Livarsing Tejsing Vs. State of Gujarat - Court Judgment

H.K. Rathod, J.

1. Heard learned Advocate Mr. N.K. Majmudar on behalf of the petitioner and Mr. N, D. Gohil appearing on behalf of the respondent-State.

Rule. Learned A.P.P. Mr. Gohil waives service of Rule on behalf of the respondent-State.

2. In the present petition, the petitioner has challenged the order passed by the Additional Sessions Judge, Bharuch in Misc. Criminal Application No. 56 of 2003 dated 31st January, 2003. The Addl. Sessions Judge, Bharuch has rejected bail application, against which, the present petition is filed.

3. Learned Advocate Mr. N. K. Majmudar has submitted that according to the F.I.R., offence under Section 399 of I.P.C. has been alleged against the present petitioner but for satisfying the ingredients of Section 399 of I.P.C., involvement of five persons in that very alleged offence, is very much essential ingredient. However, to emphasis this contention, learned Advocate Mr. Majmudar has read over the definition of 'dacoity' and provisions of Section 399 of I.P.C. before this Court. Mr. Majmudar has also read over Section 25(1) of the Bombay Arms Act. Learned Advocate Mr. Majmudar has also submitted that there are only statements of the Police Officers more than three in numbers and except that no other statement of independent person has been recorded by the Investigating Officer. He also submitted that this being the first false incident in the career of the petitioner and as such, there is no past criminal antecedence against the present petitioner. Learned Advocate Mr. Majmudar has also referred Panchnama for pointing out the fact that only four persons were involved and except that none else was involved in the said incident. He also requested that let the Investigating Officer may be called for or the papers of the charge-sheet may also be called for. He also raised contention that prima facie, the charge is not established against the present petitioner. It is also submitted that whatever submissions made before the Sessions Judge, the same have not been considered by the Additional Sessions Judge. He also submitted that there is no person allegedly involved in the said offence, is said to be absconding in the alleged incident. However, he also submitted that any strict conditions may be imposed against the present petitioner in the event of grant of bail in favour 2 of the petitioner and for that, the petitioner is ready and willing to abide by such condition that may be imposed by this Court. It is also submitted that it is not case where conviction is likely but only probability is there and therefore the petitioner is entitled to be enlarged on regular bail as the charge-sheet has already been received by the present petitioner.

4. Learned A.P.P. Mr. N. D. Gohil appearing on behalf of the respondent-State has contended that submission made by the learned Advocate Mr. Majmudar is not correct and the same is contrary to the record. He also submitted that according to the F.I.R., at page 3 wherefrom it clearly reflects that at the time of incident, in all there were five persons involved in the alleged incident but only four accused were caught and one person had absconded and run away from the place of the incident. Therefore, learned A.P.P. Mr. Gohil has submitted that all ingredients of Section 399 of I.P.C., looking to the F.I.R., are being satisfied. Therefore, prima facie, the charge under Section 399 of I.P.C. is rightly disclosed by the Investigating Officer against the present petitioner. He also submitted that this being serious charge and offence committed by the petitioner and the fact that the petitioner who is residing outside Gujarat State, the learned Sessions Judge has rightly appreciated the submissions made by the present petitioner and rightly come to the conclusion while rejecting the bail application against the petitioner.

5. I have considered submissions made on behalf of both the parties. Looking to the F.I.R., at page 3 wherefrom it clearly reflects that when the incident came to light, there were five persons involved in the alleged offence. This fact is very clear from the F.I.R. itself. Involvement of the present petitioner is prima facie satisfactorily proved on the basis of the statement of the concerned Police Officers who are more than three in numbers. Even according to the Panchnama also, one pistol made in England brand and five numbers of KF 7.65 cartridges in their possession as stated in the recovery Panchnama and this fact is not disputed and denied by the petitioner. Looking to Secs. 391 and 399 of I.P.C. and considering the facts as stated in F.I.R., according to my opinion, prima facie, charge under Section 399 of I.P.C. has been rightly disclosed against the present petitioner. The offence which has been alleged against the present petitioner can be said to be offence against the society and if such persons who have been found with the deadly arms weapons in the society without any licence and permit are enlarged on bail only on the ground that charge-sheet has been filed and served on the accused, will certainly impress upon the society adversely. Not only this, but there are all possibilities and chances of repetition of such offence in the society which ultimately will adversely affect the peace, law and order and the interest of the society at large. At this stage, it cannot be ruled out that if such accused is enlarged on bail, such accused can administer threat to the witnesses or influence the witnesses or can temper with the evidence even again using such deadly arm weapons.

