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Factors to be deliberate while extenuation anticipatory bail


(Arising out of S.L.P. (Crl.) No.4590 of 2010)


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
(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.

OCTOBER 29, 2010.

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