely thediscretion of the judge considering case but even so, the exercise of

Ajudicial discretion has been circumscribed by large number of decisionsrendered by this Court and by every High Court in the country. Yet,occasionally there is necessity to introspect whether denying bail to anaccused person is the right thing to do on the facts and in thecircumstances of case.B4. While so introspecting, among the factors that need to beconsidered is whether the accused was arrested during investigationswhen that person perhaps has the best opportunity to tamper with theevidence or influence witnesses. If the investigating officer does notfind it necessary to arrest an accused person during investigations, astrong case should be made out for placing that person in judicial custodyCafter charge sheet is filed. Similarly, it is important to ascertain whetherthe accused was participating in the investigations to the satisfaction ofthe investigating officer and was not absconding or not appearing whenrequired by the investigating officer. Surely, if an accused is not hidingfrom the investigating officer or is hiding due to some genuine andDexpressed fear of being victimised, it would be factor that judgewould need to consider in an appropriate case. It is also necessary forthe judge to consider whether the accused is first-time offender or hasbeen accused of other offences and if so, the nature of such offencesand his or her general conduct. The poverty or the deemed indigentstatus of an accused is also an extremely important factor and evenEParliament has taken notice of it by incorporating an Explanation to Section436 of the Code of Criminal Procedure, 1973. An equally soft approachto incarceration has been taken by Parliament by inserting Section 436Ain the Code of Criminal Procedure, 1973.

5. To put it shortly, humane attitude is required to be adopted byFa judge, while dealing with an application for remanding suspect or anaccused person to police custody or judicial custody. There are severalreasons for this including maintaining the dignity of an accused person,howsoever poor that person might be, the requirements of Article 21 ofthe Constitution and the fact that there is enormous overcrowding inGprisons, leading to social and other problems as noticed by this Court inIn Re-Inhuman Conditions in 1382 Prisons.[1]

6. The historical background of the provision for bail has beenelaborately and lucidly explained in recent decision delivered in

1(2017) 10 SCC 658H

NikeshTarachand Shah v. Union of India[2]going back to the days ofthe Magna Carta. In that decision, reference was made to GurbakshSingh Sibbia v. State of Punjab[3] in which it is observed that it was heldway back in Nagendra v. King-Emperor[4] that bail is not to be withheldas punishment. Reference was also made to Emperor v. Hutchinson[5]wherein it was observed that grant of bail is the rule and refusal is theexception. The provision for bail is therefore age-old and the liberalinterpretation to the provision for bail is almost century old, going backto colonial days.

7. However, we should not be understood to mean that bail shouldbe granted in every case. The grant or refusal of bail is entirely withinthe discretion of the judge hearing the matter and though that discretionis unfettered, it must be exercised judiciously and in humane mannerand compassionately. Also, conditions for the grant of bail ought not tobe so strict as to be incapable of compliance, thereby making the grantof bail illusory.

8. We have been constrained to make these observations in thepresent appeal, in which the grant of bail has not been opposed by theState, but there is vehement opposition from the complainant.

9. On 13[th] January, 2016 the complainant lodged First InformationReport (FIR) No.16 of 2016 at Police Station Sahjanawa, Gorakhpur,UttarPradesh, alleging that the appellant had cheated him of an amountexceeding Rs.37 lakhs and had therefore committed an offencepunishable under Sections 419, 420, 406 and 506 of the Indian PenalCode. It was also alleged that the appellant had issued cheque forRs. 18 lakhs in favour of the complainant (returning part of the amountof Rs. 37 lakhs) but had stopped payment of that cheque in violation ofSection 138 of the Negotiable Instruments Act, 1881.

10. Thereafter the complainant filed Complaint Case No. 206 of2016 on or about 21[st] January, 2016 alleging the commission of an offenceby the appellant under Section 138 of the Negotiable Instruments Act,1881.Cognizance was taken and summons issued to the appellant by theconcerned Magistrate in the complaint case.

