Rakesh Shrikishan Gupta v. The State of Maharashtra

Judgment

#1. This is an Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking Regular Bail in connection with C.R.No. 73 of 2021 registered with Pant Nagar Police Station for offences punishable under Section 302, 324 and 504 of the Indian Penal Code, 1860 (for short ‘IPC’) read with Sections 4 and 25 of the Arms Act, 1959. Applicant is arrested on 18.02.2021 and he is incarcerated for 4 years 1 month 14 days.

#2. It is prosecution case that on 17.02.2021 at about 20:15 hours First- Informant as usual after his labour work went to Sai Leela Hotel and Bar, one Munna joined him and they both were drinking while Applicant – vegetable vendor was also present at the Bar. It is 1 of 22 prosecution case that Applicant used to make fun of First-Informant and had beaten him in the past due to which Munna being intoxicated confronted Applicant which escalated into a physical altercation. However Applicant picked up a knife and inflicted a blow on First- Informant’s right hand however when Munna tried to intervene to save

First – Informant from Applicant’s further attack that is when the Applicant inflicted a fatal blow on Munna’s neck. Thereafter Munna was shifted to the hospital for treatment where he succumbed to his injuries and subsequently FIR was registered by the First - Informant.

#3. Mr. Singh, learned Advocate for the Applicant would submit that Applicant is falsely implicated in the alleged crime. He would submit that the alleged incident was out of a sudden and grave provocation in the bar. He would submit that Applicant and deceased victim alongwith First – Informant were in a drunken state which does not constitute any motive or intention to cause death of the deceased – victim. He would submit that ingredients of Section 302 of the IPC are not attracted against the Applicant as there was no intention or motive whatsoever to harm the victim. However at the highest this case could fall under the purview of Section 304 Part II of the IPC. He would submit that incident in question occurred due to deceased-victim’s verbal brickbat which further escalated into a physical altercation and in the said altercation Applicant inflicted the fatal blow in the spur of the moment. He would draw my attention to the Post Mortem Report 2 of 22 appended at page No.71 of the Application and submit that the said report if seen would show that victim was injured due to a singular blow on his neck. He would submit that the weapon used in the alleged crime is a common kitchen knife which further raises doubts on the prosecution case of premeditation. He would submit that prima facie there is no pre-meditation on the part of the Applicant and on perusal of chargesheet no case of pre-meditation is made out against the Applicant.

#4. He would submit that Applicant is a vegetable vendor and has deep roots in Society. He would submit that Applicant is the sole breadwinner of his family. He would submit that Applicant is arrested on 18.02.2021 and he is incarcerated for 4 years 1 month 14 days. Investigation is completed, chargesheet has been filed and commencement and conclusion of trial in the near foreseeable future is doubtful. Hence he would urge the Court to allow the Application.

#5. Mr. Kulkarni, learned APP for Respondent – State would vehemently oppose the present Application. He would submit that there are eye-witnesses to the alleged incident. He would submit that whether offence under Section 304 Part II of the IPC is attracted or not is a matter of trial. He would submit that Applicant inflicted a fatal blow with a knife on the vital part of the deceased – victim which clearly reflects the intention of the Applicant to cause death. He would 3 of 22 submit that Applicant cannot claim ignorance of the consequences of his actions, as the weapon used (knife), the intensity of assault, and injury caused all establish that it was not an accidental or minor scuffle but a violent and lethal attack. He would submit that Applicant also attacked First-Informant however he managed to escape and save himself which further clearly shows his intention to cause death of both the victims. He would submit that the offences is of a serious nature. He would submit that Applicant if released on bail can influence and harm First-Informant. He would submit that Applicant is a threat to Society and hence he would urge the Court to reject the Application.

#6. With the able assistance of the learned Advocates I have perused the record of the case.

