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Factors to be deliberate while extenuation anticipatory bail

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2086 OF 2010
(Arising out of S.L.P. (Crl.) No.4590 of 2010)

PRASANTA KUMAR SARKAR — APPELLANT (S)
VERSUS
ASHIS CHATTERJEE ANR. — RESPONDENT (S)

J U D G M E N T
D.K. JAIN, J.:
Leave granted.

2. This appeal, by special leave, is destined opposite sequence antiquated 11th January, 2010 upheld by a High Court of Calcutta in C.R.M. No. 272 of 2010, extenuation unchanging bail to respondent No. 1 in this seductiveness (hereinafter referred to as “the accused”), underneath Section 439 of a Code of Criminal Procedure, 1973 (for brief “the Code”).

3. The indicted is confronting hearing for an corruption punishable underneath Section 302 of a Indian Penal Code, 1860 (for brief “IPC”) for allegedly committing a murder of one Ms. Mallika Sen. Respondent No.2 is a State of West Bengal.

4. Very quickly staid a contribution element for a adjudication of this seductiveness can be staid thus:

Ms. Mallika Sen, a 57 years aged widow was found strangulated during her chateau on 2nd July, 2009. The appellant, who is a hermit of a victim, lodged a created censure during a Rampurhat Police Station, on a basement of that FIR No. 111/09 antiquated 2nd July, 2009 was purebred underneath Section 302, IPC. It has been purported that a neighbour of late Ms. Sen, one Mr. Somenath Dutta, saw a indicted rushing out of a chateau of a deceased, around a time a occurrence took place. The indicted was arrested on 13th July, 2009 and constructed before a Additional Chief Judicial Magistrate who remanded him to legal custody. Thereafter, on a same day, a military filed a forwarding news in a pronounced court, inter alia, requesting for holding of a Test Identification Parade (T.I.P.) of a accused. The T.I.P. was conducted, though maybe a indicted could not be identified. However, in a second T.I.P., a indicted was duly identified by a aforesaid witness.

5. The indicted filed several bail applications before a Additional Chief Judicial Magistrate that were all discharged vide orders antiquated 7th September, 2009, 16th September, 2009 and 19th September, 2009.

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6. On 7th October, 2009, charge-sheet No. 138 of 2009 underneath Section 302 IPC was filed opposite a indicted before a Additional Chief Judicial Magistrate.

7. Having unsuccessful to secure bail from a Sessions Court, a indicted elite a bail application, being C.R.M. No. 272 of 2010 before a High Court underneath Section 439 of a Code. As staid above, by a impugned order, a High Court authorised a application, and postulated bail to a indicted by a brief order, watching thus:

“Having courtesy to a inlet of a purported crime, we do not
think that seductiveness of review requires or (sic) justifies
further confinement of a benefaction postulant during this stage.”

8. Hence a benefaction seductiveness by a complainant.

9. Mr. Nagender Rai, schooled comparison warn appearing on interest of a appellant, while assailing a impugned order, contended that a pronounced sequence being non-speaking, deserves to be set aside in light of a preference of this Court in Masroor Vs. State of Uttar Pradesh Anr. Learned warn submitted that a High Court has unsuccessful to take into care a demeanour in that a untimely aged lady was finished to genocide as also a fact that a indicted had been duly identified by an eccentric witness.

10. Per contra, Mr. Ujjwal Banerjee, schooled warn appearing for a accused, contended that a box opposite a indicted was false, as is clear from a fact that a declare had unsuccessful to brand a indicted in a initial T.I.P. Learned warn contended that a indicted had been arrested on a small suspicion, and in light of a fact that he has not dissipated a bail, a impugned sequence needs to be affirmed.

11. We are of a opinion that a impugned sequence is clearly unsustainable. It is hackneyed that this Court does not, normally, meddle with an sequence upheld by a High Court extenuation or rejecting bail to a accused. However, it is equally obligatory on a High Court to practice a option judiciously, carefully and quite in correspondence with a simple beliefs laid down in a engorgement of decisions of this Court on a point. It is good staid that, among other circumstances, a factors to be borne in mind while deliberation an focus for bail are:

(i) either there is any prima facie or
reasonable belligerent to trust that a indicted had committed the
offence;
(ii) inlet and sobriety of a accusation;
(iii) astringency of the
punishment in a eventuality of conviction;
(iv) risk of a accused
absconding or fleeing, if expelled on bail;
(v) character, behaviour,
means, position and station of a accused;
(vi) odds of the
offence being repeated;
(vii) reasonable confinement of a witnesses
being influenced; and
(viii) danger, of course, of probity being
thwarted by extend of bail.

(See: State of U.P. by CBI Vs. Amarmani Tripathi Prahlad Singh Bhati Vs. NCT, Delhi Anr.3 Ram Govind Upadhyay Vs. Sudarshan Singh Ors.

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12. It is perceptible that if a High Court does not advert to these applicable considerations and mechanically grants bail, a pronounced sequence would humour from a clamp of non-application of mind, digest it to be illegal. In Masroor (supra), a Division Bench of this Court, of that one of us (D.K. Jain, J.) was a member, celebrated as follows:

“Though during a theatre of extenuation bail an elaborate examination
of justification and minute reasons touching a consequence of a case,
which might influence a accused, should be avoided, though there
is a need to prove in such sequence reasons for prima facie
concluding because bail was being postulated quite where the
accused is charged of carrying committed a critical offence.”

(See also: State of Maharashtra Vs. Ritesh5 Panchanan  Mishra Vs. Digambar Mishra Ors.6 Vijay Kumar Vs. Narendra Ors.7 Anwari Begum Vs. Sher Mohammad  Anr8)

13. We are compelled to observe that in a benefaction case, while traffic with a focus of a indicted for extend of bail, a High Court totally mislaid steer of a simple beliefs enumerated above. The accused, in a benefaction case, is purported to have committed a iniquitous crime of murdering an aged infirm lady by strangulation. He was seen entrance out of a victim’s residence by a neighbour around a time of a purported occurrence, giving arise to a reasonable faith that he had committed a murder. We feel that underneath a given circumstances, it was not a theatre during that bail underneath Section 439 of a Code should have been postulated to a accused, some-more so, when even charges have not nonetheless been framed. It is also impending to note that, as staid above, a Additional Chief Judicial Magistrate had deserted 3 bail applications of a indicted though a High Court did not find it inestimable to even make a anxiety to these orders. In this regard, it would be useful to impute to a following observations echoed in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav  Anr.9 :-

“In courtesy to cases where progressing bail applications have been
rejected there is a serve responsibility on a probity to cruise the
subsequent focus for extend of bail by seeing a grounds
on that progressing bail applications have been deserted and after
such care if a probity is of a opinion that bail has to
be postulated afterwards a pronounced probity will have to give specific reasons
why in annoy of such progressing rejecting a successive application
for bail should be granted.”

(See also: Ram Pratap Yadav Vs.Mitra Sen Yadav Anr.10)

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14. For a foregoing reasons, a seductiveness is allowed, and a impugned sequence is set aside. The bail bond and a collateral furnished by a indicted in terms of a impugned sequence stands cancelled and it is destined that he will be taken into control forthwith. Needless to supplement that observations touching a merits of a box opposite a indicted are quite for a purpose of determining a doubt of extend of bail and if in destiny any such focus is filed by a accused, it shall be deliberate on a possess merits untrammelled by any of these observations.

(D.K. JAIN)
(H.L. DATTU)
NEW DELHI;
OCTOBER 29, 2010.

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