2 2017 (13) SCALE 609

3 (1980) 2 SCC 565

4 AIR 1924 Cal 476

5AIR 1931 All 356

A11. Much later, on or about 15[th] August, 2016, the investigatingofficer filed charge sheet against the appellant being Case Crime No.18 of 2017. It is not clear why the Case Crime was registered so late (itmay be typo), but be that as it may, it appears that during theinvestigations the appellant was not arrested.B12. Fearing arrest after the charge sheet was filed against him,

B12. Fearing arrest after the charge sheet was filed against him,the appellant moved the Allahabad High Court for quashing the FIRlodged against him. The record of the case reveals that on 7[th] February,2017 the High Court declined to quash the FIR, but granted two monthstime to the appellant to appear before the trial judge. Presumably, it wasdirected that during this period, the appellant should not be arrested. OnC11[th] April, 2017 the appellant approached the Allahabad High Court onceagain, this time for further period of two weeks to enable him to appearbefore the trial judge. Time as prayed for, appears to have been grantedand eventually on 24[th] April, 2017 the appellant appeared before the trialjudge and was taken into judicial custody. The appellant has been inDjudicial custody ever since.

13. bail application moved by the appellant was rejected by thetrial judge on 27[th] April, 2017 and another application for bail was rejectedby the Allahabad High Court on 21[st] September, 2017 (impugned beforeus).

14. On 23[rd] January, 2018 when the appeal was listed before us,the complainant was represented by learned counsel even though hewas not party to the proceedings. However, on the oral request oflearned counsel for the appellant the complainant was impleaded as aparty respondent. Notice was then issued to the State of Uttar Pradesh,Fwhile notice was accepted by learned counsel for the complainant on hisbehalf. request was made for filing reply to the petition for specialleave to appeal and two days time was granted for this purpose sincethe appellant was in judicial custody for considerable period.

15. Even though the State of Uttar Pradesh has been served inGthe appeal, no one has put in appearance on its behalf. As far as thecomplainant is concerned, no reply was filed by the time the matter wastaken up for consideration on 29[th] January, 2018. Accordingly, the matterwas adjourned to 2[nd] February, 2018 by which date also no reply wasfiled by the complainant. As mentioned above, no one has put inappearance on behalf of the State of Uttar Pradesh to oppose the grantHof bail to the appellant.

16. Learned counsel for the complainant vehemently contendedthat the appellant had duped him of considerable amount of money andthat looking to the seriousness of the allegations against him, this wasnot case in which the appellant ought to be granted bail by this Court.Learned counsel supported the view taken by the trial judge as well asby the Allahabad High Court. He argued that given the conduct of theappellant in not only cheating the complainant and depriving him of aconsiderable sum of money but thereafter issuing cheque for whichpayment was stopped made it an appropriate case for dismissal.

17. In our opinion, it is not necessary to go into the correctness orotherwise of the allegations made against the appellant. This is matterthat will, of course, be dealt with by the trial judge. However, what isimportant, as far as we are concerned, is that during the entire period ofinvestigations which appear to have been spread over seven months, theappellant was not arrested by the investigating officer. Even when theappellant apprehended that he might be arrested after the charge sheetwas filed against him, he was not arrested for considerable period oftime. When he approached the Allahabad High Court for quashing theFIR lodged against him, he was granted two months time to appearbefore the trial judge. All these facts are an indication that there was noapprehension that the appellant would abscond or would hamper thetrial in any manner. That being the case, the trial judge, as well as theHigh Court ought to have judiciously exercised discretion and grantedbail to the appellant. It is nobody’s case that the appellant is shadycharacter and there is nothing on record to indicate that the appellanthad earlier been involved in any unacceptable activity, let alone any allegedillegal activity.

18. In our view, taking all these and other factors into consideration,it would be appropriate if the appellant is granted bail on conditions thatmay be reasonably fixed by the trial judge. We order accordingly.

19. We should not be understood to have expressed any opinionon the allegations made against the appellant, both in the charge sheet aswell as in the complaint case filed against him.

20. The appeal is allowed.

Appeal allowed.