#7. It is prima facie seen that the incident occurred due to the altercation which escalated in a scuffle and fight and most importantly it happened on the spur of moment without any premeditation on the part of Applicant. It is seen that the deceased – victim and his friend both were intoxicated and confronted the Applicant first which further led to the unfortunate incident. Prima facie the motive is clearly evident as there was a precursor incident where Applicant first made fun of First-Informant due to which enmity and grudge was held against Applicant and victim’s confrontation due to the same led to the 4 of 22 unfortunate incident.

#8. Upon perusal of the Post Mortem Report it is evident that injury sustained by the victim, though serious, does not prima facie establish an intention to kill which is a crucial element under Section 302 of the IPC. The medical record indicates a singular blow and there is no evidence of repeated assault or any premeditated attack. That apart it is seen that Applicant was already present in the bar at the time when the First - Informant and his friends went there for a drinking session. It is seen that investigation is completed, chargesheet has been filed. No further recovery is to be made at the instance of the Applicant. However the commencement and conclusion of trial in the near foreseeable future is doubtful. In this regard the key question is whether the Applicant’s further incarceration in the present facts and circumstances is justified, overriding his right to speedy trial and liberty?

#9. It is settled law that a Court while deciding a Bail Application has to keep in mind the principal rule of bail which is to ascertain whether the Accused is likely to appear before the Court for trial. There are other broad parameters also like gravity of offence, likelihood of Accused repeating the offence while on bail, whether he would influence the witnesses and tamper with the evidence, his antecedents are required to be considered in such cases. 5 of 22

#10. It is seen that while dealing with Bail Applications the material available for consideration and adjudication is limited. It is brought to the notice of the Court that trials are taking perpetuity to conclude and prisons are also simultaneously overcrowded in some segments. This Court regularly deals with Bail Applications of undertrials who have been in custody for long period and is also equally aware of the conditions of our prisons. To give an example in the city of Mumbai, recently in one of the cases before me, a Report dated 12.12.2024 made by the Superintendent of Mumbai Central Prison addressed to the Chief Government Pleader was placed before me by the Public Prosecutor which stated that the Mumbai Central Prison (Arthur Road Jail) is overcrowded beyond its sanctioned capacity by more than 5 – 6 times and every barrack sanctioned to house 50 inmates as on date houses anywhere between 220 – 250 inmates. Such an incongruity leads us to answer the proposition: “How can Courts find a balance between the two polarities?"

#11. Argued before me is a case concerning liberty of an undertrial who has been incarcerated for 4 years 1 month 14 days, a situation impacting the rights of under-trial conferred by Article 21 of Constitution to speedy justice as also personal liberty. In so far as the power of High Court to grant bail is concerned, when the case is such that involves a question of personal liberty of an undertrial who is incarcerated for a very long period, the powers are wide and 6 of 22 unfettered by conditions, the principle rule being that bail is the rule and refusal is the exception, allowing accused persons to better prepare their defence.

#12. In the case of Emperor vs H.L. Hutchinson1 the Allahabad High Court, as far back as in the year 1931 held that power of granting bail conferred on High Court is entirely unfettered by any conditions. It held that legislature has given the High Court and the Court of Session discretion unfettered by any limitation other than that which controls all discretionary powers vested in a Judge, viz. that the discretion must be exercised judiciously. The Court has given primacy to the fact that accused person if granted bail will be in a much better position to defend himself. In this very case, it was delineated that grant of Bail is the Rule and refusal is an exception. This was in the famous Meerut Conspiracy case. Justice Mukherjee writing for the Bench in paragraph No.9 held as under:- “9. Speaking for myself, I think it very unwise to make an attempt to lay down any particular rules for the guidance of the High Court, having regard to the fact that the legislature itself left the discretion of the Court entirely unfettered. The reason for this action on the part of the legislature is not far to seek. The High Court might be safely trusted in this matter and it goes without saying that it would act in the best interests of justice whether it decides in favour of the prosecution or the defence. The variety of cases that may arise from time to time cannot be safely classified and it will be dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes.”