6. Even otherwise, while considering the bail applications, the Court should mainly consider two aspects, firstly seriousness of the offence and the interest of the society at large. This view has been taken by the Apex Court recently in Ram Govind Upadhyay, reported in AIR 2002 SC 1475 : [2003 (1) GLR 829 (SC)]. Looking to the principle laid down by the Apex Court that at the time of considering of bail application, the Court should consider seriousness of the offence as well as interest of the society at large. Looking to the facts of the present case, the petitioner-accused who has been found with the deadly arms weapons in the society during the course of investigation and the said deadly arms weapons found in possession without valid licence or authority and when this fact is not disputed and when the Panchnama clearly disclosed this fact against the present petitioner and in such circumstances, if the present petitioner-accused is enlarged on bail, there are all chances of repetition of such offence in the society which will ultimately adversely affect the interest of the society at large. Therefore, recovery of such deadly weapons of arms itself is serious offence and thus, considering all these aspects, according to my opinion, such person cannot be enlarged on bail. However, at this juncture, it is observed that this Court is very much aware of the settled principle of law that this Court cannot examine the merits and demerits of the matter. But considering the submissions made by the learned Advocate Mr. Majmudar, in my view, it is not the case in which the papers of investigation are very much needed before this Court, nor the presence of the Investigating Officer concerned is required before this Court because the F.I.R. is very much clear and moreover, the order passed by the Additional Sessions Judge is also equally clear and eloquent. In above view of the matter, there is no need to have any assistance from the Investigating Officer concerned in person or papers of charge-sheet. Therefore, request of the learned Advocate Mr. Majmudar is not worth acceptance and the same is rejected. So far the contention that 'probably, it is the first offence alleged against the present petitioner and not having any criminal antecedence'. However, this submission is made by learned Advocate Mr. Majmudar in probability, especially using the word 'probably'. Therefore, considering this uncertain statement, it cannot be said that the petitioner is not having any past criminal antecedence or having indulgence in such kind of offence or crime. But this fact can be examined and ascertained by the trial Court at the time of trial. In respect of the submission that allegations of offence under Section 399 of I.P.C. is not correctly disclosed against the petitioner-accused, this Court would like to obverse at this juncture that the remedy of discharge and quashing is available to the petitioner and the same can be availed of by filing appropriate proceedings.

7. Recently, the Apex Court in Ram Govind Upadhyay v. Sudarshan Singh and Ors., reported in AIR 2002 SC 1475 : [2003 (1) GLR 829 (SC)] has enumerated certain relevant considerations observing that while placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for grant of bail. More heinous is a crime, the greater is the chance of rejection of the bail, though, however dependent on the factual matrix of the matter. Some of the other relevant considerations and observations made in Paras 3 & 4 of the aforesaid decision are reproduced as under (at page No. 832 of GLR) :

'3. Grant of bail though being a discretionary order - but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reasons cannot be sustained. Needles to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail - more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however, the same are only illustrative and nor exhaustive neither there can be any. The considerations being ;

(a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima fade satisfaction of the Court in support of the charge.

(d) 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 even 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.'

8. The Apex Court, in one another recent decision in Mansab Ali v. Irsan and Anr., reported in 2002 AIR SCW 5391 has observed that the provisions of Criminal Procedure Code confer discretionary jurisdiction on Criminal Courts to grant bails to accused pending trials or in appeals against convictions. Since the jurisdiction is discretionary it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In granting or refusing the bail, the Courts are required to indicate, may be very briefly, the reasons for grant or refusal of bail. The jurisdiction has not to be exercised in a casual and cavalier fashion.

9. In view of above observations made by the Apex Court in recent two decisions referred to above and considering the factual aspects as stated in the F.I.R. and the Panchnama which reflect that the petitioner is found in possession of the deadly arms weapons at the time of incident by the concerned police authority and the fact as transpired on perusal of the F.I.R. that the petitioner found in possession of one pistol made in England brand and five numbers of KF 7.65 cartridges at the time of search by the concerned police authority, so also, considering the Panchnama, in my opinion, all these facts prima facie proves and establishes involvement of the petitioner in the alleged offence. In such circumstances, if serious and heinous offence as has been disclosed against the petitioner and looking to the sentence provided under Section 399 of I.P.C. and the fact that the petitioner is residing outside Gujarat State, in my opinion, if the petitioner-accused is placed in the society while enlarging on bail, the possibility of repetition of similar offence or events of tempering with the evidence or influencing the witnesses with such deadly weapons, flee from justice and jumping the bail cannot be ruled out, and therefore, the view taken by the learned Additional Sessions Judge while rejecting the bail application of present petitioner-accused, is absolutely just, correct and legal, not warranting for interference of this Court and in the result, the regular bail application preferred by the petitioner-accused deserves to be rejected accordingly.

In that view of the matter, present application fails and the same is rejected accordingly. Rule stands discharged.