#13. In the case of Satender Kumar Antil Vs. Central Bureau of 1 AIR 1931 ALL 356 7 of 22 Investigation2, in paragraph Nos.6 to 15 the Supreme Court considered the prevailing situation of prisons in India, definition of trial and bail, principle of presumption of innocence and reiterated the well recognised principle that bail is the rule and jail is the exception in bail jurisprudence on the touchstone of Article 21 of the Constitution of India. Paragraph Nos.6 to 15 of the said judgement read as under:- “Prevailing situation

#6. Jails in India are flooded with undertrial prisoners. The statistics placed before us would indicate that more than 2/3rd of the inmates of the prisons constitute undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offence, being charged with offences punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offence being inherited by many of them. As observed by this Court, it certainly exhibits the mindset, a vestige of colonial India, on the part of the investigating agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other. Definition of trial

#7. The word “trial” is not explained and defined under the Code. An extended meaning has to be given to this word for the purpose of enlargement on bail to include, the stage of investigation and thereafter. Primary considerations would obviously be different between these two stages. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors.

#8. Similarly, an appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence. Definition of bail 2 (2022) 10 SCC 51 8 of 22

#9. The term “bail” has not been defined in the Code, though is used very often. A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the court or by the police or by the investigating agency.

#10. It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial. The word “bail” has been defined in Black's Law Dictionary, 9th Edn., p. 160 as: “A security such as cash or a bond; esp., security required by a court for the release of a prisoner who must appear in court at a future time.”

#11. Wharton's Law Lexicon, 14th Edn., p. 105 defines “bail” as: “to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have, if they fear his escape, etc. the legal power to deliver him.” Bail is the rule

#12. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India. This Court in Nikesh Tarachand Shah v. Union of India [Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 : (2018) 2 SCC (Cri) 302] , held that : (SCC pp. 22-23 & 27, paras 19 & 24) “19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] , the purpose of granting bail is set out with great felicity as follows : (SCC pp. 586-88, paras 27-30) ‘27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476] , AIR pp. 479- 80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is 9 of 22 probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the “Meerut Conspiracy cases” observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931 All 504] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356] , AIR p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. 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.

#28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that : (SCC p. 242, para 1) “1. … the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially 10 of 22 sensitised judicial process. … After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right.”

#29. In Gurcharan Singh v. State (Delhi Admn.) [Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that : (SCC p. 129, para 29) “29. … There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.”

#30. In American Jurisprudence (2nd Edn., Vol. 8, p. 806, para 39), it is stated: “Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.” It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.’ * * *

#24. Article 21 is the Ark of the Covenant so far as the Fundamental Rights Chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] .” 11 of 22

#13. Further this Court in Sanjay Chandra v. CBI [Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] , has observed that : (SCC p. 52, paras 21-23) “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. 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.” Presumption of innocence

#14. Innocence of a person accused of an offence is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the court. Thus, it is for that agency to satisfy the court that the arrest made was warranted and enlargement on bail is to be denied.

#15. Presumption of innocence has been acknowledged throughout the world. Article 14(2) of the International Covenant on Civil and Political Rights, 1966 and Article 11 of the Universal Declaration of Human Rights, 1948 acknowledge the presumption of innocence, as a cardinal principle of law, until the individual is proven guilty.” 12 of 22

#14. The Supreme Court in a landmark decision of 1978 in the case of Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court of Andhra Pradesh3 observed as under:- “6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the court punishing him with (emphasis supplied) imprisonment. In this perspective…”

#15. Thereafter the Supreme Court in a plethora of judgements have discussed the rights conferred by Article 21 qua grant of bail and that such rights cannot be taken away unless the procedure is reasonable and fair and in cases where there is unreasonable delay in trial it would undoubtedly impact the rights of an undertrial. Some of the important decisions of the Supreme Court and some of the High Courts are discussed hereinunder:-

15.1. In the landmark judgment of Maneka Gandhi V. Union of India4, Supreme Court held that the right to life and personal liberty under Article 21 is not limited to mere physical existence but includes the right to live with dignity. The court emphasized that the procedure established by law must be fair, just, and reasonable, and it cannot be arbitrary, oppressive, or unreasonable. 3 4